Graeber v. Kapuscinski
Court of Common Pleas
PA Superior Court
No.: 3290 EDA 2009
Robert M. Cavalier and
Daniel S. Strick successfully argued before the Pennsylvania Superior Court in
the matter of Graeber v. Kapuscinski, et al and obtained a reversal of
the trial court’s decision in litigation involving the potential sale of
commercial real property located in Philadelphia,
On September 2, 2002 the parties renewed a
prior lease agreeing to a new five year term.
The property was owned by non-party T.G. Cooper & CO., Inc.
Mr. Kapuscinski is the sole shareholder of T.G. Cooper & Co., Inc.
In part, the lease provided: “Lessee shall have the option to purchase
the entire property at the end of the lease term at the then fair market value.”
The lease did not provide a method for determining the fair market value.
Shortly before the end of the lease term, Graeber attempted to exercise
his option to purchase the property for $480,000 which was consistent with an
appraisal he received. The appraiser
noted the property was industrial in nature.
At the time Graeber had already been advised by Mr. Kapuscinski that T.G.
Cooper & Co., Inc. received an offer from an independent third party to purchase
the property for an amount exceeding $975,000.
Mr. Kapuscinski viewed the offer received from the third party as the
then fair market value of the property.
Graeber never extended a counter offer.
Instead, Graeber filed suit against Mr. and Mrs. Kapuscinski for specific
performance seeking a court order forcing them to sell the property to him.
During the course of
litigation, appellants Edward and Patricia Kapuscinski used three different
methods to establish the fair market value of the property: (1) an unsolicited
written offer received from a third party of $975,000; (2) the listing price
from a commercial realtor of $1,000,000; and (3) an appraisal of $950,000 from
an MAI certified appraiser who opined the highest and best use of the property
At trial, Lucas and
Cavalier, LLC argued Graeber failed to properly exercise his option to purchase
the property because he never offered to purchase the property for fair market
value, the fair market value of the property was over $950,000 and Graeber
failed to sue an indispensible party – the property owner.
Following a two day bench
trial, the trial court ordered Mr. and Mrs. Kapuscinski to sell Graeber the
property for $565,000. This figure
was the mid-point of
Graeber’s appraised value of $480,000 and an
off-the-cuff estimate of $650,000 provided by an unqualified real estate agent
who did not testify at trial.
Lucas and Cavalier, LLC
timely appealed the decision to the Superior Court of Pennsylvania.
On appeal Lucas and Cavalier, LLC asserted Graeber failed to sue the
property owner and the case should have been dismissed as a matter of law, the
court abused its discretion by finding the fair market value of the property was
$565,000 as of August 31, 2007 and the court found Graeber validly exercised his
option to purchase the property.
The Superior Court reversed
the trial court’s decision finding Graeber failed to sue the property owner and
a non-party could not be forced to sell its property.
In response to a last ditch effort by
Graeber to salvage its case, the Superior Court concluded there was no factual
support to pierce the corporate veil to find T.G. Cooper & Co., Inc. was a party
to the litigation because its sole shareholder fully participated at trial.
Graeber now seeks en banc review.