Monday, October 29, 2007

damages/remedies - election of remedies; rescission - need for prompt action

Schwartz v. Rockey - Pennsylvania Supreme Court - October 17, 2007

majority http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007mo.pdf
concurring/dissenting http://www.aopc.org/OpPosting/Supreme/out/J-4A&B-2007codo.pdf

election of remedies
Held, filing a complaint seeking contract-related damages (e.g., money damages) does not, by itself, foreclose a subsequent amendment seeking an inconsistent, equitable remedy (e.g., rescission), at least where it is alleged that the plaintiff lacked knowledge of material facts at the time of filing, and in the absence of demonstrated detrimental reliance by the opposing party. The court noted "confusing congeries of doctrines [which] have been lumped together under the election of remedies label." A majority of jurisdictions, including the federal courts, apply modern rules of pleading to permit the simultaneous pleading of inconsistent claims for relief.

rescission - need for prompt action
Held, the Superior Court should not have disturbed the trial court holding that buyers of real property "failed to pursue rescission with sufficient promptitude* to support an award of such remedy." Buyers effectively affirmed the contract by living in the house for 6 years and by not promptly seeking to rescind once they became aware of previously undisclosed water damage. Prompt action is a prerequisite to the remedy of rescission. Fichera v. Gording, 227 A.2d 642, 643-4 (Pa. 1967).

* Yes, it's in the dictionary.

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