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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PHILADELPHIA COKE COMPANY, INC.          :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   v.                    :
                                         :
KING USA CAPITAL, INC.,                  :         No. 3285 EDA 2018
                                         :
                        Appellant        :


          Appeal from the Judgment Entered November 26, 2018,
           in the Court of Common Pleas of Philadelphia County
                      Civil Division at No. 170702579


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 22, 2019

     King USA Capital, Inc., appeals from the November 26, 2018 judgment

entered in the Court of Common Pleas of Philadelphia County following the

trial court’s grant of summary judgment in favor of Philadelphia Coke

Company, Inc. (“Philadelphia Coke”) and against appellant on Philadelphia

Coke’s declaratory judgment and breach of contract claims against appellant

and on appellant’s specific-performance counterclaims against Philadelphia

Coke. We affirm.

     The trial court set forth the following:

           On June 16, 2016, [Philadelphia Coke] and [appellant]
           entered into an agreement of sale (“the agreement”)
           for real estate. The subject of the agreement was the
           land,    improvements,     personal    property,  and
           assignable licenses and permits of 4501 Richmond
           Street, Philadelphia, PA (“the property”). The agreed
           purchase price was $4 million. [Appellant] deposited
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          a cash payment of two hundred thousand dollars
          ($200,000.00) with a title company, which was held
          in escrow as an initial deposit pursuant to Section 3.2
          of the agreement.

          Provided in that agreement was a due diligence period
          and environmental due diligence period, both
          originally scheduled to end on December 12, 2016.
          The agreement provided in Section 3.1(b)(ii) that if
          the buyer did not terminate the agreement prior to
          the expiration of the due diligence period, then on the
          last day of the due diligence period, the buyer “shall
          deposit by wire transfer of immediately available
          funds, in escrow with the title company, an additional
          cash payment of Two Hundred Thousand Dollars
          ($200,000)...”[Footnote 1] Section 3.3 also provided
          that in the event buyer failed to make the additional
          deposit when due, the agreement shall “immediately
          and automatically terminate.”[Footnote 2]

                [Footnote     1]   Agreement     of   Sale
                § 3.1(b)(ii).

                [Footnote 2] Agreement of Sale § 3.3.

          In December of 2016, [appellant] requested an
          extension of the two due diligence periods until April
          of 2017 to resolve environmental and zoning issues.
          On December 23, 2016, [Philadelphia Coke] granted
          [appellant] an extension until January 31, 2017. At
          issue before the court is the date to which the
          agreement was properly extended. There were no
          additional communications on the record regarding
          the extension between December and March of 2017.

          On March 22, 2017 [Philadelphia Coke] sent a letter
          to [appellant] informing [appellant] the agreement
          was terminated. As evidenced in the record, there
          were various communications following the March 22,
          2017 letter between [appellant] and [Philadelphia
          Coke]. The parties discussed, among other things,
          the potential for entering into a new contract.
          Consistent in these communications is [Philadelphia
          Coke’s] repeated declaration that the current


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            agreement was terminated. The final communication
            was a June 26, 2017 letter from [appellant] to
            [Philadelphia Coke] again objecting to the release of
            escrow deposit.

            [Philadelphia Coke] subsequently filed a two-count
            complaint for declaratory judgment and breach of
            contract on August 4, 2017. An amended complaint
            was later filed on January 19, 2018. [Appellant]
            responded with its answer and new matter on
            March 8, 2018. [Philadelphia Coke] filed its motion
            for summary judgment on August 20, 2018 and
            [appellant] responded on September 19, 2018.

Trial court opinion, 10/16/18 at 1-3 (ellipsis in original).

      On October 16, 2018, the trial court entered an order granting

Philadelphia Coke’s motion for summary judgment in favor of Philadelphia

Coke on its declaratory judgment and breach of contract claims against

appellant and on appellant’s specific-performance counterclaims.            On

October 30, 2018, Philadelphia Coke filed a motion for determination of

damages incurred to date and entry of judgment.          On November 6, 2018,

appellant filed a notice of appeal to this court. The trial court did not order

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On November 26, 2018, the trial court filed

an opinion requesting that this court affirm its October 16, 2018 order for the

reasons set forth in the opinion that accompanied its October 16, 2018 order.

Also on November 26, 2018, the trial court granted Philadelphia Coke’s motion

for determination of damages, calculated Philadelphia Coke’s damages to date

to be $309,129.42, and awarded post-judgment interest at the statutory



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6 percent rate equal to $50.68 per day from the November 26, 2018 entry of

judgment date.

       Appellant frames its issues on appeal as follows:

             Whether the trial court erred in granting [Philadelphia
             Coke’s] motion for summary judgment as genuine
             issues of material fact in dispute still exist, including:

             1)      Whether [Philadelphia Coke’s] conduct,
                     including    continued    and   requested
                     engagement with [appellant] on contract
                     issues, despite [appellant’s] nonpayment
                     of the additional deposit when due, had
                     constituted a waiver of its contractual
                     right to the said deposit; and

             2)      Whether [Philadelphia Coke] suffered any
                     resultant damages as it terminated the
                     contract without giving [a]ppellant any
                     advance notice or any chance to cure the
                     default and [a]ppellant offered to close
                     the deal at full price without any
                     conditions attached[?]

Appellant’s brief at 2-3.

       At the outset, we note that Philadelphia Coke requests that we quash

this appeal as interlocutory. Philadelphia Coke contends that the October 16,

2018    order     appealed   from   was    not   a   final   order   as   required   by

Pa.R.A.P. 341(b)(1) because it did not determine the damages that it was

entitled to under the terms of the parties’ agreement and, as such, did not




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dispose of all claims.1 See Pa.R.A.P. 341(b)(1) (defining a final order as any

order that “disposes of all claims and of all parties”). Although appellant filed

its notice of appeal prior to the trial court’s determination of damages and

prior to entry of final judgment, a final judgment entered during the pendency

of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull

Equip. and Supply Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied,

803 A.2d 735 (Pa. 2002). Appellant’s notice of appeal was premature when

filed, but it related forward to November 26, 2018, the date the final judgment

was entered.   See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the

announcement of a determination but before the entry of an appealable order

shall be treated as filed after such entry and on the day thereof.”).

Consequently, there are no jurisdictional impediments to our review.

      Appellant claims that the trial court erred in granting summary

judgment in favor of Philadelphia Coke.

            This Court’s scope of review of an order granting
            summary judgment is plenary. Basile v. H & R
            Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118
            (2000). Our standard of review is clear: the trial
            court’s order will be reversed only where it is
            established that the court committed an error of law
            or clearly abused its discretion.     Id.   Summary
            judgment is appropriate only in those cases where the
            record clearly demonstrates that there is no genuine
            issue of material fact and that the moving party is

1We note that in its brief, Philadelphia Coke also claims that the October 16,
2018 order is not a final order pursuant to Pa.R.A.P. 341(b)(2).
Rule 341(b)(2), however, was rescinded on December 14, 2015, effective
April 1, 2016, and appellant filed its notice of appeal to this court on
November 6, 2018, which was clearly after the effective date of the rescission.


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            entitled to judgment as a matter of law.
            Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne
            Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418,
            429 (2001). The reviewing court must view the record
            in the light most favorable to the nonmoving party,
            resolving all doubts as to the existence of a genuine
            issue of material fact against the moving party.
            Basile, 761 A.2d at 1118. When the facts are so clear
            that reasonable minds cannot differ, a trial court may
            properly enter summary judgment.           Id. (citing
            Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245,
            248 (1995)).

Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015) (citation omitted).

      The elements of a breach of contract cause of action are (1) the

existence of a contract, (2) breach of the duties imposed by the contract, and

(3) damages. Joyce v. Erie Ins. Exchange, 74 A.3d 157, 168 (Pa.Super.

2013).

      Here, the parties do not dispute the existence of the agreement. The

parties also do not dispute that appellant failed to pay the additional

$200,000 deposit on the due date.          Appellant contends, however, that

“despite   its   non-payment    of   the    additional   deposit   when   due,”

Philadelphia Coke’s “conduct, including continued and requested engagement

with [appellant] on contract issues,” “constituted a waiver of its contractual

right to said deposit.” (Appellant’s brief at 12; see also appellant’s “response

in opposition to [Philadelphia Coke’s] motion for summary judgment and

statement of opinion of material facts in issue,” 9/12/18, 2 at ¶ 11.)       In

support, appellant relies on Kirk v. Brentwood Manor Homes, Inc., 159

A.2d 48, 50-51 (Pa.Super. 1960), for the seeming proposition that where, as


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here, a written agreement contains a “no oral modification provision,” the

agreement may nevertheless be modified by the conduct of the parties.

(Appellant’s brief at 15-16.)   Appellant maintains that Philadelphia Coke’s

conduct before and after appellant’s “nonpayment of the additional deposit

when due had clearly signaled its acquiescence to or even acceptance of the

nonpayment.” (Id. at 16.)

      Our supreme court explained that in Kirk, this court:

            said that “Even where the written contract prohibits a
            non-written modification, it may be modified by
            subsequent oral agreement.” This is true but there
            must first be a waiver of the requirement which has
            been spelled out in the contract. Otherwise, written
            documents would have no more permanence than
            writings penned in disappearing ink. If this, the
            defendants’ argument, were to prevail, contractual
            obligations would become phantoms, solemn
            obligations would run like pressed quicksilver, and the
            whole edifice of business would rest on sand dunes
            supporting pillars of rubber and floors of turf. Chaos
            would envelop the commercial world.

C.I.T. Corp. v. Jonnet, 214 A.2d 620, 622 (Pa. 1965).

      Here, the record does not contain a scintilla of evidence – and appellant

does not claim – that the parties waived the no oral modification provision in

the agreement. Indeed, the record demonstrates that the only modification

the parties made was to extend the due diligence periods, which modification

was in writing, as evidenced by copies of electronic mails contained in the

record. The record further demonstrates that Philadelphia Coke repeatedly




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notified appellant that the agreement was terminated and that appellant was

in default.

      Viewing the record in the light most favorable to the nonmoving party,

resolving all doubts as to the existence of a genuine issue of material fact

against the moving party, reasonable minds cannot differ and the trial court

properly entered summary judgment on Philadelphia Coke’s breach of contract

claim.

      Appellant next contends that the trial court erred in awarding damages

on Philadelphia Coke’s breach of contract claim for two reasons.             First,

appellant claims that because it did not breach the contract and Philadelphia

Coke terminated without permitting appellant to cure the default, Philadelphia

Coke suffered no damages.        As discussed above, the trial court properly

entered summary judgment in favor of Philadelphia Coke on the breach of

contract claim. Therefore, this claim lacks merit. Second, appellant complains

that because it offered “to tender the additional deposit and close the deal

under the original agreement at full price without any restrictions attached, in

which [appellant] would accept the property on an ‘as is’ condition and

indemnify [Philadelphia Coke] for any potential liabilities,” it did not suffer any

damages. (Appellant’s brief at 22-23.) Appellant cites to no authority – and

we are aware of none – to support its proposition that a party can breach a

contract and escape liability for damages simply by proposing a new deal on

its own terms. To quote our supreme court, if we accepted this argument,



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“[c]haos would envelop the commercial world.” C.I.T. Corp., 214 A.2d at

622.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/22/19




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