J-A20040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MARK COAL STREET ASSOCIATES, 

L.P.

v.

RAYMOND A. HASSEY AND JOSEPH 

A. HASSEY, AS TRUSTEES OF TRUST 

T/A CENTRAL DEVELOPMENT GROUP 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1631 MDA 2022

Appeal from the Judgment Entered November 17, 2022

In the Court of Common Pleas of Luzerne County Civil Division at No(s): 

201412881

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM PER CURIUM: FILED: OCTOBER 31, 2023

Appellants, Raymond A. Hassey and Joseph A. Hassey, as Trustees of 

Trust T/A Central Development Group, appeal from the November 17, 2022,

Entry of Judgment following a September 19, 2022, Order and Opinion 

awarding judgment in favor of Appellee, Mark Coal Street Associates, L.P. The 

issues raised involve contract interpretation of a lease. Following a thorough 

review, we affirm.

The relevant facts and procedural history as summarized by the trial 

court are as follows: 

The parties stipulated to the material facts and therefore are 

not at issue. The Defendants/Lessor and Plaintiff/Lessee entered 

into a ground lease on December 22, 2006, for two acres of 

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* Former Justice specially assigned to the Superior Court.
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property located at 410 Wilkes-Barre Township Boulevard and 

Coal Street, partially in the city of Wilkes-Barre and partially in 

the Township of Wilkes-Barre, Pennsylvania (hereinafter 

“Property”). (Joint Ex. 1). At the time the Lease was executed, 

there was an existing building on the Property that was occupied 

by a Super China Buffet. Joint Ex. 1; Joint Ex. 14; Hassey Dep. p. 

11). After entering into the Lease, and pursuant to Paragraph 2 of 

the Lease, Plaintiff paid for the demolition of the existing building 

and also paid for the moving of power lines and placement of new 

infrastructure. (Joint Ex. 1; Joint Ex. 14, Hassey Dep. p. 11, 12). 

Plaintiff also paid for the construction of a new building, originally 

occupied by a Walgreen's pharmacy, which partially sits on the 

Property and property owned solely by Plaintiff. (Joint Ex. 5, 6; 

Joint Ex. 14, Hassey Dep. p. 8, 11, 12). The Walgreen's Pharmacy. 

Building has since been converted into an Advanced Auto Parts 

Store. Plaintiff also paid for and constructed a Popeye's restaurant 

on the Property. Joint Ex. 5, 10; Joint Ex. 14, Hassey Dep. p. 12).

The rent is defined in Paragraph 7 of the Lease as 

$15,000.00 monthly or $180,000.00 annually. Presently, Plaintiff 

has timely paid all rent due to Defendants. The Lease includes an 

Option to Purchase set forth in Paragraph 9. (Joint Ex: 1). By letter 

dated August 6, 2014, counsel for Plaintiff sent a letter to 

Raymond A. Hassey, Esquire (hereinafter “Attorney Hassey”), 

attempting to exercise the Option to Purchase set forth in 

Paragraph 9 of the Lease. (Joint Ex. 2). By letter dated August 13, 

2014, Attorney Hassey sent correspondence to Plaintiff's counsel 

stating, inter alia, that the Option to Purchase was not ripe. (Joint 

Ex. 3). On September 2, 2014, Plaintiff's counsel sent another 

letter to Attorney Hassey setting forth, inter alia, its position with 

respect to the Option to Purchase set forth in the Lease. (Joint Ex. 

4).

On November 19, 2014, Plaintiff filed its original Complaint, 

which included one count for Declaratory Judgment. On December 

22, 2014, Defendants filed an Answer and New Matter to the 

original Complaint. On August 25, 2015, Attorney Hassey sent an 

email to Marvin Slomowitz (hereinafter “Mr. Slomowitz”), 

President of Mark Coal, with the subject line “Mark Coal Right of 

First Refusal.” (Joint Ex. 15). The email included a one-page 

attachment from Select Realty Company (hereinafter “Select 

Realty”), dated August 24, 2015. (Joint Ex. 15). On August 26, 

2015, Attorney Hassey wrote another email to Mr. Slomowitz with 

the subject line “Additional offer received on Mark Coal-Hassey 

Lease.” (Joint Ex. 16). This email included a two-page attachment 
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dated August 25, 2015, from Kamin Investment Company 

(hereinafter “Kamin”). (Joint Ex. 16).

On September 10, 2015, Defendants filed a Motion for 

Preliminary Injunction seeking to stop the sale of the Subject 

Property, pending the results of the litigation. (Joint Ex. 9). On 

October 5, 2015, [the trial court] issued an Order denying the 

Motion for Preliminary Injunction (Joint Ex. 9). On October 13, 

2015, Plaintiff filed a Praecipe for Lis Pendens with respect to the 

Property. (Joint Ex. 9). On July 7, 2017, Plaintiff filed an Amended 

Complaint, which included two claims: count 1 - Declaratory Relief 

and count 2 - Breach of Contract. On July 27, 2017, Defendants 

filed an Answer, New Matter and Counterclaims. The 

Counterclaims include two claims: count 1 - Declaratory Judgment 

and count 2 - Tortious Interference with Contracts and/or 

Prospective Contracts. The Parties stipulated to the authenticity, 

admissibility, and the fact that the Joint Exhibits would have been 

admitted into evidence at trial. However, the Parties did not agree 

to the relevance, materiality or weight, if any, to be accorded to 

the Joint Exhibits.

Tr. Ct. Op. at 1-3. 

The parties agreed to have the matter decided on briefs instead of an 

in-person trial. The parties filed their briefs, and the trial court issued its 

decision on September 13, 2022, with an opinion on September 19, 2022,

(hereinafter “Tr. Ct. Op.”), finding in favor of Appellee. Appellants filed a posttrial motion on September 29, 2022, which was denied by the trial court on 

November 2, 2022. A praecipe to enter judgment was filed and judgment was 

entered by the prothonotary on November 17, 2022. Appellants filed a 

Statement of Errors Complained of on Appeal on January 6, 2022.1 Appellants 

filed their brief on May 30, 2023, and a reply brief on July 12, 2023.

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1 We note, as did the trial court, that Appellants’ Statement of Errors 

Complained of on Appeal did not comport with Pa.R.A.P. 1925(b) which calls 

for a concise statement. Appellants filed a thirteen-page brief. “Our law makes 

(Footnote Continued Next Page)
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Appellants raised two issues for our review:

1. Did the lower court err by failing to interpret the lease 

agreement in accordance with its clear and unambiguous 

terms?

2. Did the lower court err by ruling against the weight of the 

evidence?

Appellants’ Br. 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 the 

trial judge in a non-jury case must be given the same weight and 

effect on appeal as the verdict of a jury, and the findings will not 

be disturbed on appeal unless predicated upon errors of law or 

unsupported by competent evidence in the record. Furthermore, 

our standard of review demands that we consider the evidence in 

a light most favorable to the verdict winner.

De Lage Landen Fin. Servs. v. Rozentsvit, 939 A.2d 915, 918 (Pa.Super. 

2007) (internal quotation marks and citations omitted). No relevant facts are 

in dispute. Because contract interpretation is a question of law, our review of 

the trial court's decision is de novo and our scope is plenary. Bucks 

Orthopaedic Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 871 

____________________________________________

it clear that Pa.R.A.P. 1925(b) is not satisfied by simply filing any statement. 

Rather, the statement must be ‘concise’ and coherent as to permit the trial 

court to understand the specific issues being raised on appeal.” Tucker v. 

R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007). This Court found waiver in 

Tucker for breach of good faith and fair dealing when an appellant’s Rule 

1925(b) statement was sixteen pages long and when asked to clarify, the 

appellant provided an eight-page statement. Id. We do not find waiver here 

because Appellants raised issues that apprised the court of what they planned 

to argue, when the appellant in Tucker “effectively precluded appellate review” 

by including seventy-six paragraph statements that raised seventeen issues. 

We note our displeasure on failure to adhere to the Rules of Appellate 

Procedure. 
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(Pa.Super. 2007); Highmark Inc. v. Hospital Service Association of 

Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa.Super. 2001).

For Appellants’ first issue, we begin with considering several general 

principles of contract interpretation. 

The fundamental rule in interpreting the meaning of a contract is 

to ascertain and give effect to the intent of the contracting parties. 

The intent of the parties to a written agreement is to be regarded 

as being embodied in the writing itself. The whole instrument must 

be taken together in arriving at contractual intent. 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. . . .

Mitch v. XTO Energy, Inc., 212 A.3d 1135, 1138-39 (Pa.Super. 2019) 

(citation omitted). “In construing a contract, we must give effect to all of the 

provisions therein. An interpretation will not be given to one part of the 

contract which will annul another part of it.” Id. at 1139 (citation omitted).

“[W]hen the language of a contract is clear and unequivocal, courts 

interpret its meaning by its content alone, within the four corners of the 

document,” and “this Court need only examine the writing itself to give effect 

to the parties’ understanding. [We] must construe the contract only as written 

and may not modify the plain meaning under the guise of interpretation.” 

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 665 

(Pa.Super. 2014) (citation omitted). 

On the other hand, a contract is ambiguous if it is reasonably 

susceptible of different constructions and capable of being 

understood in more than one sense. The “reasonably” qualifier is 

important: there is no ambiguity if one of the two proffered 

meanings is unreasonable. Furthermore, reviewing courts will not 
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distort the meaning of the language or resort to a strained 

contrivance in order to find an ambiguity. When an ambiguity 

exists, parol evidence is admissible to explain or clarify or resolve 

the ambiguity, irrespective of whether the ambiguity is patent, 

created by the language of the instrument, or latent, created by 

extrinsic or collateral circumstances. While unambiguous 

contracts are interpreted by the court as a matter of law, 

ambiguous writings are interpreted by the finder of fact.

Family v. Pennenergy Res., LLC, 276 A.3d 729, 736-37 (Pa.Super. 2022) 

(internal citations and quotation marks omitted).

Appellants raise four arguments under the issue of contract 

interpretation. Appellants’ Br. at 20, 29, 37, 41. The first argument is that the 

trial court erred in finding that the option to purchase was ripe. Specifically, 

Appellants argue that the term of this lease was defined in the contact as 

twenty-nine years, eleven months, and twenty-nine days, and Appellee 

attempted to exercise the option to purchase after only eight years, which was 

premature. The language in the lease states,

9. Option to Purchase. Lessee shall have the option to purchase 

the Property pursuant to the terms of this Section 9 (the “Option 

to Purchase”). Should Lessee decide to exercise its Option to 

Purchase, it shall notify Lessor in writing no later than ten (10) 

days prior to the last day of the term of this Lease that Lessee 

intends to purchase the Property with settlement to occur at 10:00 

am on the last day of the Lease (the “Closing Date”) at a place 

to be mutually acceptable to both Lessor and Lessee.

Ex. 1, Lease Agreement, § 9 (bold emphasis in original).

The trial court held that the language regarding timing of the option to 

purchase is unambiguous and the exercise was ripe from the commencement 

of the lease up until ten days prior to the last day of the term, and we find no 

error in the application of contract law principles. Tr. Ct. Op. at 6. Appellants 
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argue that Appellee’s positions are based on isolated and limited excerpts of 

the lease agreement, Appellants’ Reply Br. at 1, and insist that a reading the 

“Option to Purchase” provision as a whole suggests a different result. 

Appellants’ Br. at 22-23. While contract interpretation requires considering the 

contract as a whole, this language is unmistakably clear, and there is no 

language in the paragraphs that follow it that support Appellants’ position. 

Appellants argue that “a clear reading--and strict interpretation--of the 

terms of the lease agreement as a whole demonstrates that the option to 

purchase must be exercised within ten (10) days of the last day of the lease 

agreement,” Appellants’ Br. at 22, and, “[d]espite the Option to Purchase not 

being ripe until the end of the Term of the Lease Agreement--March 30, 2038-

-Plaintiff prematurely and without any basis in law or fact attempted to 

exercise the Option to Purchase[.]” Appellants’ Br. at 12. However, the lease 

began on April 1, 2008. Ex. 1, Lease Agreement § 5. Adding the defined “term” 

of twenty-nine years, eleven months, and twenty-nine days results in the date 

of March 30, 2038. Subtracting the ten days from the last day of the “term” 

results in a date of March 20, 2038. Thus, Appellee had from April 1, 2008, to 

March 20, 2038, to exercise the option to purchase. Had Appellee exercised 

the option to purchase “within” ten days of the last day, it would have been 

too late. Had Appellee exercised the option to purchase “at the end of the 

Term of the Lease Agreement--March 30, 2038,” it would have been too late. 

Appellants submit a history of earlier drafts of the lease agreement as 

well as a report of their expert in order to prove that the intent of the parties 
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was that the option to purchase would become available upon a certain date 

but no earlier. Appellants’ Br. at 24-29, 45-48. Appellants argue that the trial 

court failed to consider that evidence. However, parol evidence cannot be 

utilized to interpret unambiguous contract terms, Wert v. Manorcare of 

Carlisle Pa, LLC, 124 A.3d 1248, 1259 (Pa. 2015), and since there was no 

ambiguity regarding the ripeness of the option to purchase, the trial court did 

not commit an error of law by not considering evidence or language not in the 

final contract. 

Appellants’ second argument involving contract interpretation is that the 

lower court erred by effectively redefining the term “closing date” and that the 

trial court’s interpretation of the option to purchase nullifies the closing date 

provision. Appellants’ Br. at 23-24. Specifically, Appellants argue:

the lower court erred by effectively imputing ambiguity on the 

term Closing Date, when it is clear that the already explicitly 

defined term has an unambiguous meaning in the Lease 

Agreement. If Plaintiff properly exercises the Option to Purchase, 

then the Closing Date under the Lease would be March 30, 2038, 

the last day of the Lease Term.

Appellants’ Br. at 29-30. The trial court found ambiguity in deciding the closing 

date because of these provisions:

Should Lessee decide to exercise its Option to Purchase, it shall 

notify Lessor in writing no later than ten (10) days prior to the last 

day of the term of this Lease that Lessee intends to purchase the 

Property with settlement to occur at 10:00 am on the last day of 

the Lease (the “Closing Date”) at a place to be mutually 

acceptable to both Lessor and Lessee.

. . . 

Should the parties come to settlement on the exercise of the 

option to purchase, then this lease shall terminate upon 
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consummation of the sale. In the event, Lessee fails to exercise 

its Option to Purchase, then the Term of this Lease shall 

automatically extend for an additional forty-five (45) years (the 

“Extension Term”) on the same terms and conditions (including 

Rent) as applicable during the initial Term.

Ex. 1, Lease Agreement, § 9 (bold emphasis in original). 

Given that the trial court had interpreted the lease to mean that the 

option to purchase was ripe, the court rationalized that if the closing date was 

set for the last day of the lease term as “term” is defined in the contract, then 

regardless of how early Appellee notified Appellants of its intent to exercise 

the option to purchase, Appellee would have to pay rent until March 30, 2038. 

Tr. Ct. Op. at 6-7. 

The court considered parol evidence of deposition testimony and 

concluded that the most logical interpretation is that the lease terminates 

upon the closing date, but that the closing date should be soon after exercising 

the option to purchase, not on the last day of the “term” in approximately 

thirty years. Tr. Ct. Op. at 7-8. Thus, the court held, “the closing date under 

the Option to Purchase is within a reasonable amount of time after the option 

is executed.” Tr. Ct. Op. at 8. 

Appellants state, “the lower court erred when it relied upon one sole 

piece of parol evidence, which is a misconstrued excerpt of the deposition 

transcript of Mr. Hassey.” Appellants’ Br. at 42. We agree. The trial court erred 

in its application of the law by improperly considering parol evidence when the 

meaning of the provision is unambiguous. 
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The provision that the trial court found to cast ambiguity on the closing 

date states, “Should the parties come to settlement on the exercise of the 

option to purchase, then this lease shall terminate upon consummation of the 

sale.” Thus, if the Lessee exercised its option to purchase instead of letting 

the stated term run out, then the lease ends on whatever day the closing 

occurs, which is a natural and probable outcome of the sale of a leased 

property. Read in conjunction with the first paragraph of the Option to 

Purchase section that “the settlement will occur at 10:00 am on the last day 

of the Lease (the “Closing Date”),” it is clear that the closing date is whatever 

date on which the lease terminates. The parties are to meet at 10:00 am on 

the day the lease terminates pursuant to the parties’ agreement to exercise 

the option to purchase. Notably, the word “Term” does not appear in either 

sentence discussing the “sale” or the “closing date” as both provisions discuss 

the end of “Lease,” not the end of the “term.” 

Appellants argue, 

The contract expressly states that closing will occur, if the Option 

to Purchase is exercised, on the last day of the lease, which occurs 

at 10:00 am on the 29th day, in the 11th month of the 29th year.

Appellants’ Statement of Errors Complained of on Appeal at 9 (italics emphasis 

added). Further, 

If Plaintiff properly exercises the Option to Purchase, then the 

Closing Date under the Lease would be March 30, 2038, the last 

day of the Lease Term.

Appellants’ Br. at 29-30 (italics emphasis added). And,
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The language clarifies that on the last day of the 29 year, 11 

month, and 29 day lease term, if lessor exercises the option to 

purchase, the lease would end and the property would close on 

that “Closing Date.” 

Appellants’ Reply Br. at 8 (italics emphasis added). Appellants seek to insert 

the word “term” so that it appears that the parties agreed in the lease that 

closing would be at the end of the term as it is defined in the lease at nearly 

thirty years in the future. “It is not the province of the court to alter a contract 

by construction or to make a new contract for the parties; its duty is confined 

to the interpretation of the one which they have made for themselves, without 

regard to its wisdom or folly.” Amoco Oil Co. v. Snyder, 478 A.2d 795, 798 

(Pa. 1984). The last day of the lease is not 29 years 11 months and 29 days 

in the future, that is the last day of the “term.” The last day of the lease is 

whatever date the lease terminates pursuant to the parties exercising the 

option to purchase. 

We conclude that the trial court erred in its application of the law by 

improperly considering parol evidence when the meaning of the provision 

about the termination of the lease is unambiguous. However, “[t]o constitute 

reversible error, an evidentiary ruling must not only be erroneous, but also 

harmful or prejudicial to the complaining party. . . . A party suffers prejudice 

when the trial court's error could have affected the verdict.” Schuenemann 

v. Dreemz, LLC, 34 A.3d 94, 101 (Pa.Super. 2011) (quotation marks and 

citations omitted). 

There is no ambiguity if one of the two proffered interpretations is 

unreasonable, and allowing a party to exercise an option to purchase but not 
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allowing that party to close on the property for nearly thirty years is an 

unreasonable result, and the trial court should not have considered it a 

“reasonable” interpretation that required the utilization of parol evidence 

before being disregarded. Although the court found ambiguity when there was 

none and improperly considered parol evidence, the trial court’s final 

interpretation of this provision is correct. While the events to occur on the 

“Closing Date” are unambiguously defined in the contract, no date was 

expressly set as the “Closing Date,” and thus the trial court’s determination 

that closing is to occur within a reasonable time is not “redefining” anything 

in the lease and will not be disturbed. 

Appellants’ third and fourth arguments of contract interpretation are 

that the trial court erred in its interpretation of the word “Property,” and in 

turn ascribed an erroneous meaning to the “market value” of the leased 

property. Appellants’ Br. at 37. Specifically, Appellants argue that the 

improvements that Appellee added to the property since the commencement 

of the lease are included in the term “Property,” and thus in determining the 

market value that Appellee must pay Appellants for said property, the value 

of the added improvements must be included in the calculation according to 

basic principles of property law. Appellants’ Br. at 37-38; Appellants’ Reply Br. 

at 9-10. 

The provision at issue states that once the Lessee exercises the option 

to purchase:
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As consideration for such purchase, the parties hereto agree that 

Lessee shall pay to Lessor a sum (the "Option Price") equal to 

the greater of: (a) the fair market value of the Property at the 

time the option is exercised as determined by a certified licensed 

Pennsylvania real estate appraiser satisfactory to both Lessor and 

Lessee, or (b) Two Million Five Hundred Thousand and No/100 

Dollars ($2,500,000.00). 

Ex. 1, Lease Agreement § 9 (bold emphasis in original, italics emphasis

added). The trial court held that the option price does not include the value of 

improvements paid for Appellee on the property because the lease defines the 

property at issue as “improved real property” that Appellee took “as is” and 

any “improvements” to it were at Appellee’s expense and do not need to be 

repurchased by Appellee. Tr. Ct. Op. at 8-9. We agree.

The term “Property” is defined in the lease:

WHEREAS, Lessor is the owner of certain improved real property 

located at 410 Wilkes-Barre Township Boulevard, consisting of 

approximately two (2) acres, with frontage and access on WilkesBarre Township Boulevard and Coal Street, partially in the City of 

Wilkes-Barre and partially in the Township of Wilkes-Barre, 

Pennsylvania (the "Property").

Ex. 1, Lease Agreement ¶ 2 (bold emphasis in original). Thus, the “Property” 

that Appellants own and that Appellee took under the lease in 2006 was 

“improved real property,” “as is,” and the option price is the fair market value 

of the same. The trial court was correct to conclude that the fair market value 

of the Property does not include any structure or facility, called 

“Improvements,” constructed by Appellee at its own expense. The term 

“Improvements” (with a capital “I”) is defined in the lease:

2. Property taken "AS-IS”. Lessee agrees to take tenancy of 

the Property in "as-is" condition, with existing improvements, and 
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subject to such easements and hereditaments, as exist on site. 

Lessee, shall, at its own expense undertake to demolish the 

existing building(s) and where necessary, replace, reroute and 

install such infrastructure, utility lines, drain lines and sewer lines 

and mains, points of ingress and egress, and Lessee shall at its 

own expense, construct such new facilities and improvements 

("Improvements").

Ex. 1, Lease Agreement § 2 (bold emphasis in original). The plain language of 

the lease does not include the “Improvements” undertaken by Appellee in the 

definition of the “Property,” and the option price is the fair market value of 

the “Property”—not “Property with Improvements.” 

We are unpersuaded by Appellants’ argument that the trial court 

considered parol evidence in arriving at these conclusions. Appellants argue 

that “[t]he lower court did not make a finding of ambiguity regarding the term 

‘Property,’ yet it did reach to outside extrinsic evidence and considered parol 

evidence in support of its finding that improvements shall not be included in 

the valuation of Property. (See Appendix “A” at p. 8).” Appellants’ Br. at 33. 

And, “[t]he lower court’s opinion clearly references the anticipation of the 

parties in negotiations, which is outside the four corners of the documents. 

(See Appendix “A” at p. 8).” Appellants’ Reply Br. at 10. A reading of the trial 

court’s opinion reveals that the trial court did consider that “the parties 

anticipated Plaintiff constructing commercial buildings on the Property,” Tr. 

Ct. Op. at 8, and “[t]he parties anticipated Plaintiff purchasing the Property.” 

Tr. Ct. Op. at 9. 

However, this was not a reliance on the anticipation of the parties from 

their negotiations, as Appellants assert. The court discussed what the parties 
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“anticipated” pursuant to the lease agreement itself. Ex. 1, Lease Agreement 

¶ 2 (“Lessee shall at its own expense, construct such new facilities and 

improvements”); Ex. 1, Lease Agreement § 9 (“Lessee shall have the option 

to purchase the Property”). Thus, the trial court correctly found no ambiguity 

existed and considered no extrinsic evidence in holding that the term 

“Property” as defined in the lease does not include any of Appellee’s 

constructions or improvements and that they should not be included in the 

fair market value. 

Moreover, this outcome does not diminish the value of the property or 

ignore the value of the improvements on the property as Appellants assert. 

Appellants’ Reply Br. at 11. This would be true only if the cost was subtracted 

from a third party’s purchase price, not when subtracted from the Appellee’s 

price when Appellee built it. Amoco Oil Co. v. Snyder, 448 A.2d 1139, 1142 

(Pa.Super. 1982) (“it would be unfair to require the optionee to meet a third 

party's offer which would naturally reflect the improvements on the premises 

made by the optionee himself.”). The contract expressly puts the responsibility 

for the cost of demolition of the structure already on the leased land on 

Appellee, and Appellee paid for the additional improvements. We will not 

require Appellee to pay for the same thing again. 

Next, Appellants challenge the trial court’s award to Appellee of rent 

paid since exercising the option to purchase. Appellants’ Br. at 50. This issue 

was not included in Appellants’ statement of questions involved. Appellants’ 

Br. at 4. We note that issues not presented in the statement of questions 
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involved portion of an appellant's brief are generally deemed waived. 

Pa.R.A.P. 2116(a) (“The statement of the questions involved must state 

concisely the issues to be resolved, expressed in the terms and circumstances 

of the case but without unnecessary detail.”); Werner v. Werner, 149 A.3d 

338, 341 (Pa.Super. 2016) (internal citation omitted) (“Issues not presented 

in the statement of questions involved are generally deemed waived”). 

“However, such a defect may be overlooked where an appellant's brief 

suggests the specific issue to be reviewed and appellant's failure does not 

impede our ability to address the merits of the issue.” Id. at 341 (internal 

citation and brackets omitted). We are able to discern the issues from the 

argument section of Appellants’ brief and, therefore, we do not find waiver on 

this basis.

Turning to the merits, we find that the trial court properly awarded 

Appellee rent paid exercising the option. The trial court applied True R.R. 

Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324 (Pa.Super. 2016):

Where one party to a contract without any legal justification, 

breaches the contract, the other party is entitled to recover, 

unless the contract provided otherwise, whatever damages he 

suffered, provided (1) they were such as would naturally and 

ordinarily result from the breach, or (2) they were reasonably 

foreseeable and within the contemplation of the parties at the time 

they made the contract, and (3) they can be proved with 

reasonable certainty.

Id. at 342. The trial court held that Appellants had no legal justification for 

refusing to accept Appellee’s August 6, 2014 letter exercising its option to 

purchase the property, that failing to accept the terms of the option to 
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purchase was a breach, that the rent paid by Appellee was a natural and 

foreseeable loss suffered from the breach, and that the damages were proven 

with reasonable certainty because the monthly rent was set forth in the lease. 

Tr. Ct. Op. at 10. We discern no error of law. 

Appellants argue that there was legal justification in refusing to exercise 

the option to purchase because Appellants were “operating on what it believed 

to be the clear language and intent of the lease --- namely, that Plaintiff was 

not entitled to exercise its option to purchase and close on the purchase until 

March 30, 2038.” Appellants’ Br. at 53. However, as pointed out above, the 

lease began on April 1, 2008. Even if the closing date had been expressly set 

in the lease as the end of the “Term,” which it was not, adding the defined 

“term” of twenty-nine years, eleven months, and twenty-nine days results in 

the date of March 30, 2038. Subtracting the ten days from the last day of the 

“term” results in a date of March 20, 2038. Thus, it was not a reasonable 

reading of the lease, and thus not a legal justification for breach, for Appellants 

to argue that they thought Appellee could only validly exercise its option to 

purchase on March 30, 2038. 

We also find that True R.R. is analogous to this case. Appellants argue 

that the case is distinguishable because Appellee’s request is for an award of 

money damages, yet the True R.R. trial court only entered a “credit against 

the purchase price for the rent it paid.” Thus, Appellants argue, True R.R.

only provides for a credit at closing in the amount of rent that it paid if the 

purchasing party demonstrates that it was entitled to exercise its option to 
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purchase and that it legally complied with the terms of the option. Appellants’ 

Br. at 57-58 n.3. Not only is this distinguishment futile, Appellee’s amended 

complaint does seek to “award Plaintiff damages, or a credit at the closing on 

the Property, . . . plus all monthly rental payments[.]” Amend. Comp., at 8 

(emphasis added). The trial court’s order awarded Plaintiff, “damages, or a 

set off from the sales price of the Property, . . . plus any additional monthly 

rental payments[.]” Tr. Ct. Order 9/13/22, ¶ 2 (emphasis added). Thus, we 

conclude that the trial court properly applied the law in holding that Appellee 

is entitled to a credit against the sales price for rent paid beginning January 

2015 until closing on the property. 

Appellants’ second issue is a challenge to the weight of the evidence on 

Appellants’ tortious interference counterclaim. Our standard of review for a 

challenge to the weight of the evidence is as follows: 

When reviewing a verdict in a non-jury trial, this Court will respect 

a trial court's findings with regard to the credibility and weight of 

the evidence unless the appellant can show that the trial court's 

determination was manifestly erroneous, arbitrary and capricious, 

or flagrantly contrary to the evidence. The test is not whether this 

Court would have reached the same result on the evidence 

presented, but rather, after due consideration of the evidence the 

trial court found credible, whether the trial court could have 

reasonably reached its conclusion.

El-Gharbaoui v. Ajayi, 260 A.3d 944, 965-66 (Pa.Super. 2021) (internal 

citations and quotation marks omitted). “When the trial court sits as fact 

finder, the weight to be assigned the testimony of the witnesses is within its 

exclusive province, as are credibility determinations, and the court is free to 
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choose to believe all, part, or none of the evidence presented.” Stokes v. 

Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa.Super. 2001). “This 

Court is not free to usurp the trial court's duty as the finder of fact.” Isralsky 

v. Isralsky, 824 A.2d 1178, 1190 (Pa.Super. 2003).

Specifically, Appellants argue that the evidence submitted shows that 

Appellants had accepted an offer to purchase the property and that Appellee’s 

seeking of injunctive relief and filing of a lis pendens lien without legal 

justification establishes intentional interference with Appellants’ potential 

contract with a third-party, Select Realty. We find that this argument is 

without merit. We note that while the court below was free to ignore any 

purported evidence and make any credibility determinations, any evidence 

about alleged third party offers are irrelevant because Appellee had already 

exercised its option to purchase on August 6, 2014, which Appellants 

improperly refused. The trial court noted that there is no provision in the lease 

that terminates the option to purchase upon the occurrence of an event, Tr. 

Ct. Op. at 12, and the option to purchase was ripe since commencement of 

the lease on April 1, 2008, so Appellants were in breach by not closing within 

a reasonable time and by continuing to accept rent under the lease. Thus, any 

discussion about the evidence of the two third party offers received by 

Appellants or the effect of this litigation on those offers are futile. 
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Accordingly, the judgment is affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/31/2023