J-A16012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GOVINDARAJU RAMALINGAM, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KELLER WILLIAMS REALTY GROUP, INC., 

& JANET PALLADINO,

Appellees No. 2185 EDA 2014

Appeal from the Judgment Entered August 26, 2014

in the Court of Common Pleas of Delaware County

Civil Division at No.: 12-051685

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 20, 2015

Appellant, Govindaraju Ramalingam, appeals from the judgment 

entered, after a bench trial, in favor of Appellees, Keller Williams Realty 

Group, Inc. and Keller Williams real estate agent, Janet Palladino, 

defendants at the trial. Appellant personally handed over to the builder his 

check as a deposit for the construction of a house, as required in the 

agreement of sale he signed. Nevertheless, he maintains that Appellee 

Palladino was liable for not placing his deposit payment into escrow, or 

advising him to do so. We conclude that the trial court correctly decided 

that Appellant waived any rights to escrow by accepting and complying with 

the builder’s direct deposit requirement. Accordingly, we affirm. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The trial court did not provide findings of fact.1 We derive the facts 

pertinent to disposition from our independent review of the record. 

On September 30, 2009, Appellant (“Buyer”) signed an “Agreement of 

Sale For New Construction” for a house to be built on a lot at 23 Calabrese 

Drive in Media, Pennsylvania by CLM Builders, Inc. (Seller).2 (See Plaintiff’s 

Exhibit 3). “Miscellaneous Provision No. 1” of the agreement provided as 

follows: “Buyer agrees the deposit shall be paid directly to the Seller 

and will be used toward the construction of buyer’s specific 

property.” (See id. at 7 (emphasis added); see also Plaintiff’s First 

____________________________________________

1

Instead, it merely presents counsels’ competing versions of proposed 

findings of fact, and adds selected excerpts from trial testimony, without 

expressly resolving any discrepancies. (See Trial Court Opinion, 11/18/14, 

at 2-14). The trial court offers one assessment of credibility. (See id. at 

21). The trial court’s further assessment of credibility and the weight of the 

evidence as to disputed questions of fact could have been helpful to our 

review. Nevertheless, the underlying facts directly relevant to the 

disposition of this appeal are not in substantial dispute. Although the parties 

differ in their versions of a few ancillary matters, the applicable legal issues 

are clear, and our appellate review is not impeded. 

Where a trial judge, following a non-jury trial, renders a general 

decision unaccompanied by specific findings of fact, the judge’s decision is to 

be accorded the same weight and given the same effect as a jury verdict. 

See Totten v. Lampenfeld, 466 A.2d 663, 664 (Pa. Super. 1983).

2

In his brief, Appellant maintains that the address was 15 Calabrese Drive. 

(See Appellant’s Brief, at 5). However, in his own proposed statement of 

facts, Appellant stated (as did Appellees) that the lot was at 23 Calabrese 

Drive. (See Plaintiff’s Proposed Findings of Fact and Conclusions of Law, 

3/20/14, at unnumbered page 2 ¶ 4). Lot numbers were assigned to houses 

during construction; street addresses were not assigned until settlement. 

(See N.T. Trial, 1/22/14, at 148). The discrepancy is not material to our 

disposition. 
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Amended Complaint, 8/22/12, Exhibit A, at unnumbered page 8; Trial Ct. 

Op., at 18). The agreement was approved on behalf of Seller, CLM Builders, 

Inc., by Stephen Lynch. Appellee Palladino witnessed both signatures. 

Appellant also initialed and signed a broker agreement, captioned 

“Business Relationship Between Broker and Buyer,” dated September 30, 

2009. (See Plaintiff’s Exhibit 1). Ms. Palladino signed in acceptance on 

behalf of Keller Williams. The agreement provided in pertinent part that the 

broker (Keller Williams) may also represent the Seller. (See id. at 1, ¶¶ 3, 

4). Appellee Palladino was designated the “licensee” of the broker. Section 

10 of the broker agreement, DEPOSIT MONEY, in pertinent part provided:

(A) Broker will keep (or will give to the listing broker, who 

will keep) all deposit monies that Broker/Licensee receives in 

an escrow account as required by the real estate licensing laws 

and regulations until the sale is completed or the agreement of 

sale is ended. Buyer agrees that Broker may wait to deposit any 

uncashed check that is received as deposit money until Buyer's 

offer has been accepted.

(Id. at 2 ¶ 10) (emphasis added). The broker agreement also included the 

following notice to the buyer:

EXPERTISE OF REAL ESTATE AGENTS Pennsylvania real 

estate agents are required to be licensed by the Commonwealth 

of Pennsylvania and are obligated to disclose adverse factors 

about a property that are reasonably apparent to someone with 

expertise in the marketing of real property.

(A) If Buyer wants information regarding the specific conditions 

or components of the property which are outside the Agent’s 

expertise, Buyer is encouraged to seek the advice of an 

appropriate professional.
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(B) If Buyer wants financial, legal or any other advice, 

Buyer is encouraged to seek the services of an 

accountant, lawyer, or other appropriate professional.

(Id. at 3, Notices to Buyers) (emphasis added). 

Furthermore, and also on September 30, 2009, Appellant signed a 

disclosure form regarding dual agency, referencing the agreement of sale of 

September 30, 2009, and acknowledging that the dual agency had been 

disclosed to him prior to the referenced offer to purchase. (See Plaintiff’s 

Exhibit 2).3 The dual agent disclosure notice expressly designated Keller 

Williams as “Broker and as Dual Agent” which “owes fiduciary duties to both

Buyer and Seller[ ]” and named Ms. Palladino as “Designated Licensee” of 

both Seller and Buyer, respectively. (Id.). 

Several days later, on October 5, 2009, again in the presence of 

Appellee Palladino, Appellant paid $44,990 (ten per cent of the sale price of 

the house), by personal check made payable to CLM Builders, Inc., directly 

to Stephen Lynch, apparently a principal of CLM Builders, along with Thomas 

Fischer. (See Plaintiff’s Exhibit 4). 

____________________________________________

3

In fact, there is no dispute that Appellant first met Ms. Palladino in the 

spring of 2009, when she was representing CLM Builders at an “Open House” 

for the sale of the property adjacent to 23 Calabrese Drive, 25 Calabrese 

Drive. Appellee Palladino testified that Appellant offered $360,000 for that 

property, which was listed for $500,000. (See N.T. Trial, at 154). CLM 

rejected the offer. (See id.). 
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Appellee Palladino testified that Appellant would not give the check to 

her, and instead insisted on handing it over personally to Mr. Lynch, 

necessitating the separate second meeting. (See N.T. Trial, 1/22/14, at 

167). Appellant does not dispute handing the check over personally, but 

claims that he was following the instructions of Ms. Palladino. (See id. at 

227) (”I totally relied on my agent. So whatever she said, that’s what I did 

it [sic].”). 

In any event, Appellant soon got embroiled in disputes over 

construction, including the square footage of the house. He complained that 

his house was smaller than the adjacent one that he first wanted. (See id.

at 181-82). There were also disputes about certain “extras,” and changes. 

Notably, Appellant apparently wanted a standard second floor laundry 

room removed and relocated to the basement, the space redesigned, and 

replaced with the installation of a religious altar. (See Defendants’ 

[Appellees’] Proposed Findings of Fact and Conclusions of Law, 2/25/14, at 

unnumbered page 3 [3b], ¶ 21; see also Plaintiff’s [Appellant’s] Proposed 

Findings of Fact and Conclusions of Law, 3/20/14, at unnumbered page 9 ¶¶ 

45-48). 

CLM Builders apparently objected because of the adjustments of space 

allocation required to convert the laundry room to an altar room, the extra 

cost of installation of plumbing fixtures to the basement, and possible 
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difficulties in re-selling the house without second floor laundry facilities if the 

deal fell through (which, in the event, it did). 

In his proposed findings of fact, Appellant stated that he retained a 

lawyer, Raymond Falzone, Esq. in June of 2010.4 (See Plaintiff’s Proposed 

Findings of Fact and Conclusions of Law, 3/20/14, at unnumbered page 7, 

¶ 28). Mr. Falzone sent a demand letter to CLM and Keller Williams. (See

Plaintiff’s Exhibit 5, Letter of Raymond J. Falzone, Jr. to Steve Lynch, CLM 

Builder [sic]; and Janet Palladino, Keller Williams, 6/08/10). The letter 

itemized numerous issues of disagreement and threatened litigation if there 

was no response in seven days. (See id. at unnumbered pages 1-4). 

The letter did not contain a specific “grand total” but included a 

demand for a credit of at least $49,014.80 (for the reduced square footage), 

and other claims which Mr. Falzone agreed at trial could have cost up to 

$70,000. (See N.T. Trial, at 115). 

Attorney Falzone also testified at trial that if he had been retained in 

advance of the agreement of sale (rather than after the fact), he would have 

____________________________________________

4 On cross-examination, Mr. Falzone first testified that he was retained 

around April or May of 2010. (See N.T. Trial, at 111). On prodding from 

defense counsel, he amended that to “probably . . . somewhere in ’09.” (Id. 

at 112). Defense counsel, Thomas J. Gregory, Esq., maintained that

Appellant had previously testified under oath that he retained Attorney 

Falzone in September of 2009. (See id. at 111-12). Attorney Falzone 

replied that he was not aware of that. (See id.). Despite the obvious 

discrepancies, there is no dispute that Appellant did not retain Mr. Falzone 

until after the agreement of sale was signed. (See id. at 112). 
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advised against the deposit of money directly with the builder. (See id. at

108). 

However, when asked, over objection of Appellant’s counsel,5 what his 

advice would be if the builder refused to sell under those conditions, Mr. 

Falzone replied, “Then [Appellant would] have to make a decision whether 

he wanted to go forward with the Agreement of Sale on those terms or want 

to do something else . . . .” (Id. at 109). 

When asked why he did not demand return of the deposit in this 

matter, Mr. Falzone replied, 

“We ─ it was past the point . . . . It was already ─ the 

horses were already out of the barn. The money had already 

been put somewhere with the builder and it was made payable 

to CLM, so it was ─ the money was gone into CLM’s coffer, I’m 

thinking.” 

(Id. at 112-13; see also Trial Ct. Op., at 12).

While the parties do not agree on how the transaction actually 

unraveled, based on the record and the trial court’s review, neither Appellant 

nor his counsel demanded return of the deposit from CLM, or requested 

release from the agreement of sale.6 (See Trial Ct. Op., at 12-13). There 

____________________________________________

5 The trial court overruled the objection. 

6 The trial court rejected the claim that CLM had no money to refund the 

deposit (which was never requested), based on documentary evidence 

provided at trial reflecting a court record that no corporate bankruptcy had 

occurred, and a department of state record that CLM continued to be a 

(Footnote Continued Next Page)
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was in fact no formal release or termination agreement. However, there is 

also no dispute that the parties were unable to settle their differences.7 

The matter proceeded to arbitration. At the arbitration, Ms. Palladino 

apparently testified that CLM ceased construction because the price 

reductions which Appellant demanded left insufficient funds for completion of 

construction. After the arbitration, Appellant filed a complaint in the court of 

common pleas.8

The bench trial occurred on January 22, 2014. In addition to 

Appellant’s testimony, the court permitted Appellant’s counsel to call Ms. 

Palladino to testify for the plaintiff (Appellant here) as of cross. As 

previously noted, Appellant’s retained transaction attorney, Mr. Falzone, also 

testified. Both parties’ counsel agreed to submit written reports of their two 

respective experts for the court’s consideration. (See N.T. Trial, 1/22/14, at 

239, 242; see also Plaintiff’s Exhibit 9, opinion letter of Alfred V. Altopiedi, 

[Esq.] to Anthony S. Pinnie, Esq. [Appellant’s trial counsel], 9/10/13; and 

Defendant’s Exhibit 6, opinion letter of Barry W. DeGroot, Esq. to Glen D. 

(Footnote Continued) _______________________

Pennsylvania corporation in good standing. (See Trial Ct. Op., at 6; see 

also N.T. Trial, at 240-41). 

7 CLM ceased construction and the bank eventually foreclosed on the 

property, which was completed by another builder and sold to a third party. 

8 Appellees filed preliminary objections, which the trial court overruled. 

(See Order, 11/26/12). They are not at issue in this appeal. 
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Kimball, Esq. and Thomas J. Gregory, Esq. [Appellees’ trial counsel], 

10/09/13). Neither expert testified or was cross-examined. 

Referencing their expert’s report, the defense made a de facto final 

argument that because Appellant refused to pay market value for the 

property, he was the cause of his own damages. (See N.T. Trial, at 243). 

The defense requested (and the court agreed) that Appellee Palladino’s 

testimony as of cross be incorporated by reference as testimony for the 

defense. The defense called no other witnesses. After the admission of the 

exhibits, the defense rested. (See id. at 244). 

On April 28, 2014, the trial court entered a verdict in favor of both 

Appellees, and against Appellant. (See Verdict, 4/28/14). The court also 

dismissed Appellant’s amended complaint with prejudice. (See id.). On 

May 7, 2014, Appellant filed a motion for post-trial relief, seeking a new trial 

or judgment in his favor, which the trial court denied. (See Order, 

7/09/14). 

Appellant appealed.9 (See Notice of Appeal, 7/17/14). At the 

direction of this Court, the trial court entered judgment on August 26,

____________________________________________

9 Appellant filed a timely court-ordered statement of errors on August 8, 

2014. The trial court filed its opinion on November 18, 2014. See Pa.R.A.P. 

1925. 
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2014.10 

Appellant raises four questions for our review:11

1. Was [Appellee] Palladino negligent per se for violating 

the Pennsylvania Code as it relates to escrow?

2. Did the court err by failing to conclude that [Appellee] 

Palladino, as a dual agent, was negligent for breaching her 

duty/fiduciary duty?

3. Was there ambiguity between the Keller Williams’ 

contract and the Builder’s contract?

4. Did the trial judge improperly disregard [Appellant’s] 

expert and his opinion?

(Appellant’s Brief, at 2-5).12

____________________________________________

10 Therefore, Appellant’s notice of appeal is deemed timely filed. See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a 

determination but before the entry of an appealable order shall be treated as 

filed after such entry and on the day thereof.”). 

11 Appellant omits a copy of the statement of errors in his brief, failing to 

comply with Pennsylvania Rule of Appellate Procedure 2111(a) (11). 

Appellant originally presented fourteen allegations of error in his Rule 

1925(b) statement. (See “Concise Statement of Matters Complained of on 

Appeal,” 8/08/14, at unnumbered pages 1-3). Many of the errors asserted 

were repetitive or overlapping. On appeal, as noted, Appellant presents four 

questions. For completeness and clarity, we deem all issues not properly 

preserved and fairly comprised or suggested by the statement of four 

questions involved to be abandoned on appeal. See Pa.R.A.P. 2116(a). In 

particular, all claims against Keller Williams under respondeat superior and 

failure to supervise are abandoned, and we deem them waived. 

12 We admonish counsel that this presentation of the questions involved fails 

to comply with our Rule 2116, which, in pertinent part directs that “[e]ach 

question shall be followed by an answer stating simply whether the court or 

government unit agreed, disagreed, did not answer, or did not address the 

question.” Pa.R.A.P. 2116(a) (emphasis added). Here, counsel has 

(Footnote Continued Next Page)
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Our standard of review is well-settled.

Our review of the trial court’s decision after a non-jury trial 

is limited to determining whether the findings of the trial court 

are supported by the competent evidence and whether the trial 

court committed error in the application of law. It is not our role 

to pass on the credibility of witnesses, as the trial court clearly is 

in the superior position to do so. 

Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super. 2004), appeal 

denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks 

omitted).

In his first question, Appellant asserts the trial court erred by not 

finding that Appellee Palladino was negligent per se for violating the 

Pennsylvania Code provisions pertinent to escrow. (See Appellant’s Brief, at 

3). However, in the argument section, Appellant, in disregard of our rules, 

then combines argument for two independent issues, viz., that Appellee 

Palladino was negligent under traditional common law principles, with 

another abbreviated argument claiming negligence per se.

13

 (See id. at 10-

11). Appellant has failed to comply with Pa.R.A.P. 2119:

(Footnote Continued) _______________________

impermissibly appended to each question extended argument in support of 

Appellant’s claims. Argument is for the argument section. See Pa.R.A.P. 

2119. Our Rules neither countenance nor permit the statement of questions 

to be an opportunity to insert additional argument. Non-compliance defeats 

the purpose of the rules. 

13 The negligence per se argument, taken alone, amounts to one paragraph 

of five sentences with no supporting case authority whatsoever. (See

Appellant’s Brief, at 11). 
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The argument shall be divided into as many parts as there 

are questions to be argued; and shall have at the head of each 

part─in distinctive type or in type distinctively displayed─the 

particular point treated therein, followed by such discussion and 

citation of authorities as are deemed pertinent. 

Pa.R.A.P. 2119(a). 

We could find a waiver of Appellant’s claims for failure to comply with 

Rule 2119. However, in the interest of judicial economy, we will address the 

claims on their merits. In any event, we disagree with both assertions. 

Neither of Appellant’s negligence claims merit relief. 

“Initially, we note, a trial court’s application of a statute is a question 

of law that compels plenary review to determine whether the court 

committed an error of law.” Commonwealth v. Flaherty, 89 A.3d 286, 

288 (Pa. Super. 2014) (citation and internal quotation marks omitted). This 

Court has reviewed code provisions similarly. See Commonwealth v. 

Williams, 941 A.2d 14, 21 (Pa. Super. 2008). “As with all questions of law, 

the appellate standard of review is de novo and the appellate scope of 

review is plenary.” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en 

banc ) (citations omitted).

Generally, to prevail in a negligence case, a plaintiff must 

demonstrate the following elements: (1) the defendant owed a 

duty to the plaintiff; (2) the defendant breached that duty; (3) a 

causal relationship between the breach and the resulting injury 

suffered by the plaintiff; and (4) actual loss suffered by the 

plaintiff. . . .

The concept of negligence per se establishes the elements 

of duty and breach of duty where an individual violates an 

applicable statute, ordinance, or regulation designed to prevent 
J-A16012-15

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a public harm. However, a plaintiff, having proven negligence 

per se cannot recover unless it can be proven that such 

negligence was the proximate cause of the injury suffered. 

We have defined negligence per se in the following 

fashion:

[Negligence per se is] conduct, whether of action or 

omission, which may be declared and treated as 

negligence without any argument or proof as to the 

particular surrounding circumstances. Pennsylvania 

recognizes that a violation of a statute or ordinance may 

serve as the basis for negligence per se. However, a court 

will not use a statute or regulation as the basis of 

negligence per se where the purpose of the statute is to 

secure to individuals the enjoyment of rights or privileges 

to which they are entitled only as members of the public. 

In order to prove a claim based on negligence per se, the 

following four requirements must be met:

(1) The purpose of the statute must be, at least in 

part, to protect the interest of a group of individuals, as 

opposed to the public generally;

(2) The statute or regulation must clearly apply to 

the conduct of the defendant;

(3) The defendant must violate the statute or 

regulation;

(4) The violation of the statute or regulation must be 

the proximate cause of the plaintiff’s injuries. 

Schemberg v. Smicherko, 85 A.3d 1071, 1073-74 (Pa. Super. 2014) 

(citation omitted).

Here, Appellant utterly fails to develop an argument that demonstrates 

the four elements of common law negligence (duty, breach, causation, and 

loss). (See Appellant’s Brief, at 10-11). Instead, he baldly asserts the trial 
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court erred by not finding that Appellee Palladino had a duty to advise him 

“that he could lose his money if the deal fell through.” (Id. at 11). 

Appellant points to nothing in the record which references this claim. 

Nor, for that matter, does he establish that he did not know this fairly 

obvious conclusion already. In any event, for authority, Appellant cites to 

Gorman v. Costello, 929 A.2d 1208, 1212-13 (Pa. Super. 2007). (See id.

at 10). His reliance is misplaced. Gorman involved the propriety of an 

incomplete jury instruction, not at issue in this appeal from a bench trial, on 

the factual cause of injuries claimed to have occurred in a motor vehicle 

accident (as opposed to a pre-existing degenerative spinal condition).14 See 

id. at 1213. 

Here, Appellant’s argument fails to establish negligence or that his 

case authority on personal injury causation applies. His first claim does not 

merit relief. 

____________________________________________

14 The only other case cited by Appellant as authority is Reilly v. 

Tiergarten Inc., 633 A.2d 208 (Pa. Super. 1993), appeal denied, 649 A.2d 

675 (Pa. 1994). (See Appellant’s Brief, at 10). Reilly decided in pertinent 

part that the appellant had not established a cause of action in negligence 

against bar owners who had served him, a minor, in violation of the Dram 

Shop Act, because his subsequent assault on his father and police was too 

remote to be foreseeable. See id. at 210. While Reilly accurately recites 

the traditional four elements of negligence, Appellant never shows that the 

four elements exist here, nor does he develop an argument beyond the 

recitation of the formula. (See id.; see also Appellant’s Brief, at 10). 

Reilly’s application to the instant appeal beyond that recitation is too 

tenuous to merit further discussion. 
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Similarly, Appellant fails to develop any pertinent argument that 

Appellee Palladino was negligent per se. (See Appellant’s Brief, at 11). 

Appellant offers no case authority at all in support of his claim that the 

administrative code provisions pertaining to escrow of funds received are 

controlling. Instead, he relies exclusively on the mere bald assertion that 

Ms. Palladino had a code-based duty to hold the deposit in escrow, and that 

duty was non-waivable. (See id.; see also 49 PA ADC § 35.321 (duty to 

deposit funds received into escrow); 49 PA ADC § 35.322 (duty to escrow 

funds in sub-section 321 is non-waivable). 

Appellant argues that Appellee Palladino was negligent per se because 

she purportedly violated section 35.321 of the Pennsylvania Administrative 

Code (duty to deposit money belonging to another into escrow account),15

____________________________________________

15 Duty to deposit money belonging to another into escrow account.

(a) Except as provided in subsection (b) [excluding receipt 

of rents as a property manager], a broker shall deposit money 

that the broker receives belonging to another into an 

escrow account in a Federally or State-insured bank or 

depository to be held pending consummation of the transaction 

or a prior termination thereof that does not involve a dispute 

between the parties to the transaction, at which time the broker 

shall pay over the full amount to the party entitled to receive it. 

If a broker is a partnership, association or corporation, its broker 

of record shall be responsible for ensuring that the escrow duty 

is performed.

49 PA ADC § 35.321.
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which is made non-waivable by sub-section 322.16 (See Appellant’s Brief, at 

12). 

However, Appellant fails to establish that this duty to escrow funds 

received applies when funds are not received by the broker or real estate 

agent. Impugning Ms. Palladino for “allow[ing] a check . . . to be made out 

to the builder,” and labeling the transaction a “sneaky shell game” is not 

proper (or persuasive) legal argument, and does not excuse the failure to 

develop a proper legal argument supported by pertinent citation to 

authority. (Id. at 9); see also Pa.R.A.P. 2119(a), (b). 

To the contrary, on independent review, we agree with the trial court 

that Appellant, a practicing engineer with a college degree in engineering 

(who apparently made copious notes on the original documents, suggesting 

he was knowledgeable and diligent about what he read and was asked to 

sign),17 was able to understand what he read and signed. (See Trial Ct. 

Op., at 4, 21). The trial court found that Appellant’s claim, that he did not 

____________________________________________

16 35.322. Nonwaiver of escrow duty.

A broker’s escrow duty may not be waived or altered by an 

agreement between the parties to the transaction, between the 

broker and the parties, or between the broker and other brokers 

who may be involved in the transaction.

49 PA ADC § 35.322.

17 (See Trial Ct. Op., at 10). 
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read or understand Miscellaneous Provision No. 1, was not credible. (See

id., at 21). We defer to the credibility findings of the trial court. See

Kornfeld, supra at 173.

Appellant is charged with knowledge of the terms he read, agreed to, 

and signed. Accordingly, on independent review of the record, we agree 

with the trial court that Appellant made a knowing decision to waive his 

rights to place the money in escrow (or to walk away from the deal 

altogether), by complying with the Agreement of Sale requirement to deposit 

the money directly with the builder for the construction of his house. (See

Trial Ct. Op., at 6). The trial court apparently accepted Appellee Palladino’s 

testimony that she (correctly) informed Appellant if he did not provide the 

deposit directly to the builder, the builder would not build the house for him. 

(See id. at 10). Appellee Palladino duly disclosed accurate information. 

This is not negligence per se. 

We also agree with the trial court’s conclusion that the cited escrow 

provisions on which Appellant relies only apply if funds are entrusted to the 

real estate agent. (See Trial Ct. Op., at 6-7, 22-23). Where, as here, the 

buyer agrees to pay the deposit directly to the builder, the real estate agent 

has not received funds. Appellee Palladino was not obliged to escrow funds 

she never received. Appellant offers no pertinent authority to the contrary. 

Appellant’s first claim does not merit relief.
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In his second claim, Appellant assigns error to the trial court for not 

concluding that Appellee Palladino was negligent per se for breaching a 

fiduciary duty. (See Appellant’s Brief, at 2-3). Again, Appellant asserts, but 

fails to develop, an argument in support of his claim with pertinent 

discussion and citation to authority. (See id. at 12-14); see also Pa.R.A.P. 

2119(a), (b). For the claim of fiduciary duty, Appellant cites only one case, 

Basile v. H & R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000), involving tax 

preparation. (See Appellant’s Brief, at 13). Notably, Basile concluded on 

the facts presented that a fiduciary duty did not exist. See Basile, supra

at 1121 (holding as matter of law that tax preparer which provided, as one 

of three refund options, tax refund anticipation loan through independent 

bank, was not acting as appellees’ agent and not subject to heightened 

fiduciary duty).

Additionally, Appellant baldy asserts that Appellee Palladino’s prior 

course of dealing with one of CLM’s principals (Fischer) created a conflict of 

interest. (See Appellant’s Brief, at 13). Appellant develops no argument in 

support of the claim that the mere history of prior business relationships 

establishes a conflict of interest, or any citation to authority whatsoever to 

buttress this assertion. (See id.). Nor does he establish any conflict of 

interest in the specific property at issue. Appellant’s conflict of interest 

argument is waived and would merit no relief. 
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Appellant’s remaining arguments (e.g., Appellee Palladino’s breach of 

duty by failure to disclose her part-ownership interest in Keller Williams’ inhouse title/settlement company) are undeveloped and unsupported by any 

controlling authority. Appellant’s second claim is waived for this reason as 

well. See Pa.R.A.P. 2119(a), (b). 

Moreover, it would merit no relief. Appellant’s claim that Appellee 

Palladino somehow breached a fiduciary duty because there were liens on 

the property fails on its underlying premise. It disregards the evidence of 

record that similar if not identical liens on the adjacent Calabrese property 

were all satisfied or removed by closing. Furthermore, Appellant fails to 

show that the existence of liens (and their timely satisfaction) is not 

common in real estate practice. 

Additionally, under Basile, supra, cited with approval by Appellant, 

mere incidental benefit from an interest in a related transaction does not 

establish a fiduciary duty: 

The special relationship arising from an agency agreement, 

with its concomitant heightened duty, cannot arise from any and 

all actions, no matter how trivial, arguably undertaken on 

another’s behalf. . . . Nothing prevented appellees from 

questioning [appellant’s] employees regarding the basis for the 

costs of the [tax refund anticipation loan] and whether 

[appellant] benefited from the financing service. If [appellant’s] 

response did not satisfy appellees, they were free to take their 

business elsewhere. That is the essence of our market economy.

Basile, supra at 1121-22. 
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Here, Appellant cannot conjure up a fiduciary duty by scattershot 

references to a variety of situations or historical conditions, such as prior 

dealings with one of the builders, or incidental ownership in an in-house title 

company, utterly fail to establish how any of them impact the issues on 

appeal, and none of which are supported by controlling authority, then ipso 

facto prove a breach of duty or negligence per se. 

We observe that at trial, Appellant repeatedly responded to all 

questions about his course of dealing with Appellee Palladino and CLM 

Builders by asserting that he relied exclusively on his agent. (See e.g., N.T. 

Trial, at 227 (“I used to deal only with my agent, Mrs. Palladino.”)). 

However, after extensive questioning on cross-examination, Appellant 

conceded that he never asked Appellee Palladino for a return of his deposit:

Q. When did you go to Janet [Palladino] and say, tell me 

how I get my money back?

A. I did not ask her at all.

(Id. at 228). 

Also, Appellant signed an acknowledgement of notice that if he wanted 

legal, accounting or other advice he should consult with a lawyer, 

accountant, or other professional. (See Plaintiff’s Exhibit No. 1). It is 

undisputed that Appellant chose not to do so until after the fact. The lawyer 

he did retain testified that he would have given Appellant essentially the 

same advice that Appellee Palladino gave him, viz., he had to make a 
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decision whether to pay the builder directly, or do something else. (See N.T 

Trial, at 109). Appellant’s second claim, even if not waived, would not merit 

relief. 

Appellant’s third claim is that there was an ambiguity between the 

Keller Williams’ contract and the Agreement of Sale. (See Appellant’s Brief, 

at 4). Appellant argues that the trial court erred by failing to address the 

ambiguities between the agreement of sale and “the dual agency contract.” 

(Id. at 15). We disagree. 

The fundamental rule in interpreting the meaning of a 

contract is to ascertain and give effect to the intent of the 

contracting parties. The intent of the parties to a written 

agreement is to be regarded as being embodied in the writing 

itself. The whole instrument must be taken together in arriving 

at contractual intent. Courts do not assume that a contract’s 

language was chosen carelessly, nor do they assume that the 

parties were ignorant of the meaning of the language they 

employed. When a writing is clear and unequivocal, its 

meaning must be determined by its contents alone. 

Only where a contract’s language is ambiguous may 

extrinsic or parol evidence be considered to determine the intent 

of the parties. A contract contains an ambiguity if it is 

reasonably susceptible of different constructions and capable of 

being understood in more than one sense. This question, 

however, is not resolved in a vacuum. Instead, contractual 

terms are ambiguous if they are subject to more than one 

reasonable interpretation when applied to a particular set of 

facts. In the absence of an ambiguity, the plain meaning of the 

agreement will be enforced. The meaning of an unambiguous 

written instrument presents a question of law for resolution by 

the court. 

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429-30 

(Pa. 2001) (citations and quotation marks omitted) (emphasis added). 
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Here, after careful review, we conclude that there is no ambiguity in 

the meaning of the provision at issue. Appellant candidly concedes that 

when the words of a written contract are clear and unambiguous the intent 

is to be derived only from the express language of the agreement, citing In 

re Breyer's Estate, 379 A.2d 1305, 1309 (Pa. 1977).18 (See Appellant’s 

Brief, at 14). 

Nevertheless, he seeks to undermine the inevitable result of this plain 

meaning rule by reference to various learned treatises, obviously intended to 

raise doubts about the application of the rule. However, on careful reading, 

it is apparent that none of the textbook citations undermine the general 

principle.19 (See id.). Instead, the quotations from the commentators do 

little more than suggest that words should be read in the context of 

surrounding circumstances, and the rule should not be applied inflexibly. 

____________________________________________

18 For clarity, the exact quote is reproduced here:

When the parties to an agreement reduce their understanding to 

a writing which uses clear and unambiguous terms, a court need 

look no further than [the] writing itself when asked to give effect 

to that understanding. 

In re Breyer's Estate, 379 A.2d 1305, 1309 (Pa. 1977) (citations omitted).

19 We note that Appellant claims “[t]his Court, too, has cautioned about 

the dangers of focusing only upon the words . . . .” but then cites to a 

treatise on evidence quoted in Corbin on Contracts. (Appellant’s Brief, at 

14) (emphasis added). 
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In any event, Appellant offers no controlling authority to support his 

supposition that one document, unambiguous on its face, can become 

ambiguous under Pennsylvania law by reference to a second document, to 

which one of the signatories is not even a party. 

To the contrary, “[o]nly where a contract’s language is ambiguous may 

extrinsic or parol evidence be considered to determine the intent of the 

parties.” Murphy, supra at 429. “When a writing is clear and unequivocal, 

its meaning must be determined by its contents alone.” Id. (citation 

omitted) (emphasis added).

Here, after independent review, we conclude that the meaning of the 

text at issue could not be clearer. Seller insisted in its agreement, and 

Appellant as Buyer agreed, to pay his deposit directly to Seller, for the 

construction of his house. The trial court viewed this claim of ambiguity as 

“[n]onsensical.” (Trial Ct. Op., at 20). We conclude it is legally frivolous. 

Appellant’s third claim fails. 

In Appellant’s fourth and final question, he challenges the trial court’s 

“disregard” of evidence, namely, the opinion report provided by his expert 

witness. (Appellant’s Brief, at 5). Appellant argues, in effect, that the trial 

court erred by not accepting the opinion of his expert. (See id.). He 

maintains that the trial court incorrectly accepted Appellees’ argument that 

the “Real Estate Licensing and Registration Act,” (also referred to as RELRA), 

63 Pa.C.S.A. §§ 455.101 ─ 455.902, applied. We disagree.
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Our standard of review is well-settled.

It is well established in this Commonwealth that the 

decision to admit or to exclude evidence, including expert 

testimony, lies within the sound discretion of the trial court. 

Moreover, our standard of review is very narrow; we may only 

reverse upon a showing that the trial court clearly abused its 

discretion or committed an error of law. To constitute reversible 

error, an evidentiary ruling must not only be erroneous, but also 

harmful or prejudicial to the complaining party. 

Ettinger v. Triangle-Pac. Corp., 799 A.2d 95, 110 (Pa. Super. 2002), 

appeal denied, 815 A.2d 1042 (Pa. 2003) (citation and quotation marks 

omitted) (emphasis added).

Appellant appears to claim that the trial judge should have accepted 

the interpretation of his expert, Mr. Altopiedi, of what constitutes the 

controlling law. (See Appellant’s Brief, at 15). In another considerably 

abbreviated argument, consisting of five sentences in less than half a page, 

Appellant claims that his expert’s conclusions were “credible and correct.” 

(Id.). We disagree. 

Appellant’s claim, in effect, disregards our standard of review for the 

admission of expert testimony, which requires “a showing that the trial court 

clearly abused its discretion or committed an error of law.” Ettinger, supra 

at 110. Furthermore, it is well settled that in a non-jury trial, the trial judge 

has the dual function of making rulings of law, and weighing the evidence as 

fact-finder. See Pa.R.C.P. 1038; see also Kornfeld, supra at 173. 

Preliminarily, we note that Appellant raises one question (purported 

disregard of his expert’s opinion), and argues another (trial court treatment 
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of Attorney Falzone as expert instead of fact witness). (See Appellant’s 

Brief, at 5, 15). In any event, Appellant’s issue and argument are both 

undeveloped and unpersuasive. 

Instead, Appellant argues, in effect, that the trial court erred because 

it should have accepted the conclusions of his expert. (See id. at 15). To 

prove this claim, Appellant had to establish by proper development of an 

argument with citation to pertinent authority that this conclusion was legally 

correct. He utterly fails to do so. 

Rather, he postulates, without pertinent authority, that the trial court 

improperly noted that Attorney Falzone’s testimony (that he regularly held 

funds in escrow for clients) conflicted with Mr. Altopiedi’s conclusion that “it 

is a clear breach of fiduciary duty for a broker to allow deposit money to go 

to a third party[.]” (Trial Ct. Op. at 22; see also Appellant’s Brief, at 15). 

Appellant fails to develop or support an argument of trial court error. His 

claim is waived. 

Moreover, it would not merit relief. Appellant recognizes that “[w]hen 

two experts provide conflicting testimony, the trier of fact may discredit 

them both.” (Appellant’s Brief, at 15). For authority, Appellant cites 

Mudano v. Philadelphia Rapid Transit Co., 137 A. 104 (Pa. 1927). (See

Appellant’s Brief, at 15). Inexplicably, Appellant then premises his argument 

on the acknowledgement that here the trial court followed this principle. 

(See id.) (“The trial court in this matter did exactly that.”). 
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Appellant appears to posit that the trial court should have deferred to 

Mr. Altopiedi’s interpretation. (See id.). However, Appellant fails to develop 

an argument that the trial court was in error, beyond the self-serving but 

otherwise unsupported assertion that his expert “was credible and correct.” 

(Id.). On independent review, we conclude that the trial court correctly 

decided that the deposit of funds with a party other than the broker is 

expressly permitted under 63 Pa.C.S.A. § 455.608e(k).20

In this case, the parties to the agreement of sale agreed in writing to 

have the deposit paid to the builder. There is no dispute that Appellee 

Palladino, a witness but not a party to the agreement of sale, correctly 

informed Appellant that he could not purchase the house he wanted without 

compliance. Her advice was truthful, and by all accounts, accurate. It was, 

in essence, the same advice his own lawyer later testified that he would 

have given, had he been retained before the fact. (See N.T. Trial, at 108-

____________________________________________

20 Sub-section (k) provides:

This section does not preclude the parties to a transaction 

from agreeing in writing or electronic form to have deposits or 

other escrows held by a person other than the brokers who 

represent the parties. This subsection shall not be construed to 

allow an associate broker, salesperson or qualified association to 

hold deposits or other escrows. 

63 P.S. § 455.608e(k).
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09). Nevertheless, Appellant chose to comply. Appellee Palladino did not 

receive any funds to be escrowed. 

Appellant argues that his expert’s opinion should have been adopted 

by the trial court, but he offers no persuasive argument in support of the 

proposition that sub-section (k) does not apply. We conclude it does.

Our review of legal questions is de novo and plenary. See Flaherty, 

supra at 288; Williams, supra at 21; In re Wilson, supra at 214. We 

conclude that none of the statutory or administrative code interpretations 

proposed by Appellant show error by the trial court in its conclusion that 

Appellant waived his right to escrow and knowingly acceded to the builder’s 

direct deposit requirement to obtain the house he particularly wanted. 

Although our reasoning differs somewhat from that of the trial court, 

we may affirm on any basis provided that the court’s decision is legally 

correct. See Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 606 

(Pa. Super. 2014).

Judgment affirmed. 

Judge Lazarus joins the Memorandum.

Judge Olson concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015