J. A33012/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF FRANK C. NICHOLAS AND 

ELIZABETH S. NICHOLAS

:

:

IN THE SUPERIOR COURT OF

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. Nicholas1and 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