Beaver Dam Outdoors Club v. Hazleton City Authority

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I cannot join in the majority’s decision to affirm the order of the Court of Common Pleas of Carbon County in this declaratory judgment action instituted by the Beaver Dam Outdoors Club (Club) against the Hazleton City Authority (Authority) because the lease agreement executed on December 8, 2003 between the Club and the Authority is not a valid and binding contract. Authority Board Resolution 123, approved at a December 8, 2003 Board meeting after suspension of Board rules, contained mandatory conditions precedent to the formation of a contract between the parties, which were not met. Resolution 123 reads:

Be it Resolved by [the Board] that a Lease be entered into between [the Authority and the Club] for the purpose of leasing a parcel or tract of land situated in Packer Township, Carbon County as more particularly described in said Lease Agreement. Be it further resolved, that the appropriate officers are authorized to sign, as such, any and all documents to effectuate the above lease agreement. That an opinion from the Authority’s engineer as to the usefulness and necessity of the property as it relates to the water system be obtained and notice of the lease agreement be forwarded to all parties of interest by the Solicitor.

The mandatory conditions precedent to the Authority entering into the 25-year *112lease with the Club of 415.188 acres of Authority property at $1 per year provided that (1) the appropriate officers of the Authority were to sign documents necessary to effectuate the lease agreement and that (2) a certificate be obtained from the Authority’s engineer regarding the usefulness and necessity of the lease as it pertained to the Authority’s operation of its water system. The lease agreement was not signed by the “appropriate officers” of the Authority: rather, it was signed on December 8, 2003 only by Board Chairman DeAndrea, whose term as a Board member was set to expire on December 31, 2003. There is no dispute that neither Board Secretary Fay nor any officer other than the Chairman signed the document. Additionally, no certificate was issued by the Authority’s consulting engineer (Mr. Schumacher). Contrast, however, Board Resolutions/Consulting Engineer’s Certificates/Authority Agreements included in the Reproduced Record (R.R.) at 594a-625a. The record shows that on April 12, 2004 the consulting engineer refused to issue a certificate for the lease for the best interest of the Authority “[d]ue to the proposed timber harvest on lands of the Hazleton City.” R.R. at 637a.

Mr. Schumacher had been asked to review the process for issuing a consulting engineer’s certificate for the Authority upwards of 40 times during his more than 20 years of service as the Authority’s consulting engineer. R.R. at 146-147. He did not issue one for the subject lease. Id. The Club’s president (Mr. Sherkness) understood that an engineer’s certificate was part of the process but stated that he did not think the Club was required to obtain the certificate. R.R. at 88a-92a. Despite the unequivocal language of Resolution 123, the uncertainty expressed by the trial court regarding the Club president’s testimony related to the engineering certificate and other relevant evidence, the trial court nevertheless found that the Club and a majority of the Authority Board members understood that there were no additional conditions precedent to forming a contract and that an engineering certificate was not a precondition, or hurdle, to formation of the contract. The trial court found, as well, that discussions regarding finalization of the lease referred only to having the Board Chairman execute the lease agreement.

The language in Resolution 123 is unequivocal, and the trial court erred in failing to find that a valid contract did not exist between the parties because the mandatory conditions precedent to formation of a lease agreement were not satisfied. I note that the trial court failed to discuss the law with respect to the failure of meeting conditions precedent to a contract and that it summarily concluded that failure to obtain the engineering certificate was not a bar or a pre-condition. In Acme Markets, Inc. v. Federal Armored Express, Inc., 437 Pa.Super. 41, 648 A.2d 1218 (1994), the court indicated that a condition precedent to formation of a contract may be defined as a condition that must occur before any duty arises between the parties to perform under the contract. Further, in Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., Inc., 327 Pa.Super. 99, 475 A.2d 117 (1984), the court discussed the nature of a condition precedent (as well as that of a condition subsequent) and reiterated the principle that the intent of the parties is paramount in construing a contract and that a court will adopt an interpretation that, under the circumstances, “ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Id. at 121. The trial court in the case sub judice failed to adopt the proper interpretation of the parties’ conduct and in the process committed an *113error of law when it held that the lease agreement was valid and enforceable. Its order should be reversed.