J. A33012/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF FRANK C. NICHOLAS AND         :     IN THE SUPERIOR COURT OF
ELIZABETH S. NICHOLAS                   :           PENNSYLVANIA
                                        :
                   v.                   :
                                        :
THE CUTLER GROUP, INC.,                 :          No. 762 EDA 2015
                                        :
                        Appellant       :


               Appeal from the Order Entered February 9, 2015,
                in the Court of Common Pleas of Bucks County
                        Civil Division at No. 2007-03238


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 18, 2016

      The Cutler Group, Inc. (“Cutler”), appeals from the order of the Court

of Common Pleas of Bucks County that entered judgment against Cutler and

in favor of the Estate of Frank C. Nicholas1 and Elizabeth S. Nicholas in the

amount of $634,490.45 plus interest in the amount of six percent per annum

calculated from June 6, 2014, through November 18, 2015.

      On June 6, 2002, Frank C. Nicholas and Elizabeth S. Nicholas

(“the Nicholases”) and Cutler, a real estate developer, entered into a written




* Retired Senior Judge assigned to the Superior Court.
1
  On June 19, 2009, Frank C. Nicholas died. Mr. Nicholas’ counsel filed a
“Substitution of Successor for Plaintiff, Frank C. Nicholas” pursuant to
Pa.R.C.P. 2352. The Estate of Frank C. Nicholas replaced Frank C. Nicholas
as a party.
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agreement    (“Land   Sale    Agreement”)   for   the   purchase   and   sale   of

323.956 acres of land owned by the Nicholases in Hilltown Township, Bucks

County, Pennsylvania.    Pursuant to an ancillary agreement entered into at

the same time, Cutler conveyed back to the Nicholases five parcels within

the 323.956 acres along with the buildings already erected on the five

parcels.    The   ancillary   agreement     contained   a   valuation    guaranty

(“Valuation Guaranty”) that provided that if the Nicholases received a

bona fide offer on any of the five parcels and the sale price for the parcel

was less than the agreed upon fair market value, Cutler had the right of first

refusal to purchase the parcel at the same terms as those contained in the

bona fide third party purchaser agreement of sale. Cutler had ten days to

exercise the right of first refusal after it received the sales agreement from

the Nicholases. If Cutler failed to exercise the right of first refusal, it was

obligated to pay to the Nicholases the difference between the amount

received from the sale to the third party purchaser and the valuation of the

property in the Valuation Guaranty, if the third party amount was less.

According to the Valuation Guaranty, Walden, one of the parcels, was valued

at $943,000 with a provision that it would increase in value five percent

annually from the date of settlement until the date of payment. The parties

later stipulated that Walden’s value according to the Valuation Guaranty was

$1,058,097.08.




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     On July 28, 2004, the Nicholases conveyed the land to Cutler under

the Land Sale Agreement. At the time, Cutler was represented by Richard P.

McBride, Esq. (“Attorney McBride”).

     On March 23, 2006, Frank C. Nicholas and his realtor, Gina McCleary

(“McCleary”), met with Attorney McBride to inform him that the Nicholases

intended to sell Walden.    McCleary forwarded the listing presentation for

Walden to Attorney McBride in March 2006.           The listing presentation

contained the listing price, comparable sales, and the marketing strategy.

Walden was marketed for sale and listed in the Multi-Listing Service.     A

“For Sale” sign was displayed at Walden, and open houses were held almost

every weekend.    Walden was located in the area of the construction of

Cutler’s new development.

     The Nicholases entered into an agreement for the sale and purchase of

Walden with Christopher J. Hill and Megan Macauley (collectively, “Hill and

Macauley”) in October 2006 in the amount of $619,000. On November 20,

2006, Stephen P. Moyer, Esq. (“Attorney Moyer”), attorney for the

Nicholases, sent a letter to Attorney McBride by UPS Next Day Delivery. The

letter advised Attorney McBride and Cutler that the Nicholases had received

a bona fide offer for Walden, included a copy of the sales agreement, and

directed Attorney McBride to the provision in the Valuation Guaranty

regarding Cutler’s right of first refusal.    The letter arrived at Attorney

McBride’s office on November 21, 2006.       At some point, Attorney McBride



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provided the letter to Cutler, but Cutler did not respond.    At the time,

Attorney McBride’s office was in the same building as Cutler, and in fact,

Attorney McBride leased his office space from Cutler.

     The Nicholases and Hill and Macauley agreed orally to extend the

closing date to allow Hill and Macauley to secure financing. On December 1,

2006, Attorney Moyer sent another letter to Attorney McBride by fax and

regular mail which provided:

           I had forwarded to you a letter dated November 20,
           2006 in connection with the above-referenced
           property.

           Since I have not heard from you with regard to that
           letter I am proceeding on the basis that The Cutler
           Group, Inc. has elected not to exercise its right of
           first refusal as set forth in Paragraph 5 of the
           Agreement between the parties dated June 6, 2002.

           Accordingly, Mr. and Mrs. Nicholas will be proceeding
           to settlement on this property in accordance with the
           terms and conditions of the Agreement of Sale with
           Christopher J. Hill and Megan Macauley, a copy of
           which was provided to you by my letter of
           November 20, 2006.

Letter of Stephen P. Moyer, 12/1/06 at 1.

     Attorney McBride transmitted this letter to Cutler.     Cutler did not

respond.   The Nicholases and Hill and Macauley completed the sale of

Walden on December 6, 2006. On December 8, 2006, Attorney Moyer sent

another letter to Attorney McBride to inform him that the settlement had

taken place and that Cutler had 30 days from December 6, 2006 to make

payment. Cutler did not pay the difference between the value ascribed to


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Walden in the Valuation Guaranty and sale price to the buyers.               The

Nicholases sold Walden to Hill and Macauley for $619,000 which left a

difference of $439,097.08.

      By letter dated December 11, 2006, Attorney McBride responded and

asserted that he received the original letter on November 21, 2006, but he

did not recall if he had an opportunity to open it on November 21, and then

he traveled to California the next day for Thanksgiving.      Attorney McBride

also asserted that there was a lack of fair and reasonable notice as there

was no reasonable opportunity for Cutler to consider the merits of the

proposal relative to its right of first refusal. He also asserted that Cutler was

not given ten days to consider the matter as set forth in Valuation Guaranty

so that the Valuation Guaranty was not operative.

      On April 25, 2007, the Nicholases commenced an action in the trial

court and asserted that Cutler had failed to comply with the terms of the

Valuation Guaranty and had not paid the difference plus interest between

the sale price to Hill and Macauley and the value of Walden.

      The trial court conducted a non-jury trial on June 17, 2014.

Attorney Moyer testified that he sent the November 20, 2006 letter to

Attorney McBride which contained the agreement of sale between the

Nicholases and Hill and Macauley because Attorney McBride represented

Cutler and “it’s my understanding under the Code of Professional Conduct

I’m obligated to send notices . . . to counsel when I’m aware that counsel is



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representing a particular party.” (Notes of testimony, 6/17/14 at 29.) In

the December 1, 2006 letter to Attorney McBride, Attorney Moyer explained

that he “in effect” told Attorney McBride that the sale had not yet taken

place. (Id. at 33.)

     McCleary testified regarding the listing of Walden for sale.        The

property was originally listed at $799,000, but the Nicholases ultimately

agreed to sell Walden for $619,000. (Id. at 80-81.) On cross-examination,

McCleary admitted that normally an establishment of a new date for a

closing is executed in writing by the parties, while here, the Nicholases and

Hill and Macauley agreed verbally to an extension. (Id. at 82-83.)

     Attorney McBride testified on cross that he had represented Cutler

since 1982 and that 80 to 90 percent of his work was for Cutler. (Id. at 89.)

He admitted that he continues to represent Cutler.             (Id. at 92.)

Attorney McBride explained that in his opinion the November 21, 2006 letter

was of no consequence because it did not provide the ten days required

under the Valuation Guaranty for Cutler to act:

           When I familiarized myself with what was in the
           original package that arrived, I know that I advised
           The Cutler Group that it was of no consequence
           because I can count from one to ten. And I can
           understand that if we have to deliver back an
           agreement containing the identical terms on
           December 1, and it already expired by its general
           terms, there was nothing to do. So I made the
           decision no one was entitled to a phone call because
           no one thought they should call me to have a
           discussion about this.



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Id. at 104.

      On November 18, 2014, the trial court ruled in favor of the Nicholases

on their breach of contract claim in the amount of $439,097.08 plus interest

of $195,393.37 for a total of $634,490.45.          The trial court also awarded

interest in the amount of six percent per annum calculated from June 6,

2014 through November 18, 2014.                The trial court construed any

ambiguities     in    the    Valuation   Guaranty     against    Cutler   because

Attorney McBride, acting on behalf of Cutler, drafted the agreement.         The

trial court further concluded:

              12.    While it was arguably discourteous for counsel
                     for the Nicholases to mail the notice triggering
                     the right of first refusal so close to the
                     Thanksgiving holiday, we do not find that such
                     pre-holiday mailing, on November 20, 2006,
                     renders         the        Nicholases’      claims
                     non-meritorious.       We specifically find that
                     under the facts presented, Mr. McBride was,
                     indeed, the agent of Cutler when he received
                     the    right    of   first   refusal   notice   on
                     November 21, 2006.          We further find that
                     Cutler had in excess of ten (10) days[’] notice
                     prior to settlement, given that the actual
                     settlement in [sic] the Walden property did not
                     occur until fifteen (15) days later, December 6,
                     2006.

              ....

              16.    Reviewing the surrounding circumstances, we
                     find that the intent of this agreement was to
                     afford Cutler sufficient and adequate notice so
                     as to intelligently decide whether or not to
                     exercise its right of first refusal. We find that
                     the Nicholases sufficiently complied with their



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                 notice obligations in providing that right to
                 Cutler.

           17.   We find that [Hill and Macauley] were
                 bona fide purchasers. Cutler has suggested
                 that the Nicholases’ delay in notification was
                 based on the Nicholases’ false assumption that
                 [Hill and Macauley] were not bona fide
                 purchasers until their mortgage contingency
                 was approved.        To the extent that the
                 Nicholases’ reliance on receiving such approval
                 impacted the date on which the Nicholases
                 provided notice to Cutler, as stated, we find
                 that this did not constitute a material breach.

           18.   We do not accept Cutler’s assertion that the
                 oral extension of the settlement date between
                 the Nicholases and the Buyers, from
                 November 30, 2006 to December 6, 2006, was
                 a material breach of the Third Party
                 Agreement, amounting to a material breach of
                 the right of first refusal provision, thereby
                 relieving Cutler of its obligation to pay the
                 Nicholases pursuant to the Valuation Guaranty.
                 We believe this argument is disingenuous, as
                 Cutler was timely informed of the settlement
                 date change, and suffered no harm as a result
                 thereof. Indeed, Cutler was given even more
                 time to exercise its right of first refusal than
                 the ten (10) days noted in the Valuation
                 Guaranty. Cutler chose to “sit on its right.”

Trial court opinion, 11/18/14 at 10-12, discussion and conclusions of law

(“DCL”) Nos. 12, 16-18.

     The trial court also determined that Attorney McBride had an agency

relationship with Cutler such that service upon Attorney McBride was service

upon Cutler.




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      The trial court also determined that the Nicholases’ mailing of notice to

Cutler on November 20, 2006, sixteen days prior to the actual settlement,

was an immaterial breach, even assuming it was a breach at all:

             27.   Notwithstanding the perhaps poor manners
                   evidenced by the mailing of the notice of the
                   bona fide purchase agreement several days
                   prior to the Thanksgiving holiday, and Cutler’s
                   assertion that the initially proposed settlement
                   date of November 30, 2006 should be deemed
                   insufficient notice to it, we find that such an
                   asserted breach, even assuming its existence,
                   is non-material, as settlement did not occur
                   until December 6, 2006. We find that the
                   Nicholases    substantially    performed    their
                   obligations under the agreement, rendering
                   any breach as to notice nonmaterial.
                   Accordingly, the contract remains in effect.

Id. at 15, DCL No. 27 (citations omitted).

      Cutler moved for post-trial relief and alleged that the trial court erred

when it determined that there was a financial obligation for Cutler if it did

not exercise its right of first refusal.    According to Cutler, the Valuation

Guaranty only imposed an obligation on Cutler if it had ten days from the

date of receipt of the agreement of sale to exercise its right of first refusal

and only if the Nicholases proceeded to settlement under the express terms

of the agreement of sale. Because neither of these requirements occurred,

Cutler argued that the trial court erred when it returned a verdict in favor of

the Nicholases. Further, Cutler argued that it never received notice from the

Nicholases   as    there   was   no   agency   relationship   between   it   and

Attorney McBride and there was no written extension to the agreement of


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sale to allow the Nicholases and Hill and Macauley to extend the settlement

date until December 6, 2006.

      By order dated February 9, 2015, the trial court denied the motion for

post-trial relief.   The trial court reiterated that the alleged breach for not

providing ten days’ notice was not a material breach because Cutler actually

had fifteen days’ notice.        The trial court also disagreed with Cutler’s

insistence that the settlement date of November 30, 2006, was one of the

express terms and conditions with which

             it was required to comply if it was to exercise its
             right of first refusal. We do not believe that a
             rational interpretation of the statement contained in
             the Valuation Guaranty, that “all terms and
             provisions of the agreement delivered from Buyer
             back to Seller shall be identical, including any and all
             deposits,” includes the originally specified settlement
             date of November 30, 2006. In arriving at our
             verdict in this matter, we did not consider one
             specific, inflexible settlement date to be a material
             term or import condition of the contract.

Trial court opinion, 6/18/15 at 12-13. The trial court again explained that it

properly determined that Attorney McBride acted as an agent for Cutler.

      Cutler raises the following issues on appeal:

             A.      Did the trial court err in entering a verdict on
                     behalf of [the Nicholases], and against
                     [Cutler], which was contrary to the clear and
                     unambiguous provisions of the controlling
                     written agreement?

             B.      Did the trial court err in not granting [Cutler’s]
                     Motion for Non-Suit as raised at trial?




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             C.    Did the lower court err in holding that [Cutler]
                   was bound by any concept of agency which
                   would vary the express terms of the written
                   agreement which only triggered any obligation
                   on the part of [Cutler] to [the Nicholases]
                   following actual receipt of a written third party
                   bona fide agreement of sale by [Cutler]?

Cutler’s brief at 4.

                    Our appellate role in cases arising from
             non-jury trial verdicts is to determine whether the
             findings of the trial court are supported by
             competent evidence and whether the trial court
             committed error in any application of the law. The
             findings of fact of the trial judge must be given the
             same weight and effect on appeal as the verdict of a
             jury. We consider the evidence in a light most
             favorable to the verdict winner. We will reverse the
             trial court only if its findings of fact are not
             supported by competent evidence in the record of if
             its findings are premised on an error of law.

Rissi v. Cappella, 918 A.2d 131, 138 (Pa.Super. 2007) (citation omitted).

      Because contract interpretation is a question of law, this court’s review

is de novo, and our scope of review is plenary.           Bucks Orthopaedic

Surgery Associates, P.C. v. Ruth, 825 A.2d 868, 871 (Pa.Super. 2007).

      Initially, Cutler contends that the trial court committed an error of law

when it rendered a verdict on behalf of the Nicholases that was based upon

an interpretation of the Valuation Guaranty which was unsupported by the

facts and was blatantly contrary to the clear and unequivocal terms of the

Valuation Guaranty which were in no way ambiguous.

      The Valuation Guaranty provides:




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          5.   Valuation Guaranty. As to the three Subject
               Parcels known as Sunnewendi, Berry Brow and
               Walden, in the event [the Nicholases] receive[]
               an offer in the form of a Bona Fide Third Party
               Purchaser Executed Agreement of Sale to
               convey one or all of the three (3) buildings
               situate thereon to a Bona Fide Third Party
               Purchaser, not a relative, in an arm’s length
               transaction, within four (4) years from the date
               of settlement under the terms of the
               Agreement, if that Third Party Purchaser
               Executed Agreement of Sale is for a sale price
               less than the agreed upon fair market value as
               depicted upon Exhibit “C” attached hereto, [the
               Nicholases] shall provide a copy of that
               Agreement to [Cutler] and [Cutler] shall have
               the right of first refusal to tender an
               agreement back to [the Nicholases], containing
               the exact same terms within ten (10) days of
               [Cutler’s] receipt from [the Nicholases] of the
               third party agreement.         All terms and
               provisions of the agreement delivered
               from [Cutler] back to [the Nicholases]
               shall be identical, including any and all
               deposits.

                      If [Cutler] elects not to enter into an
               agreement as to any of the aforesaid three
               Subject Parcels as set forth in this paragraph,
               and in the event that the Subject Parcels or
               Parcels proceed to settlement under the terms
               of the agreement as proposed, then, within
               thirty (30) days from the date of that
               settlement, as between [the Nicholases] and a
               third party purchaser, [Cutler] shall make
               payment to [the Nicholases] in such amount by
               which the purchase price paid to [the
               Nicholases] by the third party purchaser is less
               than the valuation for the Subject Parcels as
               set forth in Exhibit “C” attached hereto.
               Provided, further, that as of the date of
               settlement between [the Nicholases] and
               [Cutler] as set forth in paragraph 4 of the
               Agreement, the valuations set forth on


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                  Exhibit “C” attached hereto as to the three
                  Subject Parcels, Sunnewendi, Berry Brow and
                  Walden, shall increase at the rate of five (5%)
                  percent, per annum, from the date of
                  settlement until the date on which payment
                  would be due from [Cutler] to [the Nicholases]
                  as set forth hereinabove in this paragraph. By
                  way of example, if the agreed upon valuation
                  is $1,000,000.00 and the settlement occurs
                  between [the Nicholases] and a third party
                  purchaser two years from the date of
                  settlement between [the Nicholases] and
                  [Cutler] under the terms of the Agreement, the
                  valuation as to that Subject Parcels shall be
                  $1,100,000.00. If the conveyance to the third
                  party purchaser is for consideration of
                  $900,000.00, then the financial obligation
                  owed from [Cutler] to [the Nicholases]
                  hereunder would be $200,000.00.

Valuation Guaranty, 6/8/02 at 3-4, Paragraph 5 (emphasis added).

      Cutler argues that under the Valuation Guaranty, the Nicholases were

required to give Cutler ten days from Cutler’s receipt of the agreement of

sale between the Nicholases and Hill and Macauley.        However, that was

impossible because there were only nine days from the receipt until the

scheduled closing.   Cutler further argues that if the Nicholases did not

address the conditions precedent, then Cutler would have owed no obligation

to the Nicholases as the Nicholases would not have triggered the requisite

provisions in the Valuation Guaranty that gave rise to Cutler’s right of first

refusal.

      First, Cutler asserts that the Nicholases did not comply with the

Valuation Guaranty because their attorney, Attorney Moyer, forwarded the



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Agreement of Sale to Attorney McBride, Cutler’s counsel, rather than to

Cutler itself.

        The trial court reasoned that the Nicholases did not breach the

ancillary agreement when Attorney Moyer directed the Agreement of Sale to

Attorney McBride.

        Rule 4.2 of the Rules of Professional Conduct states:

                In representing a client, a lawyer shall not
                communicate about the subject of the representation
                with a person the lawyer knows to be represented by
                another lawyer in the matter, unless the lawyer has
                the consent of the other lawyer or is authorized to do
                so by law or a court order.

Pa.R.P.C. 4.2.

        Here, Attorney Moyer represented the Nicholases. It was well known

to the Nicholases that Attorney McBride had represented Cutler for many

years. Attorney McBride admitted that he had represented Cutler for many

years, that most of his business was derived from Cutler, and that he rented

office space in a building owned by Cutler where Cutler also was located. As

an attorney, Attorney Moyer could not send the Agreement of Sale directly

to Cutler under Rule of Professional Conduct 4.2. This court agrees with the

trial   court    that   the   action   of   sending   the   Agreement   of   Sale   to

Attorney McBride did not void the notification of an agreement of sale.

        Next, Cutler asserts that the copy of the Agreement of Sale was

received by Attorney McBride on November 21, 2006, which was only

nine days prior to the settlement stated in the Agreement of Sale of


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November 30, 2006.         Paragraph 3(D) of the Agreement of Sale provides:

“Settlement to be on November 30, 2006, or before if Buyer and Seller

agree.”     As a result, Cutler asserts that the Nicholases failed to provide

Cutler with the ten days required under the Valuation Guaranty within which

to exercise the right of first refusal.    Further, Cutler asserts that it was

precluded from delivering back to the Nicholases a viable agreement that

contained the identical terms as the Agreement of Sale at the end of the

ten-day period because the ten-day period ended on December 1, 2006, and

the Agreement of Sale mandated settlement on November 30, 2006.

Additionally, Cutler argues that Paragraph 5 of the Agreement of Sale

provided:

              (A)   The settlement date and all other dates and
                    times referred to for the performance of any of
                    the obligations of this Agreement are of the
                    essence and are binding.

                    ....

              (C)   The settlement date is not extended by any
                    other provision of this Agreement and may
                    only be extended by mutual written Agreement
                    of the parties.

Agreement of Sale, 10/30/16 at 2, Paragraph 5(A) and (C).

      Further, Cutler asserts that the Agreement of Sale contained an

express mortgage contingency which required receipt of a mortgage

commitment no later than November 15, 2006.




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      Cutler asserts that the right of first refusal provision in the Valuation

Guaranty with the Nicholases was clear and unambiguous such that it

required a specified period of notice so that the Valuation Guaranty must be

read according to its plainly expressed intent. See Hahalyak v. A. Frost,

Inc., 664 A.2d 545 (Pa.Super. 1995). Because Cutler or Cutler’s attorney,

Attorney McBride, received the Agreement of Sale on November 21, 2006,

and the Agreement of Sale stated that settlement would occur on

November 30, 2006, Cutler argues that it did not have ten days to exercise

its right of first refusal.

                    In construing the terms of a contract, a
             reviewing court must strive to ascertain and give
             effect to the intent of the parties as found in the
             written   contract.      Dep’t    of   Transp.   V.
             Pennsylvania      Indus.   for   the    Blind  and
             Handicapped, 886 A.2d 706, 711 (Pa. Cmwlth.
             2005).    “When a written contract is clear and
             unequivocal, its meaning must be determined by its
             contents alone.” East Crossroads Ctr., Inc. v.
             Mellon-Stuart Co., 205 A.2d 865, 866 (Pa. 1965).
             If contract terms are clear and unambiguous, the
             intent of the parties will be determined from the
             contract itself. Kripp v. Kripp, 849 A.2d 1159,
             1163 (Pa. 2004). When an ambiguity exists, it will
             be construed against the drafter of the contract.
             Dep’t. of Gen. Servs. v. Pittsburgh Bldg. Co.,
             920 A.2d 973, 989 (Pa. Cmwlth. 2007). A provision
             is ambiguous when it “is reasonably susceptible of
             different constructions and capable of being
             understood in more than one sense.” Kripp, 849
             A.2d at 1163. Whether a contract is ambiguous is a
             question of law.       Riverwatch Condominium
             Owners Ass’n v. Restoration Dev. Corp., 980
             A.2d 674 (Pa.Cmwlth. 2009).




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Clarion Slag, Inc. v. Dep’t of Gen. Servs., 2 A.3d 765, 773 (Pa.[Cmwlth.]

2010).

      The trial court concluded the contract was ambiguous and that

because Cutler was the drafter of the Valuation Guaranty the contract must

be construed against Cutler.    Specifically, the trial court found that it was

ambiguous whether the settlement date was one of the “provisions of the

agreement” which would have to be identical if Cutler exercised its right of

first refusal to the Agreement of Sale.

      First, this court acknowledges that Cutler correctly asserts that it did

not have ten days before the scheduled closing to review the agreement of

sale as Cutler received notice on November 21, 2006, and the scheduled

closing was on November 30, 2006.            It is important to note that the

Agreement of Sale was entered into by the parties at least three weeks

earlier than the November 20, 2006 letter to McBride. Had Cutler reviewed

the agreement of sale for ten days and attempted to exercise the right of

first refusal on December 1, 2006, it would have been unable to exercise the

right as the closing date would already have passed.            Although the

Nicholases and Hill and Macauley ultimately extended the date of closing,

the extension was not executed in writing and no explicit notice was

provided to Cutler.   The December 1, 2016 letter from Moyer to McBride,

sent on day ten of the refusal period, cannot be construed as anything more

than the Nicholases informing Cutler that the right of first refusal had



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expired. It was not incumbent upon Cutler to call to see if more time was

available. Having not been properly given notice of a full ten-day period to

exercise its right of first refusal, the Valuation Guaranty is not enforceable

against Cutler.

        Additionally, under the facts of this case, we disagree with the trial

court’s determination that the Valuation Guaranty was silent on whether the

settlement date was one of the “provisions of the agreement.” Clearly, the

settlement date was crucial to the calculation of the ten-day right of refusal.

It may well have been that Cutler did not wish to exercise its right; however,

the financial implications for the Nicholases if Cutler did not do so were

substantial. Finding that, the Nicholases failed to provide the required notice

prior to the settlement date as set forth in the Valuation Guaranty, the right

of refusal provision was never triggered, and Cutler had no obligation to the

Nicholases to either exercise its refusal right or to pay the difference

between the sale price and the valuation of Walden contained in the

Valuation Guaranty.2

        Order reversed.




2
    This court need not address appellant’s remaining issues.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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