J-A19039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BINSWANGER OF PENNSYLVANIA, INC.,             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellant

                       v.

    TSG REAL ESTATE LLC,

                              Appellee                 No. 2372 EDA 2015


                  Appeal from the Order Entered June 11, 2015
        in the Court of Common Pleas of Philadelphia County Civil Division
                  at No(s): No. 000901 - February Term, 2014


    BINSWANGER OF PENNSYLVANIA, INC.              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellee

                       v.

    TSG REAL ESTATE LLC,

                               Appellant

                                                       No. 2524 EDA 2015


                  Appeal from the Order Entered June 11, 2015
        in the Court of Common Pleas of Philadelphia County Civil Division
                    at No(s): February Term, 2014, No. 00901

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 26, 2017

        Binswanger of Pennsylvania, Inc. (“Binswanger”) and TSG Real Estate




*
    Former Justice specially assigned to the Superior Court.
J-A19039-16


LLC (“TSG”) cross-appeal from the order granting in part and denying in part

Binswanger’s and TSG’s cross-motions for summary judgment and awarding

Binswanger $56,666.67 as a commission on TSG’s sale of real property. We

affirm.

        TSG, a real estate company, owned a commercial real property at 1400

Welsh Road, North Wales, Pennsylvania (“the Property”). R.R. at 577a, 623-

24a.1 TSG initially hired Hart Corporation (“Hart”) to market the Property,

and Hart procured several prospective purchasers.            In particular, on

September 18, 2013, TWA Holdings, LLC (“TWA”) made a written offer to

purchase the Property for $3,700,000.00. Id. at 583a, 625a, 674a-75a, 720-

22a.

        On September 20, 2013, dissatisfied with poor “foot traffic” during

Hart’s tenure as broker, TSG began negotiating an agreement with another

broker, Binswanger, to market the property. Id. at 640a. TSG insisted that

the agreement with Binswanger exclude prospective purchasers who had

already made offers on the Property, such as TWA.

        On September 27, 2013, Binswanger and TSG entered into a brokerage

agreement, which contained the following relevant provisions:

           This Exclusive Right to Sell or Lease Agreement is made as
           of this 27th September, 2013 . . . by and between
           [Binswanger] and [TSG].

           Except with respect to any transaction, sale, or exchange
           involving the Excluded Entities, [Binswanger] is hereby

1
    For the convenience of the parties, we cite to the reproduced record.

                                      -2-
J-A19039-16


       given the sole and exclusive right to list and offer for sale
       and lease for [TSG’s] account [the Property], provided that
       [Binswanger] agrees by listing and otherwise, to use its best
       efforts to sell and lease the Property until this Agreement is
       terminated as herein provided.

       EXCEPT WITH RESPECT TO THE EXCLUDED ENTITIES, IF
       THE PROPERTY, OR ANY PART THEREOF, IS SOLD OR
       LEASED, OR IF A PURCHASER OR TENANT IS WILLING TO
       BUY OR LEASE ON TERMS SATISFACTORY TO [TSG] IS
       PROCURED PRIOR THE TERMINATION OF THIS AGREEMENT
       (OR AFTER SUCH TERMINATION AS HEREINAFTER SET
       FORTH), NO MATTER BY WHOMSOEVER THE PROPERTY
       MAY, BE SOLD, TRANSFERRED, CONVEYED, EXCHANGED
       OR LEASED OR SUCH PURCHASER OR TENANT PROCURED,
       WHETHER BY [BINSWANGER] OR BY [TSG] DIRECTLY OR
       BY ANY OTHER ENTITY WHATSOEVER, THEN, IN ANY SUCH
       EVENT, OWNER AGREES THAT [BINSWANGER] SHALL HAVE
       EARNED A COMMISSION AND [TSG] AGREES TO PAY TO
       AGENT A SALE OR LEASE COMMISSION AS FOLLOWS:

       SALE-FIVE PERCENT (5%) OF THE GROSS AGGREGATE
       PURCHASE PRICE;

                                    ***

       All commissions under this Agreement shall be considered
       earned and shall be due and payable at the time scheduled
       for closing on a sale. Upon closing of any transfer or sale of
       the Property, the party responsible for closing is hereby
       authorized and directed by [TSG] and [Binswanger] to
       deduct the commission due from the proceeds of sale or
       transfer and pay same to [Binswanger]. . . . In the event a
       purchaser . . . is procured by another broker other than
       [Binswanger], [Binswanger] agrees to split any sale or lease
       commission with the other broker.

       Notwithstanding anything in this Agreement to the contrary,
       a commission shall not be earned by, or be payable to,
       [Binswanger] in connection with:

                                    ***




                                   -3-
J-A19039-16


           . . . sales, exchanges, or other transfers to Ancillare, Inc.,
           [TWA], Jerry McBride, or any other entity owned by,
           controlled by, or associated with any of the foregoing
           (the “Excluded Entities”), to the extent that such sale,
           exchange or transfer is completed on or before January
           5, 2014 [(“the Carve Out Period”)2]

                                       ***

           This Agreement shall be for a term of one (1) year,
           beginning from the date set forth above; provided,
           however, that [TSG] shall have the right to cancel this
           Agreement after six (6) months with thirty (30) days
           prior written notice to [Binswanger]. After termination
           of [Binswanger’s] exclusive right, [Binswanger] authority
           shall continue as to those entities with whom
           [Binswanger] has communicated the offering of the
           Property for sale or lease so that if, within sixty (60) days
           of the termination of this Agreement, the Property is sold
           or leased to any such entity . . . whether by [Binswanger]
           or by [TSG] directly or by any other agent, or person
           whomsoever, a full commission as herein prescribed shall
           be paid to [Binswanger].

R.R. 30a-31a.

     On January 3, 2014, two days before the expiration of the Carve Out

Period, TSG entered into an agreement to sell the Property to TWA for

$3,400,000.00 (the “Agreement of Sale”). Id. at 130a-44a. Section III of

the Agreement of Sale required TWA to deliver to an escrow agent a deposit

(“Deposit”) of $50,000.00 upon execution of the agreement. An additional

deposit of $150,000.00 was “required at the expiration of the Due Diligence




2
  The parties referred to the time period on or before January 5, 2014 as the
“carve out period,” and we refer to it as the same.

                                     -4-
J-A19039-16


period (hereafter defined) (the “Additional Deposit).” Id. at 130. Section VII

of the Agreement of Sale provided, in part:

         7.1 Buyer’s Default. In the event that [TWA] shall fail to
         fulfill and perform any of the terms and conditions of this
         Agreement, [TSG] shall be entitled to retain the Deposit and
         Additional Deposit (if applicable) . . . and this Agreement
         shall thereafter be null and void.

Id. at 135

     Section IX of the Agreement of Sale set forth two conditions precedents

to settlement.

         The obligations of [TWA] and Seller pursuant to the
         Agreement are, at the election of the appropriate respective
         party, subject to the conditions that:

         9.1 Mortgage Contingency. On or before expiration of the
         Due Diligence Period, [TWA] shall obtain a mortgage
         commitment . . . of no less than Two Million Dollars
         ($2,000,000.00), based on the sole collateral of [the]
         Property. Failure of [TWA] to obtain financing as provided
         in this Section 9.1 shall not constitute a default hereof
         except where such failure is caused by [TWA] failure to seek
         financing in good faith and on a timely basis. In the event
         that [TWA] is unable to obtain financing where such inability
         is not caused by [TWA]’s failure to seek financing in good
         faith and on a timely basis, the Deposit and Additional
         Deposit (if applicable) shall be returned to [TWA] with
         interest earned.

                                     ***

         9.2 Due Diligence Period

             (a) During the Due Diligence period, which is defined as
             sixty (60) days from the date of execution of this
             Agreement (the “Due Diligence Period”), [TWA] shall
             have the right to terminate this Agreement for any
             reason. . . .



                                     -5-
J-A19039-16


Id. at 136a-37a. TSG retained the right to market Property during the Due

Diligence Period, but had no right to terminate the Agreement of Sale. Id.

The Agreement of Sale provided: “Legal title to the Property shall pass to

[TWA] at Settlement.” Id. at 132a.

     Additionally, The Agreement of Sale identified two brokers, Hart and

Gelcor Realty, whose commissions TSG was solely responsible for paying at

the time of settlement.   Id. at 139a.     Binswanger was not identified as a

broker. Id.

     On January 7, 2014, Binswanger requested that TSG pay Binswanger a

commission for the sale to TWA. Id. at 432a, 437a-38a. On January 16,

2014, and February 14, 2014, TSG sent letters of intent to terminate the

contract with Binswanger effective March 26, 2014. Id. at 440a. On April 24,

2014, TWA entered into a mortgage for $2,890,000.00. Id. at 443a, 469a.

Closing took place on the same date, and TWA purchased the Property for

$3,400,000.00. Id. at 444a. TSG refused to pay Binswanger a commission.

     On February 10, 2015, Binswanger filed a one-count complaint against

TSG seeking a declaratory judgment that it was entitled to the five percent

commission stipulated in the agreement, or $170,000.00. Id. at 21a-33a. In

response, TSG filed an answer with new matter and twelve counterclaims. Id.

at 34a-78a.    On July 15, 2014, the trial court sustained Binswanger’s

preliminary objections to counts III through XII of TSG’s counterclaims and

dismissed them for failure to state a cause of action. Id. at 216a-17a.



                                     -6-
J-A19039-16


      Pursuant to a stipulation between the parties, Binswanger filed an

amended complaint that added new counts II and III for breach of contract

and breach of good faith and fair dealing, respectively. Id. at 219a-300a.

TSG filed an answer to the amended complaint with new matter and the two

counterclaims not previously dismissed by the court. Id. at 301a-326a.

      Binswanger moved for summary judgment on all counts of its amended

complaint. Citing Dubin Paper Co., v. Ins. Co. of North America, 63 A.2d

85, Binswanger argued that “Pennsylvania law is clear that a ‘sale’ of real

property is not complete until legal title transfers to the buyer.” Id. at 376a.

Binswanger asserted that the Agreement of Sale “placed multiple conditions

on [TSG and TWA] that could have prevented Settlement[,]” including the Due

Diligence Period. Id. at 372a. Binswanger emphasized that legal title would

not pass until settlement and that several other conditions were not in place

at the time the Agreement of Sale was executed. Id. at 372a-73a. With

respect to TSG’s termination notices, Binswanger asserted it was entitled to

remain as the exclusive agent for the Property until April 27, 2014, i.e., six

months and thirty days after the execution of the Brokerage Agreement.

      TSG filed a cross-motion for summary judgment arguing that

Binswanger had no right to a commission. TSG contended that under the

doctrine of equitable conversion, title passed to TWA on January 3, 2014, the

date of the agreement of sale. Thus, TSG concluded, Binswanger could not

obtain a commission because the sale to TWA was complete before the end of



                                     -7-
J-A19039-16


the Carve Out Period. Binswanger countered that it was due a commission

because the sale was not complete until April 24, 2014, the date legal title

passed to TWA at settlement, over three months past the carve out period.

Id. at 348-78a (cross-motions for summary judgment).

      On June 11, 2015, the trial court docketed the following order:

         It hereby is ORDERED that the parties’ respective motions
         for summary judgment are granted in part and denied in
         part as follows:

         1. [Binswanger’s] Motion for Summary Judgment is granted
         in part and [Binswanger] is entitled to a commission per the
         Exclusive Listing Agreement;

         2. [TSG’s] Motion for Summary Judgment is granted in part
         and [Binswanger] is only entitled to collect one third of the
         commission, $56,666.67.

         All other aspects of the motions are denied.

Order, 6/11/15.

      On July 8, 2015, TSG filed a notice of appeal from the June 11, 2015

order.3 On July 22, 2015, Binswanger filed a cross-appeal. All parties and

the trial court complied with Pa.R.A.P. 1925.


3
  In an opinion accompanying its summary judgment order, the trial court
stated: “As for [Binswanger’s] remaining claim[] of the breach of the duty of
good faith and fair dealing, it is unnecessary to address [this claim] since it
was pled as an alternative cause of action to the claims for declaratory
judgment and breach of contract.” Trial Ct. Op., 6/11/15, at 7 n.8. This
comment left uncertain whether the trial court failed to decide the good faith
claim and thus failed to enter a final order.

On May 11, 2017, we ordered the trial court to submit a supplemental opinion
clarifying whether its order disposed of Binswanger’s good faith claim. On



                                     -8-
J-A19039-16


      We address TSG’s appeal at 2524 EDA 2015 first. TSG presents the

following issues for review:

         1. With respect to the Summary Judgment Order and related
         Opinion[:]

            a. Did the [t]rial [c]ourt err in holding that the doctrine
            of equitable conversion—the more than century old legal
            maxim that a sale of real property occurs when an
            agreement of sale is reached and not when legal title
            passes at a closing—does not apply to contracts between
            land owners and real estate brokers?

            b. Did the [t]rial [c]ourt err in ruling that the date
            Pennsylvania law deems real property to be sold differs
            depending on the type of person seeking that
            determination?

            c. Did the [t]rial [c]ourt err in holding that the doctrine
            of equitable conversion does not apply where an
            agreement of sale of Pennsylvania real estate that is
            irrevocable to the seller contains contingencies that are
            beyond the control of the seller and that are common to
            all real estate transactions, which holding effectively
            abolishes the doctrine?

            d. Did the [t]rial [c]ourt err by failing to consider whether
            the January 3, 2014 real property sale transaction fell
            within the meaning of the parties’ agreed term “sale,
            exchange, or other transfer” in their brokerage
            Agreement (as defined herein)?

            e. Did the [t]rial [c]ourt err in holding that TSG’s
            termination of the Agreement was ineffective where TSG
            provided notice in accordance with the terms of the
            Agreement?

May 22, 2017, the trial court entered a supplemental opinion stating that its
decision for Binswanger on its claim for breach of contract also functioned as
a grant of summary judgment for Binswanger on the good faith claim. We
agree that the trial court ruled in favor of Binswanger on the good faith claim
without awarding additional relief. Accordingly, the trial court’s order is final
and appealable under Rule 341(b)(1).

                                      -9-
J-A19039-16



            f. Did the [t]rial [c]ourt below err by not holding that
            Binswanger waived its argument and/or should be
            estopped from arguing that TSG did not terminate the
            Agreement where Binswanger expressly acknowledged
            and acted in furtherance of such termination?

         2. With respect to the Preliminary Objections Order:

            a. Did the [t]rial [c]ourt below err in holding as a basis
            to dismiss TSG’s counterclaims that TSG suffered no
            damages where the [t]rial [c]ourt—albeit incorrectly—
            determined and quantified the damages suffered by
            TSG?[4]

TSG’s Brief at 4-5.

      TSG, in its first four arguments, claims that Binswanger is not entitled

to a commission, because under the doctrine of equitable conversion, the sale

to TWA was complete before the conclusion of the carve out period on January

5, 2014. Citing Bauer v. Hill, 110 A. 346, 347 (Pa. 1920), TSG asserts that

“Pennsylvania courts consider a sale of real property ‘complete’ at execution

of the sale agreement, even though full payment, delivery of the deed, and

possession is set for a future time.” TSG’s Brief at 24. TSG further argues

the trial court erred in concluding that the principles of equitable conversion

did not apply to affect Binswanger’s interest, and that the Agreement of Sale

was conditional based on the mortgage contingency clause.        TSG concludes

that these errors resulted in a misinterpretation of the Brokerage Agreement

and a conflation of the terms “sale” and “transfer.”   No relief is due.


4
  TSG’s brief does not contain an argument that the trial court erred in
dismissing its counterclaim. Therefore, this issue has been abandoned.

                                    - 10 -
J-A19039-16


     Our standard of review is well settled:

        [o]ur review of the trial court’s grant of summary judgment
        is plenary.     Summary judgment is proper where the
        pleadings, depositions, answers to interrogatories,
        admissions and affidavits and other materials show there is
        no genuine issue of material fact and the moving party is
        entitled to judgment as a matter of law. We must view the
        record in the light most favorable to the opposing party and
        resolve all doubts as to the existence of a genuine issue of
        material fact in favor of the nonmoving party. We will
        reverse the trial court’s grant of summary judgment only
        upon an abuse of discretion or error of law.

412 North Front Street Assocs., LP v. Spector Gadon & Rosen, P.C.,

151 A.3d 646, 660 (Pa. Super. 2016) (citation omitted).

     Moreover,

        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.

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

(Pa. Super. 2015) (citation and emphasis omitted).

     As our Supreme Court has stated,

        Sale is a word of precise legal import, both at law and in
        equity. It means * * * a contract between parties, * * * to
        pass rights of property for money, which the buyer pays or
        promises to pay to the seller for the thing bought and sold.
        Land may be sold by an article of agreement as well as by
        deed[.] In popular language property under contract of sale


                                   - 11 -
J-A19039-16


         is often referred to as sold. Whenever an unconditional
         agreement has been made for the sale of land such as equity
         will specifically enforce, it may properly be referred to and
         treated as sold. Then the vendee becomes the equitable
         owner, and the vender holds the legal title as trustee.

Bauer, 110 A. at 347 (citations and quotation marks omitted).

         [W]hen an unconditional agreement for the sale of land is
         signed, the purchaser becomes the equitable or beneficial
         owner through the doctrine of equitable conversion. The
         vendor retains a mere security interest for the payment of
         the unpaid purchase price. The equitable owner bears the
         risk of loss for injury occurring to the property after
         execution of the agreement of sale before the settlement.

Byrne v. Kanig, 332 A.2d 472, 474 (Pa. Super. 1974) (citations omitted)

(emphasis added).

      Following our review, we agree that the Agreement of Sale was

conditional. By its own terms, the Agreement of Sale identified two conditions

precedent. The Due Diligence Period provided TWA with sixty days in which

it could terminate the Agreement of Sale for any reason, after which TWA was

required to pay an additional deposit of $150,000.         Moreover, TWA was

responsible for obtaining mortgage financing.          With respect to TWA’s

mortgage obligations, the Agreement of Sale provided that TWA was required

to exercise good faith in seeking financing. The failure to obtain a mortgage

after exercising good faith would not constitute a default, and TWA would be

entitled to a return of its initial deposit and any applicable additional deposit.

Nevertheless, TWA’s failure to fulfil these conditions would render the

Agreement null and void.



                                      - 12 -
J-A19039-16


      TSG cites to Filsam Corp. v. Dyer, 422 F. Supp. 1126 (E.D. Pa. 1976),

to support its contention that none of the conditions in the Agreement of Sale

precluded the application of equitable conversion to find that the property was

“sold” on January 3, 2014. In that case, the defendant was not a resident of

Pennsylvania, but he entered into an agreement of sale to purchase real

property in Pennsylvania.     He was subsequently sued by the plaintiff for

breaching the agreement of sale. The defendant sought to avoid personal

jurisdiction under the Pennsylvania long-arm statute because he did not own

real property in the Commonwealth, asserting, in relevant part, that the

contract to purchase the real property was conditional upon the defendant

making repairs and alterations.

      The district court rejected that argument, and reasoned as follows:

         [I]t is our view that the existence of such conditions as are
         within the control of the parties to a contract cannot in itself
         render the doctrine of equitable conversion inapplicable.

         The requirement that the land sale contract be
         “unconditional” should only bar equitable conversion where
         the condition must be accomplished before the contract can
         become operative. See 3 American Law of Property s 11.24
         (1952). In the case of In re Governor Mifflin Joint School
         Authority, 401 Pa. 387, 164 A.2d 221 (1960), for instance,
         equitable conversion was said not to have taken place where
         the land purchase agreement was conditioned upon the
         passage of certain zoning changes.       The purchaser in
         Governor Mifflin argued that as equitable owner he should
         benefit from a condemnation of the property prior to the
         accomplishment of the zoning changes. The Pennsylvania
         Supreme Court disagreed. It seems clear to us from the
         Court’s discussion that the impediment to equitable
         conversion was the possibility that no zoning change at all
         would come about, coupled with the realization that (even


                                     - 13 -
J-A19039-16


         if a court of equity were to assume that what the parties
         agreed to do would be done) the hoped-for zoning change
         was not within the control of the parties.

         In the present case we find no condition which is beyond the
         control of the parties and we therefore believe that an
         operative contractual relation arose upon execution of the
         agreement for the sale of land. [The defendant’s] equitable
         ownership thus accrued at that time. We also note that no
         one has raised, and we are unable to find, any condition
         precedent to the duty of [the plaintiff] which from the start
         might have precluded specific enforcement in favor of [the
         defendant] and hence have prevented [the defendant’s]
         equitable ownership from arising. See Restatement of
         Contracts [§] 374(1)(1932).

Filsam Corp. v. Dyer, 422 F. Supp. 1126, 1133 (E.D. Pa. 1976).

      It is well settled that “decisions of federal district courts are not binding

on Pennsylvania courts,” Ira G. Steffy & Son, Inc. v. Citizens Bank of Pa.,

7 A.3d 278, 284 n.7 (Pa. Super. 2010) (citation omitted), and our review

reveals no Pennsylvania case holding that a condition to a mortgage must be

beyond the control of the parties.             In any event, we find Filsam

distinguishable. The alleged conditions in Filsam were minor formalities that

did not amount to a condition precedent to the parties to the parties’ operative

contractual relation. Here, TWA could unilaterally and arbitrarily terminate

the contract. Therefore, although the exercise of that condition was in the

control of TWA, satisfaction or waiver of the Due Diligence Period constituted

a condition precedent to the contractual relations of the parties, as well as

their duties and ability to seek specific performance of the Agreement of Sale.

Cf. Klingensmith v. Klingensmith, 100 A.2d 76, 79 (Pa. 1953) (noting



                                      - 14 -
J-A19039-16


“[o]bligations under a contract are to be mutual and not merely unilateral,

and both sides must be provided with the weapon of legal redress in the event

either defaults in his obligations”); DiBennedetto v. Di Rocco, 93 A.2d 474,

475 (Pa. 1953).     Therefore, the Due Diligence Period and the attendant

requirement for the payment of an Additional Deposit were conditions

precedent to the enforceability of TWA’s promise to purchase the Property and

equitable ownership did not pass until the conditions were met or TWA

expressly waived their rights under that provision. Accordingly, we discern no

error in the trial court’s determination that the Agreement of Sale was

conditional, the sale did not occur at the time the Agreement of Sale was

executed, and that the sale, therefore, did not occur during the Carve Out

Period.

      TSG next contends that the trial court erred in finding that it did not

terminate the contract before Binswanger earned the commission.           TSG

asserts that it gave notice of its intent to terminate the agreement on January

16 and February 14, 2014 and that the Brokerage Agreement should be

deemed terminated as of March 26, 2014, “well before the April 24, 2014

closing date” of the sale of the Property to TWA.       TSG also argues that

Binswanger waived any claim that the termination should be deemed effective

as of April 26, 2014, after the sale.

      The termination provision of the Brokerage Agreement provides that

TSG had “the right to cancel this Agreement after six (6) months and with



                                        - 15 -
J-A19039-16


thirty days prior notice.” Binswanger urged, and the trial court agreed, that

this provision precluded TSG from issuing a notice of intent to terminate the

contract until March 27, 2014, after six months passed from the execution of

the Agreement. See Trial Ct. Op., 9/1/15, at 12. However, the trial court

also suggested that the Agreement of Sale was signed on January 3, 2015,

before TSG’s could terminate the Brokerage Agreement, and thus concluded

that Binswanger’s commission was owed notwithstanding TSG’s attempted

termination. Id. at 12 n.20.

      Instantly, even if we were to agree with TSG that the trial court erred

in concluding that TSG’s notices of intent were premature, TSG has offered no

argument to the trial court’s alternative conclusion that the Binswanger’s

commission was deemed earned before March 27, 2014.              Instead, TSG

appears to assume that any commission earned for the sale to TWA required

a completed sale.      Although the Brokerage Agreement states that no

commission would be earned if the sale was completed on or before January

5, 2014, TSG presents no arguments to support its contention that a

completed sale was necessary to deem the commission earned. Accordingly,

we decline to grant relief based on the TSG’s exercise of its right to terminate

after six months.

      Therefore, finding no basis upon which to conclude that TSG’s appeal

merits relief, we affirm the trial court’s order to the extent it held that a

commission was due to Binswanger.



                                     - 16 -
J-A19039-16


      Binswanger raises the following issues in its appeal at 2372 EDA 2015:

         1. Did trial court err by holding that Binswanger was
         required to split the commission due under the Exclusive
         Right to Sell or Lease Agreement with two other brokers,
         because the plain language of the Exclusive Broker
         Agreement entitles Binswanger to five percent (5%)
         commission on the sale of the [P]roperty, regardless of who
         procured the buyer?

         2. Did the trial court err by holding, as a matter of law, that
         Binswanger was required to split the commission where
         evidence of industry custom and the parties’ intent created
         genuine issues of material fact about whether the terms of
         the Exclusive Right to Sell or Lease Agreement require a
         split of the commission?

         3. Did the trial court err by holding that Binswanger was
         required to split the commission where TSG did not plead a
         claim or defense for a split of the commission?

Binswanger’s Brief at 2.

      Turning to Binswanger’s appeal, all of Binswanger’s arguments contest

the trial court’s decision to limit its commission to $56,666.67. Binswanger

insists that it was entitled to five percent of the sale price in agreement of

sale, or $170,000.00. We disagree.

      As stated above, the Brokerage Agreement between Binswanger and

TSG provided that Binswanger was not an exclusive broker with respect to the

Excluded Entities. Moreover, the Borkerage Agreement stated: “In the event

a purchaser or tenant is procured by another broker other than [Binswanger],

[Binswanger] agrees to split any sale or lease commission with the other

broker.” The agreement of sale identified two brokers, Hart and Gelcor Realty,

but did not list Binswanger as a broker. The trial court correctly determined


                                     - 17 -
J-A19039-16


that this plain language required Binswanger to split the commission with the

other two brokers, thus limiting Binswanger’s commission to one third of

$170,000.00, or $56,666.67.

      Not only is the trial court’s conclusion correct as a matter of law, but

Binswanger waived its objections on appeal by completely failing to address

the trial court’s reasoning. Not once in its briefing does Binswanger mention

the fee splitting provision relied upon by the trial court, let alone attempt to

explain why it does not apply. See Banfield v. Cortes, 110 A.3d 155, 168

n.11 (Pa. 2015) (where appellate brief fails to develop issue in meaningful

fashion capable of review, that claim is waived).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/26/2017




                                     - 18 -
