J-A11023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OVERLOOK ROAD FARM COMPANY AND                  IN THE SUPERIOR COURT OF
L. WILLIAM KAY, III                                   PENNSYLVANIA

                            Appellants

                       v.

AQUA PENNSYLVANIA, INC., F/K/A
PHILADELPHIA SUBURBAN WATER
COMPANY

                            Appellee                 No. 1847 EDA 2015


                  Appeal from the Order Entered June 9, 2015
                In the Court of Common Pleas of Chester County
                        Civil Division at No(s): 11-106690


BEFORE: SHOGAN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                              FILED JUNE 28, 2016

       Appellants, Overlook Road Farm Company and L. William Kay, III,

appeal from the June 9, 2015 order denying their motion for post-trial relief

following the entry of a verdict in favor of Appellee, Aqua Pennsylvania, Inc.

(Aqua), in Appellants’ breach of contract action.1   After careful review, we

affirm.

____________________________________________
1
  We note the certified record does not reflect that any party filed a praecipe
for entry of judgment in this matter.

              [A]n appeal generally lies from judgments entered
              following the disposition of post-trial motions.
              Mackall v. Fleegle, 801 A.2d 577, 580–581 (Pa.
              Super. 2002). However, in the interests of justice
              and to promote judicial economy an appellate court
              may “regard as done that which ought to have been
(Footnote Continued Next Page)
J-A11023-16


      We summarize the procedural and factual background of this case as

follows. In a prior action, Appellants sued Aqua to recover sums allegedly

due in connection with certain water line easements on Appellants’ property.

The parties resolved the case by entering a comprehensive settlement

agreement (the Agreement) in November of 2007.            The Agreement first

provided for Kay to grant a permanent easement for certain existing water

lines to Aqua and to execute attendant documentation, and Aqua was

obligated to pay Overlook $37,500.00 within five days of the compliance

with this portion of the Agreement. Id., Exhibit A at 1-2, ¶¶ 1, 2.2 Relative

to an additional easement Aqua wished to obtain, the agreement provided as

follows.

                   3.    Aqua shall pay to [Appellants] an
             additional sum of $37,500 within five (5) business



                       _______________________
(Footnote Continued)
             done” and proceed in the matter. See McCormick
             v. Ne. Bank of Pa., 522 Pa. 251, 561 A.2d 328, 330
             n.1 (1989) (holding that although an order
             dismissing appellants’ motion for post-trial relief was
             not reduced to judgment, in the interests of judicial
             economy the Supreme Court could “regard as done
             that which ought to have been done” and proceed
             with the appeal)….

Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1145 n.1 (Pa.
Super. 2013), appeal denied, 101 A.3d 103 (Pa. 2014). We opt to do so
here, and shall proceed to the merits of the appeal.
2
 This portion of the Agreement was duly performed and is not a subject of
Appellants’ instant breach of contract action.



                                            -2-
J-A11023-16


              days of Pulte Homes, Inc. (“Pulte”)[3] at no cost or
              expense to Aqua executing documents granting Aqua
              a permanent easement for the area described in the
              Grant of Easement dated February 29, 2001 and
              recorded at Book 4992 Page 0418 in the Office of
              Recorder of Deeds of Chester County (“Grant of
              Easement”) as including portions of Tax Parcels 30-
              05-0118-00, 30-05-0128-01 and 30-05-0120-06,
              Pennsylvania and occupied by two existing water
              wells, a Wellhead Protection Area within 150 feet of
              those wells, and related equipment and water lines
              (the “Well Easement”). Kay hereby releases and
              terminates all rights he has or may have to
              terminate the Well Easement pursuant to paragraph
              4 of the Grant of Easement.

                                               …

                     7.    … Each party has freely entered into this
              Agreement after fully reviewing the terms and
              consulting with its respective counsel, and fully
              understands that the Agreement represents a full
              and final compromise of all matters noted above, for
              the express purpose of precluding forever any future
              suits arising out of those matters.

                    8.     This Agreement contains the entire
              agreement of the parties with respect to the
              settlement of the Action and the disputes between
              them, and supersedes any prior discussions,
              negotiations, agreements or understandings.     No
              party is relying on any representation of the other
              party that is not expressly set forth herein.

Id., Exhibit A at 2-4, ¶¶ 3, 7, 8.




____________________________________________
3
  The property described in paragraph 3 of the Agreement was under
contract for sale from Appellants to Pulte at the time of the Agreement.
Pulte was not a party to the initial litigation and is not a signatory to the
Agreement.


                                           -3-
J-A11023-16


      On September 30, 2011, Appellants filed a complaint against Aqua,

alleging it breached the settlement agreement by failing to arrange for the

execution of the easement referenced in paragraph 3 of the Agreement, and

failing to tender the payment thereunder. Id. at 2-3, ¶¶ 6, 7. Aqua filed an

answer and new matter on April 13, 2012.          The matter proceeded to

arbitration, resulting in an arbitration award in favor of Aqua, from which

Appellants appealed to the trial court on July 2, 2012. On January 22, 2013,

Aqua filed a motion in limine, seeking to bar the introduction of parol

evidence at trial to explain the terms of the disputed contract provisions. On

December 2, 2013, the trial court granted Aqua’s motion in limine,

restricting evidence of Aqua’s obligation to make payment to Appellants

under paragraph 3 of the Agreement to the “four corners of the Settlement

Agreement.” Trial Court Order, 12/2/13, at 1. On July 15, 2014, the trial

court denied Appellants’ various outstanding discovery and sanctions

motions, ruling as follows.

            At argument, [Appellants’] counsel conceded that
            [Appellants’] sole remaining theory for relief is that
            [Aqua] had interfered with [Appellants’] efforts to
            obtain an easement from Pulte Homes, Inc., in
            breach of [the] Agreement [].      [Aqua’s] counsel
            argued that [Appellants’] Complaint failed to allege
            this theory. Having reviewed the Complaint, we
            agree. Therefore, there is no basis upon which to
            permit [Appellants] to pursue the requested
            discovery.

Trial Court Order, 7/15/14, at 1 n.1.




                                        -4-
J-A11023-16


       The case proceeded to a bench trial on February 11, 2015.         At trial,

the parties stipulated that Pulte never granted Aqua the permanent

easement referenced in paragraph 3 of the Agreement. N.T., 2/11/15, at 3.

At the conclusion of the trial, the trial court issued a verdict in favor of Aqua.

Appellants filed a motion for post-trial relief on February 26, 2015,

challenging the trial court’s December 2, 2013, and July 15, 2014 orders and

asserting the trial court should have granted Appellants leave to amend their

complaint. The trial court denied Appellants’ motion for post-trial relief on

June 9, 2015. Appellants filed a notice of appeal on June 19, 2015.4

       On appeal, Appellants raise the following questions for our review.

              1.   Whether the trial court erred in granting
              [Aqua’s] Motion In Limine barring [Appellants] from
              presenting parol evidence at the trial[?]

              2.    Whether the trial court erred in denying
              [Appellants’] Motion to Compel [Aqua’s] full and
              complete responses to [Appellants’] Interrogatories
              Nos. 16 and 18[?]

              3.    Whether the trial court erred in failing to
              permit the oral motion of [Appellants] to amend its
              Complaint to clarify its breach of contract claim
              and/or to conform to the evidence adduced in
              discovery[?]

Appellants’ Brief at 3-4.




____________________________________________
4
  Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


                                           -5-
J-A11023-16


      In their first issue, Appellants contend the trial court abused its

discretion in granting Aqua’s motion in limine. Id. at 13. We review this

issue with the following principles in mind.

            A motion in limine is used before trial to obtain a
            ruling on the admissibility of evidence. Northeast
            Fence & Iron Works, Inc. v. Murphy Quigley
            Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives
            the trial judge the opportunity to weigh potentially
            prejudicial and harmful evidence before the trial
            occurs, thus preventing the evidence from ever
            reaching the jury.” Commonwealth v. Reese, 31
            A.3d 708, 715 (Pa. Super. 2011) (en banc). A trial
            court’s decision to grant or deny a motion in limine
            “is subject to an evidentiary abuse of discretion
            standard of review.” Id.

                  Questions concerning the admissibility of
                  evidence lie within the sound discretion of the
                  trial court, and we will not reverse the court’s
                  decision absent a clear abuse of discretion.
                  Commonwealth Financial Systems, Inc. v.
                  Smith, 15 A.3d 492, 496 (Pa. Super. 2011)
                  (citing Stumpf v. Nye, 950 A.2d 1032, 1035–
                  1036 (Pa. Super. 2007[2008])). “An abuse of
                  discretion may not be found merely because an
                  appellate court might have reached a different
                  conclusion,       but    requires    a    manifest
                  unreasonableness, or partiality, prejudice,
                  bias, or ill-will, or such lack of support so as to
                  be clearly erroneous.” Grady v. Frito–Lay,
                  Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa.
                  2003).

            Keystone Dedicated Logistics, LLC v. JGB
            Enterprises, Inc., 77 A.3d 1, 11 (Pa. Super. 2013).
            In addition, “to constitute reversible error, an
            evidentiary ruling must not only be erroneous, but
            also harmful or prejudicial to the complaining party.”
            Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super.
            2007) (citing McClain v. Welker, 761 A.2d 155,
            156 (Pa. Super. 2000)).

                                     -6-
J-A11023-16



Parr v. Ford Motor Co., 109 A.3d 682, 690-691 (Pa. Super. 2014) (en

banc), appeal denied, 123 A.3d 331 (Pa. 2015), cert denied, 136 S. Ct. 557

(2015).

     Appellants claim parol evidence should have been permitted to explain

an ambiguity in the Agreement relative to whose responsibility it was to

secure the permanent easement from Pulte referenced in paragraph 3 of the

Agreement.     Appellants’ Brief at 13.   “When a contract is silent as to a

material term, the court must permit parol evidence concerning that issue,

even where the contract has an integration clause.       At a minimum, the

parties’ contract is ambiguous as to which party was responsible for

obtaining the easement at issue.” Id. The trial court, however determined

that all material terms to the Agreement were present and there was no

ambiguity. Trial Court Opinion, 7/11/15, at 3.

             “The enforceability of settlement agreements is
             determined according to principles of contract law.”
             Kramer v. Schaeffer, 751 A.2d 241, 245 (Pa.
             Super. 2000). “Because contract interpretation is a
             question of law, this Court is not bound by the trial
             court’s interpretation.” Stamerro v. Stamerro, 889
             A.2d 1251, 1257 (Pa. Super. 2005) (citation
             omitted). “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. (citation omitted).

Ragnar Benson, Inc. v. Hempfield Twp. Mun. Auth., 916 A.2d 1183,

1188 (Pa. Super. 2007)


                                     -7-
J-A11023-16


           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. When a writing is clear
           and unequivocal, its meaning must be determined by
           its contents alone.

                 Only where a contract’s language is ambiguous
                 may extrinsic or parol evidence be considered
                 to determine the intent of the parties.       A
                 contract contains an ambiguity if it is
                 reasonably       susceptible   of     different
                 constructions and capable of being understood
                 in more than one sense.        This question,
                 however, is not resolved in a vacuum.
                 Instead, contractual terms are ambiguous if
                 they are subject to more than one reasonable
                 interpretation when applied to a particular set
                 of facts. In the absence of an ambiguity, the
                 plain meaning of the agreement will be
                 enforced. The meaning of an unambiguous
                 written instrument presents a question of law
                 for resolution by the court.

           Murphy v. Duquesne Univ. of the Holy Ghost,
           565 Pa. 571, 777 A.2d 418, 429–30 (2001) (citations
           and quotation marks omitted) (emphasis added).

Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1046

(Pa. Super. 2015).

           A contract is not ambiguous if the court can
           determine its meaning without any guide other than
           a knowledge of the simple facts on which, from the
           nature of language in general, its meaning depends;
           and a contract is not rendered ambiguous by the


                                    -8-
J-A11023-16


            mere fact that the parties do not agree upon the
            proper construction.

Metzger v. Clifford Realty Corp., 476 A.2d 1, 5 (Pa. Super. 1984)

(citation omitted).

      Instantly, as noted, Appellants claim that a material term, i.e., who

bore the responsibility for obtaining the grant of a permanent easement

from Pulte, is missing from the Agreement.          Appellants’ Brief at 13.

Therefore, Appellants assert that parol evidence was admissible to discern

the parties’ intent with regard to that term, and said parol evidence would

have established that Aqua bore the responsibility to obtain the easement.

Id. at 13-14.

            It must be understood that only Aqua knew what it
            wanted/needed with regard to the language of the
            easement as this was an easement that Aqua
            wanted/needed in order to have access to water
            wells on the subject property. Thus, the trial court
            should have determined that common sense
            dictated, and the only fair reading of the parties’
            contract included, the obligation of Aqua to obtain
            the easement.

Id.

      The trial court determined that the Agreement simply imposed an

obligation upon Aqua to pay Appellants if a grant of a permanent easement

was obtained from Pulte. Trial Court Opinion, 7/11/15, at 3.

            That the agreement is silent as to who is obligated to
            obtain the easement on Aqua’s behalf is of no
            moment. Either party or a nonparty could have
            obtained the easement for Aqua. Had the parties


                                    -9-
J-A11023-16


               intended for Aqua to be saddled with this
               responsibility, they could have easily said so. …

               [Appellants] state conclusively that a material term
               is absent without explaining how the Settlement
               Agreement is impossible to understand or enforce in
               its absence.

Id.

          We agree.   Viewing the Agreement as a whole, Paragraph 3 is fully

understandable as written.         There is nothing in the language or the

attendant circumstances to suggest that an additional provision, requiring

the grant of easement to be obtained from Pulte, was intended to be part of

the Agreement. Rather, the Agreement merely triggered Aqua’s obligation

to pay Appellants whenever such grant of easement was executed.            After

all, Pulte was not a party to the Agreement and was not thereby bound to

execute anything.       That, in negotiating the terms of the Agreement, the

parties may not have anticipated a failure to obtain the grant of a permanent

easement from Pulte does not constitute an ambiguity.            See Metzger,

supra. Absent an ambiguity in the Agreement, we conclude the trial court

did not abuse its discretion in granting Aqua’s motion in limine, precluding

parol evidence to interpret the Agreement.        See Ragnar Benson, Inc.,

supra; Parr, supra.        Accordingly, Appellants’ first issue affords them no

relief.

          Appellants next claim the trial court erred in denying their motion to

compel Aqua to fully respond to discovery requests and for their motion for


                                       - 10 -
J-A11023-16


sanctions.      Appellants’ Brief at 15.           “Our standard of review when

determining the propriety of a discovery order is whether the trial court

committed an abuse of discretion.” Bensinger v. Univ. of Pittsburgh Med.

Ctr., 98 A.3d 672, 682 (Pa. Super. 2014), quoting Berg v. Nationwide

Mut. Ins. Co., 44 A.3d 1164, 1178 n.8 (Pa. Super. 2012), appeal denied,

65 A.3d 412 (Pa. 2013) (citation omitted). “[A]s a general rule, discovery is

liberally allowed with respect to any matter, not privileged, which is relevant

to the cause being tried.” Pa.R.C.P. 4003.1.

       Specifically, Appellants contend the discovery sought, i.e., evidence of

Aqua’s efforts to obtain the grant of easement from Pulte, was relevant to its

breach of contract claim.         Appellants’ Brief at 15.   Appellants assert the

Agreement, as with any contract, included an implied covenant of good faith

and fair dealing, which they claim Aqua breached by placing “obligations on

Pulte in the proposed easements that went far beyond obtaining the simple

easement that was needed and, therefore, among other actions, interfered

with obtaining the easement.” Id. at 15-16. As noted in the discussion of

Appellants’ first issue however, the trial court determined that the

Agreement did not impose a duty upon Aqua to obtain the grant of

easement from Pulte.5

____________________________________________
5
  The trial court also justified its denial of Appellants’ discovery motions
based on its determination that Appellants “had not sufficiently alleged this
theory [of a breach of an implied duty of good faith] in their complaint.”
Trial Court Opinion, 7/11/15, at 4.        It is this finding that underlies
(Footnote Continued Next Page)

                                          - 11 -
J-A11023-16


      As explained in the following, the duty of fair dealing cannot be used

to introduce a condition not explicit in the underlying contract itself.

                   [T]he Commonwealth has accepted the
             principle in Restatement (Second) of Contracts § 205
             that “[e]very contract imposes upon each party a
             duty of good faith and fair dealing in its performance
             and its enforcement.” Kaplan v. Cablevision of
             PA, Inc., 448 Pa.Super. 306, 671 A.2d 716, 721–22
             (1996). …

                   The Commonwealth has also developed in
             common law what has come to be referred to as the
             doctrine of necessary implication.     This Court in
             Daniel B. Van Campen Corp. v. Bldg. & Constr.
             Trades Council of Phila., 202 Pa.Super. 118, 195
             A.2d 134 (1963), described the principle as follows:

                       The law is clear that “In the absence of an
                       express provision, the law will imply an
                       agreement by the parties to a contract to do
                       and perform those things that according to
                       reason and justice they should do in order to
                       _______________________
(Footnote Continued)
Appellants’ third issue, faulting the trial court for failing to permit them to
amend their complaint to conform to the evidence. Appellants’ Brief at 17.
In light of our disposition of Appellants’ second issue on substantive grounds
based on the terms of the Agreement, we need not address the trial court’s
determination of the adequacy of Appellants’ pleading. Additionally, from
our disposition of Appellants’ first two issues, it is apparent that amendment
of the complaint to more clearly articulate a theory based on the implied
duty of good faith dealing would not overcome the clear terms of the
Agreement as discussed above.

        Furthermore, we agree with the trial court that the certified record
reveals no request by Appellants for leave to amend the complaint, or an
action by the trial court foreclosing such a request prior to the entry of the
verdict. Accordingly, there is no determination by the trial court for us to
review. Appellants raised the issue on the record for the first time in their
post-verdict motion, which was insufficient to preserve the issue for appeal.
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a).


                                           - 12 -
J-A11023-16


                 carry out the purpose for which the contract
                 was made and to refrain from doing anything
                 that would destroy or injure the other party’s
                 right to receive the fruits of the contract.
                 Accordingly, a promise to do an act necessary
                 to carry out the contract must be implied.” [8
                 P.L.E., Contracts, § 140.]

           Id. at 136–37. … In the absence of an express
           term, the doctrine of necessary implication may act
           to imply a requirement necessitated by reason and
           justice without which the intent of the parties is
           frustrated.

                  The duty of good faith and the doctrine of
           necessary implication apply only in limited
           circumstances. Implied duties cannot trump the
           express provisions in the contract.               See,
           Kaplan, 671 A.2d at 720 (“The court may apply the
           doctrine of necessary implication [to] imply a
           missing term … only when … it is abundantly clear
           that the parties intended to be bound by such
           term.”).     Unequivocal contractual terms hold a
           position superior to any implied by courts, leaving
           implied covenants to serve as gap filler. … As this
           obligation of good faith is tied specifically to and is
           not separate from the [express] duties a contract
           imposes on the parties, it cannot imply a term not
           explicitly contemplated by the contract. Both the
           implied covenant of good faith and the doctrine of
           necessary implication are principles for courts to
           harmonize the reasonable expectations of the parties
           with the intent of the contractors and the terms in
           their contract.

John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 705-707

(Pa. Super. 2003) (some quotation marks, citations, and footnote omitted;

emphasis added), appeal denied, 845 A.2d 818 (Pa. 2004).

     Because Appellants’ claim for breach of contract premised on Aqua’s

failure to deal in good faith is dependent on a duty we have held is not

                                   - 13 -
J-A11023-16


explicitly provided for in the Agreement, the sought after discovery was not

relevant to Appellants’ cause of action.     See Pa.R.C.P. 4003.1; John B.

Conomos, Inc., supra.      Accordingly, we discern no abuse of discretion by

the trial court in denying Appellants’ discovery motions.    See Bensinger,

supra.

      To summarize, we conclude the trial court committed no error of law in

determining the Agreement was not ambiguous, and that the Agreement

imposed no duty upon Aqua to obtain the permanent easement from Pulte.

Consequently, we discern no abuse of discretion by the trial court in entering

its December 2, 2013, and July 15, 2014 orders, granting Aqua’s motion in

limine, and denying Appellants’ discovery motions, respectively. We further

conclude Appellants did not preserve any issue relative to the trial court’s

purported denial of leave to amend their complaint to conform to the

evidence. Accordingly, the trial court’s June 9, 2015 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016




                                    - 14 -
J-A11023-16




              - 15 -
