                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-2914
                                      ____________

                            LORI DRING; NANCY ASARO,
                                            Appellants

                                             v.

                             ARIEL LAND OWNERS, INC.
                                   ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 3-15-cv-00478)
                      District Judge: Honorable A. Richard Caputo
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 21, 2019

              Before: AMBRO, RESTREPO and FISHER, Circuit Judges.

                                 (Filed: August 13, 2019)
                                      ____________

                                        OPINION *
                                      ____________

FISHER, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Lori Dring and Nancy Asaro filed suit against Ariel Land Owners, Inc. (“ALO”)

for breach of a partial settlement agreement. The District Court denied Dring and

Asaro’s motion for summary judgment and granted ALO’s. We will affirm. 1

       The parties agree that the settlement agreement included a condition precedent 2

that required Dring and Asaro to subdivide a parcel of land—the West Shore Strip—into

two parcels. They were to then convey the northern parcel to ALO, and in exchange,

ALO was to grant Dring and Asaro a permanent easement to construct a dock on the

abutting lake, with the size and configuration of the dock subject to ALO’s approval.

       Dring and Asaro argue that they accomplished the subdivision in 2001—before

their purchase of the West Shore Strip was finalized—by filing a plan and application

with the Lake Township Planning Commission to combine two unrelated parcels of land

into a single parcel (the “2001 Plan”). 3 But even assuming that Dring and Asaro had




1
  The District Court had diversity jurisdiction. 28 U.S.C. § 1332. We have jurisdiction to
review the District Court’s order on summary judgment, as it is a final order. 28 U.S.C. §
1291. Our review of the District Court’s order is plenary, and “[w]e resolve all factual
doubts and draw all reasonable inferences in favor of the nonmoving party.” Mikula v.
Allegheny Cnty., 583 F.3d 181, 185 (3d Cir. 2009).
2
  A condition precedent is “an event, not certain to occur, which must occur, unless its
non-occurrence is excused, before performance under a contract becomes due.” Pac.
Emp’rs Ins. Co. v. Glob. Reins. Corp. of Am., 693 F.3d 417, 430 n.6 (3d Cir. 2012)
(quoting Restatement (Second) of Contracts § 224 (Am. Law Inst. 1981)).
3
  Part of the West Shore Strip is described in the 2001 Plan, but it is not depicted in its
entirety, and it is not included as part of the new, large parcel.

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standing to subdivide the property prior to taking ownership, 4 the 2001 Plan did not

effectuate a subdivision.

       First, the 2001 Plan did not provide information that the Lake Township

Subdivision and Land Development Ordinance requires to effectuate a subdivision. 5 For

instance, it failed to include the contact information of the property owner and

subdivider, the names of all abutting property owners, a description of any remaining

acreage in the subdivided tract that depicts lot areas in square feet, and tax numbers and

deeds. Nor did it depict the West Shore Strip—the land allegedly divided by the 2001

Plan—in its entirety. Because the 2001 Plan was not filed in accordance with the

Township’s subdivision ordinance, it cannot be said to have satisfied Dring and Asaro’s

obligation.

       Second, and most tellingly, the Township does not recognize the West Shore Strip

as having been properly subdivided. 6 In a letter dated August 4, 2016, the Township’s

Solicitor wrote to Dring and Asaro stating that the West Shore Strip was not properly

divided for purposes of conveying a portion of the land to ALO and “formally requesting


4
  Cf. Guido v. Twp. of Sandy, 880 A.2d 1220, 1227 (Pa. 2005) (holding that allowing
property to be divided based on an immature property interest “would lead to the absurd
result” that property was divided by someone who may not exercise their option to
purchase, “leaving the owner with a division of his property he did not desire at the hands
of someone with no interest in [the] division”).
5
  53 Pa. Stat. Ann. and Cons. Stat. Ann. § 10507 (“Where a subdivision and land
development ordinance has been enacted by a municipality under the authority of this
article, no subdivision or land development of any lot . . . shall be made . . . except in
accordance with the provisions of such ordinance.”).
6
  See Guido, 880 A.2d at 1227 (holding that a property is not a legally recognized
subdivision “absent active governmental contemplation and ratification”).

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that [Dring and Asaro] apply for subdivision approval for the division of [the West Shore

Strip] into two separate parcels of land.” 7 Because the Township itself does not

recognize the land as properly subdivided, we cannot now hold that Dring and Asaro

satisfied this contractual obligation.

       The District Court found that Dring and Asaro failed to satisfy an additional

condition precedent: obtaining ALO’s approval of a dock design. 8 However, the plain

language of the settlement agreement reveals that ALO had a duty to grant Dring and

Asaro an easement irrespective of whether they submitted any dock designs, much less

received approval for them. 9 Therefore, approval of the dock design was not a condition

precedent to ALO’s duty to perform its obligations. Though the it erred on this point,

“[w]e may affirm the District Court on any grounds supported by the record,” 10 and it

correctly found that subdividing the land was a condition precedent that Dring and Asaro

failed to fulfill. Therefore, the District Court properly granted summary judgment in

favor of ALO, and we will affirm.




7
  App. at 129–30. The Township previously expressed that Dring and Asaro did not need
approval to divide the property; however, as the 2016 letter notes, Dring and Asaro did
not inform the Township that the land was being divided for the purpose of conveying a
portion of the land to another, though this information was necessary for the Township to
properly determine the required procedure.
8
  Dring and Asaro submitted a dock design to ALO, but ALO rejected it as too large.
9
  App. at 66 (requiring ALO to execute and deliver a permanent easement, and then
noting that the purpose of the easement was for Dring and Asaro to build a dock and
stating that “the size and configuration of the dock shall be subject to the approval of
ALO”).
10
   Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc).

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