Woodhill Associates v. Vogelsperger, G.

J-A23020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WOODHILL ASSOCIATES, LP, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GREGORY VOGELSPERGER, : No. 702 EDA 2017
GEORGE VOGELSPERGER, PATRICIA :
VOGELSPERGER, TERRY :
VOGELSPERGER :

Appeal from the Order Entered January 23, 2017
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2004-01559

BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J*

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 07, 2017

Appellant, Woodhill Associates, LP, appeals from the Order entered in

the Bucks County Court of Common Pleas denying Appellant’s Motion to

Remove Directed Verdict. After careful review, we vacate and remand.

Appellant is a real estate development partnership. In July 2001,

Gregory Vogelsperger, George Vogelsperger, Patricia Vogelsperger, and Terry

Vogelsperger (collectively, “Appellees”), entered into negotiations with

Appellant to purchase Lot 9 in Appellant’s Ely Farm subdivision. In conjunction

with the real estate purchase agreement (“Purchase Agreement”), Appellees

were also negotiating a contract with Appellant’s builder-affiliate, Trueblood

Co. (“Trueblood”), for the construction of a home on Lot 9 (“Construction

Agreement”).

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23020-17

On December 14, 2001, Appellees executed the Purchase Agreement,

agreeing to purchase Lot 9 for $295,000.00. Pursuant to the Purchase

Agreement, Appellees provided Appellant with a $29,500.00 deposit in earnest

money. The Purchase Agreement also required that Appellees enter into a

Construction Agreement with Trueblood within 120 days.1 If Appellees failed

to enter into a Construction Agreement within the 120 days, the Purchase

Agreement contained a liquidated damages provision (“Liquidated Damages

Provision”) which required Appellees to pay Appellant “the greater of

$75,000.00 and the amount deposited.” Specifically, the Purchase Agreement

provided, in relevant part, as follows:

1. Consideration. The price or consideration shall be as follows:

a. Two hundred and [ninety] five thousand ($295,000.00)
for the property. At the signing of this Agreement, Buyer
shall pay to Seller directly a ten percent (10%) deposit
towards the purchase price for the lot. The balance for
the Property shall be paid at settlement by certified
funds, bank check, or title company check. NOTE:
Deposit received by Seller in the amount of
$29,500.00. (emphasis in original).

b. The deposit shall be nonrefundable after Dec. 15, 2001.

c. In entering into the Agreement, Buyer contemplates that
it will enter into the construction agreement
(“Construction Agreement”) with Trueblood Company
(“Trueblood”) for the construction of a new home for
Buyer on the Property. In the event that Buyer and
Builder fail to execute a Construction Agreement .
. . within one hundred twenty [later amended to
240] days following the date of this Agreement,
____________________________________________

1The parties later amended the Purchase Agreement to provide Appellees 240
days in which to enter into a Construction Agreement with Trueblood.

-2-
J-A23020-17

Buyer may terminate this Agreement . . .
whereupon Buyer agrees to and shall pay to Seller
an amount equal to the greater of Seventy-Five
Thousand Dollars ($75,000.00) and the amount
deposited by Buyer to Seller hereunder
(“Liquidated Damages”). . . (emphasis added).

Purchase Agreement, 12/14/01.

Settlement on the sale of Lot 9 occurred on January 4, 2002. As

provided in the Purchase Agreement, the parties applied Appellees’

$29,500.00 deposit towards the purchase price of Lot 9.

Appellees and Trueblood were not successful in negotiating a

Construction Agreement. On January 28, 2003, Appellant sent a demand to

Appellees for payment of $75,000.00 in liquidated damages for Appellees’

failure to enter into a Construction Agreement with Trueblood.2 Appellees

did not pay the demanded liquidated damages. Thus, on March 11, 2004,

Appellant initiated this litigation by filing a Complaint against Appellees for

Breach of Contract.

On April 28, 2016, Appellant filed a Motion for Summary Judgment;

Appellees filed a Motion for Summary Judgment on May 3, 2016. On August

18, 2016, the trial court denied both Motions.

On December 8, 2016, this matter proceeded to a non-jury trial. The

parties agreed that the sole issue for determination was the proper

____________________________________________

2 Appellees later sold Lot 9 to a third-party for $319,000.00.

-3-
J-A23020-17

interpretation of the Liquidated Damages Provision. The parties disagreed as

to which event triggered the payment of liquidated damages to Appellant and,

if triggered, the amount of the liquidated damages.

Neil Trueblood, an officer of Appellant and of Trueblood, was the only

witness to testify at trial. He testified that he had negotiated both the

Purchase Agreement and the Construction Agreement with Appellees. N.T.,

12/8/16, at 49. He stated that negotiations on the Construction Agreement

continued until Appellees notified Trueblood that they were selling Lot 9. At

that point, Appellant made a demand for liquidated damages. Id. at 50.

In addition, Trueblood confirmed that, as noted in Paragraph 1(a) of the

Purchase Agreement, Appellees deposited $29,500.00 with Appellant. Id. at

66-67. The parties placed this amount in escrow and then credited this

amount toward the total purchase price of Lot 9 at closing. This is evidenced

by the HUD-1 Closing Statement.3 Id. Trueblood further testified that he

believed that the $68,000.00 listed as a “deposit” on the buyer’s side of the

HUD-1 Statement represented a payment on the land contract due at closing

from the buyers (Appellees) to the seller (Appellant). Id. at 61-62, 66-68.

____________________________________________

3 Settlement statements like the HUD-1 at issue in this case are simply
documents listing all charges and credits to the buyer and seller in a real
estate settlement and are a product of the Real Estate Settlement Procedures
Act (“RESPA”), 12 U.S.C. § 2601 et seq. The statements have two sides: one
itemizing the charges and credits to the buyer, and one itemizing charges and
credits to the seller.

-4-
J-A23020-17

Trueblood reiterated that Appellant had received only one deposit of

$29,500.00 prior to closing and had not received a second deposit of

$68,000.00. Id. at 62, 66-67. Appellees presented no specific evidence to

counter this testimony.

The parties argued conflicting theories as to the amount of the deposit

paid by Appellees. Appellant argued that Appellees had deposited only the

initial $29,500.00 which was put into an escrow until closing and then credited

toward the purchase price of Lot 9. Appellees, relying on the HUD-1

Statement prepared by the closing agent, argued that they had paid a total

deposit of $97,500.00, comprised of the initial $29,500.00 escrow deposit and

the $68,000.00 listed only on the “buyer’s side” of the HUD-1 Statement as a

“deposit.” Appellees presented no evidence to support this averment.

Both parties moved for a Directed Verdict. The court ultimately granted

Appellees’ Motion, finding: (1) that Appellees’ failure to enter into a

Construction Agreement with Trueblood triggered the Liquidated Damages

Provision of the Purchase Agreement; (2) that Appellees had paid Appellant a

$97,500.00 deposit; and (3) because Appellees had paid the Appellant

$97,500 before closing, Appellant was not entitled to any additional payment

for liquidated damages.

On December 16, 2016, Appellant filed a Post-Trial Motion requesting

the court to remove the Directed Verdict or, alternatively, enter Judgment in

-5-
J-A23020-17

Appellant’s favor. The trial court denied Appellant’s Motion,4 and the

Prothonotary entered Judgment in Appellees’ favor on February 22, 2017.

This timely appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant raises the following four issues on appeal:

1. Does a plain reading of the parties’ agreement support a
directed verdict for [Appellees]?

2. Did [Appellant] retain countable deposits barring it from the
liquidated damages specified in the parties’ agreement?

3. Did the court below focus on an immaterial issue?

4. Did the court below follow correct post-trial procedures in
ruling on [Appellant’s] [P]ost-[T]rial [M]otion without the
opportunity for briefing and argument?

Appellant’s Brief at 2.

Appellant’s first three issues are interrelated; thus, we address them

together. Appellant challenges the trial court’s conclusion that Appellant was

not entitled to liquidated damages, even though it had found that Appellees

had breached the Purchase Agreement. Id. at 14-16. Appellant argues that

the trial court erred by: (1) misconstruing the HUD-1 settlement sheet

prepared for the closing to find that Appellant had received a $97,500.00

“deposit” from Appellees; (2) overlooking the clear intent of the parties as set

forth in the Liquidated Damages Provision; (3) concluding that Appellees had

____________________________________________

4Appellant had filed a Motion for Reconsideration of the court’s January 23,
2017 Order denying Appellant’s Motion to Remove Directed Verdict on
February 3, 2017. The trial court did not rule upon this Motion.

-6-
J-A23020-17

made more than one deposit to Appellant; and (4) finding the use by the

parties of the conjunctive “and” material to its disposition. Id. at 18-27.

We review an Order entering a Directed Verdict with the following in

mind:

In reviewing the trial court’s grant of a motion for a directed
verdict, our scope of review is limited to determining whether the
trial court abused its discretion or committed an error of law that
controlled the outcome of the case. It is clear, therefore, that a
directed verdict may be granted only where the facts are clear and
there is no room for doubt. Moreover, in deciding whether to grant
a motion for a directed verdict, the trial court must consider the
facts in the light most favorable to the nonmoving party and must
accept as true all evidence which supports that party’s contention
and reject all adverse testimony.

Fetherolf v. Torosian, 759 A.2d 391, 393 (Pa. Super. 2000) (citations and

quotation marks omitted).

Appellant’s claim requires us to consider the language of the Purchase

Agreement. “Because contract interpretation is a question of law, this Court

is not bound by the trial court’s interpretation.” Ragnar Benson, Inc. v.

Hempfield Tp. Mun. Authority, 916 A.2d 1183, 1188 (Pa. Super. 2007)

(citing Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005)).

“Our standard of review over questions of law is de novo and to the extent

necessary, the scope of our review is plenary as the appellate court may

review the entire record in making its decision.” Id.

Our Supreme Court has set forth the principles governing contract

interpretation as follows:

-7-
J-A23020-17

The fundamental rule in contract interpretation is to ascertain the
intent of the contracting parties. In cases of a written contract,
the intent of the parties is the writing itself. When the terms of a
contract are clear and unambiguous, the intent of the parties is to
be ascertained from the document itself. [ ] When, however, 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. A contract is
ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense. While
unambiguous contracts are interpreted by the court as a matter
of law, ambiguous writings are interpreted by the finder of fact.

Ins. Adjustment Bureau, Inc., v. Allstate Ins. Co., 905 A.2d 462, 468-69

(Pa. 2006) (citations omitted).

In the instant case, the plain language of the Liquidated Damages

Provision, as amended on January 4, 2002, is unambiguous. It provides that,

in the event that Appellees failed to enter into a Construction Agreement

within 240 days of January 4, 2002, Appellees must pay to Appellant the

greater of either $75,000.00 or the amount previously deposited by Appellees

to Appellant. This interpretation of the Liquidated Damages Provision is the

same whether the drafter used the conjunctive “and,” or the disjunctive “or”

when instructing that Appellees pay the greater of two numbers.

The trial court found that Appellees had failed to enter into a

Construction Agreement with Trueblood within 240 days of the closing on the

sale of Lot 9, thus, breaching the Purchase Agreement. It further concluded

that Appellees’ breach triggered the Liquidated Damages Provision. Based on

the foregoing, we agree with these determinations.

-8-
J-A23020-17

However, we conclude that the court erred as a matter of law in

concluding that Appellant is not entitled to a payment of liquidated damages

as provided in the Purchase Agreement. By misreading the HUD-1 Statement

and misapprehending the parties’ Purchase Agreement, the court reached an

unsupportable conclusion that Appellant had already received the greater of

$75,000 and the deposit (which according to the court was $97,500.00).

In calculating whether the amount of the deposit Appellees’ paid to

Appellant exceeded $75,000.00, the trial court considered: (1) the parties’

Purchase Agreement, which noted the payment of a $29,500.0 deposit; and

(2) the HUD-1 Statement prepared by the closing agent in which the buyer’s

side characterized $68,000.00 as a “deposit.” The seller’s side did not contain

a matching entry, and there was no evidence submitted to show that the

$68,000 was anything other than a payment owed by Appellees at closing

towards the purchase price.

Viewing the evidence in the light most favorable to Appellant as the non-

moving party as we must, we conclude that the court improperly determined

from the HUD-1 Statement that Appellees had made two separate deposits to

Appellant totaling $97,500.00. Instead, the evidence reasonably

demonstrates that Appellees paid a deposit to Appellant in the amount of

$29,500.00.

Further, because Appellees’ conduct triggered the Liquidated Damages

Provision and we conclude that Appellees paid a deposit under the Purchase

Agreement in the amount of $29,500.00, Appellant is entitled to liquidated

-9-
J-A23020-17

damages of $75,000.00, which is the greater of $75,000.00 and the

$29,500.00 deposit paid by Appellees pursuant to the Purchase Agreement.5

In sum, in entering Appellees’ Motion for a Directed Verdict, the trial

court erred as a matter of law by failing to “consider the facts in the light most

favorable to the non[-]moving party.” Fetherolf, 759 A.2d at 393. Further,

the evidence of record supports Appellant’s position with respect to the

interpretation and application of the Purchase Agreement. Accordingly,

Appellant is entitled to Judgment as a matter of law.6

Order vacated. Case remanded for entry of Judgment in Appellant’s

favor in the amount of $75,000.00. Jurisdiction relinquished.

Judge Panella joins the memorandum.

____________________________________________

5 Further, the trial court erred in its implicit holding that the amount of
Appellees’ deposit should be deducted from the amount of liquidated damages
allowable under the Purchase Agreement. There is nothing in the Liquidated
Damages Provision that says any deposit made is to be subtracted from
whatever is due under the Liquidated Damages Provision. Rather, the contract
simply provides that liquidated damages are the greater of $75,000.00 and
the amount deposited. Here, the greater of the two is $75,000.00; therefore,
Appellees are obligated to pay $75,000.00 to Appellant pursuant to the
Agreement. Moreover, there is no evidence that Appellant retained the
deposit of $29,500.00 in addition to receiving the full sales price of
$295,000.000. And, even if Appellant did retain the $29,500.00 deposit, and
also received the full $295,000.00 purchase price at closing, there is no
language in the Liquidated Damages Provision that would authorize a
reduction in the amount of liquidated damages owed in the event the parties’
actions or failures to act triggered the payment of liquidated damages.

6 In light of our disposition we need not reach Appellant’s fourth issue that the
trial court erred in ruling on its Post-Trial Motion without giving Appellant the
opportunity to brief and argue the Motion.

- 10 -
J-A23020-17

Judge Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2017

- 11 -