J-A18008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DELAWARE AVENUE DEVELOPMENT 

CORPORATION

IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

EB WATERFRONT DEVELOPMENT L.P. 

AND LIBERTY LANDING ASSOCIATES

Appellees No. 2473 EDA 2017

Appeal from the Order Entered June 28, 2017

In the Court of Common Pleas of Philadelphia County

Civil Division at: December Term, 2014 No. 02380

BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 27, 2018

Appellant, Delaware Avenue Development Corporation (“Delaware”), 

appeals from the June 28, 2017 order entered in the Court of Common Pleas 

of Philadelphia County, granting summary judgment in favor of Appellee, EB 

Waterfront Development LP (“Waterfront”), and against Delaware, while 

denying the summary judgment motion filed by Delaware against Waterfront.1 

Following review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.

1 The trial court’s order also granted summary judgment in favor of Liberty 

Landing Associates (“Liberty”). Delaware did not appeal from that part of the 

order and Liberty is not a party to this appeal.
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The trial court provided the following factual and procedural history:

The parties are as follows: [Appellant,] Delaware Avenue Development 

Corporation (“Delaware”), a corporation of which Mark Mendelson is the 

sole shareholder, was a fifty percent partner in [] Liberty Landing 

Associates (“Liberty”), a general partnership with a sole asset, the 

Property. Delaware-Washington Corporation (“DWC”), an entity 

created by the Sheet Metal Workers’ Union (“the Union”), was the 

other fifty percent owner. [Appellee,] EB Waterfront Development 

LP (“Waterfront”), is a limited partnership owned and controlled 

by Eric Blumenfeld.

The dispute centers on a transaction in which Delaware sold 

Waterfront its fifty percent partnership interest in Liberty. On 

January 27, 2012, Delaware and Waterfront entered into a 

contract, the Partnership Interest Purchase Agreement, or PIPA. 

Simultaneously, Waterfront and DWC executed a Contribution 

Agreement, with the ultimate purpose of transferring the 

neighboring parcel owned by DWC to the Partnership, so that both 

could be developed together.

[Section 2 of the] PIPA provides that Waterfront would pay 

Delaware $465,000 immediately upon execution (the “Initial 

Payment”). It also provides for a further payment of $5,535,000 

(the “Contingent Payment”) upon completion of a closing under 

the Contribution Agreement. The Note securing the PIPA states 

the following:

All sums outstanding in connection with this Note shall be 

due and payable to 

Payee [Delaware] on the date (the “Maturity Date”) that 

Maker [EB Waterfront] completes closing with [DWC] under 

that certain Contribution Agreement between Maker, DWC 

and other parties dated as of the date hereof (the 

“Contribution Agreement”). If closing under the 

Contribution Agreement does not occur on or before 

December 31, 2012, the provisions of Section 3 of that 

certain [PIPA] by and among Maker, Payee and Mark 

Mendelson dated as of the date hereof (the “Purchase 

Agreement”) shall be applicable and this Note shall 

be null and void.

Section 3 of the PIPA states as follows:
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If closing under the Contribution Agreement (“Closing”) 

does not occur by December 31, 2012, for any reason other 

than a default by Buyer under the Contribution Agreement, 

(i) Seller[, Delaware,] shall repay the Initial Payment to 

Buyer[, Waterfront,] no later than January 5, 2013, (ii) the 

Partnership Interest Note and Pledge shall be deemed 

canceled and shall be returned, marked “canceled” to Buyer, 

(iii) upon receipt of the repaid Initial Payment, and canceled 

Partnership Interest Note and Pledge, Buyer shall re-assign 

the [Delaware] Interest to Seller pursuant to an Assignment 

and Assumption of Partnership Interests . . . (the 

“Reassignment”), and (iv) upon repayment of the Initial 

Payment and delivery of the reassignment, this Agreement 

shall be null and void and the parties shall have no rights or 

obligations hereunder, with the Sections 9(e), 9(f) and 13 

which shall survive.[2]

Closing did not occur under the Contribution Agreement by 

December 31, 2012, or indeed at all. Various conditions 

precedent to closing never occurred, including the conversion of 

the Partnership into a Limited Partnership, and the agreement by 

the Union to move their headquarters from the neighboring parcel. 

On February 28, 2014, DWC terminated the Contribution 

Agreement. At several points up until that date, Blumenfeld 

contacted Mendelson several times and indicated that the 

transaction was moving forward. Delaware alleges that 

Blumenfeld/Waterfront never notified them of the Termination.

Ultimately the Partnership sold the Property to an unrelated 

entity, K4, for a total of $10 million. Delaware filed this action, 

seeking the $5.5 million Contingent Payment from Waterfront. It 

also filed, then removed, a lis pendens on the property. 

Waterfront’s share of the proceeds of the sale were placed in 

escrow.[3] 

____________________________________________

2 Paragraphs 9(e) and 9(f) relate to a different property that is not at issue in 

this case. Paragraph 13 includes provisions for default by both the buyers and 

sellers.

3 The amount placed in escrow was approximately $2,667,500, representing 

the net proceeds from the sale. 
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Trial Court Opinion, 6/28/17, at 1-3 (emphasis added) (some capitalization 

omitted). 

Delaware and Waterfront filed cross-motions for summary judgment on 

November 21, 2016. The trial court issued an order and opinion on June 28, 

2017, granting Waterfront’s motion and denying Delaware’s motion. On July 

7, 2017, Delaware filed a motion for reconsideration and, on July 26, 2017, 

filed a timely notice of appeal to this Court. By order entered August 11, 

2017, the trial court denied Delaware’s motion for reconsideration.

The trial court did not direct Delaware to file a concise statement of 

errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). On 

January 12, 2018, the trial court issued an opinion incorporating by reference 

its June 28, 2017 order and opinion, satisfying Pa.R.A.P. 1925(a). 

In this appeal, Delaware asks us to consider two issues:

[1.] Did the trial court err by granting summary judgment in favor 

of [Waterfront] instead of granting summary judgment in favor of 

[Delaware]?

[2.] Alternatively, did the trial court err by granting summary 

judgment instead of denying the parties’ cross-motions and order 

that the case be tried, because material issues of fact were in 

dispute?

Delaware’s Brief at 5 (some capitalization omitted). We consider Appellant’s 

issues together.

As our Supreme Court explained in Murphy v. Duquesne University 

of the Holy Ghost, 777 A.2d 418 (Pa. 2001): 

Our review on an appeal from the grant of a motion for summary

judgment is well-settled. A reviewing court may disturb the order 
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of the trial court only where it is established that the court 

committed an error of law or abused its discretion. Capek v. 

Devito, 767 A.2d 1047, 1048, n. 1 (Pa. 2001). As with all 

questions of law, our review is plenary. Phillips v. A–Best 

Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995).

In evaluating the trial court’s decision to enter summary judgment, 

we focus on the legal standard articulated in the summary

judgment rule. Pa.R.C.P. 1035.2. The rule states that where there 

is no genuine issue of material fact and the moving party is entitled 

to relief as a matter of law, summary judgment may be entered. 

Where the non-moving party bears the burden of proof on an issue, 

he may not merely rely on his pleadings or answers in order to 

survive summary judgment. “Failure of a non-moving party to 

adduce sufficient evidence on an issue essential to his case and on 

which it bears the burden of proof . . . establishes the entitlement 

of the moving party to judgment as a matter of law.” Young v. 

PennDOT, 560 Pa. 373, 744 A.2d 1276, 1277 (2000). Lastly, we 

will view the record in the light most favorable to the non-moving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. 

Pennsylvania State University v. County of Centre, 532 Pa. 

142, 615 A.2d 303, 304 (1992).

Id. at 429.

In their respective motions for summary judgment, both Delaware and 

Waterfront recognized the proper standard articulated in the summary 

judgment rule, i.e., that summary judgment may be entered if there are no 

genuine issues of material fact and the moving party is entitled to judgment 

as a matter of law. Delaware’s Motion for Summary Judgment, 11/21/16, at 

¶ 101; Waterfront’s Motion for Summary Judgment, 11/21/16, at ¶ 83. 

Throughout their motions, both parties represented that there were no 

genuine issues of material fact and provide detailed factual statements, with 

references to the record. In essence, each party acknowledged that there 
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were no genuine of issues of material fact that would preclude the grant of 

summary judgment in its respective favor. However, the parties differed in 

their contentions that they were entitled to judgment as a matter of law, with 

each arguing its entitlement to judgment in its favor. Regardless, as the trial 

court recognized, “[t]his case turns on the interpretation of the contracts 

between Delaware and Waterfront, which is a question of law, and therefore 

appropriate for disposal at summary judgment.” Trial Court Opinion, 6/28/17, 

at 4. 

As this Court observed in Lenau v. Co-eXprise, Inc., 102 A.3d 423 

(Pa. Super. 2014):

The legal standards governing our review of the trial court’s 

contract interpretation are axiomatic. “The interpretation of a 

contract is a matter of law and, as such, we need not defer to the 

trial court’s reading of the agreement.” Integrated Project 

Servs. v. HMS Interiors, Inc., 931 A.2d 724, 732 (Pa. Super. 

2007) (quoting Welteroth v. Harvey, 912 A.2d 863, 866 (Pa. 

Super. 2006)).

It is also well-established that under the law of contracts, in 

interpreting an agreement, the court must ascertain the 

intent of the parties. 

In the cases of a written contract, the intent of the parties 

is the writing itself. If left undefined, the words of a contract 

are to be given their ordinary meaning. When the terms of 

a contract are clear and unambiguous, the intent of the 

parties is to be ascertained from the document itself. 

. . .

Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159, 1163 (2004) 

(citations modified).
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Id. at 429-30 (brackets and some citations omitted). Further, “[m]ere 

disagreement between the parties on the meaning of language or the proper 

construction of contract terms does not constitute ambiguity.” Id. at 431 

(quoting Pappas v. UNUM Life Ins. Co. of America, 856 A.2d 183, 187 (Pa. 

Super. 2004)). 

Here, the trial court reviewed the contract language and concluded 

Waterfront was entitled to summary judgment because the contract did not 

require Waterfront to pay Delaware the Contingent Payment. Trial Court 

Opinion, 6/28/17, at 4. The court explained:

The plain language of the PIPA provides for the Contingent 

Payment only if a specific condition precedent occurs – the Closing 

under the Contribution Agreement by December 31, 2012. The 

Note provides that if closing does not occur by that date, Section 

3 of the PIPA applies and “this Note shall be null and void.” It is 

undisputed that the Closing did not occur by that date.

Delaware argues that Waterfront had an obligation to inform it of 

the Union’s termination of the Contribution Agreement of the 

invocation of Section 3 of the PIPA. However, no notification 

requirement exists in the PIPA or the Note. Moreover, the 

unwinding provision described in Section 3 requires the first action 

to be taken by Delaware, not Waterfront or any other person. The 

plain language states that if no closing took place by December 

31, 2012, Delaware could get its interest in Liberty back by 

returning the Initial Payment by January 5, 2013.[4] Because 

there was a hard deadline, Delaware’s allegations that Waterfront 

misled it by communication that things are going well are 

irrelevant. Delaware knew of the December 31 deadline; it could 

have inquired if the closing had occurred or not by that point, and 

____________________________________________

4 We note that Section 15.5 of the PIPA provides, “Time is of the essence of 

this Agreement and each provision hereof in which time of performance is 

established.” 
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thereafter, returned the Initial Payment to receive the Partnership 

Interest back. It did not do so.

Delaware cites to a notice provision in the PIPA, Section 15.6. 

However this provision does not require notice to be given in any 

specific circumstance, but merely requires that if notice is to be 

given, that it shall be in writing to the specified addresses.

Delaware’s argument that the course of performance requires a 

finding in its favor is unavailing. The court may not party (sic) 

behavior to discern intent when contract terms are unambiguous 

such as the ones at issue here. “The intent of the parties to a 

written agreement is to be regarded as being embodied in the 

writing itself. . . . Courts do not assume that a contract’s language 

was chosen carelessly, nor do they assume that the parties were 

ignorant of the meaning of the language they employed.” The 

plain language of the PIPA does not require notice from Waterfront 

to Delaware of failure to close under the Contribution Agreement 

or of Termination.

Similarly, Delaware’s argument that the duty of good faith and fair 

dealing requires Waterfront to pay the Contingent Payment is 

without merit. The duty of good faith and fair dealing is inherent 

to a contract, and attaches to existing contractual duties. It does 

not create new contractual duties, such as a requirement to inform 

Delaware of the termination. Moreover, notification relating to the 

Termination is irrelevant, because Termination occurred well after 

the deadline for the closing had passed under the Contribution 

Agreement—and well after the deadline for Delaware to unwind 

the transaction.

Trial Court Opinion, 6/28/17, at 4-6 (quoting Murphy, 777 A.2d at 429) 

(additional citation omitted).

We find no error of law or abuse of discretion in the trial court’s 

determination that Waterfront is entitled to the grant of summary judgment 

based on the contractual language and, in particular, the language of the 

Contribution Agreement and of Sections 2 and 3 of the PIPA as explained 

herein. Further, we find no merit to Appellant’s contention that genuine issues 
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of material fact were in dispute. Again, this case involves contract language 

that is unambiguous. Despite its assertion that material facts remain in 

dispute, and a footnote that questions whether Waterfront was in breach of 

the Purchase Agreement, see Appellant’s Brief at 40 n.15, Delaware has failed 

to identify any material disputed facts that warrant denial of summary 

judgment and a remand for trial. 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/27/18