J-A17030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALLAN J. NOWICKI JONATHAN : IN THE SUPERIOR COURT OF
NOWICKI : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2622 EDA 2021
CROWN FINANCIAL CORPORATION :
Appeal from the Judgment Entered November 19, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2017-02778
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 31, 2022
Appellants Allan J. Nowicki and Jonathan Nowicki appeal from the order
granting summary judgment in favor of Appellee Crown Financial Corporation.
On appeal, Appellants argue that the trial court erred in granting Appellee’s
motion for summary judgment because there were genuine issues of material
fact. Appellants also claim that the trial court erred by deciding credibility
issues that should have been reserved for a jury and in relying on fraudulent
and intentional misrepresentations by Appellee’s counsel. We affirm.
We adopt the trial court’s summary of the facts and procedural history
underlying this matter. See Trial Ct. Op., 2/10/22, at 1-4. Briefly, the parties
entered an agreement for a commercial land transaction in 2016. Ultimately,
after Appellants failed to provide the agreed-upon $15,000 payment before
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* Retired Senior Judge assigned to the Superior Court.
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the April 7, 2017 deadline, Appellee terminated the agreement and retained
Appellant’s initial deposit. Appellants subsequently filed a complaint raising
breach of contract claims against Appellee. Both parties filed cross-motions
for summary judgment in 2020 and renewed motions for summary judgment
in 2021. Following a hearing on October 29, 2021, the trial court issued an
order granting Appellee’s renewed motion for summary judgment and denying
the motion filed by Appellants.
Appellants filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellants’ claims.
On appeal, Appellants raise the following issues for review:
1. Did the [trial court] err in granting summary judgment to
[Appellee] by deciding an issue of credibility that should have
been presented to the jury?
2. Did the [trial court] err in granting summary judgment to
[Appellee] when there were genuine issues of material fact?
3. Did the [trial court] err in granting summary judgment to
[Appellee] by relying on fraudulent and intentional
misrepresentations to the court at oral argument by
[Appellee’s] attorney[,] Gregory F. Cirillo?
Appellants’ Brief at 6.
All of Appellants’ claims challenge the trial court’s order granting
summary judgment in favor of Appellees. In reviewing this issue, we are
guided by the following principles:
Our standard of review is de novo and our scope of review is
plenary. Summary judgment is appropriate where there is no
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genuine issue of material fact as to a necessary element of a cause
of action that can be established by discovery or expert report. In
reviewing an order granting a motion for summary judgment, an
appellate court must examine the entire record in the light most
favorable to the non-moving party and resolve all doubts against
the moving party.
Liberty Mutual Grp., Inc. v. 700 Pharmacy, LLC, 270 A.3d 537, 547-48
(Pa. Super. 2022) (citations omitted and formatting altered).
To establish a cause of action for breach of contract, the plaintiff must
prove three elements: “(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).
Further, it is well settled that “[w]hen performance of a duty under a contract
is due, any nonperformance is a breach.” McCausland v. Wagner, 78 A.3d
1093, 1101 (Pa. Super. 2013) (citation omitted). “If a breach constitutes a
material failure of performance, the non-breaching party is relieved from any
obligation to perform; thus, a party who has materially breached a contract
may not insist upon performance of the contract by the non-breaching party.”
Id. (citation omitted).
Here, following our review of the parties’ briefs, the relevant law, and
the trial court’s opinion, we affirm on the basis of the trial court’s analysis of
this issue. See Trial Ct. Op. at 6-10. Specifically, we agree with the trial
court that there was no dispute that Appellants breached the parties’
agreement by failing to “make a valid tender of $15,000 to Appellee by April
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7, 2017.” Id. at 8 (citation omitted). Therefore, “[p]er the terms of the
second amended [a]greement, Appellee was entitled to terminate the
[a]greement and retain the full amount of deposit money paid by Appellants
to Appellee in the event of Appellants’ breach.” Id. (citation omitted).
Further, because the trial court’s ruling “did not turn on any fact that was in
dispute[,]” we agree with the trial court that there were no issues of material
fact that required a determination from a jury, nor were there any credibility
issues precluding the trial court from entering summary judgment in favor of
Appellee. See id. at 9-10. Finally, we agree with the trial court that
Appellants have failed to identify any specific statements by Appellee’s counsel
that were “intentionally fabricated, fraudulent, or misleading.” Id. at 9.
Therefore, Appellants are not entitled to relief. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2022
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