Mark Coal Street Assoc. v. Hassey, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.

____________________________________________

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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