Hidden Ridge Condominium v. Sabatino, P. ( 2023 )

J-A25039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HIDDEN RIDGE CONDOMINIUM : IN THE SUPERIOR COURT OF
ASSOCIATIONS, INC., A : PENNSYLVANIA
PENNSYLVANIA NON-PROFIT :
CORPORATION, AND JILL WANZIE, :
TOM BURICH, KATHLEEN RAUSCHER, :
KAREN LOFE AND COREY SIGLER, AS :
TRUSTEES AD LITEM OF THE :
EXECUTIVE BOARD OF THE HIDDEN :
RIDGE CONDOMINIUM :
ASSOCIATION, ON THEIR OWN :
BEHALF OF ALL THE OTHERS :
SIMILARLY SITUATED :
:
v. :
:
P. RONALD SABATINO, A/K/A :
RONALD SABATINO; SCIOTO :
CONSTRUCTION COMPANY, A :
PENNSYLVANIA CORPORATION; AND :
T&R PROPERTIES, INC., AN OHIO :
CORPORATION. :
:
APPEAL OF: SCIOTO CONSTRUCTION :
COMPANY : No. 873 WDA 2021
Appeal from the Judgment Entered July 16, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-08-021879
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY KUNSELMAN, J.:FILED: MARCH9, 2023
I. Introduction
This contract case, regarding the ownership and maintenance of a pond
in a residential development in South Park Township, has swamped the Court
of Common Pleas of Allegheny County and this Court since 2008. Today, this
Court offers its fifth decision in this matter. The Majority again remands and
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directs the trial court to wade through yet another evidentiary hearing. I
believe remand is unnecessary and erroneous. In my view, the trial court
correctly entered judgment for Hidden Ridge Condominium Associations, Inc.;
its executive board members; and a class of condominium owners
(collectively, “Hidden Ridge”). Thus, I dissent from the Majority and I would
affirm.
II. Factual & Procedural Background
In the early 2000s, Scioto Construction Company undertook the venture
of building condominiums in South Park. The project design called for several
structures, roads, and a stormwater-detention facility. Scioto named the new
development Hidden Ridge.
Prior to breaking ground, on June 5, 2002, P. Ronald Sabatino, as
president of Scioto Construction, entered a Land Development Agreement with
South Park Township. See N.T., 4/11/18, at 58; N.T., 7/25/18, at 150. The
agreement referenced and incorporated “ordinance[s] 596 and 487 of the
South Park Township Code . . . .” N.T., 7/25/18, at 150. Under Ordinance
596 (adopted in 1999), the township would not “accept stormwater-detention
ponds” for dedication.1 In their Land Development Agreement, Mr. Sabatino
and Scioto “acknowledge[d] and understood that it was the intent of the
____________________________________________
1The ordinance provides, “It is the expressed intention of the Township to not
accept the dedication of stormwater-detention and/or management systems.”
South Park Township, Pa. Ordinance No. 596, Code § 118.29.3 (some
capitalization removed).
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township not to accept the dedication of the stormwater-detention system” at
Hidden Ridge. Id. at 152.
Thereafter, Scioto erected several Hidden Ridge structures. During the
construction, as required by township ordinance, Scioto installed pipes from
the structures’ downspouts, supposedly leading to the on-site pond.
Buyers purchased individual units in the buildings and joined the Hidden
Ridge condominium association. Eventually, Hidden Ridge sued Mr. Sabatino,
Scioto, and T&R Properties, Inc. Among a host of claims, they asserted Scioto
improperly constructed the stormwater-detention facility.
In June of 2012, a jury returned a verdict in favor of Hidden Ridge on a
cause of action not relevant to this appeal. The parties then began negotiating
over the remaining issues, including Scioto’s construction and dedication of
the stormwater-detention facility. See id. at 173. On September 21, 2012,
they entered a Settlement Agreement.
Scioto agreed to finish the stormwater-detention facility “and dedicate
it to South Park Township by December 2014.” Settlement Agreement and
Release at 5, § 1.3. Based on that language and the trial court’s recollection
of the negotiations, it found the parties “bargain[ed] for Scioto to restore and
convert the [storm]water-detention facility, so that South Park would accept
dedication and . . . all future maintenance responsibilities from Scioto.” Trial
Court Opinion, 11/26/18, at 9.
In January 2015, Hidden Ridge petitioned the court to enforce the
Settlement Agreement. It alleged Scioto’s obligation to complete and dedicate
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the stormwater-detention facility were “material terms” of the Settlement
Agreement and that “the time period for completion of the facility’s dedication
to South Park Township has now expired.” Hidden Ridge’s Petition to Enforce
at 2-3. Hidden Ridge sought specific performance. Namely, it asked the trial
court to issue “an order compelling Scioto to fulfill its obligations pursuant to
the terms of the release or suffer further sanctions as the court deem[ed]
appropriate.” Id. at 3.
At a February 17, 2015 hearing on Hidden Ridge’s petition, the parties
agreed Scioto had neither completed nor dedicated the stormwater-detention
facility to South Park. See Scioto’s Brief at 14. The trial court therefore
entered a “consent order.” N.T., 7/25/18, at 154. The consent order granted
Hidden Ridge’s Petition to Enforce Settlement Agreement and directed that:
Scioto Construction Company shall complete construction of
the stormwater-detention facility and take the appropriate
steps to have [it] dedicated to and accepted by [South Park]
Township, without further delay, weather permitting.
Should Scioto fail to satisfy any of these obligations by June
30, 2015, then [Hidden Ridge] may proceed with a Motion
for Sanctions and request the entry of such sanctions as the
court deems appropriate, including an award of reasonable
attorney fees and any other reasonable costs associated
with the construction and/or acceptance of the stormwater-
detention facility.
Trial Court Order, 2/17/15, at 1-2 (some punctuation omitted).
That summer, Scioto completed the pond and asked the township to
inspect it the following November. On December 4, 2015, the township’s
engineer reported his findings to South Park Code Enforcement Officer, Gary
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Wargo. The engineer did not indicate that any additional work on the pond
was needed; however, Scioto still failed to dedicate the stormwater-detention
facility to South Park. See N.T., 4/11/18, at 35.
A year-and-a-half later, on August 4, 2017, Hidden Ridge’s attorney sent
a letter to Scioto’s counsel inquiring into the dedication process. Hidden Ridge
understood that “the Township [had] not accepted the pond.” Hidden Ridge’s
7/25/18 Hearing Exhibit 12.
Scioto did not reply. See N.T., 7/25/18, at 12-14.
Meanwhile, Allegheny County contacted Scioto regarding an error in the
property records of Hidden Ridge. See id. at 28. In response, Mr. Sabatino,
on behalf of Scioto, executed a quitclaim deed on October 5, 2017. The deed
granted Hidden Ridge “ANY AND ALL INTEREST that [Scioto] has or may have
in . . . the common grounds in the Hidden Ridge Condominium-Phase 2 . . . .”
Hidden Ridge’s 7/25/18 Hearing Exhibit 13 at 1. The “common grounds”
included the pond. See N.T., 7/25/18, at 20; see also Hidden Ridge’s
7/25/18 Hearing Exhibit 21.
However, Mr. Sabatino did not tell Hidden Ridge that the quitclaim deed
existed or that Scioto recorded it on October 13, 2017. See N.T., 7/25/18, at
23-24. Hence, Hidden Ridge never accepted the deed or the land it purported
to convey. See id. at 97, 99.
The next month, Chris Sperl, an employee of Matt Mertz Plumbing, Inc.,
inspected the storm pipes of Hidden Ridge’s buildings. Mr. Sperl ran cameras
down them and found that several pipes at Buildings 600, 800, and 900 were
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broken, collapsed, or angled upwards. Additionally, Scioto had not buried
them deeply enough to prevent that damage. Thus, certain pipes were not
transporting stormwater to the stormwater-detention pond.
On January 20, 2018, Mr. Sperl provided Hidden Ridge with an estimate
of $66,000 to repair the pipes. See N.T., 4/11/18, at 13; see also Hidden
Ridge’s 4/11/18 Hearing Exhibit 8 at 1. Two days later, Hidden Ridge moved
for sanctions against Scioto for violating the February 17, 2014 consent order.
Hidden Ridge also hired Gateway Engineers, Inc. to evaluate the pipes.
According to the engineering firm:
we inspected various downspout, subsurface connections,
and stormwater piping (piping) where the residents had
reported stormwater backups along buildings 200, 400,
600, and 800. Our evaluation concluded that the piping was
either severely damaged or that no connection to an
external system was ever made . . .
Based on our findings and review of the additional
reports, the downspout connections and piping evaluated
are not in compliance with industry standards, which
typically tie downspouts into storm drains that outlet to
stormwater-management facilities or natural watercourses.
Furthermore, the South Park Township Subdivision
and Land Development Ordinance section 118.49.5 requires
that roof drains be connected directly to underground pipes,
which shall flow into an approved, stormwater-drainage
system.
Based upon the South Park Township requirement, it
can be concluded that the roof-drain piping was a part of
the overall stormwater-management system, and any
required repairs to the stormwater-management system
should include repairs and/or extensions to the
aforementioned roof-drain piping.
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Hidden Ridge’s 4/11/18 Exhibit 3 at 1.
A few months later, in April of 2018, Lawrence Lennon, a professional
engineer with over 40 years of experience, oversaw dye tests on the drainage
pipes of Buildings 600, 800, and 900. He wanted to learn if the buildings’
pipes reached the pond. N.T., 4/11/18, at 26-17; see also Hidden Ridge’s
4/11/18 Hearing Exhibit 8. The test cost Hidden Ridge $2,186.25. See
Hidden Ridge’s 7/25/18 Hearing Exhibit 16.
Mr. Lennon described the dye test’s results as follows:
For Building 600 the [downspouts] at the rear . . .
connected to a storm drain. The [downspouts] at the front,
numbered 1 to 18, four of them . . . connected to a storm
sewer.
For Building 800, again, all the [downspouts] at the
rear . . . connected to a storm sewer. The [downspouts] at
the front of the building, numbered from 1 to 18, it looks
like two . . . connected to the storm sewer, and one has a
note that dye appeared at the surface.
As for Building 900, at the front of the building,
[downspouts] 1 to 13, I believe one . . . connected to the
storm sewer. At the rear of the building, [downspouts] 15
through 25, two of them were determined to discharge to
the slope behind the building. And I don’t recall any
notation that any of those . . . connected to a storm sewer
at the rear of the building 900.
N.T., 4/11/18, at 27-28. Mr. Lennon concluded the pipes violated South Park
Ordinance 118.49.5, which required them to “flow into an approved storm-
drainage system.” Hidden Ridge’s 4/11/18 Hearing Exhibit 8 at 1.
Additionally, the ordinance required that the pipes “be a minimum of
four-inch (4”) Schedule 40 ABS, PVC, or SDR 35 pipe . . . for a distance of five
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feet (5’) from the foundation of the dwelling.” Hidden Ridge’s 4/11/18 Hearing
Exhibit 8 at 1. According to Mr. Lennon, “That’s a particular type of pipe that
has a certain wall thickness. It is intended to be buried underground.” N.T.,
4/11/18, at 30. The pipes Scioto “installed did not meet that requirement,”
because they were corrugated plastic. Id. Thus, Mr. Lennon agreed with the
findings and opinions in Gateway’s report. See id. at 31; Hidden Ridge’s
4/11/18 Exhibit 3.
The trial court held an evidentiary hearing, where Mr. Sperl and Mr.
Lennon testified to the above facts and opinions. Code Enforcement Officer
Wargo also testified. He explained that acceptance and dedication of land
improvements is done through ordinances. Even though South Park passed a
1999 ordinance stating it would not accept stormwater-detention facilities, Mr.
Wargo indicated that developers commonly seek exceptions from ordinances.
Scioto “never even asked for an exception.” See id. at 55.
Additionally, according to Mr. Wargo, drainage pipes from the buildings
at Hidden Ridge are “a permanent part of the stormwater facility.” Id. at 85.
Mr. Lennon and Gateway Engineers, Inc. agreed with that assessment. See
N.T., 7/25/18, at 80. Based on this evidence, the trial court found that “the
water-conveyance system built to feed the water-storage facility through the
use of [pipes] was an integral part of the water-detention facility.” Trial Court
Opinion, 11/26/18, at 2 (quotation marks omitted).
Further, it had “no doubt . . . Scioto Construction Company [was] in
violation of the February 17, 2015 Court Order.” Trial Court Opinion & Order,
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4/13/18, at 2. Thus, the trial court held Scioto in contempt of the consent
order and scheduled a hearing on sanctions for July 25, 2018.
A few weeks later, Hidden Ridge accepted Matt Mertz Plumbing’s offer
to repair the stormwater pipes at Buildings 600, 800, and 900 for $66,000.
Hidden Ridge also hired Matt Mertz Plumbing to replace pipes at Buildings 500
and 700 for $64,000. See N.T., 7/25/18, at 42-44; see also Hidden Ridge’s
7/25/18 Exhibits 14 & 15.
Two-and-half years had passed since the township inspected the pond.
In that time, no one maintained it, so the pond fell into disrepair due to a lack
of groundskeeping and repairs. The pond became “completely overgrown with
weeds, trees, and shrubs, the kind of things that should not be there.” Id. at
52-53. Dirt and trash formed an emerged “sediment bar” in the pond. Id. at
35; see also Hidden Ridge’s 7/25/18 Exhibit 11, Photograph D.
Mr. Lennon’s company offered “to return the stormwater-detention pond
to its original, intended conditions” for Hidden Ridge. Id. at 55. He estimated
the work would cost $88,688. See id. at 47. Thus, the combined cost for
Hidden Ridge to fund the dye test, to repair the defective stormwater pipes,
and to restore the pond was $220,874.25. See N.T., 7/25/18, at 62.
After the July 25, 2018 hearing, the trial court imposed an equitable
sanction of $39,283.05 and $23,224.60 in litigation fees and costs against
Scioto. The parties cross-appealed.
On October 1, 2019, this Court reversed the order of contempt and
vacated the orders imposing sanctions and costs. See Hidden Ridge Condo.
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Assoc., Inc. v. Sabatino, No. 1272 WDA 2018, 2019 WL 4864066 (Pa.
Super. 2019) (unpublished). Although the record established that Scioto did
not comply with the consent order, the trial court did not “credit any evidence
that Scioto acted willfully or with wrongful intent.” Id. at *5. Because “mere
noncompliance [with a court order] is insufficient to establish civil contempt,”
the trial court could not hold Scioto in contempt. Id. The panel also noted,
“to the extent Hidden Ridge may conclude that Scioto has not met its
obligations under the Settlement Agreement, [Hidden Ridge] may file a
separate, revised, and/or amended Petition to Enforce, as set forth in the
Settlement Agreement.” Id. at *3 n. 6.
Accordingly, on October 14, 2019, Hidden Ridge filed an “Amended
Petition to Enforce Settlement Agreement Pursuant to Superior Court
Opinion[2] of October 1, 2019.” The Amended Petition renewed the original
claim that Scioto breached Section 1.3 of the Settlement Agreement by failing
to complete the stormwater-detention facility and to dedicate it to South Park
Township by December 31, 2014.
Hidden Ridge further claimed that:
Scioto has clearly not met [its] obligations under the
Settlement Agreement, and this Amended Petition is filed
pursuant to the direction provided in the recent Superior
Court [decision. That decision] clearly provides a roadmap
for Hidden Ridge to pursue the remedies that are available
as a result of Scioto breaching the Settlement Agreement.
Specifically, proceeding with the Petition to Enforce the
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2Technically, we did not issue an Opinion. The decision was an unpublished
Memorandum.
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Settlement Agreement, [the trial court] can then enter an
order which places [Hidden Ridge] in the position [it] would
have been in, if Scioto had not breached the Settlement
Agreement. These damages were established by testimony
offered at hearings on April 11, 2018 and July 25, 2018.
* * *
Such damages are appropriate pursuant to the order which
has already been entered on February 17, 2019, granting
the Petition to Enforce the Settlement Agreement. These
damages are also appropriate as a result of Scioto’s breach
of the Settlement Agreement, as such damages are required
to place Hidden Ridge in the position [it] would have been
but for the breach.
The damages . . . include the damages which the
witnesses testified to at the two hearings [in 2018]. In
addition, one of the Exhibits which was introduced at the
hearing was the quitclaim deed of October 13, 2017. The
maintenance costs which the experts agreed would occur
annually can be avoided [if the trial court] enter[s] an order
that the quitclaim deed Scioto recorded on October 13, 2017
must be vacated and this parcel revert back to Scioto and/or
otherwise be deemed invalid.
Amended Petition at 4-5.
In other words, Hidden Ridge made two changes in its Amended Petition.
First, it altered its prayer for relief. Forgoing an equitable remedy of specific
performance from 2015, Hidden Ridge now sought a legal remedy of damages.
Second, Hidden Ridge added a cause of action for declaratory judgment. It
sought a declaration that Scioto’s quitclaim deed was invalid and an order
striking the deed from the Allegheny County property records.
The trial court related the events thereafter as follows:
The parties presented their pleadings, including a Brief in
Opposition filed by Scioto on December 16, 2019. Scioto
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maintained that the “summary procedure and relief
proposed by Hidden Ridge is inconsistent with the
procedural posture of this matter, and with Scioto’s
substantial rights.” [Scioto’s] Brief at 4. And further, that
“this matter cannot be resolved without a full adversarial
proceeding to determine the parties’ rights under the
Settlement Agreement, including resolution of Scioto’s
claims against Hidden Ridge relating thereto.” Id.
Scioto asserted the Amended Petition is in fact an
“entirely new Petition, in the nature of an action for
damages for breach of contract.” Id. at 5. Scioto suggested
the claims in the amended petition should be pled in a
separate complaint which would afford Scioto the full and
fair benefit of the Rules of Civil Procedure to defend said
claim, including counterclaims, setoff, statute of limitations,
etc. See id. at 5-6.
Despite these claims, [the trial court] determined:
Scioto shall file a reply to the Amended Petition to Enforce
Settlement Agreement within 30 days setting forth any
defenses they intend to raise; Hidden Ridge may then file a
responsive pleading within 30 days thereafter; a hearing will
be held . . . on the 2nd and 3rd days of April, 2020 . . . An
Answer and Affirmative Defenses to the petition was filed on
January 16, 2020, by Scioto. On that same date, Scioto also
filed a Complaint at GD 19-17623. A Motion to Consolidate
that general docket number with above referenced was filed
by Hidden Ridge on February 7, 2020. In both matters,
Scioto maintain[ed] that Hidden Ridge [was] inappropriately
suspending the voting rights maintained by Scioto. See
[Scioto’s] Complaint, para. 48, GD 19-17623; see also
[Scioto’s] Answer, para. 41, GD 08-21879.
The parties continued to brief the issue to consolidate
until [the trial court’s] order granting same on February 19,
2020. Included in Scioto’s previous filings was their Answer
and Affirmative Defenses filed on January 16, 2020. In
response thereto, Hidden Ridge had filed a Reply to Answer,
that raised preliminary objections to the affirmative
defenses raised. [The trial court’s] February 19th Order
continued the hearing scheduled to be heard on the 2nd and
3rd of April generally, and the April 2, 2020, date was instead
rescheduled as an argument date as to the Preliminary
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Objections raised by Hidden Ridge in their Reply filed
February 18, 2020. See Order, 2/19/20.
On March 9, 2020, Hidden Ridge filed a Motion to
Strike Defenses pursuant to the Order of Court dated on the
19th of February, 2020 and a Motion for Partial Judgment on
the Pleadings. Hidden Ridge assert[ed] that Scioto’s claims
and defenses must be stricken, as a matter of law, due to
“unclean hands.” Hidden Ridge assert[ed] that the Parties
Settlement Agreement made patently clear that any
disputes arising out of that agreement “shall be subject to
the exclusive jurisdiction of the Court of Common Pleas of
Allegheny County, Pennsylvania, and it is agreed that the
Honorable Michael Della Vecchia retains jurisdiction over
this matter for purposes of enforcing the terms of the
Settlement Agreement and Release.” Motion, para. 8,
3/9/20 (citing Settlement Agreement and Release, para. 8)
(emphasis added).
Preliminary Objections to Scioto’s January 16, 2020
Complaint were filed on March 10, 2020, along with a Brief
in Support and Proposed Order by Hidden Ridge . . . Hidden
Ridge assert[ed] the Complaint filed contained the same
issues and subject matter as the above referenced general
docket number filed in 2008. Hidden Ridge [requested
dismissal of] the civil action filed in 2019 with prejudice, as
it was both barred and encompassed by our current
litigation.
On June 30, 2020, the trial court sustained the
preliminary objections . . . and dismissed Scioto’s 2019
Complaint. Additionally, this Court continued the discovery
period until August 31, 2020 and further allowed the parties
to consider their choice of forum, either hearing or oral
argument, to resolve outstanding issues. See Order,
6/20/20.
* * *
On January 19, 2021, [the trial court ordered] that, in
addition to completing the depositions:
As the record has been developed in this case,
the [Amended] Petition to Enforce Settlement
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Agreement, as well as the claims of Scioto
Construction raised in their Answer and
Defenses, shall initially be considered by way
of dispositive motion. Either party may file a
dispositive motion, and upon service on
opposing counsel, the response thereto and
countermotion shall be filed within 21 days.
* * *
On May 21, 2021, Hidden Ridge filed [its] 121-page
Dispositive Motion. In said motion, Hidden Ridge correctly
states that pursuant to the Superior Court Opinion at n. 6;
“the issue remaining before the trial court was to decide
whether Hidden Ridge was entitled to an award of damages
and/or other relief to place [it] in a position [it] would have
been, if Scioto would have carried out the terms of the
Settlement Agreement.”
* * *
Expert testimony [at the 2018 hearings] established,
through the use of cameras inserted into the drainpipes,
that at least three buildings were experiencing defective
drainage due to defects existing due to crushed pipes. The
expert testified that these defects were the result of the
drainage pipes’ lack of depth and lack of necessary support.
The estimated fee to remunerate the condition was . . .
$66,000. See Motion, para. 58.
Additionally, this Court was convinced that Scioto’s
stormwater plan was not acceptable to South Park Township
pursuant to their ordinances and regulations. Testimony
was accepted as credible that it would cost Hidden Ridge in
excess of $88,000 to ameliorate the issues that exist and to
comply with DEP and municipality requirements. Motion,
para. 102. The expert for Scioto conceded that this amount
would exceed $20,000.
Trial Court Opinion, 11/8/21, at 11-16.
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The trial court reviewed the arguments and claims of the parties. Based
on those arguments and its findings of fact from the 2018 hearings, the court
ordered that:
Judgment is entered in this case against Scioto and in
favor of [Hidden Ridge] in the amount of $220,874.25 and
the quitclaim deed, which Scioto recorded on . . . October
13, 2017 at Deed Book Volume 298276, is hereby stricken
such that Scioto shall remain responsible for the on-going
and continued maintenance of the subject parcel until such
time as Scioto petitions the trial court based on the
Township agreeing to accept and dedicate the subject,
stormwater facilities.
Trial Court Order, 7/16/21, at 1-2 (some capitalization removed). This timely
appeal followed.
III. Analysis
Scioto raises six claims of error. They are:
1. Whether the [trial] court erred, as a matter of law,
entering summary judgment when genuine issues of
material fact remained in dispute.
2. Whether the [trial] court erred, as a matter of law,
entering summary judgment without holding a trial or
evidentiary proceeding on (or addressing) Scioto’s
affirmative defenses.
3. Whether the [trial] court erred, as a matter of law,
allowing Hidden Ridge to pursue a cause of action for
breach of contract more than four years after Hidden
Ridge alleges the breach occurred.
4. Whether the [trial] court erred, as a matter of law,
awarding damages unsupported by – and in fact
contrary to – the evidence.
5. Whether . . . the [trial] court erred as a matter of law
or abused its discretion by contradicting in dramatic
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fashion its previous findings and conclusions
regarding the proper remedy to place the parties
where they would have been had the contract been
capable of performance.
6. Whether the [trial] court erred, as a matter of law,
entering summary judgment against Scioto for breach
of contract notwithstanding contract language that is
unambiguous or, alternatively, is ambiguous but
without hearing evidence bearing on the parties’
intent.
Scioto’s Brief at 3. I address each issue in turn.
A. The Trial Court Did NOT Grant Summary Judgment.
First, Scioto contends that the trial court erroneously granted summary
judgment to Hidden Ridge.
Initially, Scioto identifies the grounds for Hidden Ridge’s damages claim
– namely, that the pipes from the buildings to the pond constituted part of the
stormwater-detention facility and many of them were broken or did not reach
the pond. Scioto quotes testimony from Code Enforcement Officer Wargo,
supposedly showing the “term stormwater-retention facility does not include
such inlets, pipes, the collection system, or rain leaders, because those are
not part of the stormwater-detention system.” Id. at 34 (emphasis and
quotations removed). It therefore alleges the trial court violated the rules
governing summary judgment by making credibility determinations to
discredit Mr. Wargo’s testimony, in order to find that the term “stormwater-
detention facility” includes the pipes. Id.
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Scioto then challenges the damage award of $220,874.25, because “one
cannot discern what, if anything, was awarded for future pond maintenance.”
Id. at 36 (emphasis removed). Scioto offers nothing further on this point.
Instead, it jumps to the quitclaim deed. Scioto asserts that, by striking
the deed, the trial court created a “paradox” in the judgment. Id. In Scioto’s
view, the trial court mandated that it “is responsible to maintain the property
while additionally being ordered to pay Hidden Ridge, so that Hidden Ridge
can also have such services performed.” Id. at 36-37.
Next, Scioto alleges the trial court “attempted to justify its imposition of
damages . . . upon a late, supposed finding . . . that the stormwater-detention
facilities had never been completed.” Id. “Except Mr. Wargo testified that
the stormwater-detention pond was compliant with the Code [of South Park]
when completed in June 2015 and was in fact accepted as compliant.”
Id. at 38 (emphasis in original). “To find otherwise is to disregard, not just
the evidence, but the summary judgment standards themselves.” Id.
Scioto then recites the scope and standard of review for summary
judgment. See id. at 39. It closes by stating that “one will search in vain for
any effort by the [trial] court to justify its misapplication of the summary-
judgment standards and refusal to hold an actual hearing or trial.” Id. at 39-
40. This last statement is true but irrelevant. The trial court did not grant
summary judgment, nor was it under any obligation to justify its refusal to
hold a hearing or trial.
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Instead of granting summary judgment, the appealed from order
enforced the expectation interests of the parties’ Settlement Agreement by
awarding damages for Scioto’s breach and by invalidating the quitclaim deed.
Thus, Scioto’s first appellate issue rests upon an erroneous view of the order’s
nature, invokes an incorrect scope and standard of review, and warrants no
relief. Hidden Ridge identifies Scioto’s procedural and legal error. See Hidden
Ridge’s Brief at 17
In this much, the Majority sides with Hidden Ridge. My learned
colleagues “do not view this matter as an appeal from an order granting
summary judgment pursuant to Pennsylvania Rule of Civil Procedure 1035.6.”
Majority Memorandum at 15. Instead, they adopt the scope and standard of
review for which Hidden Ridge advocates. See id. at 16 (quoting Salsman
v. Brown, 51 A.3d 892, 893-94 (Pa. Super. 2012)). I do too.
The “enforceability of settlement agreements is determined according
to principles of contract law. Because contract interpretation is a question of
law, this Court is not bound by the trial court’s interpretation” of a settlement
agreement. Step Plan Servs., Inc. v. Koresko, 12 A.3d 401, 408 (Pa.
Super. 2010). “Our standard of review over questions of law is de novo, and
to the extent necessary, the scope of our review is plenary, as the appellate
court may review the entire record in making its decision.” Id. (some
punctuation omitted). As for factual findings, “we may reverse the trial court
only if its findings of fact are predicated on an error of law or are unsupported
by competent evidence in the record.” Id.- 18 -
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Obviously, Scioto does not address that scope and standard of review,
because it frames its first issue as one of summary judgment. See Scioto’s
Brief at 3. Thus, its first appellate argument is flawed, because it seeks to
demonstrate genuine issues of material fact, rather than that the trial court’s
factual findings “are unsupported by competent evidence in the record.” Step
Plan Servs., supra. Recognizing that Scioto did not argue that the evidence
is insufficient to support the trial court’s factual findings, we should dismiss
the issue as meritless, because we are “not [to] develop an argument for an
appellant . . .” Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa.
Super. 2018), reargument denied (Jan. 29, 2019). Unfortunately, the
Majority does so and thereby reverses based on issues that Scioto neither
raised or argued in its brief. Scioto has abandoned and thereby waived those
grounds for relief.3
____________________________________________
3 Specifically, the Majority purports to combine Scioto’s first two issues and to
address them together. In actuality, the Majority considers three novel issues
sua sponte: (1) whether the 2018 hearings “focused on the critical issue
raised here – whether Scioto breached the terms of the Settlement Agreement
(as opposed to the court’s February 2015 order),” (2) whether the trial court’s
“failure to detail any factual findings in either its July 16 th order or Rule 1925
opinion undermines our ability to determine if its factual findings are
supported by the record,” and (3) whether the trial court violated Scioto’s
due-process rights. Majority Opinion at 16-17.
Notwithstanding the Majority’s dramatic rhetoric that “this Court cannot
countenance the deprivation of due process,” our rules of appellate procedure
require that it does. Majority Memorandum at 17. Pennsylvania courts have
long held that “a [party] must preserve on peril of waiver even an issue of
constitutional dimension.” Commonwealth v. Veon, 150 A.3d 435, 456 n.33
(Pa. 2016). Indeed, with few exceptions (such as subject-matter jurisdiction
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I therefore limit my discussion to this issue and arguments that Scioto
has presented. Scioto initially argues the trial court made factual findings and
that those findings resolved the credibility of witnesses who testified in 2018.
See Scioto’s Brief at 34-38. Scioto is correct.
However, this argument implies that reasonable minds may differ as to
the facts of this case, because credibility determinations were necessary.
Under our jurisprudence, “credibility determinations are for the finder of fact,
and . . . the trial court was free to believe all, some, or none of testimony.”
K.B. v. Tinsley, 208 A.3d 123, 128 (Pa. Super. 2019). Just as the fact finder
may reasonably view the evidence in Scioto’s favor, the fact finder may
equally view that evidence in favor of Hidden Ridge. Scioto fails to recognize
that the trial court’s 2018 factual findings resolve this case, as a matter of
law.
____________________________________________
and illegal sentences), issues that an appellant has not raised in the trial court
and in its Rule 1925(b) Statement are waived. See Pennsylvania Rules of
Appellate Procedure 302(a); 1925(b)(vii). Such issues may not be raised for
the first time on appeal. See id. Moreover, no issue “will be considered unless
it is stated in the statement of questions involved or is fairly suggested
thereby.” Pa.R.A.P. 2116(a).
None of the Majority’s grounds for reversal appears in Scioto’s 1925(b)
Statement or its Statement of Questions Involved, nor does Scioto make those
arguments in its brief. Thus, Scioto waived the issues upon which the Majority
reverses. By raising its own objections to the trial court’s work, the Majority
overreaches, and, for all intents and purpose, it revives the doctrine of
fundamental error. See Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114,
117 (Pa. 1974) (abolishing the doctrine in civil cases). This is reversable error.
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As mentioned, the trial court found that “the water-conveyance system
built to ‘feed’ the [storm]water-storage facility through the use of [pipes] was
an integral part of the water-detention facility.” Trial Court Opinion,
11/26/18, at 2 (emphasis added). This factual finding has adequate support
in the evidence of record. Mr. Wargo testified that the drainage pipes from
the buildings are “a permanent part of the stormwater facility.” N.T., 4/11/18,
at 85. Mr. Lennon, Hidden Ridge’s engineering expert, agreed with this
assessment. See N.T., 7/25/18, at 80.
Thus, this Court has no authority to revisit the factual findings regarding
which improvements were a part of the stormwater-detention facilities,
because “we may reverse the trial court only if its findings of fact . . . are
unsupported by competent evidence in the record.” Step Plan Servs., 12
A.3d at 408 (emphasis added). It was solely the trial court’s prerogative to
credit the above portion of Mr. Wargo and Mr. Lennon’s testimony. See K.B.,
supra.Next, unlike Scioto, I can “discern what [the trial court] awarded for
future pond maintenance.” Scioto’s Brief at 36. Hidden Ridge paid $2,186.25
for the dye test on the stormwater pipes. N.T., 7/25/18, at 62. It also paid
a plumbing company $130,000 to repair the defective pipes from the
buildings, which the trial court found to be part of the stormwater-detention
facility. See N.T., 7/25/18, at 42-44; see also Hidden Ridge’s 7/25/18
Exhibits 14 & 15. Lastly, Mr. Lennon charged Hidden Ridge $88,688 to restore
the pond to functionality. See id. at 47.
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If one adds those figures, they total $220,874.25, the exact amount
that the trial court awarded to Hidden Ridge for Scioto’s breach of the
Settlement Agreement. Hence, the trial court awarded $0.00 for future pond
maintenance, because the award only compensated Hidden Ridge for Scioto’s
below-standard, incomplete construction; for repairing several years’ worth of
neglect to the stormwater-detention facility; and for the dye test Mr. Lennon
used on the pipes. Thus, sufficient evidence of record, sustains the damage
award under our scope and standard of review for an order enforcing a
settlement agreement.
Furthermore, this basic math resolves the paradox that Scioto perceives
regarding the stricken quitclaim deed. There is no paradox, because the
damage award is not for future maintenance. By striking the quitclaim deed,
the trial court placed all future-maintenance costs on Scioto, which perfectly
aligns with the court’s refusal to award future costs to Hidden Ridge.
Despite the foregoing evidence of record and established contract law,
the Majority, in reversing the trial court’s order, states that, “based upon the
undeveloped record, and the trial court’s summary opinion, we are unable to
determine whether the court’s factual findings are supported by competent
evidence.” Majority Opinion at 16. This is incorrect. As shown, competent
evidence abounds in the voluminous, well-developed record that the parties
and trial court assembled. The Majority inexplicably disregards the competent
evidence that the trial court credited in 2018.
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Moreover, this Court’s October 1, 2019 Memorandum did not disturb the
trial court’s 2018 factual findings. If anything, the decision ratified them.
We found “adequate support in the record to enable the [trial] court to
infer that Scioto failed to complete its work [on the stormwater-detention
facility] in timely fashion.” Hidden Ridge, supra at *4 (citing N.T., 4/11/18,
at 89, testimony of Scioto’s supervisor David Dillon that Scioto did not
complete the stormwater-detention facility until summer of 2015). Based on
this factual finding and reasonable inference, which the trial court and this
Court drew after the 2018 hearings, there is sufficient evidence in the record
to prove conclusively that Scioto breached the Settlement Agreement.
Under Pennsylvania law, to succeed in its claim for breach of contract,
Hidden Ridge “must demonstrate the following: (1) the existence of a contract
between the plaintiff and defendant, including its essential terms; (2) a breach
of a duty imposed by the contract; and (3) damages resulting from a breach
of that duty.” Reeves v. Middletown Athletic Assoc., 866 A.2d 1115, 1125
(Pa. Super. 2004).
There is no dispute that the parties had a contract – the September 21,
2012 Settlement Agreement. Thus, Hidden Ridge satisfies the first element,
as a matter of law.
The second element is a breach. “When performance of a duty under a
contract is due, any nonperformance is a breach.” True R.R. Assocs., L.P.
v. Ames True Temper, Inc., 152 A.3d 324, 340 (Pa. Super. 2016) (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 235(2))
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Under the Settlement Agreement, Scioto assumed the duty to complete
and to dedicate the stormwater-detention facility to South Park Township by
December 31, 2014. See Settlement Agreement and Release at 5-6.
Critically, the parties agreed that Scioto failed to perform its duty to complete
and to dedicate the stormwater-detention facility by the end of 2014. See
Scioto’s Brief at 14; see also N.T., 7/25/18, at 154 (describing the February
17, 2015 order entered due to Scioto’s December 31, 2014 breach as a
“consent order”).
On this record, Hidden Ridge has proven Scioto breached the Settlement
Agreement at the end of 2014, as a matter of law. Reasonable minds cannot
differ on this, because Scioto admitted to the breach at the February 17, 2015
hearing and in subsequent court filings. As such, the second element of
breach is established beyond any doubt.
Finally, Hidden Ridge has also met the third element of damages.
“Consequential damages are generally understood to be other damages
which naturally and proximately flow from the breach of contract.” Cresci
Const. Servs., Inc. v. Martin, 64 A.3d 254, 264 (Pa. Super. 2013). If
“consequential damages are ‘foreseeable’ and were contemplated by ‘the
parties at the time they made the contract,’ they will be awarded in order to
put the victim of the contract breach in the same position as if there had been
performance, not breach.” Condo. Assoc. Ct. of Old Swedes v. Stein-
O'Brien, 973 A.2d 475, 483 (Pa. Cmwlth. 2009) (quoting Ferrer v. Trustees
of the University of Pennsylvania, 825 A.2d 591, 610 (Pa. 2002)).
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Scioto’s breach (i.e., failing to complete and to dedicate the stormwater-
detention facility to South Park by the end of 2014), forced Hidden Ridge to
fix the pipes and the pond when Scioto refused to do so. Otherwise, portions
of Hidden Ridge’s property would have continued to flood, and it would have
faced potential erosion problems.
The need for Hidden Ridge to repair the stormwater-detention facility
was a consequence of Scioto breaching the Settlement Agreement. It was
foreseeable that, if Scioto did not complete and dedicate the stormwater-
detention facility to South Park by the end of 2014, the facility would fall into
disrepair, because the township would not have assumed the maintenance
obligations by dedication. Consequently, someone else would have to make
and to pay for that upkeep. Because the costs of that upkeep fell to Hidden
Ridge, it did not receive its expectation interest in the Settlement Agreement:
i.e., that someone other than Hidden Ridge would maintain and pay for the
stormwater-detention facility.
Accordingly, on this record and in light of the trial court’s 2018 factual
findings, Hidden Ridge has established its claim for breach of contract against
Scioto, as a matter of law. Scioto’s first appellate issue is meritless.
B. Scioto Waived Issue Two.
For its second issue, Scioto claims the trial court “erred, as a matter of
law, by entering judgment against it without holding a trial or [hearing] on (or
addressing) Scioto’s affirmative defenses.” Scioto’s Brief at 40.
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“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo, and our scope of review is plenary.” Trigg v.
Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
The Pennsylvania Rules of Appellate Procedure require that each section
of an appellant’s argument “shall have . . . citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). “Citation to authority in support of
arguments is fundamental to effective advocacy.” 20A WEST’S PA.
PRACTICE, Appellate Practice § 2119:6 (emphasis added).
As the late Chief Justice Baer said, our “rules of appellate procedure are
explicit that the argument within a brief must contain ‘such discussion and
citation of authorities as are deemed pertinent.’” Wirth v. Commonwealth,
95 A.3d 822, 837 (Pa. 2014) (quoting Pa.R.A.P. 2119(a)). “Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority . . . that claim is waived. It is not the obligation of
an appellate court to formulate appellant’s arguments for him.” Id. (some
punctuation omitted).
Here, Scioto claims the trial court erred, as a matter of law, but it cites
no rule, statute, or precedent to support that proposition. Scioto opens its
argument by listing the defenses it asserted in the trial court. However, it
never claims (much less establishes) why the trial court could not dispose of
them, as a matter of law, on this record. See id. at 40.
It then provides a page-long quote from its trial-court filing, which also
cites no law. See id. at 41. The block quote summarizes Scioto’s revisionist
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history of the procedural posture of this case. Scioto suggests that Hidden
Ridge did not bring a breach-of-contract claim against it until filing the
Amended Petition in 2019. See id. Scioto therefore argues that it did not
have an opportunity to raise its defenses to breach of contract until 2019,
thus, in its view, necessitating a trial or evidentiary hearing.
The only law in this section of Scioto’s Brief appears in Note 17, where
Scioto states that, under Nanty-Glo v. American Surety Co., 163 A. 523(Pa 1932), it could not seek judgment, as a matter of law, on one of its
affirmative defenses. See Scioto’s Brief at 42, n. 17. Even so, that does not
mean the trial court could not reject Scioto’s defenses, as a matter of law.
Clearly, Scioto has not met the requirements of Pa.R.A.P. 2116(a). And
it has certainly not raised the due-process argument upon which the Majority
reverses. See Majority Memorandum at 17.4 Scioto has waived this issue.
Even if Scioto had not committed waiver, it still would not be entitled to
relief. Critically, Scioto’s recollection of the procedural posture is wrong. This
especially true of Scioto’s assertion that it had no opportunity to raise its
defenses to breach of contract before 2019.
As mentioned above, Hidden Ridge petitioned for enforcement of the
Settlement Agreement in January of 2015. That petition, by its very nature,
asserted that Scioto breached the Settlement Agreement.
____________________________________________
4 I reincorporate my analysis from the above section, regarding why the due-
process issue that the Majority sus sponte raises is waived. See Section
III(A), supra at 20-22.
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Scioto overlooks the simple fact that a settlement agreement is a
contract. “There is an offer (the settlement figure), acceptance, and
consideration (in exchange for the plaintiff terminating his lawsuit, the
defendant will pay the plaintiff the agreed upon sum). Mastroni-Mucker v.
Allstate Ins. Co., 976 A.2d 510, 518 (Pa. Super. 2009). Thus, a settlement
agreement is “enforced according to principles of contract law.” Id. As a
result, in filing a settlement-enforcement petition, a party is necessarily
asserting that the other party breached the settlement agreement. Absent a
breach, there is nothing to petition a court to enforce.
Furthermore, in Hidden Ridge’s Amended Petition, it only changed its
prayer for relief. Hidden Ridge swapped the equitable remedy of specific
performance for the legal remedy of damages. Both are contractual remedies.
See, e.g., John Murray, Jr., MURRAY ON CONTRACTS § 118 at 754 (5th ed. 2011).
Thus, by seeking specific performance in 2015, Hidden Ridge necessarily
raised this breach-of-contract claim in its petition. In addition, Scioto
conceded to breaching the Settlement Agreement at the February 17, 2015
hearing. See Scioto’s Brief at 14; see also N.T., 7/25/18, at 154 (describing
the February 17, 2015 Order entered as a result of the December 31, 2014
breach as a “consent order”).
Despite its February 2015 concession of breach, Scioto has the timidity
to say it “did not anticipate the breach-of-contract claim at the time of the
2018 hearings.” Scioto’s Brief at 41. What does Scioto think prompted the
2018 contempt hearings, besides its breach of the Settlement Agreement? If
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Scioto had not breached the Settlement Agreement at the end of 2014, then
the trial court would not have entered the February 17, 2015 consent order.
And, if the trial court had not entered the February 17, 2015 consent order,
then there would have been no contempt hearings in 2018. Everything that
transpired in this matter from January 2015 onwards was the direct result of
Scioto’s December 31, 2014 breach.
Scioto’s procedural argument falls flat. It had every opportunity to
challenge Hidden Ridge’s claim of breach of contract at the February 17, 2015
hearing. Scioto could have raised all of its affirmative defenses then and
there. It failed to do so. Instead, Scioto admitted to breaching the Settlement
Agreement.
I would dismiss Scioto’s second issue as waived and meritless.
C. Hidden Ridge Tolled the Statute of Limitations in 2015.
Next, based on its misconception of the case’s procedural history, Scioto
argues that the statute of limitations for contract actions bars Hidden Ridge’s
Amended Petition. Because Hidden Ridge filed the Amended Petition more
than four years after Scioto’s breach, Scioto believes the Amended Petition is
untimely.
“Issues involving the interpretation of a statute of limitations are
questions of law for which our standard of review is de novo, and our scope
of review is plenary.” Erie Ins. Exch. v. Bristol, 174 A.3d 578, 585 (Pa.
2017).
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Under Pennsylvania’s statute of limitations, suit “must be commenced
within four years” if it is an “action upon a contract . . . founded upon a writing
. . . .” 42 Pa.C.S.A. § 5525(a)(8). Under the four-year statute, “a cause of
action accrues when there is an existing right to sue forthwith on the breach
of contract.” Kowalski v. Traditions of America at Liberty Hills (Beaver)
Condo. Assoc., 206 A.3d 1148, 1158 (Pa. Super. 2019) (quotation omitted).
The statute of limitations can serve as a legal defense against petitions
to enforce settlement agreements. See, e.g., Horowitz v. Horowitz, 600
A.2d 982 (1991). Here, however, the statute does not apply.
Scioto breached the Settlement Agreement on December 31, 2014.
Hidden Ridge filed it Petition to Enforce the Settlement Agreement in January
of 2015, which, as explained in Section III(B), supra, brought the present
claim for breach of contract. Thus, Hidden Ridge’s Petition to Enforce tolled
the statute of limitations a month after the breach.
Hidden Ridge’s filing of an Amended Petition is irrelevant, because it did
not assert a new cause of action. Instead, Hidden Ridge substituted one
remedy for breach of contract with another. See Murray, supra at 754. In
fact, “Leave to amend a complaint [or petition] is to be liberally granted.”
Pollock v. NFL, 171 A.3d 773, 783 (Pa. Super. 2017). Amendment is barred
only if it raises “a new cause of action where the statute of limitations has
expired” or it joins a new party. Id.Here, Hidden Ridge reasserted the same cause of action (Scioto’s 2014
nonperformance of the Settlement agreement), based on the same legal
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theory (breach of contract), between the same parties. Thus, the trial court
rightly permitted Hidden Ridge to amend its petition and thereby shift from
one contractual remedy to another.5
Scioto’s statute-of-limitations defense fails, as a matter of law.
D. Scioto Waived Issues Four and Five.
Scioto’s next two issues challenge the trial court’s factual findings that
the stormwater-detention facility includes the pipes leading to the pond and
its calculations of the damage awarded. However, its arguments for both
issues contain no rule, statute, or other legal citations. See Scioto’s Brief at
44-51. Thus, based on Pa.R.A.P. 2116(a) and Wirth, supra, Scioto waived
its fourth and fifth issues.
E. Absence of a Township-Acceptance Term Is No Defense.
As its sixth and final issue, Scioto argues the trial court erred, as a
matter of law, by “entering judgment against [it] for breach of contract based
on contract language that is unambiguous or, alternatively, is ambiguous but
without hearing evidence bearing on the parties’ intent.” Scioto’s Brief at 52
(capitalization omitted). More precisely, Scioto suggests the trial court held it
in breach, because Scioto failed to convince South Park Township to accept
the stormwater-detention facility. “Scioto submits that the Settlement
Agreement itself includes no term requiring Township acceptance.” Id.
____________________________________________
5Scioto makes no claim that the declaratory relief striking the quitclaim deed
was subject to a statute of limitations. Thus, it has waived this issue.
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Scioto bases this argument upon a false premise: that it breached the
Settlement Agreement by not getting the township to accept dedication of
the pond. As demonstrated throughout my Dissent, the breach was Scioto’s
failure to complete the stormwater-detention facility and to dedicate it to
South Park by December 31, 2014. Nevertheless, Scioto admits it was
“required to ‘dedicate’ the [facility]” and it, in fact, “did not actually dedicate
the property . . . .” Scioto’s Brief at 52. This is yet another admission of
breach by Scioto. Again, “When performance of a duty under a contract is
due, any nonperformance is a breach.” True R.R. Assocs., L.P., 152 A.3d
at 340 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 235(2)) (emphasis
added).
In addition, Code Enforcement Officer Wargo testified that, despite the
no-dedication ordinance, the township can and does make exceptions to its
ordinances. Counsel asked him, “In your experience, developers do ask for
exceptions of the Supervisors or Planning Commission of certain
requirements?” N.T., 4/11/18, at 55.
He replied, “Yes.” Id.
“And that happens all the time, correct?” Id.
“Yes.” Id.
Mr. Wargo reported that Scioto “never even asked for an exception.”
Id. Thus, Scioto made no attempt to perform its dedication obligation under
the Settlement Agreement. Scioto has clearly breached, notwithstanding the
absences of a township-acceptance requirement in the contract.
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Additionally, Scioto claims winning a dedication exception for the
stormwater-detention facility would be impossible and, therefore, legally
impracticable. Thus, it offers an affirmative defense to its breach.
Mr. Wargo’s testimony undermines this defense. The supervisors are
empowered to repeal the 1999 ordinance, or they could grant Scioto an
exception, if Scioto could persuade them. But, even disregarding these factual
difficulties with Scioto’s impartibility defense, the theory is legally unavailable.
“Where, at the time a contract is made, a party’s principal purpose is
substantially frustrated without his fault by a fact of which he has no reason
to know and the non-existence of which is a basic assumption on which the
contract is made, no duty of that party to render performance arises, unless
the language or circumstances indicate the contrary.” RESTATEMENT (SECOND)
OF CONTRACTS § 266(2). In other words, “a party asserting existing
impracticability must have had no reason to know the fact causing
impracticability at the time of contract formation.” Murray, supra. § 113[E]
at 720 (emphasis in original). “For example, where the parties contract to
purchase and sell . . . a used automobile which, at the time of formation
without the knowledge or fault of either party, has been destroyed, no duty
arises under the contract.” Id. at 721.
Here, the township passed the no-dedication ordinance in 1999, and the
parties formed the Settlement Agreement in 2012. Thus, Scioto asserts an
existing impracticability, because the ordinance existed when the parties
formed their contract.
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Ten years prior to the Settlement Agreement, Scioto signed a Land
Development Agreement with South Park, wherein it “acknowledge[d] and
understood that it was the intent of the township not to accept the dedication
of the stormwater-detention system” at the Hidden Ridge development. N.T.,
7/25/18, at 152. Thus, when Scioto entered the Settlement Agreement with
Hidden Ridge, it had “reason to know” of the no-dedication ordinance.
RESTATEMENT (SECOND) OF CONTRACTS § 266(2).
Because Scioto knew or should have known of the no-dedication
ordinance when it entered the Settlement Agreement, its impracticality
defense fails, as a matter of law. Scioto had notice of the risk that the
ordinance might make Scioto’s duty impractical or impossible. Thus, the law
presumes that Scioto voluntarily assumed the risk of nonperformance.
IV. Conclusion
In sum, the evidence of record (including Scioto’s repeated admissions
of contractual liablity) proves Scioto breached the Settlement Agreement on
December 31, 2014. If one limits the scope of review to the arguments that
Scioto raised and properly briefed, no appellate relief is due. My review of the
copious record and law of contracts convinces me that this Court should affirm
the judgment in favor of Hidden Ridge. The trial court did a yeoman’s job on
this case and made every effort to resolve it as wisely, justly, and expediently
as possible. Thus, I respectfully dissent.
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