Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA

Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA on March 2, 2015

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Mr. Dimmerman will be lecturing to other attorneys on the topic of real estate law and ethics. The full outline (copyright NBI 2015) may be accessed here: http://www.nbi-sems.com/Enbi/Faculty/68011.pdf

The outline for the ethics portion is as follows:

  1. Applying Rules of Professional Conduct in Real Estate Practice
  2. Multiple Representation and Conflicts of Interest
  3. Disclosure Requirements
  4. Dealing with Unrepresented Parties
  5. Attorney Fees

 

Philadelphia Quiet Title Lawyer

Philadelphia Quiet Title Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

According to the Philadelphia Common Pleas Court, an suit to quiet title may be used for the following purpose:

“Quiet Title

An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party’s title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title. It comprises a complaint that the ownership (title) of a parcel of land or other real property is defective in some fashion, typically where title to the property is ambiguous. A typical ground for complaint includes the fraudulent conveyance of a property, perhaps by a forged deed or under coercion. Unlike acquisition through a deed of sale, a quiet title action will give the party seeking such relief no cause of action against previous owners of the property.”

Keep in mind that if you believe you have been the victim of deed fraud, you have recourse and should act at once.

Philadelphia Confession of Judgment Defense

Philadelphia Confession of Judgment Defense

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Pennsylvania’s Rules of Civil Procedure does permit a defendant to challenge a confession judgment, which is mechanism employed by commercial lenders and landlords in the Commonwealth of Pennsylvania. Upon default, the lender or landlord may confess judgment, assuming that the proper contractual disclosures have been made. This remedy is generally perceived as highly draconian, in that the party alleging a default may have the ability to take an immediate judgment against the other party and for substantial sums of money. If you are the defendant in this type of action, it is imperative that you act promptly and assert any and all defenses. A party’s failure to do this could easily result in a crippling judgment against the defendant.

The pertinent Rule of Civil Procedure provides the following:

“Striking off or Opening Judgment. Pleadings. Procedure

(a)(1)  Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment.

(2)  The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only

(i)   in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and

(ii)   as provided by Rule 2958.3 or Rule 2973.3.

(3)  If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied.

(b)  If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order

(c)  A party waives all defenses and objections which are not included in the petition or answer.

(d)  The petition and the rule to show cause and the answer shall be served as provided in Rule 440.

(e)  The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

(f)  The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

(g)(1)  A judgment shall not be stricken or opened because of a creditor’s failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor.

(2)  Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date.”

Philadelphia Foreclosure Defense Lawyer

Philadelphia Foreclosure Defense Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters. If you need an attorney for settlement, negotiation, For Sale by Owner transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

It is critical that you defend the foreclosure litigation immediately, even if you may be endeavoring to achieve a short sale or work out some other agreement with the lender. Failure to respond accordingly will lead to a default judgment being taken against you, thereby making the prospect of resolving the situation amicably far more challenging. The failure to answer the complaint in foreclosure will be viewed by a court as an admission of the truth of all of the bank’s averments, some of which may not be entirely accurate. Finally, assuming that a court will simply permit the borrower to open that judgment and have a second bite at the apple, if you will, is a highly risky assumption.

Philadelphia Legal Malpractice Lawyer

Philadelphia Legal Malpractice Lawyer

Harper J. Dimmerman, Attorney, is a seasoned litigator and has recently added legal malpractice law as a new area of practice.

Statutes of limitation in any litigation matter in Pennsylvania oftentimes present serious roadblocks for otherwise viable claims. In the realm of legal malpractice, generally two years is the operative time frame which an aggrieved party has to bring a claim. Potential plaintiffs frequently ask when this clock begins to run, if you will. The simple answer is that this period commences as soon as the conduct which forms the basis of the action occurs: the happening of the alleged breach of duty. For practical purposes then, this clock may start even during the representation period, with the lawyer or law firm that could possibly be the subject of that very legal malpractice suit.

 

Philadelphia Real Estate Law and Litigation Case

A compelling Philadelphia Real Estate Law and Litigation Case

The following opinion, although not precedential, is noteworthy when considering real estate law in the Commonwealth of Pennsylvania. The matter was remanded to the Philadelphia Common Pleas Court, with an opinion issued by the trial court in October 2014 and the case addressed quiet title, ejectment and constructive trust issues.

Harper J. Dimmerman, Attorney at Law, is also an adjunct professor at Temple University, lecturer to other lawyers on legal topics and handles Philadelphia real estate law matters. He offers free, initial consultations – (215) 545-0600.

J-A09009-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
GERALDINE RENZULLI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FREDERICK RENZULLI AND KRISTIN M.
RENZULLI,
Appellees No. 3148 EDA 2012
Appeal from the Judgment Entered December 18, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2011, No. 003016
BEFORE: BOWES, OTT, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 17, 2014
Geraldine Renzulli (“Geraldine”) appeals from the judgment entered in
this quiet title action. The trial court denied Geraldine’s request to order
that certain real estate be transferred into her name, and it also granted a
counterclaim in ejectment that was filed by Appellees herein, who are
Geradine’s son, Frederick Renzulli (“Fred”), and Fred’s wife Kristin Renzulli
(“Kristin”). After careful review, we reverse and remand for further
proceedings.
Typically, this Court first recites the evidence presented by the verdict
winners, which, in this case, are Fred and Kristin. We have elected to
examine the evidence presented by both Appellant and Appellees. This
approach will lead to a better understanding of how the trial court herein
erred in its application of the law and the proper resolution of the appeal. J-A09009-14
– 2 –
Geraldine was married to John A. Renzulli (“John A.”),1
and three
children were born of the marriage: Fred, Fred’s older brother John J.
Renzulli (“John J.”), and Fred’s younger sister Danielle Renzulli. The
property that is the subject of this lawsuit is located at 1830 East Passyunk
Avenue, Philadelphia. Geraldine has resided at 1830 East Passyunk Avenue
since approximately 1986. Originally, Geraldine lived there with her three
children, but they have since become adults and moved elsewhere. It was
undisputed that Geraldine exercised control over the property from 1986
until 2012. She collected and retained the rental income from an apartment
on the first floor, occupied the upper two floors of the house without paying
rent, and maintained the property.
The real estate located at 1830 East Passyunk Avenue was never titled
in Geraldine’s name, nor was it ever titled in the name of her husband
John A. Instead, since 1986, title to the premises was held by various
members of the Renzulli family. When Geraldine instituted this quiet title
action, Fred had title to 1830 East Passyunk Avenue.2
Geraldine averred in
her complaint that she was the rightful owner of said property as Fred held it
in a constructive trust for her benefit. She asked that the court order that
Fred execute a deed to transfer it into her name. Fred and Kristin denied
____________________________________________
1
John A. and Geraldine separated but it is unclear whether they ever
divorced.
2
The house is now worth about $265,000. J-A09009-14
– 3 –
that the property was held in a constructive trust for the benefit of
Geraldine. They also counterclaimed for ejectment and for damages
occasioned by Geraldine’s rent-free occupation of the premises and her
collection of income from the apartment on the first floor.
We will now recite the title transfers that are relevant to this appeal.
On January 29, 1986, Michael Mattiocco deeded 1830 East Passyunk Avenue
to Josephine Rettig. Josephine Rettig is John A.’s mother and Geraldine’s
mother-in-law. On November 9, 1989, Josephine Rettig executed a deed to
the property to her grandsons, John J. and Fred. On October 3, 2007,
John J. transferred his one-half interest in 1830 East Passyunk Avenue to his
brother, Fred. On February 7, 2008, Fred deeded the property to his wife,
Kristin, and on February 22, 2011, Kristin re-transferred the real estate into
her husband Fred’s name.
To establish her entitlement to relief, Geraldine presented the
following evidence explaining each transfer of the property in question.
Josephine Rettig testified as follows. The property was originally transferred
into her name in 1986 as payment for a debt owed to her son, John A. She
said that an unidentified person handed her the deed and told her that it was
from her son. Ms. Rettig explained that John A. had previously told her that
she would be receiving the deed to the property because he was going to be
arrested for drug dealing and feared that the property would be forfeited to
the government if it was placed in his name. At that time, Ms. Rettig agreed
to hold the property for the benefit of John A. and Geraldine so that it would J-A09009-14
– 4 –
not be confiscated by the government and the family would have a place to
reside.
Martin Mattiocco is Michael Mattiocco’s father; Michael is the named
grantor in the 1986 deed to Ms. Rettig. Martin testified as follows. In 1986,
John A., Ms. Rettig’s son, owned a car dealership. Martin purchased a
number of cars from John A. and owed John A. money. At that time,
Martin’s son Michael owned 1830 East Passyunk Avenue and did not want to
maintain it. Michael agreed to give John A. the property in question to
satisfy Martin’s debt to John A. John A. told Martin and Michael that the
property was to be placed in the name of his mother, Ms. Rettig.
John A. confirmed Martin’s description of the events leading to the
transfer of the property to his mother. He stated that Martin owed him
money for cars that Martin purchased from him and that John A. agreed to
accept 1830 East Passyunk Avenue as payment for that debt. John A.
explained that his mother’s name was placed as grantee on the deed since
he “was having a lot of problems at the time with the government and I
figured my wife would have someplace to go and then when I [got] out of
jail I would straighten it all out.” N.T. Trial, 7/31/12, at 45. That witness
specified that all of his other property, including their home and other joint
assets that he owned with Geraldine, had been forfeited to the federal
government as a result of his drug dealing and failure to pay income taxes
on his illegal income. Id. at 70. John A. believed that, if 1830 East
Passyunk Avenue was placed in his and Geraldine’s names, it would also be J-A09009-14
– 5 –
taken by the government, and his family would have nowhere to live when
he went to jail. Id.
Ms. Rettig delineated the circumstances surrounding her execution of
the November 9, 1989 deed transferring the property from herself and into
the names of her two grandsons, John J. and Fred. She was called before a
federal grand jury about whether she or her son owned 1830 East Passyunk
Avenue. She invoked the Fifth Amendment and then called John A., who
was in prison, and told him that she no longer wanted the real estate in her
name. John A. responded to “give it to my two sons, put it for them for
them to hold for me.” Id. at 16. She hired her accountant to prepare the
deed and transferred the title to the premises into the names of John J. and
Fred, who were nineteen and eighteen years old, respectively, at that time.
Ms. Rettig’s testimony was that her reason for transferring 1830
Passyunk Avenue to John J. and Fred was for “them to hold [the property]
for their father and mother.” Id. at 17. Ms. Rettig continued that John J.
and Fred “didn’t even know it. They did not know I had transferred the
property.” Id. They were never shown the deed. Id.
John A. also confirmed this aspect of Ms. Rettig’s testimony. He
related that while he was in jail, his mother called and told him that she
“didn’t want it in her name no more” so he “told her to put it in my kids’
name.” Id. at 48. Danielle was not placed on the deed since she was too
young. John A. testified that John J. and Fred were not told about the 1989
deed. J-A09009-14
– 6 –
In 1986, Geraldine and John A. and the three children moved into
1830 East Passyunk Avenue. John A. subsequently went to prison for tax
fraud and drug dealing. When he was released from jail in 1996, he went to
reside at 1830 East Passyunk Avenue. John A. paid for renovations to the
house both in 1986 and upon his release from prison. John A. was
imprisoned again shortly after 1996 and remained in jail until 2008. After he
was released in 2008, John A. and Geraldine were separated. John A.
testified that he allowed Geraldine to purchase his interest in the real estate
for $10,000. John A. stated at trial that Geraldine did transfer that amount
of money to him in exchange for his agreement to relinquish any ownership
rights to the property that he may have owned.
John J. likewise testified that he, his parents, and his two siblings
moved to 1830 East Passyunk Avenue after the government took their home
in 1986. Id. at 76. John J. thought that the real estate was owned by his
parents. He testified that he did not have any knowledge that, in 1989, the
property was placed in his and Fred’s names and stated that he never saw
the deed. Id. at 77. John J. reported that Fred was arrested in 1999, and,
at that time, John J. first learned that he and Fred had title to the premises
since he executed a paper allowing the house to be used as collateral for
Fred’s bail. Id. at 82. John J. said that he always considered the real estate
to be owned by his mother and father.
John J. described the circumstances surrounding his transfer of his
one-half interest in the real estate into his brother’s sole name. In 2007, J-A09009-14
– 7 –
John J. owned a business that was failing, and he had a significant amount
of debt. Geraldine “told me I want you to take your name off the property
before I get judgments against me on my property.” Id. at 86. Since John
J. was weighing whether to file for bankruptcy and since he considered his
mother to own the property, he followed her instructions and transferred his
one-half interest in 1830 East Passyunk Avenue into the sole name of Fred.
Geraldine’s testimony was consistent with that of her mother-in-law,
John A., and John J. In 1986, John A. told her that he “had acquired the
property from a debt that was owed to him” and that it would be titled in his
mother’s name. Id. at 100. The property was titled in this manner because
John J. “was the target of an investigation” and eventually, they would lose
1830 East Passyunk Avenue if it was titled in their names. Id. Geraldine
continued that, as result of John A.’s criminal activity, they lost their home,
and the Internal Revenue Service placed a tax lien against both Geraldine
and John A. The tax lien was filed in 1993 and amounted to $785,000. Id.
at 102.
Geraldine continued that, after her mother-in-law no longer wanted to
be involved in the property ownership issue, John A. instructed his mother
that the real estate was to be placed in the names of John J. and Fred.
Geraldine related that she never told either of her sons that 1830 East
Passyunk Avenue was in their name. Id. at 103. Geraldine confirmed that
in 2007, when John J. started to experience financial difficulties, she J-A09009-14
– 8 –
instructed him to transfer the real estate into Fred’s name so that it would
not be seized by his creditors. Id. at 117.
Geraldine testified that from 1986 onward, she lived on the premises
rent-free, maintained the property, paid the real estate taxes on it, and
collected the rental from the first-floor apartment. Geraldine related that,
after she and John A. separated, she purchased his interest in 1830 East
Passyunk Avenue for $10,000. She borrowed $5,000 of that amount from
Fred and repaid him. She had $1,000 of her own and borrowed the
remaining amount from other people.
Geraldine explained why the real estate was placed in Kristin’s name in
2008. Fred and Kristin wanted to purchase a bar in Wildwood, New Jersey,
known as the Anglesea Pub. Fred did not have satisfactory credit, so Kristin
planned to secure a loan for the property. Geraldine stated that she agreed
to allow Fred to place the real property into Kristin’s name so that it could be
listed as her asset on her loan application. Id. at 119.
Geraldine insisted that all the record owners from 1986 onward held
the property in a constructive trust for her benefit. She continued that there
was an agreement that the property would be transferred into her name
when the tax lien was removed, in 2009. Id. at 116. She spoke with Fred
in 2009 about getting the property placed in her name. He responded that
John A. owed him $47,000 for an emissions machine that was purchased for
a business that John A. owned. Fred said that Geraldine “had to pay his
father’s bill” before he would give Geraldine the house. Id. at 121. J-A09009-14
– 9 –
Geraldine did not believe that she was liable for this debt since she had
already purchased John A.’s interest in the property. She therefore
instituted this lawsuit to have the property transferred into her name.
In response to this evidence, Fred testified that in 1989, his
grandmother told him that she had made a gift to him and John J. of the
property on 1830 East Passyunk Avenue. N.T. Trial, 8/1/12, at 40. He
insisted that in 2007, John J. transferred his one-half interest in the real
estate to Fred in payment for various loans that Fred had given John J. over
the years. Id. Fred stated that he and his mother Geraldine had an
arrangement whereby she managed the property and that he allowed her to
keep the rent in exchange for maintaining it, and this agreement was
reached when he was eighteen years old. Id. at 41. Fred alleged that he,
not his mother, had given $10,000 to his father, but maintained that it was
to induce his father to cease harassing Geraldine rather than in payment for
any interest that John A. had in the property. Kristin acknowledged that the
property was transferred into her name to enable her to obtain a loan, but
denied that Geraldine was involved in the transaction and gave her
permission for its occurrence.
The trial court entered its verdict on August 13, 2012. Significantly,
the trial court rendered only one credibility determination, which was that
“Geraldine Renzulli was not credible.” N.T. Trial, 8/13/12, at 2. It found
Geraldine unworthy of belief on the basis that she admitted that the
transfers of the property were designed to “frustrate and avoid government J-A09009-14
– 10 –
forfeiture and tax lien procedure as if it were an appropriate legal solution to
her difficulties.” Id. The court also concluded that Geraldine could not
prevail since she “did not have the clean hands required to recover in
equity.” Id. On these two bases alone, the trial court found in favor of
Appellees as to Appellant’s quiet title action, and granted Appellees
ejectment of Appellant from 1830 East Passyunk Avenue. It declined to
award attorney’s fees or damages to Appellees.
In its Pa.R.A.P. 1925(a) opinion, the trial court again indicated its
verdict was premised solely upon its conclusions that Geraldine was not
credible and did not have the clean hands necessary to recover in equity. It
made no credibility rulings as to any other witness. It supported its decision
in this matter based on the fact that Geraldine’s “testimony regarding
ownership of the property was not credible because she admitted to
attempting to defraud the government through forfeiture and tax lien
procedures.” Trial Court Opinion, 1/15/13, at 4. Based upon her admitted
fraud as to the government, the trial court opined that “it was reasonable to
ultimately find that title was never placed, nor intended to be placed in
Appellant’s name.” Id. at 4-5.
This appeal followed denial of Appellant’s post-trial motion and entry of
judgment on the verdict. Appellant raises these contentions on appeal:
1. In an Action to Quiet Title, where the Appellant sought
the Court award her the property in which she had resided for
over 22 years as the real and rightful owner of the property, title
to which was in the name of Appellee, Frederick Renzulli, and
previously in the name Appellee, Kristin Renzulli, was it an abuse J-A09009-14
– 11 –
of discretion and an error law for the Court not to decide the
case on its merits, but instead, find in favor of the Appellees on
their Counterclaim, to be awarded the property as the true and
rightful owners of the property because the Court found
Appellant not credible and lacking in clean hands?
2. Were the reasons why the Court found that Appellant
was not credible and lacked clean hands because she never had
her name on the title to the property because of a forfeiture tax
lien scheme and because she signed the names of others to legal
documents supported in the record, or was it an abuse of
discretion?
3. Did the trial court abuse its discretion, fail to apply the
principles of equity and commit error of law by not examining
the testimony of the Appellees, by not judging their credibility
and their bad conduct under the maxim of the clean hands
doctrine on their Counterclaim, equally and in the same way and
under the same scrutiny as the Court examined Appellant’s
testimony for credibility, and applying the clean hands doctrine
and, in fact, not examining the testimony of the Appellees at all
and awarding Appellees the property?
4. Was it an abuse of discretion, a misapplication of the
rules of equity and error of law to grant Appellee, Frederick
Renzulli, the relief he requested in his Counterclaim of Ejectment
by default, without making any findings on the matter of
Appellee’s claim to real ownership of the property and weighing
the relative equities of the matter, resulting in Appellees’ unjust
enrichment, an inequitable result?
5. Did the trial court misapply the maxim of unclean hands
as to Appellant’s conduct which prevented the Appellant from
having the Court decide the case on the merits and effectively
deciding the merits of the case against her?
6. Did the trial court abuse its discretion and/or commit
error of law in not considering the evidence presented by
Appellant that title to the property was held by Appellees as
constructive trustees for the benefit of Appellant?
7. Did the trial court deny Appellant a fair trial, show bias
and ill will toward Appellant and prejudge this case and prevent
Appellant from completing the presentation of her testimony? J-A09009-14
– 12 –
8. Were the trial court’s findings and Order granting
Appellees’ request for ejectment of Appellant fair and equitable
and according to the principles of equity?
Appellant’s brief at 1-3.
Initially, we ascertain the proper standard of review. An action to
quiet title is a civil action at law. Pa.R.C.P. 1061(a) (“Except as otherwise
provided in this chapter, the procedure in the action to quiet title from the
commencement to the entry of judgment shall be in accordance with the
rules relating to a civil action.”). However, imposition of a constructive trust
is considered an equitable remedy. Robbins v. Kristofic, 643 A.2d 1079,
1083 (Pa.Super. 1994) (“a constructive trust is not a trust in the ordinary
sense of the term but simply an equitable remedy designed to prevent
unjust enrichment”); Hercules v. Jones, 609 A.2d 837, 839 (Pa.Super.
1992) (“request for the establishment and enforcement of a constructive
trust is a matter within the jurisdiction of a court of equity”).
Where a complaint contains a cause of action to quiet title but also
seeks an equitable remedy, the court has jurisdiction to decide both the
legal and equitable causes. Sutton v. Miller, 592 A.2d 83, 85 (Pa.Super.
1991). Since the trial court herein resolved this litigation based upon the
assertion of the equitable remedy of imposition of a constructive trust, we
will employ the equity standard of review, as have all decisions involving
constructive trusts.
When reviewing a decision of the equity court, our standard of review
is very limited, and we cannot disturb the decision of an equity court “unless J-A09009-14
– 13 –
it is unsupported by the evidence or demonstrably capricious.” Mid Penn
Bank v. Farhat, 74 A.3d 149, 153 (Pa.Super. 2013) (citation omitted).
Thus, the equity court’s determination will be affirmed unless it abused its
“discretion or committed an error of law. The test is not whether we would
have reached the same result on the evidence presented, but whether the
chancellor’s conclusion can reasonably be drawn from the evidence.” Id.
We first observe the following. As analyzed supra, the trial court’s
ruling herein was purportedly premised upon its determination that
Geraldine was not credible. It rendered no other credibility rulings.
Meanwhile, the court’s legal resolution of the merits of this matter indicates
that it was based upon the truth of Geraldine’s testimony. Specifically,
Geraldine stated that title was never transferred into either her or her
husband’s name to avoid the federal tax lien, but that it was everyone’s
intent that she be the equitable owner of the property. Although indicating
that she was not a credible witness, the trial court based its merits decision
on the truth of what she reported. It stated that a constructive trust could
not be imposed because Geraldine admitted that title was never intended to
be transferred to her so that it would not be seized by the federal
government. It also decided that, since Geraldine conceded that the titling
of the property was planned so as to avoid the tax lien, she operated with
unclean hands. These legal conclusions cannot be supported unless one
accepts that Geraldine was truthful about how the title scheme operated. J-A09009-14
– 14 –
More importantly, in the context of imposition of a constructive trust
for Appellant’s benefit, it is not relevant if the property was ever intended to
be placed in Appellant’s name. We have specifically observed, “when relief
through imposition of a constructive trust is prayed for, it is not the specific
intent between the parties to create a constructive trust but rather whether
or not imposition of a constructive trust is necessary to prevent unjust
enrichment.” DePaul v. DePaul, 429 A.2d 1192, 1194 (Pa.Super. 1981).
This principle is echoed in the pertinent provisions of the Restatement of
Trusts, which discusses constructive trusts only in comment e to § 1, as
follows:

A constructive trust is a relationship with respect to
property usually subjecting the person by whom its title is held
to an equitable duty to convey the property to another on the
ground that the title holder’s acquisition or retention of the
property is wrongful and that unjust enrichment would occur if
the title holder were permitted to retain the property. See
Restatement of Restitution § 160 [“Where a person holding title
to property is subject to an equitable duty to convey it to
another on the ground that he would be unjustly enriched if he
were permitted to retain it, a constructive trust arises.”] . . .
Both express trusts and resulting trusts are based upon an
intention of the person who creates them. . . . On the other
hand, a constructive trust is imposed, not necessarily to
effectuate an expressed or implied intention, but to redress a
wrong or to prevent unjust enrichment. A constructive trust is
thus the result of judicial intervention and is remedial in
character. J-A09009-14
– 15 –
Restatement (Third) of Trusts § 1 comment e. That comment continues that
the provisions of the Restatement of Trusts are not applicable to constructive
trusts.3
Pennsylvania principles applicable to constructive trusts are consistent:
A constructive trust arises when a person holding title to
property is subject to an equitable duty to convey it to another
on the ground he would be unjustly enriched if he were
permitted to retain it. The necessity for such a trust may arise
from circumstances evidencing fraud, duress, undue influence or
mistake. Id. The controlling factor in determining
whether a constructive trust should be imposed is
____________________________________________
3
Hence, we reject Appellees’ invocation of Restatement (Second) of Trusts
§ 63, and the Pennsylvania cases applying that section. That Restatement
provision states:
(1) Except as stated in Subsection (2), a trust is invalid if the
purpose of the settlor in creating the trust is to defraud his
creditors or other persons.
(2) If the beneficiary of the trust is a third person who at the
time of the creation of the trust had no notice of the fraudulent
purpose of the settlor, he can enforce the trust, except so far as
he is precluded from so doing because of the claims of the
defrauded persons.
The cases Appellees cite involve resulting trusts, which are subject to the
Restatement of Trust and applied § 63. See Policarpo v. Policarpo, 189
A.2d 171 (Pa. 1963); In re Summers’ Estate, 226 A.2d 197 (Pa. 1967);
Galford v. Burkhouse, 478 A.2d 1328 (Pa.Super. 1984). In this case, we
are examining whether a constructive trust was created, and the
Restatement is not applicable. We undoubtedly would be inclined to
invalidate a finding that Geraldine had title to the property if the federal
government, as creditor, sought that remedy. However, that holding would
result from the fact that the transfer was fraudulent as to it. Herein,
Appellees have been unjustly enriched by this scheme and cannot be heard
to complain about fraud that was not perpetrated on them. J-A09009-14
– 16 –
whether it is necessary to prevent unjust enrichment.
One who seeks the imposition of a constructive trust must do so
by clear, direct, precise and convincing evidence. Id.
Hercules, supra at 841 (citations omitted; emphasis added). Nowhere in
its opinion or on the record did the trial court even examine whether
Appellees would be unjustly enriched by their retention of 1830 East
Passyunk Avenue. It thus committed an error of law in resolving this matter
based upon the intent of the parties, which is not pertinent, and in failing to
consider the relevant legal principles. We thus agree with Appellant’s sixth
assertion, which is that the trial court did not apply the proper legal
principles to the evidence presented.
In examining whether a constructive trust was created by the
circumstances, there is no requirement that the transferee of title to the
property that is subject to the trust agree to transfer it to the person with
equitable title. Indeed, we have ruled that the intent of the transferee is
irrelevant. The sole consideration is whether imposition of a constructive
trust is necessary to prevent unjust enrichment. Thus, the question is
whether it would be inequitable for Appellees to retain the property since
they would be unjustly enriched by the present state of the title to 1830 East
Passyunk Avenue.
Appellant presented uncontested evidence that the real estate in
question was purchased with consideration provided by John A., Fred’s
father, and placed in Ms. Rettig’s name. Ms. Rettig’s unrebutted testimony J-A09009-14
– 17 –
was that she did not consider herself the owner of the property. She
understood that she was deeded the property so that there would be a place
for her son and his family to reside since all of their property had been taken
by the federal government. Appellees likewise failed to present any
evidence to contradict the fact that, all the while that the property was
deeded to the various family members, Geraldine resided there and
exercised all rights attendant with ownership of the property for twenty-five
years prior to institution of this action. The trial court did not find
Ms. Rettig, John A., or John J. incredible witnesses.
Also of significance is the fact that the trial court at no point indicated
that it credited any of Fred’s testimony, and, most importantly, his
representation that Ms. Rettig intended to gift him and his brother the
property. Since Ms. Rettig’s unrebutted testimony was that she did not even
consider herself the owner of the property, any finding that she gifted
property that she did not own would be completely illogical and contrary to
common sense. Likewise, Fred’s representation that, at the age of eighteen,
he entered an agreement with his mother and allowed her to manage the
property on his behalf strains credulity.
Appellees did not pay any consideration for the property in question.
From 1986 to 2012, it was the home of Fred’s mother, who exercised all
ownership rights attendant to it. The facts at issue herein unquestionably
establish Appellees hold title to property subject to an equitable duty to J-A09009-14
– 18 –
convey it to Geraldine since they would be unjustly enriched if they were
permitted to retain it and since she has always been treated as its equitable
owner. Since the controlling factor in determining whether a constructive
trust should be imposed is whether it is necessary to prevent unjust
enrichment, and the question of whether there was an intent to create such
a trust is irrelevant, the trial court herein committed an error of law in
connection with its ruling as to whether a constructive trust was created.
We also examine the trial court’s application of the doctrine of unclean
hands. It applied this precept based upon the fact that the property was
placed in various family members names so that Geraldine had a home that
could not be seized pursuant to the federal tax lien. However, as Appellant
correctly asserts in her fifth issue, the doctrine of unclean hands was
improperly invoked by the trial court.
The doctrine of unclean hands has no application in this case. As we
observed in Walacavage v. Walacavage, 77 A.2d 723, 725 (Pa.Super.
1951):
The doctrine of unclean hands affects misconduct in the
matter in suit only, . . . and is available only when the plaintiff in
an equity suit has been guilty of unconscionable or unlawful
conduct respecting the transaction before the court. Comstock
v. Thompson, 286 Pa. 457, 461, 133 A. 638. A strikingly
analogous case is Vercesi v. Petri, 334 Pa. 385, 5 A.2d 563,
565. In that equity proceeding for an accounting, it appeared
that plaintiff and defendant had entered into an oral agreement
of partnership to conduct a restaurant, and all partnership assets
were taken in defendant’s name with the intent on the part of
plaintiff to evade his past creditors. The Court concluded that
the doctrine of unclean hands had no application, and speaking J-A09009-14
– 19 –
through Stern, J., said: ‘One of the limitations of the doctrine of
coming into equity with unclean hands is that the wrong-doing of
the plaintiff must have been in reference to the very matter in
controversy and not merely remotely or indirectly connected
therewith. . . .”
Hence, “the doctrine of unclean hands applies only where the plaintiff’s
wrongdoing directly affects the equitable relations existing between the
parties,” McLaughlin v. McLaughlin, 187 A.2d 905, 907 (Pa. 1963)
(emphasis in original). The doctrine of unclean hands, as noted in
Walacavage, is not applied as between the person with legal title and the
person with equitable title when the property was placed in someone’s name
to avoid creditors.
In this case, Appellant did not operate with unclean hands as to
Appellees. While the people involved in these series of transactions may
have operated with unclean hands with respect to the federal government,
Appellant did not have unclean hands with respect to her dealings with
Appellees. Hence, the trial court committed an error of law in applying the
doctrine of unclean hands herein.
In light of our findings that the trial court failed to apply the proper
principles in determining whether a constructive trust was created, did not
render any credibility determinations other than the one that Geraldine was
not credible when she stated that it was the intent of everyone that the
property would eventually be placed in her name, and that the doctrine of
unclean hands is inapplicable, we must reverse the trial court’s verdict. We J-A09009-14
– 20 –
remand for the trial court to apply the proper principles of law and render
appropriate credibility determinations as to the witnesses who testified at
trial. In light of disposition herein, we need not address Appellant’s
remaining allegations.
Judgment reversed. Case remanded for proceedings consistent with
this adjudication. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2014

Legal Malpractice/Philadelphia County, Pennsylvania

The elements of a legal malpractice claim are straightforward enough.

The claim requires proof of (1) employment of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such failure was the proximate cause of damage to the plaintiff.  See Knopick v. Connelly, 639 F.3d 600, 606 n.7 (3d Cir. 2011).

If you believe that you have a valid claim, call Harper Dimmerman now:  (215) 545-0600.

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Vital Decision on Eminent Domain/Condemnation in Pennsylvania

This is an interesting article I co-authored concerning constitutional issues and real estate.

-Harper J. Dimmerman, Esq., (215) 545-0600

COPYRIGHT. ALM. 2013. DO NOT REPRODUCE.

“Purchase Offers and Million Dollar Takings”

 The color green seems to be on everyone’s minds these days.  The whole green revolution (as in energy), the ubiquitous Starbucks logo, money (speaks for itself) and rolling fairways are just a few images that come to mind.  As this article relates to the practice of law (it really does), it is the final one that we find the most intriguing.  After what some might perceive as a deliberate round of litigation, a compelling condemnation issue eventually made its way up to our state Supreme Court.  And with the U.S. Open just wrapping up days ago, the decision in Lower Makefield Township v. The Lands of Chester Dalgewicz and Christine Dalgewicz, et al. (No. 33 MAP 2011, Decided 5/29/13), is quite timely.

The facts are straightforward enough.  Lower Makefield Township (Appellant), apparently under the spell of this country’s golf revolution, set it sights on a 166-acre farm owned by the Appellees.  It proceeded to use its eminent domain power for the purpose of building a golf course, an entirely legitimate public use according to our Commonwealth Court.  Preliminary objections were filed to the taking and a Board of View determined that the value of this very large parcel, also in close proximity to Interstate 95, was worth about $3.9 million.  This amount was challenged and eventually got to a jury, for a six-day trial.

A total of eleven witnesses were called, including Appellee Chester Dalgewicz.  He testified regarding the farm’s history and the interest shown by several developers in purchasing the property.  He also described some of the offers received both before and after the property was condemned, including a 1995 agreement of sale with Ryland Homes for $5.1 million, and a 1998 sales agreement with Toll Brothers for $7 million, contingent upon the condemnation being overturned.  During Mr. Dalgewicz’s testimony, he described a written offer from Pulte Homes, Inc., including the $8 million offer price; the letter was also introduced into evidence.

Notably, Appellant did object, just as it had earlier via its motion in limine, contending that the offer was inadmissible, having not resulted in an actual sales agreement.  Counsel for the Township argued that any testimony concerning the offer price would be both irrelevant and prejudicial.  The lower court overruled the objection (it previously denied the motion in limine) and explained that it would be appropriate to “let in what was going on with this piece of land in terms of developers from a reasonable time before to a reasonable time after the taking.”  The trial court also observed the Township could cross-examine Mr. Dalgewicz about the offer, and that its evidentiary value was “something that should be argued to the jury[ .]”  The jury ultimately settled upon a fair market value of the property of about $5.8 million, approximately $2 million more than the number the Board of View had put on it.

Appellant filed post-trial motions, arguing that the lower court erred in admitting the offer as evidence; these were denied.  In its opinion, the trial court set forth its rationale.  In sum, the court concluded that the Pulte offer was admissible to prove how highly sought after the property was by developers.  Also, testimony concerning the Pulte offer was admissible because concerns regarding hearsay and the abstract nature of the offers were not present.  On appeal to the Commonwealth Court, the Township lost again on the issue of the admissibility of the Pulte order.  While that intermediate court acknowledged the existence of decisional law that disfavors the introduction of such offers, it could not conclude that the need for such a blanket prohibition was present here.  For instance, both parties stipulated to the authenticity of the Pulte offer and the offer was introduced merely to highlight the reasonableness of the Toll Brothers deal.  Thus, hearsay concerns could not be said to have existed.  That court also fashioned a narrow exception for cases where “a sufficient foundation was laid to establish that the offer was made in good faith, by a party acquainted with the value of the [p]roperty, and of sufficient intention and ability to pay” so as to make it a bona fide offer and, therefore, admissible.  Lastly, prejudice by its admissibility could not be established.  The ultimate jury award was over $2 million less than the Pulte offer and the information contained in the subject offer was established by other competent evidence.

On appeal to the Commonwealth’s highest court, the Township framed two issues for appeal: (1) Whether a bona fide offer to purchase property subject to condemnation, made within a reasonable time of condemnation, may be admitted to prove the fair market value of the property; and (2) whether the Commonwealth Court departed from the harmless error standard by requiring the Township to show with certainty that the trial court’s evidentiary errors affected the verdict.  The standard of review was de novo.  The Supreme Court had no trouble concluding that “traditional concerns over relevancy and the speculative nature of offers” was not presence on the instant facts.  Furthermore, in the estimation of our highest court, 1964 amendments to the Eminent Domain Code itself, which broadened the scope of admissible evidence and liberalized the receipt of expert evidence to prove value, mitigated in favor of the admission of the Pulte offer.

Courts should also be guided by the principle that “[t]he admission or exclusion of evidence is within the sound discretion of the trial court[.]”  See Lehigh–Northampton Airport Authority v. Fuller, 862 A.2d 159, 168 (Pa.Cmwlth.2004) (citations omitted).  The extent to which an offer is indeed a bona fide one is a question properly reserved for the trier of fact.  Finally, the Pulte offer was enlightening; it showed concrete demand and the legitimacy of the Toll Brothers offer.  The Lower Makefield Township makes one thing crystal clear.  When it comes to green, the Eminent Domain Code and our courts will see to it that value will be adequately assessed.  Fore!

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Harper J. Dimmerman is an adjunct professor at Temple University’s Fox School of Business and published novelist. Bradley J. Osborne is an attorney in Mr. Dimmerman’s office. Their firm represents clients in various litigation and real estate law matters.  They may be reached at harper@hjdlaw.net or 215-545-0600. They also co-founded ZipWill.com

James M. Lammendola is an Instructor at Temple University’s Fox School of Business who was in private practice for twenty years. He may be reached via e-mail at james.lammendola@temple.edu or telephone 267-254-3324.