J-S41019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ALLISON G. PFEIFFER                        :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RHONDA L. ZAWASKI                          :   No. 205 MDA 2019

              Appeal from the Judgment Entered August 22, 2019
       In the Court of Common Pleas of Schuylkill County Civil Division at
                             No(s): S-2003-2009


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 13, 2019

       Allison G. Pfeiffer (Appellant) appeals from the judgment entered

against him and in favor of Rhonda L. Zawaski (Zawaski).1 Appellant avers


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 On February 4, 2019, following the denial of his post-trial motion, Appellant
purported to appeal from the court’s January 22, 2019 order, which dismissed
his claims and directed him to convey title to Zawaski. Upon review, this Court
noted that judgment had not been entered, and directed Appellant to praecipe
the trial court to enter judgment. See Johnston the Florist, Inc. v. Tedco
Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc) (“[A]n appeal
to this Court can only lie from judgments entered subsequent to the trial
court’s disposition of any post-verdict motions, not from the order denying
post-trial motions.”).     Appellant complied, and the trial court entered
judgment on August 22, 2019. We deem Appellant’s appeal properly taken
from the subsequently-entered judgment. See id. at 514-515 (“[T]here are
some instances wherein a party has failed to enter judgment [due to
oversight] and our appellate courts may ‘regard as done that which ought to
have been done.’”).
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that the court erred in: (1) not finding that Zawaski breached the parties’

contract; (2) finding that time was not of the essence in the contract; and (3)

ordering specific performance and directing Appellant to convey title of real

property to Zawaski. Upon review, we affirm.

       Appellant owned a mobile home and lot in Andreas, Schuylkill County,

Pennsylvania. On August 1, 2001, Appellant and Zawaski executed a lease-

purchase agreement (Initial Agreement) for the sale of the property for

$55,000.2     Zawaski paid Appellant $5,000 at signing, and pursuant to the

agreement, was to pay the balance, with interest, over four years. The Initial

Agreement also provided:

           9. [Zawaski] agrees that they will make no alterations or
       repairs to the building other than normal maintenance and
       painting and repair work without the written permission of
       [Appellant].

                                       *       *   *

            12. If [Zawaski] shall default on any payment for a period in
       excess of thirty (30) days, including payment of the utility bills,
       this Agreement shall be ended and all payments made to that
       date, including the down payment, shall be considered as rent for
       said property and [Appellant] shall have the right to sell this
       property with no further rights in [Zawaski].

Initial Agreement, 8/1/01, at 3, 4.

       Zawaski and her boyfriend, Daniel Hartnung, lived together in the

property. However, Zawaski was delinquent with payments, and on March 3,


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2The parties entered into this agreement, as well as a March 3, 2006 amended
agreement, pro se.

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2006, the parties executed a second agreement (Amended Agreement), to

“extend” the Initial Agreement through March 3, 2008. Agreement of Sale

Amendment (Amended Agreement), 3/3/06, at 1. This agreement, drafted

by Zawaski’s sister, stated that the principal balance was $47,630.48; on the

date of signing, Zawaski paid Appellant $2,137. The Amended Agreement

provided that Zawaski would pay Appellant $135 weekly until the balance was

paid. Neither the Initial Agreement nor Amended Agreement included a “time

is of the essence” provision.

       On February 21, 2009 — almost one year after the end-date

contemplated in the Amended Agreement — Appellant served a notice of

eviction on Zawaski, alleging that he was owed two months’ rent. We note

that at trial, Zawaski presented approximately 493 handwritten receipts for

cash payments she made to Appellant between August 2006 and March 2009.

Zawaski did not vacate the property, and Appellant filed a landlord/tenant

complaint in the Magisterial District Court. On July 8, 2009, the Magisterial

District Judge awarded Appellant $2,457.25 in unpaid rent and costs.


____________________________________________


3  The certified record includes 49 copies of receipts, which generally included
little information. Some receipts listed multiple dates and amounts — most
of which represented the amounts paid but some of which showed the balance
due — and some receipts included more than one signature from Appellant.
For ease of discussion, we use Appellant’s calculation that Zawaski presented
49 receipts. See Appellant’s Brief at 17, 26. These receipts indicate that
Zawaski paid Appellant a total of $18,490.




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       Zawaski appealed to the Court of Common Pleas of Schuylkill County,

and Appellant filed a complaint on September 22, 2009, seeking unpaid rent

as well as possession of the property. Beginning in August of 2009, Zawaski

paid $585 per month into escrow with the trial court prothonotary, which

remitted the funds to Appellant.4         N.T. Trial, 1/3/19, at 111 (testimony of

Schuylkill County First Deputy Prothonotary John Fekety).

       The case proceeded to an arbitration panel, which awarded Appellant

$1,085.5 Zawaski appealed to the trial court. In September 2012, Zawaski

filed a counter-claim, requesting specific performance of both the Initial and

Amended Agreements. In support, Zawaski averred: (1) beginning with the

2006 Initial Agreement, she paid Appellant more than $19,975 in installment

payments and has provided Appellant “numerous receipts”; (2) she

additionally paid into escrow more than $21,060; (3) over the 11 years that

she was in exclusive possession of the property, Zawaski made numerous

improvements; and (4) she consequently had a substantial equity interest in

the property and forfeiture would be inequitable.             Zawaski’s Amended

Counterclaim, 9/27/12, at 2-4.



____________________________________________


4 The trial court prothonotary initially retained Zawaski’s payments, but upon
trial court order, mailed Appellant a lump sum of the total amount received,
and subsequently mailed him monthly checks. N.T. Trial, 1/3/19, at 112.

5 The parties stipulated that the issue of possession was beyond the
arbitrators’ jurisdiction.


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      On May 17, 2018, the trial court ordered Zawaski to secure a

handwriting expert to review the receipts allegedly signed by Appellant, and

to provide Appellant with a copy of the expert’s report by August 1, 2018.

      The case proceeded to a bench trial on January 3, 2019, with both

parties represented by counsel. By that time, Zawaski and Hartnung had lived

in the property for 18 years. N.T. Trial, 1/3/19, at 4, 94-95. The trial court

inquired about Zawaski’s retention of a handwriting expert, and Zawaski

responded that she did not employ an expert because it was “cost prohibitive.”

Id. at 3. Appellant did not object. When Zawaski introduced each of the 49

receipts into evidence, Appellant stated that he would not stipulate to their

authenticity, but did not challenge their admission or the lack of a handwriting

expert. Id. at 62-82; see also id. at 80 (no stipulation).

      Zawaski argued that her receipts, dated August 2006 through March of

2009, documented cash payments to Appellant. Appellant acknowledged that

he signed most of the receipts, but denied that the signatures on

approximately five receipts were his.       N.T. Trial, 1/3/19, at 120-137.

Appellant also disputed some of the receipts which showed multiple payments,

and testified instead that he received only one payment. Id. Additionally,

Appellant testified that he did not keep receipts or a ledger of payments; did

not know whether he deposited any of Zawaski’s cash payments into his bank

account; only knew how much Zawaski had paid “[b]y her receipts”; and had

“no idea” how much she owed him as of trial. Id. at 48-49, 57.


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      Zawaski and Hartnung also testified about improvements they made to

the property, including new hardwood floors, new kitchen cabinets and

countertops, new floors in both bathrooms due to water leaks, a new water

heater, central air conditioning, new appliances, new front and back doors,

landscaping, and roof repairs.      N.T. Trial, 1/3/19, at 88-89, 100-101.

Hartnung testified that the new floors were not merely “improvements,” but

were necessary due to burst pipes. Id. at 100. Hartnung stated that he told

Appellant about a water leak, but Appellant responded that Hartnung had to

fix it. Id. Appellant denied any knowledge of the improvements or the water

leaks, id. at 45-46, but Zawaski testified that Appellant went to the property

and observed the new floors and cabinets. Id. at 88.

      First Deputy Prothonotary Fekety testified that from July 2009 through

April 2016, Zawaski paid $585 monthly into escrow. N.T. Trial, 1/3/19, at

110-116.    Zawaski testified that she stopped making escrow payments

because she calculated that her escrow payments alone totaled more than

$46,000. Id. at 18.

      Additionally, Zawaski testified that it was never her intention to rent the

property, and she “wanted to buy it.” N.T. Trial, 1/3/19, at 59. On cross-

examination, Appellant confronted Zawaski with her response to a discovery




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interrogatory, “Do you own or rent this property?”6 See N.T. Trial, 1/3/19, at

13-14. Zawaski responded, “I rent this property.” See id. The following

exchange occurred:

            [Appellant’s counsel:] Do you disagree with the response?

            [Zawaski:] I disagree with it for the rent because I wasn’t
       renting the property. It was to purchase it.

           Q. Okay. You say you weren’t renting the property as of
       March 15, 2011?

            A. No, it was to buy the property.

            Q. . . . Do you own the property or do you rent the property?

Id. at 14.     At this point, Zawaski’s counsel objected to Appellant asking

Zawaski “to make a legal conclusion about the ultimate determination of this

case as to whether . . . she developed an equitable interest.”        Id. at 15.

Zawaski’s counsel argued that Zawaski had “answered what her factual

understanding” was. Id. The court sustained the objection. Id.

       The proceedings concluded and on January 17, 2019, both parties

submitted proposed findings of fact and conclusions of law.

       On January 22, 2019, the trial court issued an order, concluding that

Zawaski performed her obligation under the Initial and Amended Agreements.

The trial court found Zawaski’s testimony to be credible, her receipts



____________________________________________


6 In his presentation of evidence, Appellant first called Zawaski to testify as if
on cross. N.T. Trial, 1/3/19, at 3. Appellant cross-examined Zawaski again
after she testified on direct examination. Id. at 90.

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“trustworthy,” and the testimony of Zawaski and First Deputy Prothonotary

Fekety about the escrow payments to be “accurate.”        Trial Court Opinion,

1/22/19, at 3. Citing Appellant’s testimony that he did not keep receipts or a

record of Zawaski’s payments, and that he had “no idea” how much money

Zawaski owed him, the court further found Appellant’s testimony not credible,

“ambiguous and ambivalent as to the amount he was actually paid.” Id. at

1-3. The court stated it “was unable to determine [Appellant’s] damages from

his testimony from the record,” and concluded Appellant “failed to carry his

burden of proof.” Id. at 3. Further, the court found that where the record

established that Appellant accepted late payments “over many years” and

neither the Initial nor Amended Agreements provided “time is of the essence,”

Zawaski acquired an equitable interest in the property.       Id.   The court

dismissed Appellant’s complaint and directed him to convey title of the

property to Zawaski within 60 days.

      Appellant filed a timely post-trial motion for reconsideration, which the

trial court denied on January 30, 2019. As discussed above, Appellant filed

this appeal. The court did not direct Appellant to comply with Pennsylvania

Rule of Appellate Procedure 1925(b).

      On appeal, Appellant presents the following issues:

      [1.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW,
      ABUSED ITS DISCRETION OR OTHERWISE RULED IMPROPERLY IN
      DISREGARDING MS. ZAWASKI’S ADMITTED ACTS AND
      OMISSIONS IN DEFAULT OF THE TERMS OF THE PARTIES’
      AGREEMENT AND AMENDMENT THERETO.


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              [a.] WHETHER    THE   TRIAL   COURT   IMPROPERLY
              DISREGARDED MS. ZAWASKI’S EXPRESS ADMISSION THAT
              SHE FAILED TO PAY THE ENTIRE BALANCE DUE BY OR
              BEFORE THE EXPRESS DEADLINE OF MARCH 3, 20[0]8.

              [b.]  WHETHER   THE    TRIAL  COURT  IMPROPERLY
              DISREGARDED MS. ZAWASKI’S ADMITTED DEFAULT
              UNDER THE TERMS OF THE AGREEMENT AND AMENDMENT
              BY MAKING VARIOUS SUBSTANTIAL ALTERATIONS AND
              REPAIRS TO THE PROPERTY WITHOUT OBTAINING
              WRITTEN PERMISSION FROM (OR OTHERWISE PROVIDING
              ADVANCE NOTICE TO) [APPELLANT].

              [c.]. WHETHER   THE  TRIAL    COURT   IMPROPERLY
              DISREGARDED MS. ZAWASKI’S EXPRESS ADMISSION THAT
              ALL AMOUNTS PAID TO [APPELLANT] FOLLOWING HER
              DEFAULT WERE CONVERTED TO PAYMENTS OF RENT
              PURSUANT TO PARAGRAPH 12 OF THE AGREEMENT.

       [2.] WHETHER THE TRIAL COURT IMPROPERLY DETERMINED
       THAT TIME WAS NOT OF THE ESSENCE TO THE PARTIES’
       AGREEMENT.

       [3.7] WHETHER THE TRIAL COURT IMPROPERLY DISREGARDED
       THE AUTHORITY OF Tanenbaum v. Sears, Roebuck [& Co.],
       401 A.2d 809 (Pa. Super. 1979).

       [4.] WHETHER THE TRIAL COURT IMPROPERLY DISREGARDED
       CREDIBLE   TESTIMONY   AND  OBJECTIVE   DOCUMENTARY
       EVIDENCE THAT MS. ZAWASKI FORGED [APPELLANT’S]
       SIGNATURE ON PAYMENT RECEIPTS AND ADDED HANDWRITTEN
       ENTRIES   ON   OTHERWISE   GENUINE   RECEIPTS  AFTER
       [APPELLANT] SIGNED THEM.

       [5.] WHETHER THE TRIAL COURT IMPROPERLY FAILED TO APPLY
       THE RULE OF CONTRA PROFERENTUM (“AGAINST THE OFFEROR”)
       TO THE AMENDMENT WHICH MS. ZAWASKI PERSONALLY
       COMMISSIONED AND OFFERED TO [APPELLANT].

       [6.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW,
____________________________________________


7 Appellant’s issue concerning Tanenbaum is subsumed in the discussion of
his second issue. See Appellant’s Brief at 33-35.

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      ABUSED ITS DISCRETION OR OTHERWISE RULED IMPROPERLY IN
      GRANTING MS. ZAWASKI THE EXTRAORDINARY REMEDY OF
      SPECIFIC PERFORMANCE DESPITE THE LACK OF A NECESSARY
      FINDING OF A VIOLATION OF THE AGREEMENT BY THE SELLER,
      [APPELLANT].

            [a.]  WHETHER       THE    TRIAL   COURT     IMPROPERLY
            DISREGARDED AND/OR MISAPPLIED THE AUTHORITY OF
            Oliver v. Ball, 136 A.3d 162 (Pa. Super. 2016).

Appellant’s Brief at 8-10.

      We address Appellant’s first three issues together because they raise

overlapping claims.    First, Appellant avers that the trial court erred in

disregarding Zawaski’s admissions that she failed to make payments as

required under the Initial Agreement; altered and repaired the property

without first obtaining written permission; and failed to pay, pursuant to the

Amended Agreement, the entire principal balance by March 3, 2018. To this

latter point, Appellant challenges the authenticity of Zawaski’s receipts, and

maintains that even if they were all deemed genuine, the receipts reflected

that prior to March 3, 2008, Zawaski paid only $10,600. Appellant contends

that Zawaski was bound by the agreements’ provisions that if she defaulted

at any time, the Initial Agreement would end and Appellant could retain all

payments as rent.      Appellant also claims that the trial court erred in

disregarding Zawaski’s response to interrogatories, that she rented, rather

than owned, the property.

      Next, Appellant avers that the trial court improperly concluded that time

was not of the essence in the parties’ agreements. He relies on Tanenbaum,


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401 A.2d 809, which states, “[i]t has been generally noted that at law, time

is of the essence in a contract for the sale of land even though there is no

particular provision in the contract explicitly stating this.” Appellant’s Brief at

34, quoting Tanenbaum, 401 A.2d at 812 (emphasis in Appellant’s brief).

Appellant concedes that “the principle that ‘time is of the essence’ has been

somewhat relaxed” in courts of equity, but maintains that at law, a “time is of

the essence” provision is implied in a contract. Id. at 34. Appellant maintains

that here, the Amended Agreement expressly provided: (1) the Initial

Agreement was extended through March 3, 2008; and (2) Zawaski’s default

on any payment would result in termination of the Amended Agreement. We

disagree.

       As stated above, the trial court dismissed Appellant’s action after finding

that he failed to establish damages. Trial Court Opinion, 1/22/19, at 3. This

Court has stated:

           With respect to specific performance, our Supreme Court
       explained . . .:

            From the moment an agreement of sale of real estate is
            executed and delivered it vests in the [purchaser] what
            is known as an equitable title to the real estate.
            Thereupon the vendor [seller] is considered as a trustee
            of the real estate for the purchaser and the latter
            becomes a trustee of the balance of the purchase money
            for the seller. Hence, if the terms of the agreement are
            violated by the [seller, the purchaser8] may go into a
            court of equity seeking to enforce the contract and to
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8 In response to Appellant’s final issue, we discuss infra that Oliver provides
for a buyer to seek specific performance.

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             compel specific performance.

      In other words, a request for specific performance is an appeal to
      the court’s equitable powers. Specific performance generally is
      described as the surrender of a thing in itself, because that thing
      is unique and thus incapable — by its nature — of duplication. “A
      decree of specific performance is not a matter of right, but of
      grace.” Such a decree will be granted only if a plaintiff clearly is
      entitled to such relief, there is no adequate remedy at law, and
      the trial court believes that justice requires such a decree. . . .

Oliver, 136 A.3d at 166 (citations omitted).

      “[W]here time is not of the essence, the mere failure to perform on the

date mentioned in a contract is not per se a breach which wholly destroys the

contract.”    Gorzelsky v. Leckey, 586 A.2d 952, 956 (Pa. Super. 1991)

(citation omitted). “A contract, either oral or written, may be modified by a

subsequent agreement which is supported by legally sufficient consideration,

or a substitute therefor, and meets the requirements for contract formation.”

Shedden v. Anadarko E. & P. Co., L.P., 136 A.3d 485, 490 (Pa. 2016).

Finally, we recognize that “[c]oncerning questions of credibility and weight

accorded the evidence at trial, we will not substitute our judgment for that of

the finder of fact.” V-Tech Servs. v. Street, 72 A.3d 270, 275 (Pa. Super.

2013) (citation omitted).

      Here, any argument concerning Zawaski’s actions prior to the Amended

Agreement are meritless, as the Amended Agreement indicated that Appellant

agreed, despite Zawaski’s payment history, to the extension of the Initial

Agreement and revised terms of payment. See Shedden, 136 A.3d at 490;

Amended Agreement, 3/3/06, at 1 (“[Appellant] will extend The [Initial

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Agreement] for an additional [24] months.”). With respect to the untimeliness

of payments under the Amended Agreement, Appellant ignores the trial

court’s finding that Appellant nevertheless accepted all the payments. See

Trial Court Opinion, 1/22/19, at 1-3. Finally, in challenging the trial court’s

equity findings, Appellant does not address that Zawaski’s evidence —

credited by the trial court — established that he received approximately

$18,490 in cash plus $47,385 in escrow payments from Zawaski.

      Additionally, the record supports the trial court’s finding that the actions

of both Appellant and Zawaski, “over many years,” established that neither

party perceived that time was of the essence. See Gorzelsky, 586 A.2d at

956; Trial Court Opinion, 1/22/19, at 3.

      Finally, we are not persuaded by Appellant’s reliance on Zawaski’s

interrogatory response that she “rented” the property. Appellant ignores the

trial court’s ruling sustaining Zawaski’s objection to Appellant asking Zawaski

“to make a legal conclusion about the ultimate” issue in this case. See N.T.

Trial, 1/3/19, at 15. Further, Appellant fails to address Zawaski’s testimony

at trial that it was her intent to buy, not rent, the property. See id. at 59.

      In Appellant’s next issue, he avers that “[t]he trial court improperly

disregarded credible testimony and objective documentary evidence that . . .

Zawaski forged [his] signature on payment receipts and added handwritten




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entries on otherwise genuine receipts after [he] signed them.”9 Appellant’s

Brief at 32. Appellant also points out that Zawaski did not comply with the

trial court’s May 17, 2018 order to retain a handwriting expert.

       Although Appellant refers to “objective documentary evidence that . . .

Zawaski forged [his] signature,” he does not explain what this evidence is,

and our review of the record reveals he did not present any such evidence.

See Appellant’s Brief at 32. Instead, it appears that Appellant relies solely on

his testimony denying the authenticity of the signatures and amounts on some

of Zawaski’s receipts.        As stated above, the trial court found Zawaski’s

testimony to be credible, and conversely, that Appellant’s testimony,

especially concerning payments, was not credible.           Trial Court Opinion,

1/22/19, at 3. This Court may not reweigh the evidence in Appellant’s favor

and supplant the trial court’s findings of fact with our own.        See V-Tech

Servs., 72 A.3d at 275.         Additionally, Appellant has waived any appellate

argument concerning the lack of a handwriting expert, because he did not



____________________________________________


9  The record does not support an assertion by Appellant’s counsel that
Appellant “candidly revealed that he is somewhat illiterate.” Appellant’s Brief
at 32. Appellant’s testimony, cited by counsel in support of this claim, was:
“I don’t spell, so I don’t ever write anything. My spelling is terrible. That ain’t
my signature.” See N.T., 1/3/19, at 131 (Appellant responding to his counsel
asking whether Appellant wrote a receipt dated 5/3/07). Also, at counsel’s
request, Appellant read aloud several portions of the Amended Agreement.
Id. at 30, 32-33.




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raise this issue before or at trial or in his proposed findings of fact.10 See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).

       Next, Appellant asserts the trial court failed to apply the principle contra

proferentum to the Amended Agreement, which was drafted by Zawaski’s

sister.   Appellant claims this principle “requires the court to construe the

disputed language against the drafter, and in favor of the opposing party,

so long as such interpretation is reasonable.”            Appellant’s Brief at 36

(emphasis added). Appellant argues that Zawaski cannot “argue in equity

against the clear and unambiguous terms” that the Initial Agreement is

extended through March 3, 2008. Id. (emphasis added).

       This Court has stated:          “It is a well-settled principle of contract

construction that terms are construed contra proferentum, that is, against the

drafter.” West Dev. Group, Ltd. v. Horizon Financial, F.A., 592 A.2d 72,


____________________________________________


10 Appellant does not cite any place in the record where he preserved his issue.
See Pa.R.A.P. 2117(c) (statement of the case shall specify state of the
proceedings in court at which the questions sought to be reviewed were
raised). Additionally, Appellant did not raise, nor could he have raised, this
handwriting-expert issue in his post-trial motion. See Pa.R.Civ.P. 227.1(b)(1)
(“[P]ost-trial relief may not be granted unless the grounds therefor . . . if then
available, were raised in pre-trial proceedings or by motion, objection, point
for charge, request for findings of fact or conclusions of law, offer of proof or
other appropriate method at trial[.]”); Diamond Reo Truck Co. v. Mid-
Pacific Indus., 806 A.2d 423, 428 (Pa. Super. 2002) (failure to include issue
in post-trial motion resulted in waiver of that issue on appeal).




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75 (Pa. Super. 1991).          Under the doctrine of contra proferentum, “the

provisions of a contract are to be construed against the drafter when language

is susceptible to more than one reasonable interpretation.” Dick Enters. v.

Commonwealth, 746 A.2d 1164, 1170 (Pa. Cmwlth. 2000).11

       Appellant’s reliance on the contra proferentum doctrine is misplaced.

That doctrine applies when parties dispute the meaning of a contract

provision. See id. Appellant does not allege any such disagreement with

Zawaski over a particular term in the Amended Agreement.              Instead,

Appellant’s argument is that Zawaski should not be permitted to repudiate

“the clear and unambiguous term[ ]” that the Amended Agreement would

conclude on March 3, 2008. Appellant’s Brief at 36. Accordingly, Appellant’s

contra proferentum argument lacks merit.

       Finally, Appellant claims that the trial court erred in granting Zawaski

specific performance where the court did not make a finding that Appellant

violated the parties’ agreements. Appellant cites Oliver, 136 A.3d at 166,

stating: “[S]pecific performance is an appropriate remedy to compel the

conveyance of real estate where a seller violates a realty contract and

specific enforcement of the contract would not be contrary to justice.”

Appellant’s Brief at 38 (emphasis in Appellant’s brief). Appellant maintains



____________________________________________


11Although this Court is not bound by decisions of the Commonwealth Court,
such decisions may provide persuasive authority. Petow v. Warehime, 996
A.2d 1083, 1089 n.1 (Pa. Super. 2010).

                                          - 16 -
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that Zawaski violated the Initial and Amended Agreements. Appellant thus

concludes that he is entitled to immediate possession of the property “in

substantially the same condition and repair as the date of trial . . . together

with all fixtures and improvements thereon.”12 Id. at 39.

       Appellant implies that a buyer of real property may not seek, and is not

entitled to, specific performance, and that a finding that the seller violated a

contract is required before specific performance may be granted. Such claims

are not supported by the legal authority upon which Appellant himself relies.

While Appellant correctly quotes Oliver, he disregards that several decisions

cited by the Court in Oliver affirmed specific performance in favor of the

buyer. See Oliver, 136 A.3d at 167. We explained:

       Courts in this Commonwealth consistently have determined that
       specific performance is an appropriate remedy to compel the
       conveyance of real estate where a seller violates a realty contract
       and specific enforcement of the contract would not be contrary to
       justice. See Borie v. Satterthwaite, [37 A. 102] (Pa. 1897)
       (affirming specific performance for breach of real estate
       agreement); see also Agnew v. Southern Ave. Land Co., . . .
       53 A. 752 (Pa. 1902) (noting that a court may enforce specifically
____________________________________________


12 In discussing this issue, Appellant includes two unrelated claims: (1) that
Zawaski’s “sudden, unilateral cessation of . . . payments of rent on April 20,
2016,” cannot be considered “performance within a ‘reasonable time’ and ‘in
substantial accordance with the contract terms;’” and (2) that Zawaski
engaged in litigation delay tactics. See Appellant’s Brief at 37-38. We
addressed Zawaski’s payments in our discussions supra, and Appellant
presents no legal authority, nor any particular request for relief, relating to his
claims of litigation delays. See Harris v. Toys “R” Us-Penn, Inc., 880 A.2d
1270, 1279 (Pa. Super. 2005) (failure to develop an argument with citation
to, and analysis of, relevant authority waives that issue on review). Thus, we
do not address these claims further.


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      only an agreement for realty whose terms are definite); Rusiski
      v. Pribonic, . . . 515 A.2d 507, 510 (Pa. 1986) (affirming only
      the award of specific performance for breach of a realty
      agreement); Petry v. Tanglwood Lakes, Inc., . . . 522 A.2d
      1053, 1055 (Pa. 1987) (noting that real estate contracts “have
      been traditionally regarded as being specifically enforceable in
      equity by the buyer”); Cimina [v. Bronich, 537 A.2d 1355,
      1360 (Pa. 1988)] (reversing this Court’s decision to overrule the
      trial court’s grant of specific performance for a breach of realty
      agreement).

Id. (emphasis added).

      In both the 1897 Borie and 1986 Rusiski decisions, our Supreme Court

affirmed the buyers’ requests for specific performance.    See Rusiski, 515

A.2d at 508, 511; Borie, 37 A. 102. Likewise, in Petry, this Court held, as

plainly stated in the Oliver passage itself, that the buyer’s complaint for

specific performance was appropriately granted.      See Petry, 522 A.2d at

1053, 1057. Thus, Appellant is not entitled to relief.

      In sum, we discern no error by the trial court in dismissing Appellant’s

complaint and directing conveyance of the property to Zawaski.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019


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