J-A07016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANFORD DAVNE AND LISA DAVNE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DELCHESTER LAND HOLDINGS, LLC, : No. 1840 EDA 2021
THADDEUS BARTKOWSKI, CRYSTAL :
CRAWFORD AND DELCHESTER :
EQUESTRIAN, LLC :
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-02428-CT
BEFORE: LAZARUS, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 12, 2022
Sanford Davne and Lisa Davne (“Sellers”) appeal from the order
granting summary judgment in favor of Thaddeus Bartkowski and Delchester
Equestrian, LLC (“Buyers”).1 Sellers argue the deposit that Buyers paid
pursuant to an agreement for the purchase of property was not refundable.
We affirm.
In April 2018, and Sellers and Buyers entered into an agreement of sale
(“Agreement”) for property located in Newtown Square (“Property”). The
settlement was to occur in July 2018.
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1 Delchester Land Holdings, LLC and Crystal Crawford were parties to a case
that had been consolidated in the trial court with the instant case. As explained
below, that separate case has not been appealed. Therefore, Delchester Land
Holdings, LLC and Crawford are not parties to this appeal.
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The Buyers put a $141,000 deposit into escrow. The Agreement
provided in Section 32(b) that the deposit would be non-refundable unless
Sellers intentionally failed to complete closing or were unable to transfer good
title:
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, BUYER AND SELLER EXPRESSLY
ACKNOWLEDGE AND AGREE THAT IMMEDIATELY UPON
SIGNING OF THIS AGREEMENT THE DEPOSIT MONIES
SHALL BE NON-REFUNDABLE TO BUYER FOR ANY REASON
OTHER THAN (A) SELLER INTENTIONALLY FAILS TO
COMPLETE CLOSING, OR (B) SELLER IS UNABLE TO
CONVEY TO BUYER GOOD TITLE TO THE PROPERTY.
Agreement at 13, ¶ 32(B).
The Agreement stated if the Buyers terminated the Agreement due to a
right granted thereunder, the Agreement would be void and the Buyers would
be entitled to the deposit money:
Where Buyer terminates this Agreement pursuant to any
right granted by this Agreement, Buyer will be entitled to a
return of all deposit monies paid on account of Purchase
Price pursuant to the terms of Paragraph 26(B), and this
Agreement will be VOID. Termination of this Agreement
may occur for other reasons giving rise to claims by Buyer
and/or Seller for the deposit monies.
Id. at 12, ¶ 26(A).
The Agreement further provided that Sellers would deliver possession
at settlement:
Possession is to be delivered by deed, existing keys and
physical possession to a vacant Property free of debris, with
all structures broom clean, at day and time of settlement.
Id. at 2, ¶ 4(G).
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An Addendum to the Agreement granted Sellers a right to remain on the
property until September: “Seller and Buyer agree that the Seller can remain
in the Property from July 15, 2018 to September 1, 2018, cost of rent from
Seller to Buyer will be $1.00.” Agreement at 14.
The parties did not complete the closing. In March 2019, Sellers filed
the instant suit (“Sale Action”) against Buyers, claiming they were entitled to
retain the $141,000 deposit. In April and May 2021, Sellers and Buyers filed
cross-motions for summary judgment. Buyers argued, among other things,
that although the Agreement gave Sellers a right to occupy the premises after
closing, Sellers did not have an exclusive right to do so. They argued that
Sellers refused to close without their exclusive possession of the Property until
September 1. Buyers attached to their motion a transcript of the deposition
of one of Sellers, Sanford Davne. He had testified that he required exclusive
possession because Buyers wanted people working in the house while Sellers
still were there, and Sellers found that unacceptable. Mot. for Sum. Judg.,
filed Apr. 8, 2021, at Ex. B, at 73-74. He said that Buyers had not discussed
Sellers’ exclusive possession, “other than to say [Buyers] didn’t want [Sellers]
to have exclusive. That’s the only time it came up. I don’t believe he ever used
the term exclusive use that we could have it.” Id. at 80. Buyers argued Sellers
were tendering a property that was materially different than the property they
had promised in the Agreement of Sale.
In a separate suit, Sanford Davne sued Delchester Equestrian LLC,
Traddeus Bartkowski, and Crystal Crawford alleging violations of a lease
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agreement (“Lease Action”). The trial court consolidated the Lease Action and
the Sale Action “for all purposes through trial.” Order, dated Feb. 5, 2020. The
parties also filed cross-motions for summary judgment in the Lease Action.
In a single order, the trial court granted Buyers’ motion for summary
judgment in the Sale Action, as well as Sanford Davne’s motion for summary
judgment in the Lease Action. The order identified the docket number as
“2019-02428-CT (Consolidated with 2019-07497-CV)” – i.e., the Sale Action
consolidated with the Lease Action – and included in the caption all parties
from both cases. Sellers filed a notice of appeal stating they appealed from
the order “granting [Buyer’s] Motion for Summary Judgment[,] dismissing
[Seller’s] Complaint[,] and Ordering escrowed funds released to [Buyers] with
regard to the action at [the Sale Action].” Notice of Appeal, filed Aug. 21,
2021. The caption used the identical caption as the trial court order, including
the trial court’s identification of the docket number and naming all parties
from both cases. Id.
This Court issued a rule to show cause why the case should not be
quashed pursuant to Walker2 because Sellers had failed to file a second notice
of appeal at the Lease Action. Sellers responded that they were only appealing
the decision in the Sale Action. They explained that because Sanford Davne’s
motion for summary judgment was granted in the Lease Action, they were not
aggrieved parties and therefore could not appeal at that docket.
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2Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), overruled in part
by Commonwealth v. Young, 265 A.3d 462 (Pa. 2021).
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Sellers raise the following issues on appeal:
1. Did the trial court err as a matter of law and/or abuse its
discretion by concluding that ¶ 32(b) of the Agreement of
Sale is “not operative” and noncontrolling over the
distribution of escrowed funds in the event closing does not
occur as scheduled, thereby failing to enforce the clear,
unequivocal, and unambiguous language of the agreement?
2. Did the trial Court err as a matter of law and/or abuse its
discretion by relying upon alleged “concessions” made by
[Sellers] that were never made and are not supported by
the record, including but not limited to “Sellers concede that
the terms they demanded at closing were not the terms
promised in the Agreement” and by concluding that [Sellers]
“have intentionally failed to close”, when the record on
summary judgment is to the contrary or, alternatively, the
record on summary judgment demonstrates that there are
disputed issues of fact that preclude the entry of summary
judgment in [Buyers’] favor on this issue?
Sellers’ Br. at 4.
We must first address the Walker question. Walker requires a party to
file separate notices of appeal where an order resolves issues on more than
one docket. 185 A.3d at 468. It is intended, in part, to prevent parties from
consolidating matters for appellate review without court approval. See id.
(noting where “the Commonwealth filed a single notice of appeal from an order
arising on more than one docket, the Commonwealth effectively, and
improperly, consolidated the appeals in the Appellees’ four cases for argument
and joint resolution, without either the approval of the Superior Court or the
agreement of the Appellees”). Here, Sellers sought to challenge the order at
only one docket, the Sale Action. They do not seek to challenge the order as
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to the Lease Action because they were not aggrieved by the decision at that
docket. Walker does not apply.3
We now turn to Sellers’ issues, which we address together. Sellers argue
that the Agreement controls the return of the deposit, and it provides for the
return of the deposit only if Buyers establish Sellers were unwilling to close or
did not possess good title at the time of closing. They claim Buyers conceded
they were able to obtain title insurance and therefore Sellers had good title.
Further, Buyers admit Sellers were at the closing and willing to close. Sellers
claim the court looked beyond the four corners of the document to find that
because they did not execute a separate and independent post-occupancy use
agreement that would control Sellers use after the closing, they constructively
refused to close. Sellers claim there is no evidence they intentionally failed to
complete the closing.
Sellers maintain that Buyers had an “ever evolving justification for
failing to consummate the closing,” including alleged damage to a gate on the
Property, an inability to reach a meeting of the minds concerning a mortgage
agreement, an alleged failure to timely notice tenants of the sale, and an
inability to reach an agreement on a post-closing occupancy agreement.
Sellers’ Br. at 11. They argue these alleged justifications “may have relieved
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3 Further, if Walker did apply, quashal might not be necessary. The
Pennsylvania Supreme Court recently concluded that this Court, in its
discretion, may allow a party to correct the error, that is, the filing of the
appeal at only one docket, where appropriate. Young, 265 A.3d at 477.
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them of the obligation to close; however, they do not entitle [Buyers] to a
return of the deposit funds placed in escrow.” Id. (emphasis removed).
Sellers also claim the court imputed duties onto them. They point out
that the Agreement’s addendum provided Sellers with the right to possession
of the property after closing and claim Buyers insisted Sellers sign a post-
occupancy agreement limiting their use, which Sellers refused to do. Sellers
maintain that nothing in the Agreement required Sellers to enter this post-
occupancy agreement.4
Sellers further argue that the court ignored the clear intent of
sophisticated parties, which was for Paragraph 32 to control the return of the
____________________________________________
4 Sellers claim that the Buyers “refused to consummate the settlement of the
Property on July 16, 2018 without a post-occupancy agreement in place,” but
provide no citation to support this proposition. Sellers’ Br. at 7. Our review of
the record reveals the following. During Mr. Bartkowski’s deposition, he
stated, “We had printed documents, some of which the [Sellers] would
contend is not what we had agreed to. And I believe the [Sellers] had their
own printed documents, which we would contend is not what we agreed to,”
and the documents would have included an occupancy agreement. Sellers’
Mot. For Sum. Judg., filed May 12, 2021, at Ex. C, at 67-68. In the deposition,
Mr. Bartkowski was also asked about an email where he told Davne to “Send
over the final occupancy agreement today by 5:00 p.m. If it is not consistent
with what we agreed on the phone . . . we won’t be having a closing.” Id. at
76.
Davne also responded to questions about a use and occupancy agreement at
his deposition. Buyers’ Mot. for Sum. Judg., filed Apr. 8, 2021, at Ex. B, at 48,
72. He concurred that the agreement he proposed would “convey on the seller
exclusive possession of the main house during the holdover period.” Id.
Buyers stated Sellers’ proposed occupancy agreement was attached to their
motion for summary judgment at Exhibit C. However, Exhibit C to the motion
for summary judgment is an email, with no occupancy agreement.
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deposit. Sellers allege the court acknowledged Paragraph 32 governs the
refundability of the deposit, but then improperly found it was not operative.
They characterize the court’s action as an attempt to rewrite the contract.
They further allege that they did not concede that they demanded new terms
at closing.
“[S]ummary 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 entitled to judgment as a matter of law.” Summers
v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (quoting Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002)); Pa. R.C.P.
1035.2(1). “When considering a motion for summary judgment, the trial court
must take all facts of record and reasonable inferences therefrom in a light
most favorable to the non-moving party.” Summers, 997 A.2d at 1159 (citing
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007)). “[T]he
trial court must resolve all doubts as to the existence of a genuine issue of
material fact against the moving party,” and “may only grant summary
judgment ‘where the right to such judgment is clear and free from all doubt.’”
Id. (quoting Toy, 928 A.2d at 195).
We reverse a grant of summary judgment only “if there has been an
error of law or an abuse of discretion.” Id. (quoting Weaver v. Lancaster
Newspapers, Inc., 926 A.2d 899, 902 (Pa. 2007)). Whether there is a
genuine issue of material fact “presents a question of law, and therefore, on
that question our standard of review is de novo,” and “we need not defer to
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the determinations made by the lower tribunals.” Id. (quoting Weaver, 926
A.2d at 902-03). “To the extent that this Court must resolve a question of law,
we shall review the grant of summary judgment in the context of the entire
record.” Id. (quoting Weaver, 926 A.2d at 903).
“[T]hree elements are necessary to plead a cause of action for breach
of contract: (1) the existence of a contract, including its essential terms, (2)
a breach of the contract; and, (3) resultant damages.” Meyer, Darragh,
Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman,
P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citation omitted). Contract
interpretation is a question of law. Davis v. Borough of Montrose, 194 A.3d
597, 608 (Pa.Super. 2018). Our standard of review is de novo, and our scope
of review is plenary.Id.. When interpreting a contract, the goal “is to ascertain
and give effect to the intent of the parties as reasonably manifested by the
language of their written agreement.” Id. (citation omitted).
The trial court concluded that Sellers insisted on exclusive possession of
the main house during the holdover period and refused to close when Buyers
did not agree to grant them exclusive possession. Trial Court Opinion, filed
Aug. 3, 2021, at 4. It pointed out that Sanford Davne testified at his deposition
that Buyers did not use “the term exclusive other than to say he didn’t want
us to have exclusive. That’s the only time that that ever came up.” Id.
(citation omitted). The court further noted that Sellers conceded this may have
relieved Buyers of the obligation to close but argue it does not entitle Buyers
to the return of the deposit. Id. (quoting Sellers’ Mot. For Sum. Judg., filed
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May 12, 2021, at ¶ 23). The court noted Sellers relied on the
“[n]otwithstanding anything contained herein to the contrary” language of
Paragraph 32 to maintain their tender met the Paragraph’s requirements. Id.
Sellers maintained they only had to appear at closing and tender something
to Buyers. Id. The court disagreed and found that “the plain language of
Paragraph 32(B) overrides only the provisions of the Agreement that govern
refundability of the deposit monies and not the substantive obligations of the
Sellers.” Id.
It ultimately found the Sellers’ refusal to accept non-exclusive
possession was intentional, and because they intentionally failed to close, they
are not entitled to the deposit money. It reasoned:
[T]he Sellers cannot hide behind the use of the term
“notwithstanding” to avoid all their obligations at closing and
tender the Property on terms that are materially different
from what was promised in the Agreement. The Sellers’
refusal to accept non-exclusive possession of the Property
during the holdover term can only be described as
intentional. The Sellers have intentionally failed to close and
are not entitled to the deposit monies under Paragraph
32(B).
Id.
The court concluded that because Paragraph 32(B) was not controlling,
Buyers could receive a refund, which is covered by Paragraph 26:
Where Buyer terminates this Agreement pursuant to any
right granted by this Agreement, Buyer will be entitled to a
return of all deposit monies paid on account of Purchase
Price pursuant to the terms of Paragraph 26(B), and this
Agreement will be VOID.
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Id. (quoting Agreement at12, ¶ 26(A)). It concluded that “[b]y insisting on
excluding Buyers from the main house on the Property after closing, [S]ellers
violated the Agreement and gave Buyers the right to terminate the Agreement
and recover the deposit monies.” Id.
The court did not err or abuse its discretion. The Agreement provided
Sellers the right to “remain in the Property” until September 1; it did not
provide for exclusive possession. When Sellers refused to tender the Property
in the condition agreed to in the Agreement, that is, in a condition in which
Buyers could possess the Property, they failed to complete the closing and lost
the right to retain the deposit. We find Sellers’ argument that they were not
required to enter a post-occupancy agreement irrelevant. Here, the
Agreement provided them the right to “remain” in the property; it did not
provide exclusive possession. Sanford Davne himself testified that Sellers
required exclusive possession. Buyers did not agree to purchase a property to
which Sellers could refuse them entry for more than a month. The trial court
properly concluded that Sellers intentionally failed to complete closing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2022
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