Sunbelt Rentals v. I & M Land ( 2020 )


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  • J-A02010-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    SUNBELT RENTALS, INC., A NORTH         :   IN THE SUPERIOR COURT OF
    CAROLINA CORPORATION                   :        PENNSYLVANIA
    :
    Appellant            :
    :
    :
    v.                        :
    :
    :   No. 662 WDA 2019
    I&M LAND COMPANY, A                    :
    PENNSYLVANIA GENERAL                   :
    PARTNERSHIP, DIANA W. IRWIN, AN        :
    INDIVIDUAL, WYLIE IRWIN, AN            :
    INDIVIDUAL AND BONITA J. MOORE         :
    v.                           :
    :
    :
    MB REALTY GROUP, INC., A NORTH         :
    CAROLINA CORPORATION                   :
    Appeal from the Order Entered April 15, 2019
    In the Court of Common Pleas of Westmoreland County Civil Division at
    No(s): No 684 of 2017
    BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY SHOGAN, J.:                            FILED JULY 21, 2020
    Appellant, Sunbelt Rentals, Inc., a North Carolina Corporation, appeals
    from the order that denied its motion for partial judgment on the pleadings,
    granted the motion for partial judgment on the pleadings filed by Appellees,
    I&M Land Company, a Pennsylvania general partnership, Diana W. Irwin,
    Wylie Irwin, and Bonita J. Moore, and granted in part and denied in part the
    supplemental motion for judgment on the pleadings filed by Intervenor, MB
    Realty Group, Inc. We affirm.
    J-A02010-20
    In July of 1999, Appellant’s predecessor, Nationsrent, entered into a
    Lease agreement (“the Lease”) with Appellee I&M Land Company, in which
    Appellant leased a parcel of land. Appellant and Nationsrent merged in 2006,
    and Appellant assumed responsibilities under the Lease. Thereafter, the Lease
    was amended three times.1 The relevant portions of the Lease are a “Tenant’s
    Option to Purchase” in Section 12 and a “Right of First Refusal” in Section 13.
    On August 11, 2016, Appellee and Intervenor entered into an
    Agreement for the sale and purchase of the property.2 Intervenor reached
    out to Appellant regarding the upcoming purchase and development, and
    Appellant refused to cooperate with Intervenor and Cracker Barrel, insisting
    that Appellant had the right to purchase the property under Section 12 of the
    Lease.
    On August 17, 2016, Appellee provided Appellant with the requisite
    transfer notice pursuant to the right of first refusal in Section 13 of the Lease,
    which Appellant received on August 22, 2016. Appellant did not file a counter
    notice within twenty days as required under Section 13, which would have
    indicated the desire to exercise the option to purchase.       Appellee notified
    ____________________________________________
    1 None of the amendments altered the two provisions of the Lease that are at
    issue herein. Rather, they extended the terms of the Lease.
    2Intervenor also memorialized, in a letter of intent, a separate agreement to
    develop the property to be used as a Cracker Barrel restaurant.
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    Appellant of its failure to timely respond, which constituted a waiver of the
    right to first refusal.
    On February 7, 2017, Appellant filed its complaint against Appellees
    entitled: “Action to Quiet Title, For Declaratory Judgment and Other Relief.”
    Appellees filed an answer and a counterclaim on May 4, 2017. Appellant filed
    a reply and new matter on May 26, 2017. On June 28, 2017, Appellee filed a
    reply to Appellant’s new matter.
    On November 9, 2017, Intervenor filed its petition to intervene and a
    third-party complaint, which was granted on February 5, 2018. Appellant filed
    preliminary    objections,   and   Intervenor   filed   an   amended   third-party
    complaint.
    On May 25, 2018, Appellant filed preliminary objections to Intervenor’s
    third-party complaint. On August 13, 2018, the trial court entered an order
    overruling, in substantial part, Appellant’s preliminary objections.           On
    September 6, 2018, Appellant filed an answer and new matter to the third-
    party complaint. On September 6, 2018, Intervenor filed its reply to the new
    matter.
    All three parties filed various motions for partial judgment on the
    pleadings. On April 16, 2019, the trial court filed an order and opinion, which
    denied Appellant’s motion for partial judgment on the pleadings and granted
    both Appellee’s and Intervenor’s motions for judgment on the pleadings as to
    the request for declaratory judgment. Appellant filed this timely appeal. The
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    trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and
    it relied upon its prior order and opinion in satisfaction of its obligations under
    Pa.R.A.P. 1925(a).
    Appellant presents the following issues for our review:
    I. Did the Common Pleas Court commit an error of law in
    interpreting the Lease to include a waiver of Sunbelt’s property
    right in its continuing Option to Purchase pursuant to Section 12
    of the Lease, when Sunbelt chose not to exercise its Right of First
    Refusal under Section 13 of the Lease, and where the proposed
    sale had not resulted in a purchase of the Property?
    II. Did the Common Pleas Court commit an error of law in
    considering matters outside the pleadings, when it granted
    Defendants’ motion for judgment on the pleadings, and denied
    Sunbelt’s motion for judgment on the pleadings?
    III. In the alternative, if the Court did not err on issues (1) and
    (2) above, did the Court commit an error of law in granting
    judgment on the pleadings where the parties advanced more than
    one reasonable interpretation of the Lease, creating an ambiguity
    which should be resolved through extrinsic evidence which was
    not part of the pleadings?
    Appellant’s Brief at 10.
    Although not raised by the parties, prior to addressing the merits of the
    issues set forth, we sua sponte address the threshold question of the
    appealability of the order before us because it affects the jurisdiction of this
    Court. Brickman Group, Ltd. v. CGU Ins. Co., 
    829 A.2d 1160
    , 1163 (Pa.
    Super. 2003). As a general rule, an appeal can be taken only from a final
    order. In re Estate of Borkowski, 
    794 A.2d 388
    , 389 (Pa. Super. 2002).
    Final orders are defined as orders that dispose of all claims and all parties.
    Pa.R.A.P. 341.
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    However, Pa.R.A.P. 311 provides that an appeal may be taken as of
    right from “[a]n order that is made final or appealable by statute or general
    rule, even though the order does not dispose of all claims and of all parties.”
    Pa.R.A.P. 311(a)(8). The Declaratory Judgments Act includes the following
    provision:
    Courts of record, within their respective jurisdictions, shall have
    power to declare rights, status, and other legal relations whether
    or not further relief is or could be claimed. No action or proceeding
    shall be open to objection on the ground that a declaratory
    judgment or decree is prayed for. The declaration may be either
    affirmative or negative in form and effect, and such declarations
    shall have the force and effect of a final judgment or
    decree.
    42 Pa.C.S. § 7532 (emphasis added).
    In Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 
    948 A.2d 790
    , 798
    (Pa. 2008), our Supreme Court addressed the finality of a declaratory
    judgment order. The Court held that the declaratory judgment determination
    was interlocutory and not an appealable final order “because [the appellants]
    might still be able to obtain the relief they are seeking . . . based on one of
    their alternative theories pending before the Commonwealth Court, the order
    dismissing their challenge . . . had no practical effect upon the ultimate
    decision in this case.” 
    Id. at 798
    .
    Here, the order on appeal resolved the ultimate issue of the parties’
    rights under the Lease. Accordingly, Appellant lacks any other viable theory
    of recovery.   Hence, the declaratory judgment at issue constitutes a final,
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    appealable order pursuant to Pa.R.A.P. 311(a)(8). Therefore, we will proceed
    with our review of the issues presented by Appellant.
    Appellant first argues that the trial court erred in concluding that
    Appellant waived its right to exercise the option to purchase under Section 12
    when it elected not to exercise its right of first refusal under Section 13.
    Appellant’s Brief at 22-35. Essentially, Appellant claims that the Section 12
    option to purchase is not limited or modified by the Section 13 right of first
    refusal.   Appellant contends that “[t]he parties intended for [Appellant] to
    have a continuing property right in [the Section 12] Option to Purchase
    unaffected by a proposed sale[, which triggered the Section 13 right of first
    refusal,] unless that proposed sale actually came to fruition and resulted in a
    purchase.” Id. at 28-29. Appellant concludes that the trial court erred in
    determining that Appellant’s option to purchase under Section 12 is suspended
    during a pending offer “regardless of whether the offer has expired, and/or
    resulted in a purchase.” Id. at 34 (footnote omitted).
    In reviewing the trial court’s grant of the motion for judgment on the
    pleadings, our scope of review is plenary. Vetter v. Fun Footwear Co., 
    668 A.2d 529
    , 531 (Pa. Super. 1995) (en banc). Our standard of review for the
    grant or denial of a motion for judgment on the pleadings is as follows:
    [A]ppellate review of a trial court’s decision to grant or deny
    judgment on the pleadings is limited to determining whether the
    trial court committed an error of law or whether there were facts
    presented which warrant a jury trial. In conducting this review,
    we look only to the pleadings and any documents properly
    attached thereto. Judgment on the pleadings is proper only where
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    the pleadings evidence that there are no material facts in dispute
    such that a trial by jury would be unnecessary.
    In passing on a challenge to the sustaining of a motion for
    judgment on the pleadings, our standard of review is limited. We
    must accept as true all well pleaded statements of fact of the party
    against whom the motion is granted and consider against him only
    those facts that he specifically admits. We will affirm the grant of
    such a motion only when the moving party’s right to succeed is
    certain and the case is so free from doubt that the trial would
    clearly be a fruitless exercise.
    John T. Gallaher Timber Transfer v. Hamilton, 
    932 A.2d 963
    , 967 (Pa.
    Super. 2007).
    Our standard of review in a declaratory judgment action is
    narrow. We review the decision of the trial court as we would a
    decree in equity and set aside factual conclusions only where they
    are not supported by adequate evidence. We give plenary review,
    however, to the trial court’s legal conclusions. In reviewing a
    declaratory judgment action, we are limited to determining
    whether the trial court clearly abused its discretion or committed
    an error of law. Judicial discretion requires action in conformity
    with law on facts and circumstances before the trial court after
    hearing and consideration. Consequently, the court abuses its
    discretion if, in resolving the issue for decision, it misapplies the
    law or exercises its discretion in a manner lacking reason.
    Jarl Inv., L.P. v. Fleck, 
    937 A.2d 1113
    , 1121 (Pa. Super. 2007) (internal
    quotations and citations omitted).
    In addition, we are mindful that a lease is a contract interpreted
    according to contract principles. Kmart of Pennsylvania, L.P. v. MD Mall
    Associates, LLC, 
    959 A.2d 939
    , 943 (Pa. Super. 2008). A fundamental rule
    in construing a contract is to ascertain and give effect to the intent of the
    contracting parties.   
    Id.
       The intent of the parties in a written contract is
    contained within the writing itself. 
    Id. at 944
    . When the contract is clear and
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    unambiguous, the meaning of the contract is ascertained from the writing
    alone. 
    Id.
     Moreover,
    [i]t is well-settled that clauses in a contract should not be read as
    independent agreements thrown together without consideration
    of their combined effects. Terms in one section of the contract,
    therefore, should never be interpreted in a manner which nullifies
    other terms in the same agreement. Furthermore, the specific
    controls the general when interpreting a contract.
    Southwestern Energy Production Co. v. Forest Resources, LLC, 
    83 A.3d 177
    , 187 (Pa. Super. 2013) (quoting Trombetta v. Raymond James
    Financial Services, Inc., 
    907 A.2d 550
    , 560 (Pa. Super. 2006)).
    Appellees and Appellant’s predecessor entered into the Lease on July
    29, 1999, which governs this matter.        Section 12 of the Lease set forth
    Appellant’s option to purchase the premises, in relevant part, as follows:
    SECTION 12
    TENANT’S OPTION TO PURCHASE
    Tenant shall have the right to purchase the Premises at any
    time during the Term of this Lease upon giving notice in writing to
    Landlord (the “Purchase Notice”) prior to the expiration of the
    original Term or any Extension Term hereof of Tenant’s intention
    to purchase the Premises. ... If Tenant exercises this Option to
    Purchase, then Tenant shall purchase and Landlord shall sell the
    Premises upon the terms and conditions set forth on the Terms
    for sale and Purchase attached hereto as Exhibit “E” (the
    “Purchase Terms”). ...
    Lease, 7/29/99, at 16, Section 12.
    In addition, Section 13 of the Lease presents the following specific
    conditions relevant to Appellant being presented with an offer to purchase
    from a third party buyer:
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    SECTION 13
    RIGHT OF FIRST REFUSAL
    If during the Term of any Extension Term of this Lease,
    Landlord shall have received a bona fide arm’s length offer to
    purchase the Premises which is acceptable to Landlord (the
    “Offer”) from any third party (the “Transferee”), Landlord shall
    send a notice (herein referred to as the “Transfer Notice”) to
    Tenant. The Transfer Notice shall set forth the exact terms of the
    Offer so received, together with a copy of the Offer, and shall state
    the desire of Landlord to sell the Premises on such terms and
    conditions. Thereafter, Tenant shall have the right and option to
    purchase the Premises at the price and upon the terms and
    conditions specified in the Offer. If Tenant desires to exercise its
    option, it shall give notice (the “Counter Notice”) to that effect to
    Landlord within twenty (20) days after receipt of the Transfer
    Notice. Such Counter Notice shall be accompanied by a letter
    acknowledging Tenant’s agreement to be bound by the terms and
    conditions of the Offer. Such Counter Notice shall set forth a date
    not later than sixty (60) days from the service of the Counter
    Notice on which the closing shall be held. The Tenant’s failure to
    give a timely Counter Notice (or notice of its refusal to purchase)
    shall be deemed a waiver of its option to purchase the Premises
    pursuant to the Offer, but shall not be deemed a waiver of its
    option to purchase the Premises pursuant to any modification of
    the Offer or any future offers. Tenant’s rights under this Section
    13 are assignable to any person or entity which is or would be a
    permitted assignee pursuant to Section 9 hereof. Tenant’s failure
    to, or its election not to, exercise its right of first refusal hereunder
    shall not affect the continued enforceability of the option to
    purchase provided in Section 12 hereof (provided only that the
    third party making the bona fide arm’s length offer to purchase
    the Premises does not purchase the Premises).
    Lease, 7/29/99, at 16-17, Section 13.
    In addressing the parties’ petitions for judgment on the pleadings, the
    trial court offered the following analysis:
    Looking to the [L]ease, the terms appear plain and
    unambiguous. Section 12 provides a detailed process outlining
    [Appellant’s] option to purchase the property during the pendency
    of the Lease. Section 13 details the process required should
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    [Appellee] desire to sell the property to a third party. It provides
    for the acceptance or waiver of a right of first refusal option for
    [Appellant]. The key phrase of Section 13 reads as follows:
    “Tenant’s failure to, or its election not to, exercise the right of first
    refusal hereunder shall not affect the continued enforceability of
    the option to purchase provided in Section 12 hereof (provided
    only that the third party making the bona fide arm’s length offer
    to purchase the Premises does not purchase the Premises.)”
    [Appellant] argues that since the contract provides for the
    continued enforceability of its Section 12 purchase option, even
    after the time has passed for exercising its right of first refusal,
    that it has the right to purchase the property pursuant to Section
    12 while [Appellees’] sale to Intervenor is still pending, but not
    yet consummated. This reading however, entirely ignores the
    parenthetical clarification that this sentence only has effect if the
    third party “does not purchase” the property. It is undisputed that
    [Intervenor] and [Appellees] entered into a Purchase Agreement
    on August 11, 2016, which [Appellant] was aware of when it
    received the Transfer Notice, and subsequently failed to exercise
    its right of first refusal under Section 13.
    [Appellant] points to the case of Amoco Oil Co. v. Snyder,
    which contains a similar but distinct factual pattern. 
    478 A.2d 795
    (Pa. 1984).      In Amoco, the Pennsylvania Supreme Court
    interpreted a similar lease contract, which contained a purchase
    option for the tenant along with a third-party purchase clause
    which contained a right of first refusal. 
    Id. at 796
    . The Court
    found that the tenant had the right to exercise the purchase option
    even after it had waived its right of first refusal, while a third party
    sale offer was still pending. Id. at 78. The crucial distinction here
    is that the Amoco lease contained no terms limiting the purchase
    option during the pendency of the third party sale. Id. The
    present Lease does contain a restriction on the Section 12 option,
    which goes back into effect after waiver of the right of first refusal
    “provided only that the third party making the bona fide arm’s
    length offer to purchase the Premises does not purchase the
    Premises.”
    Failure of the [c]ourt to give effect to the parenthetical
    language would entirely nullify its clear purpose in barring the
    Section 12 option if a third party is in the process of purchasing
    the property. Allowing [Appellant] to exercise the Section 12
    option at any point up until the actual consummation of the sale
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    would invalidate the parenthetical [language] for all practical
    intents and purposes, and it would thus be an inappropriate
    reading of the Lease. When read together, Sections 12 and 13
    clearly read that the Section 12 option will only reactivate upon
    the third party’s failure to purchase the property. As such, it is
    clear under the Lease that [Appellant] cannot exercise its Section
    12 option while a sale is pending with a third party, as is the case
    based upon the Agreement of Sale between [Appellee] and
    [Intervenor] which is still in effect, and so [Appellant] has no right
    to purchase the property at this time.
    Trial Court Opinion, 4/15/19, at 4-5. We are constrained to agree.
    Our review of the certified record reflects that on August 17, 2016,
    Appellee sent Appellant notice that it intended to sell the Premises to
    Intervenor for the sum of $3,000,000. Complaint, 2/2/17, at Exhibit 12. On
    September 6, 2016, Appellant sent correspondence to Appellee indicating it
    was undecided regarding whether it would deliver a counter notice pursuant
    to Section 13 of the Lease.     Id. at Exhibit 13.    On September 13, 2016,
    Appellee sent Appellant a letter indicating that, due to the fact that twenty
    days had elapsed from the date of the transfer notice, Appellant had waived
    its right of first refusal pursuant to Section 13.    Id. at Exhibit 14.       Thus,
    Appellant failed to timely exercise its right of first refusal. However, Appellant
    asserts its failure to act under Section 13 did not extinguish its right to
    purchase under Section 12.
    Upon review of the portions of the Lease set forth above, and taking into
    account all of the pertinent language and accompanying restrictions, we
    conclude that Section 13 contains language that precludes Appellant from
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    exercising the Section 12 option to purchase under particular circumstances.
    The following portion of Section 13 is controlling:
    [Appellant’s] failure to, or its election not to, exercise its right of
    first refusal [under Section 13] shall not affect the continued
    enforceability of the option to purchase provided in Section 12
    hereof (provided only that the third party making the bona
    fide arm’s length offer to purchase the premises does not
    purchase the Premises).
    Lease, 7/29/99, at 17, Section 13 (emphasis added). This language in Section
    13 specifically restricts the general language in the Section 12 option to
    purchase.    To ignore this restrictive portion of Section 13 would nullify its
    provision.
    We find support for this conclusion in our decision in Bobali
    Corporation v. Tamapa Company, 
    340 A.2d 485
     (Pa. Super. 1975).
    Therein, the parties entered into an agreement of sale in which Tamapa
    purchased property from Bobali, and the parties entered into an additional
    option agreement allowing Tamapa to purchase a contiguous tract of land for
    a fixed price. Id. at 487. The agreement contained an option of first refusal
    in the event that a third party purchaser made an offer on the contiguous tract
    of land. Id. at n.1. Subsequently, Bobali received a third party offer, and
    Tamapa then attempted to purchase the tract of land pursuant to the fixed-
    price option and not the right-of-first-refusal option. Id. at 487. As does
    Appellant in this matter, Tamapa argued “that the fixed price option could only
    be terminated upon the bona fide sale of the premises to a third party, as
    opposed to the mere offer of the third party.” Id. at 489. We opined “that
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    the right of first refusal provision … would be of no purpose or value unless it
    was the intent of the parties that the right of first refusal would supersede and
    terminate the fixed price option.” Id.
    To the extent Appellant relies upon our Supreme Court’s decision in
    Amoco Oil Company v. Snyder, 
    478 A.2d 795
     (Pa. 1984), we conclude that
    the case is readily distinguishable.     In Amoco, Snyder leased property to
    Amoco, and the lease contained an option to purchase and a right of first
    refusal.   Snyder subsequently obtained a bona fide third party offer to
    purchase the property, and Amoco did not exercise its right of first refusal.
    
    Id. at 796-797
    . Rather, Amoco attempted to exercise its option to purchase,
    and Snyder refused to convey the property.        
    Id. at 797
    .    The trial court
    granted Amoco’s request for specific performance and the Superior Court
    affirmed, as did the Supreme Court.         
    Id. at 797, 799
    .    In reaching its
    conclusion, our Supreme Court determined that the lease in question
    contained no language that restricted the applicability of the option to
    purchase. 
    Id. at 798-799
    . In concluding that the fixed-price option was not
    restricted, the Court noted that “nowhere is there a provision in the lease that
    expressly terminates the fixed price option upon the occurrence of an event
    or a lapse of time…. Nowhere is there additional language which restricts the
    applicability of the fixed price option.” 
    Id. at 798
    .
    Hence, upon review of the parties’ arguments, the relevant legal
    authority, the applicable provisions of the Lease, and the remainder of the
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    certified record, we conclude that Appellant waived its option to purchase
    under Section 13 by failing to file a timely counter notice as required. Because
    Appellee and Intervenor entered into a sales agreement, and Appellant waived
    its Section 13 right of first refusal, the specific language of Section 13 controls,
    and Section 12 no longer applies unless Intervenor “does not purchase the
    Premises.” Lease, 7/29/99, at 17, Section 13. Therefore, the trial court did
    not err in reaching its conclusion. See Southwestern Energy, 
    83 A.3d at 187
     (“the specific controls the general when interpreting a contract”).
    Accordingly, Appellant’s contrary claim fails.
    Appellant next argues that in making its decision, the trial court erred
    in considering matters outside of the pleadings. Appellant’s Brief at 35-38.
    Appellant asserts that the trial court erred in concluding that the agreement
    of sale between Appellee and Intervenor was “still in effect.” Id. at 36.
    Appellant explains its argument as follows:
    The proposed Agreement between [Appellees] and [Intervenor]
    was signed by the parties on August 5, 2016, August 7, 2016, and
    August 11, 2016. The proposed Agreement had a “due diligence
    period” of 270 days. Therefore, [Intervenor] had until May 11,
    2017 to complete its due diligence in order to move forward with
    the purchase. The proposed Agreement had a closing date 30
    days after the expiration of the due diligence period. Therefore,
    [Intervenor] had until June 10, 2017 to close on the Property in
    order to meet the conditions precedent to the proposed
    Agreement and complete the purchase.
    ***
    [Intervenor] admitted in its complaint that [Appellee] and
    [Intervenor] never consummated the proposed Agreement, never
    completed due diligence, and did not close on the proposed
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    purchase on June 10, 2017. (See Intervenor’s complaint ¶¶ 41,
    55c, 64c; R.242a-R.247a.)
    Id. at 37. Appellant concludes that “[i]n making its decision on judgment on
    the pleadings, the [c]ourt below inappropriately considered alleged evidence
    that was not in the pleadings and in fact, was inconsistent with the pleadings
    i.e. that the proposed Agreement of Sale was ‘still in effect.’”   Id. at 38.
    However, Appellant fails to prove that because Appellee and Intervenor did
    not close on the property on June 10, 2017, the sales agreement was not still
    in effect as the trial court concluded.
    We observe that the Superior Court applies the same standard as the
    trial court and confines its considerations to the pleadings and documents
    properly attached thereto. Donaldson v. Davidson Bros., Inc., 
    144 A.3d 93
    , 101 (Pa. Super. 2016). The court must accept as true all well-pleaded
    statements of fact, admissions, and any documents properly attached to the
    pleadings presented by the party against whom the motion is filed, considering
    only those facts that were specifically admitted.    Kote v. Bank of N.Y.
    Mellon, 
    169 A.3d 1103
    , 1107 (Pa. Super. 2017).
    Moreover, our Supreme Court has long stated that:
    even though the time fixed in an agreement for settlement is
    stated to be of the essence of the agreement, it may be extended
    by oral agreement or be waived by the conduct of the parties, and
    where the parties treat the agreement as in force after the
    expiration of the time specified for settlement it becomes
    indefinite as to time and neither can terminate it without
    reasonable notice to the other.
    Warner Company v. MacMullen, 
    112 A.2d 74
    , 78 (Pa. 1955).
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    Our review of the certified record reflects that the sales agreement does
    not contain a “time is of the essence” provision. Intervenor’s First Amended
    Third-Party Complaint, 5/8/18, Exhibit A. Thus, there was no requirement in
    the sales agreement for strict compliance with the deadlines for due diligence
    and closing. Accordingly, we discern no merit to Appellant’s claim that the
    trial court relied upon matters outside of the pleadings in stating that the sales
    agreement was still in effect. Thus, this claim fails.
    Appellant last argues that, in the alternative, there can be more than
    one reasonable interpretation of the parenthetical language in Section 13.
    Appellant’s Brief at 38-43. Appellant asserts that there is an ambiguity that
    should be resolved through extrinsic evidence, which is not part of the
    pleadings.
    Pursuant to Pa.R.A.P. 302, issues that are not raised in the lower court
    are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).
    Likewise, we have held that “[a] claim which has not been raised before the
    trial court cannot be raised for the first time on appeal.” Commonwealth v.
    Lopata, 
    754 A.2d 685
    , 689 (Pa. Super. 2000). In addition, we have long
    stated that “[a] theory of error different from that presented to the trial jurist
    is waived on appeal, even if both theories support the same basic allegation
    of error which gives rise to the claim for relief.” Commonwealth v. Gordon,
    
    528 A.2d 631
    , 638 (Pa. Super. 1987). Thus, only claims properly presented
    in the trial court are preserved for appeal.
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    Our review of the certified record reflects that Appellant never argued
    or pled before the trial court that there is any ambiguity in the Lease. In fact,
    in its motion for partial judgment on the pleadings, Appellant specifically
    stated, “Furthermore, no party has pled that there is any ambiguity in the
    Lease.” Motion for partial judgment on the pleadings, 2/15/19, at 10, ¶ 45.
    Accordingly, Appellant’s failure to argue before the trial court a claim that the
    Lease is ambiguous results in failure to preserve the issue for appellate review.
    Pa.R.A.P. 302(a); Lopata, 
    754 A.2d at 689
    .
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/21/2020
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