Mark Coal Street Assoc. v. Hassey, R. ( 2023 )

J-A20040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MARK COAL STREET ASSOCIATES, : IN THE SUPERIOR COURT OF
L.P. : PENNSYLVANIA
:
:
v. :
:
:
RAYMOND A. HASSEY AND JOSEPH :
A. HASSEY, AS TRUSTEES OF TRUST : No. 1631 MDA 2022
T/A CENTRAL DEVELOPMENT GROUP :
:
Appellant :
Appeal from the Judgment Entered November 17, 2022
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
201412881
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM PER CURIUM: FILED: OCTOBER 31, 2023
Appellants, Raymond A. Hassey and Joseph A. Hassey, as Trustees of
Trust T/A Central Development Group, appeal from the November 17, 2022,
Entry of Judgment following a September 19, 2022, Order and Opinion
awarding judgment in favor of Appellee, Mark Coal Street Associates, L.P. The
issues raised involve contract interpretation of a lease. Following a thorough
review, we affirm.
The relevant facts and procedural history as summarized by the trial
court are as follows:
The parties stipulated to the material facts and therefore are
not at issue. The Defendants/Lessor and Plaintiff/Lessee entered
into a ground lease on December 22, 2006, for two acres of
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* Former Justice specially assigned to the Superior Court.
J-A20040-23
property located at 410 Wilkes-Barre Township Boulevard and
Coal Street, partially in the city of Wilkes-Barre and partially in
the Township of Wilkes-Barre, Pennsylvania (hereinafter
“Property”). (Joint Ex. 1). At the time the Lease was executed,
there was an existing building on the Property that was occupied
by a Super China Buffet. Joint Ex. 1; Joint Ex. 14; Hassey Dep. p.
11). After entering into the Lease, and pursuant to Paragraph 2 of
the Lease, Plaintiff paid for the demolition of the existing building
and also paid for the moving of power lines and placement of new
infrastructure. (Joint Ex. 1; Joint Ex. 14, Hassey Dep. p. 11, 12).
Plaintiff also paid for the construction of a new building, originally
occupied by a Walgreen's pharmacy, which partially sits on the
Property and property owned solely by Plaintiff. (Joint Ex. 5, 6;
Joint Ex. 14, Hassey Dep. p. 8, 11, 12). The Walgreen's Pharmacy.
Building has since been converted into an Advanced Auto Parts
Store. Plaintiff also paid for and constructed a Popeye's restaurant
on the Property. Joint Ex. 5, 10; Joint Ex. 14, Hassey Dep. p. 12).
The rent is defined in Paragraph 7 of the Lease as
$15,000.00 monthly or $180,000.00 annually. Presently, Plaintiff
has timely paid all rent due to Defendants. The Lease includes an
Option to Purchase set forth in Paragraph 9. (Joint Ex: 1). By letter
dated August 6, 2014, counsel for Plaintiff sent a letter to
Raymond A. Hassey, Esquire (hereinafter “Attorney Hassey”),
attempting to exercise the Option to Purchase set forth in
Paragraph 9 of the Lease. (Joint Ex. 2). By letter dated August 13,
2014, Attorney Hassey sent correspondence to Plaintiff's counsel
stating, inter alia, that the Option to Purchase was not ripe. (Joint
Ex. 3). On September 2, 2014, Plaintiff's counsel sent another
letter to Attorney Hassey setting forth, inter alia, its position with
respect to the Option to Purchase set forth in the Lease. (Joint Ex.
4).
On November 19, 2014, Plaintiff filed its original Complaint,
which included one count for Declaratory Judgment. On December
22, 2014, Defendants filed an Answer and New Matter to the
original Complaint. On August 25, 2015, Attorney Hassey sent an
email to Marvin Slomowitz (hereinafter “Mr. Slomowitz”),
President of Mark Coal, with the subject line “Mark Coal Right of
First Refusal.” (Joint Ex. 15). The email included a one-page
attachment from Select Realty Company (hereinafter “Select
Realty”), dated August 24, 2015. (Joint Ex. 15). On August 26,
2015, Attorney Hassey wrote another email to Mr. Slomowitz with
the subject line “Additional offer received on Mark Coal-Hassey
Lease.” (Joint Ex. 16). This email included a two-page attachment
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dated August 25, 2015, from Kamin Investment Company
(hereinafter “Kamin”). (Joint Ex. 16).
On September 10, 2015, Defendants filed a Motion for
Preliminary Injunction seeking to stop the sale of the Subject
Property, pending the results of the litigation. (Joint Ex. 9). On
October 5, 2015, [the trial court] issued an Order denying the
Motion for Preliminary Injunction (Joint Ex. 9). On October 13,
2015, Plaintiff filed a Praecipe for Lis Pendens with respect to the
Property. (Joint Ex. 9). On July 7, 2017, Plaintiff filed an Amended
Complaint, which included two claims: count 1 - Declaratory Relief
and count 2 - Breach of Contract. On July 27, 2017, Defendants
filed an Answer, New Matter and Counterclaims. The
Counterclaims include two claims: count 1 - Declaratory Judgment
and count 2 - Tortious Interference with Contracts and/or
Prospective Contracts. The Parties stipulated to the authenticity,
admissibility, and the fact that the Joint Exhibits would have been
admitted into evidence at trial. However, the Parties did not agree
to the relevance, materiality or weight, if any, to be accorded to
the Joint Exhibits.
Tr. Ct. Op. at 1-3.
The parties agreed to have the matter decided on briefs instead of an
in-person trial. The parties filed their briefs, and the trial court issued its
decision on September 13, 2022, with an opinion on September 19, 2022,
(hereinafter “Tr. Ct. Op.”), finding in favor of Appellee. Appellants filed a post-
trial motion on September 29, 2022, which was denied by the trial court on
November 2, 2022. A praecipe to enter judgment was filed and judgment was
entered by the prothonotary on November 17, 2022. Appellants filed a
Statement of Errors Complained of on Appeal on January 6, 2022.1 Appellants
filed their brief on May 30, 2023, and a reply brief on July 12, 2023.
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1 We note, as did the trial court, that Appellants’ Statement of Errors
Complained of on Appeal did not comport with Pa.R.A.P. 1925(b) which calls
for a concise statement. Appellants filed a thirteen-page brief. “Our law makes
(Footnote Continued Next Page)
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Appellants raised two issues for our review:
1. Did the lower court err by failing to interpret the lease
agreement in accordance with its clear and unambiguous
terms?
2. Did the lower court err by ruling against the weight of the
evidence?
Appellants’ Br. at 4.
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of the
trial judge in a non-jury case must be given the same weight and
effect on appeal as the verdict of a jury, and the findings will not
be disturbed on appeal unless predicated upon errors of law or
unsupported by competent evidence in the record. Furthermore,
our standard of review demands that we consider the evidence in
a light most favorable to the verdict winner.
De Lage Landen Fin. Servs. v. Rozentsvit, 939 A.2d 915, 918 (Pa.Super.
2007) (internal quotation marks and citations omitted). No relevant facts are
in dispute. Because contract interpretation is a question of law, our review of
the trial court's decision is de novo and our scope is plenary. Bucks
Orthopaedic Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 871
____________________________________________
it clear that Pa.R.A.P. 1925(b) is not satisfied by simply filing any statement.
Rather, the statement must be ‘concise’ and coherent as to permit the trial
court to understand the specific issues being raised on appeal.” Tucker v.
R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007). This Court found waiver in
Tucker for breach of good faith and fair dealing when an appellant’s Rule
1925(b) statement was sixteen pages long and when asked to clarify, the
appellant provided an eight-page statement. Id. We do not find waiver here
because Appellants raised issues that apprised the court of what they planned
to argue, when the appellant in Tucker “effectively precluded appellate review”
by including seventy-six paragraph statements that raised seventeen issues.
We note our displeasure on failure to adhere to the Rules of Appellate
Procedure.
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(Pa.Super. 2007); Highmark Inc. v. Hospital Service Association of
Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa.Super. 2001).
For Appellants’ first issue, we begin with considering several general
principles of contract interpretation.
The fundamental rule in interpreting the meaning of a contract is
to ascertain and give effect to the intent of the contracting parties.
The intent of the parties to a written agreement is to be regarded
as being embodied in the writing itself. The whole instrument must
be taken together in arriving at contractual intent. Courts do not
assume that a contract's language was chosen carelessly, nor do
they assume that the parties were ignorant of the meaning of the
language they employed. . . .
Mitch v. XTO Energy, Inc., 212 A.3d 1135, 1138-39 (Pa.Super. 2019)
(citation omitted). “In construing a contract, we must give effect to all of the
provisions therein. An interpretation will not be given to one part of the
contract which will annul another part of it.” Id. at 1139 (citation omitted).
“[W]hen the language of a contract is clear and unequivocal, courts
interpret its meaning by its content alone, within the four corners of the
document,” and “this Court need only examine the writing itself to give effect
to the parties’ understanding. [We] must construe the contract only as written
and may not modify the plain meaning under the guise of interpretation.”
Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 665
(Pa.Super. 2014) (citation omitted).
On the other hand, a contract is ambiguous if it is reasonably
susceptible of different constructions and capable of being
understood in more than one sense. The “reasonably” qualifier is
important: there is no ambiguity if one of the two proffered
meanings is unreasonable. Furthermore, reviewing courts will not
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distort the meaning of the language or resort to a strained
contrivance in order to find an ambiguity. When an ambiguity
exists, parol evidence is admissible to explain or clarify or resolve
the ambiguity, irrespective of whether the ambiguity is patent,
created by the language of the instrument, or latent, created by
extrinsic or collateral circumstances. While unambiguous
contracts are interpreted by the court as a matter of law,
ambiguous writings are interpreted by the finder of fact.
Family v. Pennenergy Res., LLC, 276 A.3d 729, 736-37 (Pa.Super. 2022)
(internal citations and quotation marks omitted).
Appellants raise four arguments under the issue of contract
interpretation. Appellants’ Br. at 20, 29, 37, 41. The first argument is that the
trial court erred in finding that the option to purchase was ripe. Specifically,
Appellants argue that the term of this lease was defined in the contact as
twenty-nine years, eleven months, and twenty-nine days, and Appellee
attempted to exercise the option to purchase after only eight years, which was
premature. The language in the lease states,
9. Option to Purchase. Lessee shall have the option to purchase
the Property pursuant to the terms of this Section 9 (the “Option
to Purchase”). Should Lessee decide to exercise its Option to
Purchase, it shall notify Lessor in writing no later than ten (10)
days prior to the last day of the term of this Lease that Lessee
intends to purchase the Property with settlement to occur at 10:00
am on the last day of the Lease (the “Closing Date”) at a place
to be mutually acceptable to both Lessor and Lessee.
Ex. 1, Lease Agreement, § 9 (bold emphasis in original).
The trial court held that the language regarding timing of the option to
purchase is unambiguous and the exercise was ripe from the commencement
of the lease up until ten days prior to the last day of the term, and we find no
error in the application of contract law principles. Tr. Ct. Op. at 6. Appellants
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argue that Appellee’s positions are based on isolated and limited excerpts of
the lease agreement, Appellants’ Reply Br. at 1, and insist that a reading the
“Option to Purchase” provision as a whole suggests a different result.
Appellants’ Br. at 22-23. While contract interpretation requires considering the
contract as a whole, this language is unmistakably clear, and there is no
language in the paragraphs that follow it that support Appellants’ position.
Appellants argue that “a clear reading--and strict interpretation--of the
terms of the lease agreement as a whole demonstrates that the option to
purchase must be exercised within ten (10) days of the last day of the lease
agreement,” Appellants’ Br. at 22, and, “[d]espite the Option to Purchase not
being ripe until the end of the Term of the Lease Agreement--March 30, 2038-
-Plaintiff prematurely and without any basis in law or fact attempted to
exercise the Option to Purchase[.]” Appellants’ Br. at 12. However, the lease
began on April 1, 2008. Ex. 1, Lease Agreement § 5. Adding the defined “term”
of twenty-nine years, eleven months, and twenty-nine days results in the date
of March 30, 2038. Subtracting the ten days from the last day of the “term”
results in a date of March 20, 2038. Thus, Appellee had from April 1, 2008, to
March 20, 2038, to exercise the option to purchase. Had Appellee exercised
the option to purchase “within” ten days of the last day, it would have been
too late. Had Appellee exercised the option to purchase “at the end of the
Term of the Lease Agreement--March 30, 2038,” it would have been too late.
Appellants submit a history of earlier drafts of the lease agreement as
well as a report of their expert in order to prove that the intent of the parties
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was that the option to purchase would become available upon a certain date
but no earlier. Appellants’ Br. at 24-29, 45-48. Appellants argue that the trial
court failed to consider that evidence. However, parol evidence cannot be
utilized to interpret unambiguous contract terms, Wert v. Manorcare of
Carlisle Pa, LLC, 124 A.3d 1248, 1259 (Pa. 2015), and since there was no
ambiguity regarding the ripeness of the option to purchase, the trial court did
not commit an error of law by not considering evidence or language not in the
final contract.
Appellants’ second argument involving contract interpretation is that the
lower court erred by effectively redefining the term “closing date” and that the
trial court’s interpretation of the option to purchase nullifies the closing date
provision. Appellants’ Br. at 23-24. Specifically, Appellants argue:
the lower court erred by effectively imputing ambiguity on the
term Closing Date, when it is clear that the already explicitly
defined term has an unambiguous meaning in the Lease
Agreement. If Plaintiff properly exercises the Option to Purchase,
then the Closing Date under the Lease would be March 30, 2038,
the last day of the Lease Term.
Appellants’ Br. at 29-30. The trial court found ambiguity in deciding the closing
date because of these provisions:
Should Lessee decide to exercise its Option to Purchase, it shall
notify Lessor in writing no later than ten (10) days prior to the last
day of the term of this Lease that Lessee intends to purchase the
Property with settlement to occur at 10:00 am on the last day of
the Lease (the “Closing Date”) at a place to be mutually
acceptable to both Lessor and Lessee.
...
Should the parties come to settlement on the exercise of the
option to purchase, then this lease shall terminate upon
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consummation of the sale. In the event, Lessee fails to exercise
its Option to Purchase, then the Term of this Lease shall
automatically extend for an additional forty-five (45) years (the
“Extension Term”) on the same terms and conditions (including
Rent) as applicable during the initial Term.
Ex. 1, Lease Agreement, § 9 (bold emphasis in original).
Given that the trial court had interpreted the lease to mean that the
option to purchase was ripe, the court rationalized that if the closing date was
set for the last day of the lease term as “term” is defined in the contract, then
regardless of how early Appellee notified Appellants of its intent to exercise
the option to purchase, Appellee would have to pay rent until March 30, 2038.
Tr. Ct. Op. at 6-7.
The court considered parol evidence of deposition testimony and
concluded that the most logical interpretation is that the lease terminates
upon the closing date, but that the closing date should be soon after exercising
the option to purchase, not on the last day of the “term” in approximately
thirty years. Tr. Ct. Op. at 7-8. Thus, the court held, “the closing date under
the Option to Purchase is within a reasonable amount of time after the option
is executed.” Tr. Ct. Op. at 8.
Appellants state, “the lower court erred when it relied upon one sole
piece of parol evidence, which is a misconstrued excerpt of the deposition
transcript of Mr. Hassey.” Appellants’ Br. at 42. We agree. The trial court erred
in its application of the law by improperly considering parol evidence when the
meaning of the provision is unambiguous.
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The provision that the trial court found to cast ambiguity on the closing
date states, “Should the parties come to settlement on the exercise of the
option to purchase, then this lease shall terminate upon consummation of the
sale.” Thus, if the Lessee exercised its option to purchase instead of letting
the stated term run out, then the lease ends on whatever day the closing
occurs, which is a natural and probable outcome of the sale of a leased
property. Read in conjunction with the first paragraph of the Option to
Purchase section that “the settlement will occur at 10:00 am on the last day
of the Lease (the “Closing Date”),” it is clear that the closing date is whatever
date on which the lease terminates. The parties are to meet at 10:00 am on
the day the lease terminates pursuant to the parties’ agreement to exercise
the option to purchase. Notably, the word “Term” does not appear in either
sentence discussing the “sale” or the “closing date” as both provisions discuss
the end of “Lease,” not the end of the “term.”
Appellants argue,
The contract expressly states that closing will occur, if the Option
to Purchase is exercised, on the last day of the lease, which occurs
at 10:00 am on the 29th day, in the 11th month of the 29th year.
Appellants’ Statement of Errors Complained of on Appeal at 9 (italics emphasis
added). Further,
If Plaintiff properly exercises the Option to Purchase, then the
Closing Date under the Lease would be March 30, 2038, the last
day of the Lease Term.
Appellants’ Br. at 29-30 (italics emphasis added). And,
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The language clarifies that on the last day of the 29 year, 11
month, and 29 day lease term, if lessor exercises the option to
purchase, the lease would end and the property would close on
that “Closing Date.”
Appellants’ Reply Br. at 8 (italics emphasis added). Appellants seek to insert
the word “term” so that it appears that the parties agreed in the lease that
closing would be at the end of the term as it is defined in the lease at nearly
thirty years in the future. “It is not the province of the court to alter a contract
by construction or to make a new contract for the parties; its duty is confined
to the interpretation of the one which they have made for themselves, without
regard to its wisdom or folly.” Amoco Oil Co. v. Snyder, 478 A.2d 795, 798
(Pa. 1984). The last day of the lease is not 29 years 11 months and 29 days
in the future, that is the last day of the “term.” The last day of the lease is
whatever date the lease terminates pursuant to the parties exercising the
option to purchase.
We conclude that the trial court erred in its application of the law by
improperly considering parol evidence when the meaning of the provision
about the termination of the lease is unambiguous. However, “[t]o constitute
reversible error, an evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party. . . . A party suffers prejudice
when the trial court's error could have affected the verdict.” Schuenemann
v. Dreemz, LLC, 34 A.3d 94, 101 (Pa.Super. 2011) (quotation marks and
citations omitted).
There is no ambiguity if one of the two proffered interpretations is
unreasonable, and allowing a party to exercise an option to purchase but not
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allowing that party to close on the property for nearly thirty years is an
unreasonable result, and the trial court should not have considered it a
“reasonable” interpretation that required the utilization of parol evidence
before being disregarded. Although the court found ambiguity when there was
none and improperly considered parol evidence, the trial court’s final
interpretation of this provision is correct. While the events to occur on the
“Closing Date” are unambiguously defined in the contract, no date was
expressly set as the “Closing Date,” and thus the trial court’s determination
that closing is to occur within a reasonable time is not “redefining” anything
in the lease and will not be disturbed.
Appellants’ third and fourth arguments of contract interpretation are
that the trial court erred in its interpretation of the word “Property,” and in
turn ascribed an erroneous meaning to the “market value” of the leased
property. Appellants’ Br. at 37. Specifically, Appellants argue that the
improvements that Appellee added to the property since the commencement
of the lease are included in the term “Property,” and thus in determining the
market value that Appellee must pay Appellants for said property, the value
of the added improvements must be included in the calculation according to
basic principles of property law. Appellants’ Br. at 37-38; Appellants’ Reply Br.
at 9-10.
The provision at issue states that once the Lessee exercises the option
to purchase:
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As consideration for such purchase, the parties hereto agree that
Lessee shall pay to Lessor a sum (the "Option Price") equal to
the greater of: (a) the fair market value of the Property at the
time the option is exercised as determined by a certified licensed
Pennsylvania real estate appraiser satisfactory to both Lessor and
Lessee, or (b) Two Million Five Hundred Thousand and No/100
Dollars ($2,500,000.00).
Ex. 1, Lease Agreement § 9 (bold emphasis in original, italics emphasis
added). The trial court held that the option price does not include the value of
improvements paid for Appellee on the property because the lease defines the
property at issue as “improved real property” that Appellee took “as is” and
any “improvements” to it were at Appellee’s expense and do not need to be
repurchased by Appellee. Tr. Ct. Op. at 8-9. We agree.
The term “Property” is defined in the lease:
WHEREAS, Lessor is the owner of certain improved real property
located at 410 Wilkes-Barre Township Boulevard, consisting of
approximately two (2) acres, with frontage and access on Wilkes-
Barre Township Boulevard and Coal Street, partially in the City of
Wilkes-Barre and partially in the Township of Wilkes-Barre,
Pennsylvania (the "Property").
Ex. 1, Lease Agreement ¶ 2 (bold emphasis in original). Thus, the “Property”
that Appellants own and that Appellee took under the lease in 2006 was
“improved real property,” “as is,” and the option price is the fair market value
of the same. The trial court was correct to conclude that the fair market value
of the Property does not include any structure or facility, called
“Improvements,” constructed by Appellee at its own expense. The term
“Improvements” (with a capital “I”) is defined in the lease:
2. Property taken "AS-IS”. Lessee agrees to take tenancy of
the Property in "as-is" condition, with existing improvements, and
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subject to such easements and hereditaments, as exist on site.
Lessee, shall, at its own expense undertake to demolish the
existing building(s) and where necessary, replace, reroute and
install such infrastructure, utility lines, drain lines and sewer lines
and mains, points of ingress and egress, and Lessee shall at its
own expense, construct such new facilities and improvements
("Improvements").
Ex. 1, Lease Agreement § 2 (bold emphasis in original). The plain language of
the lease does not include the “Improvements” undertaken by Appellee in the
definition of the “Property,” and the option price is the fair market value of
the “Property”—not “Property with Improvements.”
We are unpersuaded by Appellants’ argument that the trial court
considered parol evidence in arriving at these conclusions. Appellants argue
that “[t]he lower court did not make a finding of ambiguity regarding the term
‘Property,’ yet it did reach to outside extrinsic evidence and considered parol
evidence in support of its finding that improvements shall not be included in
the valuation of Property. (See Appendix “A” at p. 8).” Appellants’ Br. at 33.
And, “[t]he lower court’s opinion clearly references the anticipation of the
parties in negotiations, which is outside the four corners of the documents.
(See Appendix “A” at p. 8).” Appellants’ Reply Br. at 10. A reading of the trial
court’s opinion reveals that the trial court did consider that “the parties
anticipated Plaintiff constructing commercial buildings on the Property,” Tr.
Ct. Op. at 8, and “[t]he parties anticipated Plaintiff purchasing the Property.”
Tr. Ct. Op. at 9.
However, this was not a reliance on the anticipation of the parties from
their negotiations, as Appellants assert. The court discussed what the parties
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“anticipated” pursuant to the lease agreement itself. Ex. 1, Lease Agreement
¶ 2 (“Lessee shall at its own expense, construct such new facilities and
improvements”); Ex. 1, Lease Agreement § 9 (“Lessee shall have the option
to purchase the Property”). Thus, the trial court correctly found no ambiguity
existed and considered no extrinsic evidence in holding that the term
“Property” as defined in the lease does not include any of Appellee’s
constructions or improvements and that they should not be included in the
fair market value.
Moreover, this outcome does not diminish the value of the property or
ignore the value of the improvements on the property as Appellants assert.
Appellants’ Reply Br. at 11. This would be true only if the cost was subtracted
from a third party’s purchase price, not when subtracted from the Appellee’s
price when Appellee built it. Amoco Oil Co. v. Snyder, 448 A.2d 1139, 1142
(Pa.Super. 1982) (“it would be unfair to require the optionee to meet a third
party's offer which would naturally reflect the improvements on the premises
made by the optionee himself.”). The contract expressly puts the responsibility
for the cost of demolition of the structure already on the leased land on
Appellee, and Appellee paid for the additional improvements. We will not
require Appellee to pay for the same thing again.
Next, Appellants challenge the trial court’s award to Appellee of rent
paid since exercising the option to purchase. Appellants’ Br. at 50. This issue
was not included in Appellants’ statement of questions involved. Appellants’
Br. at 4. We note that issues not presented in the statement of questions
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involved portion of an appellant's brief are generally deemed waived.
Pa.R.A.P. 2116(a) (“The statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail.”); Werner v. Werner, 149 A.3d
338, 341 (Pa.Super. 2016) (internal citation omitted) (“Issues not presented
in the statement of questions involved are generally deemed waived”).
“However, such a defect may be overlooked where an appellant's brief
suggests the specific issue to be reviewed and appellant's failure does not
impede our ability to address the merits of the issue.” Id. at 341 (internal
citation and brackets omitted). We are able to discern the issues from the
argument section of Appellants’ brief and, therefore, we do not find waiver on
this basis.
Turning to the merits, we find that the trial court properly awarded
Appellee rent paid exercising the option. The trial court applied True R.R.
Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324 (Pa.Super. 2016):
Where one party to a contract without any legal justification,
breaches the contract, the other party is entitled to recover,
unless the contract provided otherwise, whatever damages he
suffered, provided (1) they were such as would naturally and
ordinarily result from the breach, or (2) they were reasonably
foreseeable and within the contemplation of the parties at the time
they made the contract, and (3) they can be proved with
reasonable certainty.
Id. at 342. The trial court held that Appellants had no legal justification for
refusing to accept Appellee’s August 6, 2014 letter exercising its option to
purchase the property, that failing to accept the terms of the option to
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purchase was a breach, that the rent paid by Appellee was a natural and
foreseeable loss suffered from the breach, and that the damages were proven
with reasonable certainty because the monthly rent was set forth in the lease.
Tr. Ct. Op. at 10. We discern no error of law.
Appellants argue that there was legal justification in refusing to exercise
the option to purchase because Appellants were “operating on what it believed
to be the clear language and intent of the lease --- namely, that Plaintiff was
not entitled to exercise its option to purchase and close on the purchase until
March 30, 2038.” Appellants’ Br. at 53. However, as pointed out above, the
lease began on April 1, 2008. Even if the closing date had been expressly set
in the lease as the end of the “Term,” which it was not, adding the defined
“term” of twenty-nine years, eleven months, and twenty-nine days results in
the date of March 30, 2038. Subtracting the ten days from the last day of the
“term” results in a date of March 20, 2038. Thus, it was not a reasonable
reading of the lease, and thus not a legal justification for breach, for Appellants
to argue that they thought Appellee could only validly exercise its option to
purchase on March 30, 2038.
We also find that True R.R. is analogous to this case. Appellants argue
that the case is distinguishable because Appellee’s request is for an award of
money damages, yet the True R.R. trial court only entered a “credit against
the purchase price for the rent it paid.” Thus, Appellants argue, True R.R.
only provides for a credit at closing in the amount of rent that it paid if the
purchasing party demonstrates that it was entitled to exercise its option to
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purchase and that it legally complied with the terms of the option. Appellants’
Br. at 57-58 n.3. Not only is this distinguishment futile, Appellee’s amended
complaint does seek to “award Plaintiff damages, or a credit at the closing on
the Property, . . . plus all monthly rental payments[.]” Amend. Comp., at 8
(emphasis added). The trial court’s order awarded Plaintiff, “damages, or a
set off from the sales price of the Property, . . . plus any additional monthly
rental payments[.]” Tr. Ct. Order 9/13/22, ¶ 2 (emphasis added). Thus, we
conclude that the trial court properly applied the law in holding that Appellee
is entitled to a credit against the sales price for rent paid beginning January
2015 until closing on the property.
Appellants’ second issue is a challenge to the weight of the evidence on
Appellants’ tortious interference counterclaim. Our standard of review for a
challenge to the weight of the evidence is as follows:
When reviewing a verdict in a non-jury trial, this Court will respect
a trial court's findings with regard to the credibility and weight of
the evidence unless the appellant can show that the trial court's
determination was manifestly erroneous, arbitrary and capricious,
or flagrantly contrary to the evidence. The test is not whether this
Court would have reached the same result on the evidence
presented, but rather, after due consideration of the evidence the
trial court found credible, whether the trial court could have
reasonably reached its conclusion.
El-Gharbaoui v. Ajayi, 260 A.3d 944, 965-66 (Pa.Super. 2021) (internal
citations and quotation marks omitted). “When the trial court sits as fact
finder, the weight to be assigned the testimony of the witnesses is within its
exclusive province, as are credibility determinations, and the court is free to
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choose to believe all, part, or none of the evidence presented.” Stokes v.
Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa.Super. 2001). “This
Court is not free to usurp the trial court's duty as the finder of fact.” Isralsky
v. Isralsky, 824 A.2d 1178, 1190 (Pa.Super. 2003).
Specifically, Appellants argue that the evidence submitted shows that
Appellants had accepted an offer to purchase the property and that Appellee’s
seeking of injunctive relief and filing of a lis pendens lien without legal
justification establishes intentional interference with Appellants’ potential
contract with a third-party, Select Realty. We find that this argument is
without merit. We note that while the court below was free to ignore any
purported evidence and make any credibility determinations, any evidence
about alleged third party offers are irrelevant because Appellee had already
exercised its option to purchase on August 6, 2014, which Appellants
improperly refused. The trial court noted that there is no provision in the lease
that terminates the option to purchase upon the occurrence of an event, Tr.
Ct. Op. at 12, and the option to purchase was ripe since commencement of
the lease on April 1, 2008, so Appellants were in breach by not closing within
a reasonable time and by continuing to accept rent under the lease. Thus, any
discussion about the evidence of the two third party offers received by
Appellants or the effect of this litigation on those offers are futile.
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Accordingly, the judgment is affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/31/2023
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