Philadelphia Coke Co. v. King USA Capital

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
PHILADELPHIA COKE COMPANY, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KING USA CAPITAL, INC., : No. 3285 EDA 2018
:
Appellant :
Appeal from the Judgment Entered November 26, 2018,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 170702579
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 22, 2019
King USA Capital, Inc., appeals from the November 26, 2018 judgment
entered in the Court of Common Pleas of Philadelphia County following the
trial court’s grant of summary judgment in favor of Philadelphia Coke
Company, Inc. (“Philadelphia Coke”) and against appellant on Philadelphia
Coke’s declaratory judgment and breach of contract claims against appellant
and on appellant’s specific-performance counterclaims against Philadelphia
Coke. We affirm.
The trial court set forth the following:
On June 16, 2016, [Philadelphia Coke] and [appellant]
entered into an agreement of sale (“the agreement”)
for real estate. The subject of the agreement was the
land, improvements, personal property, and
assignable licenses and permits of 4501 Richmond
Street, Philadelphia, PA (“the property”). The agreed
purchase price was $4 million. [Appellant] deposited
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a cash payment of two hundred thousand dollars
($200,000.00) with a title company, which was held
in escrow as an initial deposit pursuant to Section 3.2
of the agreement.
Provided in that agreement was a due diligence period
and environmental due diligence period, both
originally scheduled to end on December 12, 2016.
The agreement provided in Section 3.1(b)(ii) that if
the buyer did not terminate the agreement prior to
the expiration of the due diligence period, then on the
last day of the due diligence period, the buyer “shall
deposit by wire transfer of immediately available
funds, in escrow with the title company, an additional
cash payment of Two Hundred Thousand Dollars
($200,000)...”[Footnote 1] Section 3.3 also provided
that in the event buyer failed to make the additional
deposit when due, the agreement shall “immediately
and automatically terminate.”[Footnote 2]
[Footnote 1] Agreement of Sale
§ 3.1(b)(ii).
[Footnote 2] Agreement of Sale § 3.3.
In December of 2016, [appellant] requested an
extension of the two due diligence periods until April
of 2017 to resolve environmental and zoning issues.
On December 23, 2016, [Philadelphia Coke] granted
[appellant] an extension until January 31, 2017. At
issue before the court is the date to which the
agreement was properly extended. There were no
additional communications on the record regarding
the extension between December and March of 2017.
On March 22, 2017 [Philadelphia Coke] sent a letter
to [appellant] informing [appellant] the agreement
was terminated. As evidenced in the record, there
were various communications following the March 22,
2017 letter between [appellant] and [Philadelphia
Coke]. The parties discussed, among other things,
the potential for entering into a new contract.
Consistent in these communications is [Philadelphia
Coke’s] repeated declaration that the current
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agreement was terminated. The final communication
was a June 26, 2017 letter from [appellant] to
[Philadelphia Coke] again objecting to the release of
escrow deposit.
[Philadelphia Coke] subsequently filed a two-count
complaint for declaratory judgment and breach of
contract on August 4, 2017. An amended complaint
was later filed on January 19, 2018. [Appellant]
responded with its answer and new matter on
March 8, 2018. [Philadelphia Coke] filed its motion
for summary judgment on August 20, 2018 and
[appellant] responded on September 19, 2018.
Trial court opinion, 10/16/18 at 1-3 (ellipsis in original).
On October 16, 2018, the trial court entered an order granting
Philadelphia Coke’s motion for summary judgment in favor of Philadelphia
Coke on its declaratory judgment and breach of contract claims against
appellant and on appellant’s specific-performance counterclaims. On
October 30, 2018, Philadelphia Coke filed a motion for determination of
damages incurred to date and entry of judgment. On November 6, 2018,
appellant filed a notice of appeal to this court. The trial court did not order
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On November 26, 2018, the trial court filed
an opinion requesting that this court affirm its October 16, 2018 order for the
reasons set forth in the opinion that accompanied its October 16, 2018 order.
Also on November 26, 2018, the trial court granted Philadelphia Coke’s motion
for determination of damages, calculated Philadelphia Coke’s damages to date
to be $309,129.42, and awarded post-judgment interest at the statutory
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6 percent rate equal to $50.68 per day from the November 26, 2018 entry of
judgment date.
Appellant frames its issues on appeal as follows:
Whether the trial court erred in granting [Philadelphia
Coke’s] motion for summary judgment as genuine
issues of material fact in dispute still exist, including:
1) Whether [Philadelphia Coke’s] conduct,
including continued and requested
engagement with [appellant] on contract
issues, despite [appellant’s] nonpayment
of the additional deposit when due, had
constituted a waiver of its contractual
right to the said deposit; and
2) Whether [Philadelphia Coke] suffered any
resultant damages as it terminated the
contract without giving [a]ppellant any
advance notice or any chance to cure the
default and [a]ppellant offered to close
the deal at full price without any
conditions attached[?]
Appellant’s brief at 2-3.
At the outset, we note that Philadelphia Coke requests that we quash
this appeal as interlocutory. Philadelphia Coke contends that the October 16,
2018 order appealed from was not a final order as required by
Pa.R.A.P. 341(b)(1) because it did not determine the damages that it was
entitled to under the terms of the parties’ agreement and, as such, did not
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dispose of all claims.1 See Pa.R.A.P. 341(b)(1) (defining a final order as any
order that “disposes of all claims and of all parties”). Although appellant filed
its notice of appeal prior to the trial court’s determination of damages and
prior to entry of final judgment, a final judgment entered during the pendency
of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull
Equip. and Supply Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied,
803 A.2d 735 (Pa. 2002). Appellant’s notice of appeal was premature when
filed, but it related forward to November 26, 2018, the date the final judgment
was entered. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”).
Consequently, there are no jurisdictional impediments to our review.
Appellant claims that the trial court erred in granting summary
judgment in favor of Philadelphia Coke.
This Court’s scope of review of an order granting
summary judgment is plenary. Basile v. H & R
Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118
(2000). Our standard of review is clear: the trial
court’s order will be reversed only where it is
established that the court committed an error of law
or clearly abused its discretion. Id. Summary
judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine
issue of material fact and that the moving party is
1We note that in its brief, Philadelphia Coke also claims that the October 16,
2018 order is not a final order pursuant to Pa.R.A.P. 341(b)(2).
Rule 341(b)(2), however, was rescinded on December 14, 2015, effective
April 1, 2016, and appellant filed its notice of appeal to this court on
November 6, 2018, which was clearly after the effective date of the rescission.
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entitled to judgment as a matter of law.
Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne
Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418,
429 (2001). The reviewing court must view the record
in the light most favorable to the nonmoving party,
resolving all doubts as to the existence of a genuine
issue of material fact against the moving party.
Basile, 761 A.2d at 1118. When the facts are so clear
that reasonable minds cannot differ, a trial court may
properly enter summary judgment. Id. (citing
Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245,
248 (1995)).
Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015) (citation omitted).
The elements of a breach of contract cause of action are (1) the
existence of a contract, (2) breach of the duties imposed by the contract, and
(3) damages. Joyce v. Erie Ins. Exchange, 74 A.3d 157, 168 (Pa.Super.
2013).
Here, the parties do not dispute the existence of the agreement. The
parties also do not dispute that appellant failed to pay the additional
$200,000 deposit on the due date. Appellant contends, however, that
“despite its non-payment of the additional deposit when due,”
Philadelphia Coke’s “conduct, including continued and requested engagement
with [appellant] on contract issues,” “constituted a waiver of its contractual
right to said deposit.” (Appellant’s brief at 12; see also appellant’s “response
in opposition to [Philadelphia Coke’s] motion for summary judgment and
statement of opinion of material facts in issue,” 9/12/18, 2 at ¶ 11.) In
support, appellant relies on Kirk v. Brentwood Manor Homes, Inc., 159
A.2d 48, 50-51 (Pa.Super. 1960), for the seeming proposition that where, as
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here, a written agreement contains a “no oral modification provision,” the
agreement may nevertheless be modified by the conduct of the parties.
(Appellant’s brief at 15-16.) Appellant maintains that Philadelphia Coke’s
conduct before and after appellant’s “nonpayment of the additional deposit
when due had clearly signaled its acquiescence to or even acceptance of the
nonpayment.” (Id. at 16.)
Our supreme court explained that in Kirk, this court:
said that “Even where the written contract prohibits a
non-written modification, it may be modified by
subsequent oral agreement.” This is true but there
must first be a waiver of the requirement which has
been spelled out in the contract. Otherwise, written
documents would have no more permanence than
writings penned in disappearing ink. If this, the
defendants’ argument, were to prevail, contractual
obligations would become phantoms, solemn
obligations would run like pressed quicksilver, and the
whole edifice of business would rest on sand dunes
supporting pillars of rubber and floors of turf. Chaos
would envelop the commercial world.
C.I.T. Corp. v. Jonnet, 214 A.2d 620, 622 (Pa. 1965).
Here, the record does not contain a scintilla of evidence – and appellant
does not claim – that the parties waived the no oral modification provision in
the agreement. Indeed, the record demonstrates that the only modification
the parties made was to extend the due diligence periods, which modification
was in writing, as evidenced by copies of electronic mails contained in the
record. The record further demonstrates that Philadelphia Coke repeatedly
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notified appellant that the agreement was terminated and that appellant was
in default.
Viewing the record in the light most favorable to the nonmoving party,
resolving all doubts as to the existence of a genuine issue of material fact
against the moving party, reasonable minds cannot differ and the trial court
properly entered summary judgment on Philadelphia Coke’s breach of contract
claim.
Appellant next contends that the trial court erred in awarding damages
on Philadelphia Coke’s breach of contract claim for two reasons. First,
appellant claims that because it did not breach the contract and Philadelphia
Coke terminated without permitting appellant to cure the default, Philadelphia
Coke suffered no damages. As discussed above, the trial court properly
entered summary judgment in favor of Philadelphia Coke on the breach of
contract claim. Therefore, this claim lacks merit. Second, appellant complains
that because it offered “to tender the additional deposit and close the deal
under the original agreement at full price without any restrictions attached, in
which [appellant] would accept the property on an ‘as is’ condition and
indemnify [Philadelphia Coke] for any potential liabilities,” it did not suffer any
damages. (Appellant’s brief at 22-23.) Appellant cites to no authority – and
we are aware of none – to support its proposition that a party can breach a
contract and escape liability for damages simply by proposing a new deal on
its own terms. To quote our supreme court, if we accepted this argument,
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“[c]haos would envelop the commercial world.” C.I.T. Corp., 214 A.2d at
622.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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