J-A02010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SUNBELT RENTALS, INC., A NORTH         :   IN THE SUPERIOR COURT OF
 CAROLINA CORPORATION                   :        PENNSYLVANIA
                                        :
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :   No. 662 WDA 2019
 I&M LAND COMPANY, A                    :
 PENNSYLVANIA GENERAL                   :
 PARTNERSHIP, DIANA W. IRWIN, AN        :
 INDIVIDUAL, WYLIE IRWIN, AN            :
 INDIVIDUAL AND BONITA J. MOORE         :
           v.                           :
                                        :
                                        :
 MB REALTY GROUP, INC., A NORTH         :
 CAROLINA CORPORATION                   :

               Appeal from the Order Entered April 15, 2019
  In the Court of Common Pleas of Westmoreland County Civil Division at
                          No(s): No 684 of 2017


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 21, 2020

     Appellant, Sunbelt Rentals, Inc., a North Carolina Corporation, appeals

from the order that denied its motion for partial judgment on the pleadings,

granted the motion for partial judgment on the pleadings filed by Appellees,

I&M Land Company, a Pennsylvania general partnership, Diana W. Irwin,

Wylie Irwin, and Bonita J. Moore, and granted in part and denied in part the

supplemental motion for judgment on the pleadings filed by Intervenor, MB

Realty Group, Inc. We affirm.
J-A02010-20


       In July of 1999, Appellant’s predecessor, Nationsrent, entered into a

Lease agreement (“the Lease”) with Appellee I&M Land Company, in which

Appellant leased a parcel of land. Appellant and Nationsrent merged in 2006,

and Appellant assumed responsibilities under the Lease. Thereafter, the Lease

was amended three times.1 The relevant portions of the Lease are a “Tenant’s

Option to Purchase” in Section 12 and a “Right of First Refusal” in Section 13.

       On August 11, 2016, Appellee and Intervenor entered into an

Agreement for the sale and purchase of the property.2 Intervenor reached

out to Appellant regarding the upcoming purchase and development, and

Appellant refused to cooperate with Intervenor and Cracker Barrel, insisting

that Appellant had the right to purchase the property under Section 12 of the

Lease.

       On August 17, 2016, Appellee provided Appellant with the requisite

transfer notice pursuant to the right of first refusal in Section 13 of the Lease,

which Appellant received on August 22, 2016. Appellant did not file a counter

notice within twenty days as required under Section 13, which would have

indicated the desire to exercise the option to purchase.       Appellee notified




____________________________________________


1 None of the amendments altered the two provisions of the Lease that are at
issue herein. Rather, they extended the terms of the Lease.

2Intervenor also memorialized, in a letter of intent, a separate agreement to
develop the property to be used as a Cracker Barrel restaurant.

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Appellant of its failure to timely respond, which constituted a waiver of the

right to first refusal.

      On February 7, 2017, Appellant filed its complaint against Appellees

entitled: “Action to Quiet Title, For Declaratory Judgment and Other Relief.”

Appellees filed an answer and a counterclaim on May 4, 2017. Appellant filed

a reply and new matter on May 26, 2017. On June 28, 2017, Appellee filed a

reply to Appellant’s new matter.

      On November 9, 2017, Intervenor filed its petition to intervene and a

third-party complaint, which was granted on February 5, 2018. Appellant filed

preliminary    objections,   and   Intervenor   filed   an   amended   third-party

complaint.

      On May 25, 2018, Appellant filed preliminary objections to Intervenor’s

third-party complaint. On August 13, 2018, the trial court entered an order

overruling, in substantial part, Appellant’s preliminary objections.           On

September 6, 2018, Appellant filed an answer and new matter to the third-

party complaint. On September 6, 2018, Intervenor filed its reply to the new

matter.

      All three parties filed various motions for partial judgment on the

pleadings. On April 16, 2019, the trial court filed an order and opinion, which

denied Appellant’s motion for partial judgment on the pleadings and granted

both Appellee’s and Intervenor’s motions for judgment on the pleadings as to

the request for declaratory judgment. Appellant filed this timely appeal. The


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trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and

it relied upon its prior order and opinion in satisfaction of its obligations under

Pa.R.A.P. 1925(a).

      Appellant presents the following issues for our review:

      I. Did the Common Pleas Court commit an error of law in
      interpreting the Lease to include a waiver of Sunbelt’s property
      right in its continuing Option to Purchase pursuant to Section 12
      of the Lease, when Sunbelt chose not to exercise its Right of First
      Refusal under Section 13 of the Lease, and where the proposed
      sale had not resulted in a purchase of the Property?

      II. Did the Common Pleas Court commit an error of law in
      considering matters outside the pleadings, when it granted
      Defendants’ motion for judgment on the pleadings, and denied
      Sunbelt’s motion for judgment on the pleadings?

      III. In the alternative, if the Court did not err on issues (1) and
      (2) above, did the Court commit an error of law in granting
      judgment on the pleadings where the parties advanced more than
      one reasonable interpretation of the Lease, creating an ambiguity
      which should be resolved through extrinsic evidence which was
      not part of the pleadings?

Appellant’s Brief at 10.

      Although not raised by the parties, prior to addressing the merits of the

issues set forth, we sua sponte address the threshold question of the

appealability of the order before us because it affects the jurisdiction of this

Court. Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d 1160, 1163 (Pa.

Super. 2003). As a general rule, an appeal can be taken only from a final

order. In re Estate of Borkowski, 794 A.2d 388, 389 (Pa. Super. 2002).

Final orders are defined as orders that dispose of all claims and all parties.

Pa.R.A.P. 341.

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      However, Pa.R.A.P. 311 provides that an appeal may be taken as of

right from “[a]n order that is made final or appealable by statute or general

rule, even though the order does not dispose of all claims and of all parties.”

Pa.R.A.P. 311(a)(8). The Declaratory Judgments Act includes the following

provision:

      Courts of record, within their respective jurisdictions, shall have
      power to declare rights, status, and other legal relations whether
      or not further relief is or could be claimed. No action or proceeding
      shall be open to objection on the ground that a declaratory
      judgment or decree is prayed for. The declaration may be either
      affirmative or negative in form and effect, and such declarations
      shall have the force and effect of a final judgment or
      decree.

42 Pa.C.S. § 7532 (emphasis added).

      In Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 948 A.2d 790, 798

(Pa. 2008), our Supreme Court addressed the finality of a declaratory

judgment order. The Court held that the declaratory judgment determination

was interlocutory and not an appealable final order “because [the appellants]

might still be able to obtain the relief they are seeking . . . based on one of

their alternative theories pending before the Commonwealth Court, the order

dismissing their challenge . . . had no practical effect upon the ultimate

decision in this case.” Id. at 798.

      Here, the order on appeal resolved the ultimate issue of the parties’

rights under the Lease. Accordingly, Appellant lacks any other viable theory

of recovery.   Hence, the declaratory judgment at issue constitutes a final,




                                      -5-
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appealable order pursuant to Pa.R.A.P. 311(a)(8). Therefore, we will proceed

with our review of the issues presented by Appellant.

      Appellant first argues that the trial court erred in concluding that

Appellant waived its right to exercise the option to purchase under Section 12

when it elected not to exercise its right of first refusal under Section 13.

Appellant’s Brief at 22-35. Essentially, Appellant claims that the Section 12

option to purchase is not limited or modified by the Section 13 right of first

refusal.   Appellant contends that “[t]he parties intended for [Appellant] to

have a continuing property right in [the Section 12] Option to Purchase

unaffected by a proposed sale[, which triggered the Section 13 right of first

refusal,] unless that proposed sale actually came to fruition and resulted in a

purchase.” Id. at 28-29. Appellant concludes that the trial court erred in

determining that Appellant’s option to purchase under Section 12 is suspended

during a pending offer “regardless of whether the offer has expired, and/or

resulted in a purchase.” Id. at 34 (footnote omitted).

      In reviewing the trial court’s grant of the motion for judgment on the

pleadings, our scope of review is plenary. Vetter v. Fun Footwear Co., 668

A.2d 529, 531 (Pa. Super. 1995) (en banc). Our standard of review for the

grant or denial of a motion for judgment on the pleadings is as follows:

      [A]ppellate review of a trial court’s decision to grant or deny
      judgment on the pleadings is limited to determining whether the
      trial court committed an error of law or whether there were facts
      presented which warrant a jury trial. In conducting this review,
      we look only to the pleadings and any documents properly
      attached thereto. Judgment on the pleadings is proper only where

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      the pleadings evidence that there are no material facts in dispute
      such that a trial by jury would be unnecessary.

      In passing on a challenge to the sustaining of a motion for
      judgment on the pleadings, our standard of review is limited. We
      must accept as true all well pleaded statements of fact of the party
      against whom the motion is granted and consider against him only
      those facts that he specifically admits. We will affirm the grant of
      such a motion only when the moving party’s right to succeed is
      certain and the case is so free from doubt that the trial would
      clearly be a fruitless exercise.

John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967 (Pa.

Super. 2007).

            Our standard of review in a declaratory judgment action is
      narrow. We review the decision of the trial court as we would a
      decree in equity and set aside factual conclusions only where they
      are not supported by adequate evidence. We give plenary review,
      however, to the trial court’s legal conclusions. In reviewing a
      declaratory judgment action, we are limited to determining
      whether the trial court clearly abused its discretion or committed
      an error of law. Judicial discretion requires action in conformity
      with law on facts and circumstances before the trial court after
      hearing and consideration. Consequently, the court abuses its
      discretion if, in resolving the issue for decision, it misapplies the
      law or exercises its discretion in a manner lacking reason.

Jarl Inv., L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa. Super. 2007) (internal

quotations and citations omitted).

      In addition, we are mindful that a lease is a contract interpreted

according to contract principles. Kmart of Pennsylvania, L.P. v. MD Mall

Associates, LLC, 959 A.2d 939, 943 (Pa. Super. 2008). A fundamental rule

in construing a contract is to ascertain and give effect to the intent of the

contracting parties.   Id.   The intent of the parties in a written contract is

contained within the writing itself. Id. at 944. When the contract is clear and

                                      -7-
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unambiguous, the meaning of the contract is ascertained from the writing

alone. Id. Moreover,

      [i]t is well-settled that clauses in a contract should not be read as
      independent agreements thrown together without consideration
      of their combined effects. Terms in one section of the contract,
      therefore, should never be interpreted in a manner which nullifies
      other terms in the same agreement. Furthermore, the specific
      controls the general when interpreting a contract.

Southwestern Energy Production Co. v. Forest Resources, LLC, 83 A.3d

177, 187 (Pa. Super. 2013) (quoting Trombetta v. Raymond James

Financial Services, Inc., 907 A.2d 550, 560 (Pa. Super. 2006)).

      Appellees and Appellant’s predecessor entered into the Lease on July

29, 1999, which governs this matter.        Section 12 of the Lease set forth

Appellant’s option to purchase the premises, in relevant part, as follows:

                             SECTION 12
                    TENANT’S OPTION TO PURCHASE

            Tenant shall have the right to purchase the Premises at any
      time during the Term of this Lease upon giving notice in writing to
      Landlord (the “Purchase Notice”) prior to the expiration of the
      original Term or any Extension Term hereof of Tenant’s intention
      to purchase the Premises. ... If Tenant exercises this Option to
      Purchase, then Tenant shall purchase and Landlord shall sell the
      Premises upon the terms and conditions set forth on the Terms
      for sale and Purchase attached hereto as Exhibit “E” (the
      “Purchase Terms”). ...

Lease, 7/29/99, at 16, Section 12.

      In addition, Section 13 of the Lease presents the following specific

conditions relevant to Appellant being presented with an offer to purchase

from a third party buyer:


                                      -8-
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                                SECTION 13
                          RIGHT OF FIRST REFUSAL

             If during the Term of any Extension Term of this Lease,
      Landlord shall have received a bona fide arm’s length offer to
      purchase the Premises which is acceptable to Landlord (the
      “Offer”) from any third party (the “Transferee”), Landlord shall
      send a notice (herein referred to as the “Transfer Notice”) to
      Tenant. The Transfer Notice shall set forth the exact terms of the
      Offer so received, together with a copy of the Offer, and shall state
      the desire of Landlord to sell the Premises on such terms and
      conditions. Thereafter, Tenant shall have the right and option to
      purchase the Premises at the price and upon the terms and
      conditions specified in the Offer. If Tenant desires to exercise its
      option, it shall give notice (the “Counter Notice”) to that effect to
      Landlord within twenty (20) days after receipt of the Transfer
      Notice. Such Counter Notice shall be accompanied by a letter
      acknowledging Tenant’s agreement to be bound by the terms and
      conditions of the Offer. Such Counter Notice shall set forth a date
      not later than sixty (60) days from the service of the Counter
      Notice on which the closing shall be held. The Tenant’s failure to
      give a timely Counter Notice (or notice of its refusal to purchase)
      shall be deemed a waiver of its option to purchase the Premises
      pursuant to the Offer, but shall not be deemed a waiver of its
      option to purchase the Premises pursuant to any modification of
      the Offer or any future offers. Tenant’s rights under this Section
      13 are assignable to any person or entity which is or would be a
      permitted assignee pursuant to Section 9 hereof. Tenant’s failure
      to, or its election not to, exercise its right of first refusal hereunder
      shall not affect the continued enforceability of the option to
      purchase provided in Section 12 hereof (provided only that the
      third party making the bona fide arm’s length offer to purchase
      the Premises does not purchase the Premises).

Lease, 7/29/99, at 16-17, Section 13.

      In addressing the parties’ petitions for judgment on the pleadings, the

trial court offered the following analysis:

            Looking to the [L]ease, the terms appear plain and
      unambiguous. Section 12 provides a detailed process outlining
      [Appellant’s] option to purchase the property during the pendency
      of the Lease. Section 13 details the process required should

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     [Appellee] desire to sell the property to a third party. It provides
     for the acceptance or waiver of a right of first refusal option for
     [Appellant]. The key phrase of Section 13 reads as follows:
     “Tenant’s failure to, or its election not to, exercise the right of first
     refusal hereunder shall not affect the continued enforceability of
     the option to purchase provided in Section 12 hereof (provided
     only that the third party making the bona fide arm’s length offer
     to purchase the Premises does not purchase the Premises.)”

            [Appellant] argues that since the contract provides for the
     continued enforceability of its Section 12 purchase option, even
     after the time has passed for exercising its right of first refusal,
     that it has the right to purchase the property pursuant to Section
     12 while [Appellees’] sale to Intervenor is still pending, but not
     yet consummated. This reading however, entirely ignores the
     parenthetical clarification that this sentence only has effect if the
     third party “does not purchase” the property. It is undisputed that
     [Intervenor] and [Appellees] entered into a Purchase Agreement
     on August 11, 2016, which [Appellant] was aware of when it
     received the Transfer Notice, and subsequently failed to exercise
     its right of first refusal under Section 13.

            [Appellant] points to the case of Amoco Oil Co. v. Snyder,
     which contains a similar but distinct factual pattern. 478 A.2d 795
     (Pa. 1984).      In Amoco, the Pennsylvania Supreme Court
     interpreted a similar lease contract, which contained a purchase
     option for the tenant along with a third-party purchase clause
     which contained a right of first refusal. Id. at 796. The Court
     found that the tenant had the right to exercise the purchase option
     even after it had waived its right of first refusal, while a third party
     sale offer was still pending. Id. at 78. The crucial distinction here
     is that the Amoco lease contained no terms limiting the purchase
     option during the pendency of the third party sale. Id. The
     present Lease does contain a restriction on the Section 12 option,
     which goes back into effect after waiver of the right of first refusal
     “provided only that the third party making the bona fide arm’s
     length offer to purchase the Premises does not purchase the
     Premises.”

           Failure of the [c]ourt to give effect to the parenthetical
     language would entirely nullify its clear purpose in barring the
     Section 12 option if a third party is in the process of purchasing
     the property. Allowing [Appellant] to exercise the Section 12
     option at any point up until the actual consummation of the sale

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      would invalidate the parenthetical [language] for all practical
      intents and purposes, and it would thus be an inappropriate
      reading of the Lease. When read together, Sections 12 and 13
      clearly read that the Section 12 option will only reactivate upon
      the third party’s failure to purchase the property. As such, it is
      clear under the Lease that [Appellant] cannot exercise its Section
      12 option while a sale is pending with a third party, as is the case
      based upon the Agreement of Sale between [Appellee] and
      [Intervenor] which is still in effect, and so [Appellant] has no right
      to purchase the property at this time.

Trial Court Opinion, 4/15/19, at 4-5. We are constrained to agree.

      Our review of the certified record reflects that on August 17, 2016,

Appellee sent Appellant notice that it intended to sell the Premises to

Intervenor for the sum of $3,000,000. Complaint, 2/2/17, at Exhibit 12. On

September 6, 2016, Appellant sent correspondence to Appellee indicating it

was undecided regarding whether it would deliver a counter notice pursuant

to Section 13 of the Lease.     Id. at Exhibit 13.    On September 13, 2016,

Appellee sent Appellant a letter indicating that, due to the fact that twenty

days had elapsed from the date of the transfer notice, Appellant had waived

its right of first refusal pursuant to Section 13.    Id. at Exhibit 14.       Thus,

Appellant failed to timely exercise its right of first refusal. However, Appellant

asserts its failure to act under Section 13 did not extinguish its right to

purchase under Section 12.

      Upon review of the portions of the Lease set forth above, and taking into

account all of the pertinent language and accompanying restrictions, we

conclude that Section 13 contains language that precludes Appellant from




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exercising the Section 12 option to purchase under particular circumstances.

The following portion of Section 13 is controlling:

      [Appellant’s] failure to, or its election not to, exercise its right of
      first refusal [under Section 13] shall not affect the continued
      enforceability of the option to purchase provided in Section 12
      hereof (provided only that the third party making the bona
      fide arm’s length offer to purchase the premises does not
      purchase the Premises).

Lease, 7/29/99, at 17, Section 13 (emphasis added). This language in Section

13 specifically restricts the general language in the Section 12 option to

purchase.    To ignore this restrictive portion of Section 13 would nullify its

provision.

      We find support for this conclusion in our decision in Bobali

Corporation v. Tamapa Company, 340 A.2d 485 (Pa. Super. 1975).

Therein, the parties entered into an agreement of sale in which Tamapa

purchased property from Bobali, and the parties entered into an additional

option agreement allowing Tamapa to purchase a contiguous tract of land for

a fixed price. Id. at 487. The agreement contained an option of first refusal

in the event that a third party purchaser made an offer on the contiguous tract

of land. Id. at n.1. Subsequently, Bobali received a third party offer, and

Tamapa then attempted to purchase the tract of land pursuant to the fixed-

price option and not the right-of-first-refusal option. Id. at 487. As does

Appellant in this matter, Tamapa argued “that the fixed price option could only

be terminated upon the bona fide sale of the premises to a third party, as

opposed to the mere offer of the third party.” Id. at 489. We opined “that

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the right of first refusal provision … would be of no purpose or value unless it

was the intent of the parties that the right of first refusal would supersede and

terminate the fixed price option.” Id.

      To the extent Appellant relies upon our Supreme Court’s decision in

Amoco Oil Company v. Snyder, 478 A.2d 795 (Pa. 1984), we conclude that

the case is readily distinguishable.     In Amoco, Snyder leased property to

Amoco, and the lease contained an option to purchase and a right of first

refusal.   Snyder subsequently obtained a bona fide third party offer to

purchase the property, and Amoco did not exercise its right of first refusal.

Id. at 796-797. Rather, Amoco attempted to exercise its option to purchase,

and Snyder refused to convey the property.        Id. at 797.    The trial court

granted Amoco’s request for specific performance and the Superior Court

affirmed, as did the Supreme Court.         Id. at 797, 799.    In reaching its

conclusion, our Supreme Court determined that the lease in question

contained no language that restricted the applicability of the option to

purchase. Id. at 798-799. In concluding that the fixed-price option was not

restricted, the Court noted that “nowhere is there a provision in the lease that

expressly terminates the fixed price option upon the occurrence of an event

or a lapse of time…. Nowhere is there additional language which restricts the

applicability of the fixed price option.” Id. at 798.

      Hence, upon review of the parties’ arguments, the relevant legal

authority, the applicable provisions of the Lease, and the remainder of the


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certified record, we conclude that Appellant waived its option to purchase

under Section 13 by failing to file a timely counter notice as required. Because

Appellee and Intervenor entered into a sales agreement, and Appellant waived

its Section 13 right of first refusal, the specific language of Section 13 controls,

and Section 12 no longer applies unless Intervenor “does not purchase the

Premises.” Lease, 7/29/99, at 17, Section 13. Therefore, the trial court did

not err in reaching its conclusion. See Southwestern Energy, 83 A.3d at

187 (“the specific controls the general when interpreting a contract”).

Accordingly, Appellant’s contrary claim fails.

      Appellant next argues that in making its decision, the trial court erred

in considering matters outside of the pleadings. Appellant’s Brief at 35-38.

Appellant asserts that the trial court erred in concluding that the agreement

of sale between Appellee and Intervenor was “still in effect.” Id. at 36.

      Appellant explains its argument as follows:

      The proposed Agreement between [Appellees] and [Intervenor]
      was signed by the parties on August 5, 2016, August 7, 2016, and
      August 11, 2016. The proposed Agreement had a “due diligence
      period” of 270 days. Therefore, [Intervenor] had until May 11,
      2017 to complete its due diligence in order to move forward with
      the purchase. The proposed Agreement had a closing date 30
      days after the expiration of the due diligence period. Therefore,
      [Intervenor] had until June 10, 2017 to close on the Property in
      order to meet the conditions precedent to the proposed
      Agreement and complete the purchase.

                                       ***

      [Intervenor] admitted in its complaint that [Appellee] and
      [Intervenor] never consummated the proposed Agreement, never
      completed due diligence, and did not close on the proposed

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      purchase on June 10, 2017. (See Intervenor’s complaint ¶¶ 41,
      55c, 64c; R.242a-R.247a.)

Id. at 37. Appellant concludes that “[i]n making its decision on judgment on

the pleadings, the [c]ourt below inappropriately considered alleged evidence

that was not in the pleadings and in fact, was inconsistent with the pleadings

i.e. that the proposed Agreement of Sale was ‘still in effect.’”   Id. at 38.

However, Appellant fails to prove that because Appellee and Intervenor did

not close on the property on June 10, 2017, the sales agreement was not still

in effect as the trial court concluded.

      We observe that the Superior Court applies the same standard as the

trial court and confines its considerations to the pleadings and documents

properly attached thereto. Donaldson v. Davidson Bros., Inc., 144 A.3d

93, 101 (Pa. Super. 2016). The court must accept as true all well-pleaded

statements of fact, admissions, and any documents properly attached to the

pleadings presented by the party against whom the motion is filed, considering

only those facts that were specifically admitted.    Kote v. Bank of N.Y.

Mellon, 169 A.3d 1103, 1107 (Pa. Super. 2017).

      Moreover, our Supreme Court has long stated that:

      even though the time fixed in an agreement for settlement is
      stated to be of the essence of the agreement, it may be extended
      by oral agreement or be waived by the conduct of the parties, and
      where the parties treat the agreement as in force after the
      expiration of the time specified for settlement it becomes
      indefinite as to time and neither can terminate it without
      reasonable notice to the other.

Warner Company v. MacMullen, 112 A.2d 74, 78 (Pa. 1955).

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      Our review of the certified record reflects that the sales agreement does

not contain a “time is of the essence” provision. Intervenor’s First Amended

Third-Party Complaint, 5/8/18, Exhibit A. Thus, there was no requirement in

the sales agreement for strict compliance with the deadlines for due diligence

and closing. Accordingly, we discern no merit to Appellant’s claim that the

trial court relied upon matters outside of the pleadings in stating that the sales

agreement was still in effect. Thus, this claim fails.

      Appellant last argues that, in the alternative, there can be more than

one reasonable interpretation of the parenthetical language in Section 13.

Appellant’s Brief at 38-43. Appellant asserts that there is an ambiguity that

should be resolved through extrinsic evidence, which is not part of the

pleadings.

      Pursuant to Pa.R.A.P. 302, issues that are not raised in the lower court

are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).

Likewise, we have held that “[a] claim which has not been raised before the

trial court cannot be raised for the first time on appeal.” Commonwealth v.

Lopata, 754 A.2d 685, 689 (Pa. Super. 2000). In addition, we have long

stated that “[a] theory of error different from that presented to the trial jurist

is waived on appeal, even if both theories support the same basic allegation

of error which gives rise to the claim for relief.” Commonwealth v. Gordon,

528 A.2d 631, 638 (Pa. Super. 1987). Thus, only claims properly presented

in the trial court are preserved for appeal.


                                     - 16 -
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      Our review of the certified record reflects that Appellant never argued

or pled before the trial court that there is any ambiguity in the Lease. In fact,

in its motion for partial judgment on the pleadings, Appellant specifically

stated, “Furthermore, no party has pled that there is any ambiguity in the

Lease.” Motion for partial judgment on the pleadings, 2/15/19, at 10, ¶ 45.

Accordingly, Appellant’s failure to argue before the trial court a claim that the

Lease is ambiguous results in failure to preserve the issue for appellate review.

Pa.R.A.P. 302(a); Lopata, 754 A.2d at 689.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2020




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