J-A05043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MONROE-PIKE LAND, LLC, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SYLVIA E. HINTON, TRUSTEE OF THE 

GLENN C. YOUNKIN REVOCABLE LIVING 

TRUST AGREEMENT DATED OCTOBER 

31, 2000, AND THE GLENN C. YOUNKIN 

REVOCABLE LIVING TRUST AGREEMENT 

DATED OCTOBER 31, 2000,

Appellees No. 2283 EDA 2014

Appeal from the Order June 27, 2014

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 4777 Civil 2011

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 17, 2015

Appellant, Monroe-Pike Land, LLC (“MPL”), appeals from the order 

granting summary judgment in favor of Appellees, Sylvia E. Hinton 

(“Ms. Hinton”), as trustee of the Glenn C. Younkin Revocable Living Trust 

Agreement Dated October 31, 2000, and the Glenn C. Younkin Revocable 

Living Trust Agreement Dated October 31, 2000 (“the Trust”). We affirm.
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MPL, by its manager, Robert Brown, signed an agreement of sale 

(“Agreement”) on August 4, 2005,1to purchase two parcels totaling 82.3 

acres of unimproved land in Smithfield Township, Monroe County, from the 

Trust for $915,000.00. The Agreement required MPL to post a “Feasibility 

Deposit” of $25,000.00 upon signing. Agreement, 8/4/05, at ¶ 2. MPL paid 

the $25,000 to F. Andrew Wolf, Esquire, who was counsel for the Trust, as 

escrow agent. The Agreement provided MPL with two performance periods: 

a “Feasibility Period” and an “Approval Period.” Id. at ¶¶ 5, 11a.

The Feasibility Period gave MPL 180 days to conduct tests and do what 

was necessary for it to decide if it was feasible to develop the property. 

Agreement, 8/4/05, at ¶ 10a. If MPL’s “Feasiblity Investigation” revealed it 

could not develop the property as envisioned, the Agreement required it to 

notify the Trust of its desire to terminate before the Feasibility Period ended. 

Id. If MPL failed to give timely notice of termination, it forfeited all deposits 

to the Trust. Id. The parties could mutually agree by written addendum to 

extend this period, which they did four times. Id. at ¶ 11b. According to 

the trial court, in the July 2007 Fourth Addendum, the parties agreed this 

period had ended. Trial Court Opinion, 6/27/14, at 2.

____________________________________________

1

 MPL, Ms. Hinton, and the complaint assert the Agreement was entered 

into on June 27, 2005. The trial court lists the execution date as August 4, 

2005. Trial Court Opinion, 6/27/14, at 1. We note that Ms. Hinton signed 

the Agreement on July 25, 2005, and Robert Brown signed it for MPL on 

August 4, 2005.
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Within five days following the expiration of the Feasibility Period, the 

Agreement required MPL to deliver a check for $50,000.00 (“Second 

Deposit”), provided MPL had not exercised its right to terminate. 

Agreement, 8/4/05, at ¶ 2b. The trial court noted that because MPL had 

made three deposits of $10,000 in consideration for the three extensions of 

the Feasibility Period, the parties agreed in the Fourth Addendum that MPL 

would deliver $20,000, which together with the $30,000 in additional 

Feasibility Period deposits, would constitute the Second Deposit provided for 

in the Agreement. Trial Court Opinion, 6/27/14, at 2.

The Approval Period gave MPL time to obtain necessary governmental 

approvals for its planned project. Agreement, 8/4/05, at ¶ 11. Under 

Paragraph 11, MPL had nine months from the execution date to obtain “final 

subdivision and/or land development approval from Smithfield Township.” 

Id. at ¶ 11(a). In the event that MPL was unable to obtain approval within 

the nine-month period, it had three options: (1) terminate the Agreement; 

(2) waive the approvals and proceed to closing; or (3) extend the closing 

date six months by providing an additional $50,000 deposit. Id. at ¶ 11(b). 

If MPL chose the third option and had still not received approval, it again had 

the option to terminate the Agreement, waive the approvals and proceed to 

closing, or extend the closing date, this time on a month-to-month basis for 

up to twelve months at the cost of $5,000.00 per month. Id. at ¶ 11(c). If 

MPL terminated the Agreement under any of the paragraph eleven 
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provisions, the deposit would be retained by Appellees. Id.; Trial Court 

Opinion, 6/27/14, at 3.

The relevant portions of the Agreement, referenced above, are as 

follows:

2. Purchase Price. The price to be paid by Buyer for the 

Land shall be NINE HUNDRED FIFTEEN THOUSAND 

($915,000.00) DOLLARS (“Purchase Price”). The Purchase Price 

is allocated between the parcels as follows: Parcel 1 = 

$840,000; Parcel 2 = $75,000. The Purchase Price shall be paid 

to the Seller by the Buyer in the following manner:

a. TWENTY FIVE THOUSAND DOLLARS ($25,000.00) 

delivered by Buyer to Seller’s Attorney, as escrow agent, 

(“Escrow Agent”) by Buyer’s plain check and to be held by 

Escrow Agent under the terms hereof (“Feasibility Deposit”). 

The Feasibility Deposit shall be held by Escrow Agent until the 

expiration of the Feasibility Period under Paragraph 10 of this 

Agreement. If Buyer does not exercise its right to terminate this 

Agreement under Paragraph 10(a), the Feasibility Deposit shall 

be released by Escrow Agent to Seller within five (5) days 

following the expiration of the Feasibility Period. If Buyer 

exercises its right to terminate this Agreement under Paragraph 

10 hereof, the Escrow Agent shall, depending on the option 

chosen by Buyer under Paragraph 10.a., either return the 

Feasibility Deposit in full to Buyer or release it to Seller within 

five (5) days after notice of termination.

b. The additional sum of FIFTY THOUSAND DOLLARS 

($50,000.00) (“Second Deposit”) shall be delivered by Buyer to 

Seller by Buyer’s plain check within five (5) days following the 

expiration of the Feasibility Period under Paragraph 10 of this 

Agreement, if Buyer has not exercised its right to terminate this 

Agreement under the said Paragraph 10.

* * *

10. Conditions of Closing. Buyer’s obligation to proceed to 

Closing under the terms of this Agreement is expressly 

conditioned upon the following:
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a. Feasibility Period. Buyer shall have One Hundred 

Eighty (180) days from the Execution Date (“Feasibility Period”) 

to perform any and all tests, studies, examinations and other 

investigations of any nature whatsoever of the Land, the 

conditions of the Land, and the feasibility of Buyer’s plans to 

develop the Land, in Buyer’s sole discretion, including but not 

limited to preparation and submission of sketch plans, surveys, 

soils studies, environmental audits, surveys and analyses, 

determination of availability and feasibility of water service and 

on-site septic and/or sewer systems (“Feasibility Investigation”). 

If Buyer determines, for any reason whatsoever in Buyer’s sole 

discretion, that any condition of the Land is not acceptable or 

satisfactory to Buyer, or that Buyer’s plans for the Land are not 

feasible, Buyer may terminate this Agreement by providing 

Seller with written notice of termination. Said notice of 

termination must be given on or before the expiration of the 

Feasibility Period, and notice is deemed to have been given as of 

the date of mailing. If Buyer does not give notice of termination 

as required, the Buyer shall have waived its right to terminate 

the Agreement under this Paragraph 10(a) and the Agreement 

shall remain in full force and effect, and the Feasibility Deposit 

shall be released by Escrow Agent to Seller within five (5) days 

following expiration of the Feasibility Period.

* * *

11. Approvals to be Obtained by Buyer.

a. Buyer intends to obtain preliminary and final 

subdivision and/or land development approval from Smithfield 

Township (the “Township”) for the subdivision and land 

development of the Land for various residential and commercial 

uses as Buyer desires, and Buyer intends to obtain any and all 

other approvals required or deemed desirable by Buyer in order 

to develop the Land for such uses in accordance with local, state 

and federal ordinances, laws and regulations (together, the 

subdivision and/or land development approvals and all other 

approvals are referred to herein as the “Approvals”). Subject to 

the requirements hereafter set forth for the payment of 

additional deposits to Seller and the right to extend the Closing 

Date if such approvals have not been obtained, Buyer shall have 

Nine (9) Months from the Execution Date (the “Approval Period”) 

to obtain the Approvals. Buyer agrees to proceed with all due 

diligence to obtain the Approvals.
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b. In the event that Buyer has not obtained the 

Approvals within the Approval Period, Buyer may, in its sole 

discretion and at its sole option, (i) elect to terminate the 

Agreement by written notice thereof to Seller at least fifteen 

(15) days prior to the expiration of the Approval Period, or (ii) to 

waive the Approvals contingency and proceed with Closing, or 

(iii) to extend the Closing Date for an additional Six (6) months 

(to Fifteen (15) months from the Execution Date) by paying an 

additional deposit in the amount of $50,000 to Seller by Buyer’s 

plain check (the “Extension Deposit”) sent not later than the end 

of the Approval Period.

c. In the further event that Buyer has not obtained the 

Approvals within the Approval Period, as extended, Buyer may, 

in its sole discretion and at its sole option, (i) elect to terminate 

the Agreement by written notice thereof to Seller at least fifteen 

(15) days prior to the expiration of the Approval Period as 

extended, or (ii) to waive the Approvals contingency and 

proceed with Closing, or (iii) to extend the Closing Date on a 

month to month basis for up to twelve (12) additional months 

(to Twenty-seven (27) months total from the Execution Date) by 

the payment of FIVE THOUSAND ($5,000.00) DOLLARS per 

month, each payable within SEVEN (7) DAYS of the beginning of 

each of such months which beginning shall be deemed to be the 

monthly anniversary date of the Execution Date.

In the event Buyer elects to terminate the Agreement, the 

Deposit shall be retained by Seller and this Agreement shall be 

null and void, and the parties hereto shall have no further rights, 

duties, obligations or liabilities hereunder.

Agreement, 8/4/05, at ¶¶ 2a, b; 10a; 11a, b, c.

On April 2, 2008, MPL’s counsel, Charles Vogt, Esquire, sent Mr. Wolf a 

check payable to Ms. Hinton for $50,000.00. The accompanying letter 

indicated, in pertinent part, as follows:

The understanding is that the payment of this amount is in the 

form of an additional deposit and acts to extend the Approval 

Period for 6 months through September 30, 2008 and further 

that beginning October 1, 2008 the Buyer may at its option 

further extend the Approval Period on a month to month basis 
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upon the payment of additional deposits in the amount of $5,000 

per month.

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Vogt Letter, 

4/2/08).

MPL continued to pay the Trust $5,000.00 per month for one year 

from October 2008 through September 2009. On September 16, 2009, 

Attorney Wolf sent Attorney Vogt an email stating that the Approval Period 

would expire on September 30, 2009. Appellees’ Motion for Summary 

Judgment, 9/3/13, at Exhibit G (Wolf Email, 9/16/09). Notwithstanding this 

email, MPL sent $5,000 checks in October, November, and December 2009, 

and January 2010. Appellees did not cash these checks. Trial Court 

Opinion, 6/27/14, at 4.

MPL filed its complaint on May 31, 2011, alleging Appellees breached 

the Agreement by failing to negotiate the final four payments and thus, 

failed to “adhere to the terms of the April 2, 2008 letter.” Complaint, 

5/31/11, at ¶ 29. MPL sought return of the $200,000.00 in deposits it paid 

to Appellees under the terms of the Agreement, plus additional costs 

including attorneys’ fees. Id. at ¶ 30. Appellees filed an answer and new 

matter on July 28, 2011. Answer, 7/28/11. Following discovery, Appellees 

moved for summary judgment on September 3, 2013, arguing primarily 

“that the April 2 letter had no binding effect and that under the terms of the 

Agreement, [the Trust was] entitled to retain the deposits.” Trial Court 
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Opinion, 6/27/14, at 4; Appellees’ Motion for Summary Judgment, 9/3/13, 

at 3.

On June 27, 2014, the trial court granted Appellees’ motion for 

summary judgment. MPL filed a notice of appeal on July 24, 2014. Both the 

trial court and MPL complied with Pa.R.A.P. 1925.

MPL raises the following issues in its brief:

I. Whether the trial court erred in determining that there was 

no genuine issue of material fact regarding the parties’ 

interpretation of the Agreement of Sale, Addenda and April 

2, 2008 letter?

II. Whether the trial court erred in applying paragraphs 11. b. 

(iii) and 11. c. (iii) of the Agreement of Sale as being 

dispositive of the parties’ intent?

III. Assuming arguendo that the parties did not have a 

mut[u]al understanding as to the terms of the April 2, 

2008 letter, did the trial [c]ourt err in determining 

Appellant Monroe-Pike Land, LLC was not entitled to a 

refund of the additional deposits made in reliance upon its 

interpretation of the April 2, 2008 letter?

MPL’s Brief at 2.

Preliminarily, we note that despite putting forth three separate issues 

in its Statement of Questions Involved pursuant to Pa.R.A.P. 2116, MPL fails 

to divide its argument “into as many parts as there are questions to be 

argued . . . nor does it “have at the head of each part—in distinctive type or 

in type distinctively displayed—the particular point treated therein, followed 

by such discussion and citation of authorities as are deemed pertinent.” 

Pa.R.A.P. 2119(a); MPL’s Brief at 12–28. Indeed, MPL presents one 
J-A05043-15

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contention in the argument section of its brief, asserting that the “primary 

issue in this case is whether Charles Vogt’s letter of April 2, 2008[,] acted to 

modify the underlying Agreement.” MPL’s Brief at 14—15. As we decided in 

Cigna Corp. v. Executive Risk Indem., Inc., ___ A.3d ___, 2015 PA 

Super 43, *5 n.9 (Pa. Super. Filed February 27, 2015), however, we do not 

find the issue waived.

When addressing summary judgment, our scope of review is plenary, 

and “we apply the same standard as the trial court, reviewing all the 

evidence of record to determine whether there exists a genuine issue of 

material fact.” Nat’l Cas. Co. v. Kinney, 90 A.3d 747, 752 (Pa. Super. 

2014). Our Supreme Court has described the applicable standard of review 

as follows:

An appellate court may reverse the entry of a summary 

judgment only where it finds that the lower court erred in 

concluding that the matter presented no genuine issue as to any 

material fact and that it is clear that the moving party was 

entitled to a judgment as a matter of law. In making this 

assessment, we 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. As our inquiry involves solely questions of law, 

our review is de novo.

Thus, our responsibility as an appellate court is to 

determine whether the record either establishes that the 

material facts are undisputed or contains insufficient evidence of 

facts to make out a prima facie cause of action, such that there 

is no issue to be decided by the fact-finder. If there is evidence 

that would allow a fact-finder to render a verdict in favor of the 

non-moving party, then summary judgment should be denied.
J-A05043-15

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Reinoso v. Heritage Warminster SPE LLC, 2015 PA Super 8 at *3 (Pa. 

Super. 2015) (internal citations omitted). “The appellate Court may disturb 

the trial court’s order only upon an error of law or an abuse of discretion.” 

Nat’l Cas. Co., 90 A.3d at 753 (citing Caro v. Glah, 867 A.2d 531, 533 (Pa. 

Super. 2004)).

As noted by the trial court, the parties “do not quarrel over the 

meaning of the Agreement’s express terms.” Trial Court Opinion, 6/27/14, 

at 6. Rather, at issue “is the April 2 letter and its legal effect, if any.” Id. 

MPL argues that Attorney Vogt’s letter of April 2, 2008, modified the 

underlying Agreement. MPL asserts that despite the fact that the Fourth 

Addendum allowed it to extend the Approval Period beyond March 30, 2008, 

there is no provision in the Agreement that controls such an extension. 

Thus, it contends, “the parties were left to negotiate their own terms with 

regard to extension of the Approval Period,” and that was the import of the 

April 2, 2008 letter. MPL’s Brief at 17. MPL maintains that upon paying the 

$50,000.00 followed by the monthly $5,000 payments, it was “under the 

absolute belief that the monthly extensions of the Approval Period were 

open-ended as long as [MPL] kept making the monthly $5,000.00 

payments.” Id. at 18. MPL suggests that the wording of the April 2, 2008 

letter, in conjunction with the Agreement, are patently clear and contain no 

ambiguities. Other than cases citing applicable standards, it cites no case 

law in support of its position. In the alternative, MPL asserts that the 
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April 2, 2008 letter contains ambiguous terms, making the case 

inappropriate for a grant of summary judgment. Id. at 22.

Appellees’ position is that the April 2, 2008 letter merely confirmed 

MPL’s preexisting right to an extension of the Agreement through 

September 30, 2009. They posit the April 2nd letter did not propose an 

extension in perpetuity. Instead, the check MPL sent with the April 2, 2008 

letter was merely payment, as outlined in the Agreement, to secure an 

extension through September 30, 2008. Appellees further contend that 

Attorney Vogt conceded this fact in an email, discussed infra.

The motion for summary judgment includes copies of emails between 

Attorneys Vogt and Wolf on April 1, 2008, and April 2, 2008. Appellees 

assert that in an email from MPL’s counsel, Mr. Vogt, to Mr. Wolf of the 

Trust, MPL forwarded the draft of a fifth addendum proposing to extend the 

approval period indefinitely. Appellees’ Brief at 2. While the attachment 

referenced in the email is not identified in the certified record, the email 

states as follows:

In an effort to clarify where we are on this and confirm what I 

believe is the Buyer’s obligation to begin approval period 

extension payments, I have drafted the attached. If this is 

acceptable, let me know and I will get Bob’s signature and the 

first check for delivery to Mrs. Hinton.

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Vogt Email, 

4/1/08, 11:57 A.M.).
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Appellees responded that per the Agreement, the Approval Period 

could be extended for six months through September 30, 2008, if MPL paid a 

lump sum of $50,000.00. Thereafter, the Approval Period could be extended 

on a month-to-month basis—not indefinitely—through September 30, 2009, 

at the cost of $5,000 per month. All of these funds would be credited 

toward the final purchase price “or forfeited if the transaction is terminated 

by” MPL. That verbatim email is as follows:

I reviewed my prior emails to Mrs. Hinton on the Agreement of 

Sale extension of Approval Period issue. These communications 

date back to the Fourth Addendum signed back in June. My 

recollection is that the Fourth Addendum extended the Approval 

Period through 3/30/08. The existing provisions of the 

Agreement already provided for a six (6) month extension of the 

Approval Period through 9/30/08 for a lump sum extension fee 

to the Trust of $50,000. The Approval Period could then be 

extended through 9/30/09 on a month to month basis with 

additional monthly deposits of $5,000. All funds paid to the 

Trust would be credited toward the Purchase Price or forfeited if 

the transaction is terminated by Buyer.

If I am correct, the attached Fifth Addendum would modify the 

existing terms of the Agreement. Your thoughts?

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Wolf Email, 

4/1/08, 12:19 P.M.).

MPL replied, attempting to clarify whether all lump-sum payments had 

previously been paid, and asking, if not, whether MPL then owed an 

additional $50,000. That email from Attorney Vogt, in total, stated as 

follows:

l thought all lump sum deposits had been paid. Apparently 

$75,000 has been paid. You are saying $50,000 more is now 
J-A05043-15

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due bringing that total to $125,000 and then in six months the 

$5,000 per month starts—correct?

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Vogt Email, 

4/1/08, 3:31 P.M.).

Appellees’ attorney responded affirmatively. Mr. Wolf replied as 

follows:

That was my analysis back in June, 2007. I believe that it was 

based on the conclusion of the Feasibility Period and start of the 

Approval Period as discussed in the original Agreement. It 

certainly is worth taking another look at the original Agreement 

and modifications per the Addenda.

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Wolf Email, 

4/1/08, 4:22 P.M.).

The next day, apparently having reviewed an unsigned preliminary 

draft instead of the final addendum to which the parties had agreed, MPL 

wrote back in agreement, indicating that either he or his client had been 

confused about the terms of one of the addenda. Mr. Vogt wrote:

It appears you may be correct. I reviewed this with Bob[2]and 

his bookkeeper and an old draft addendum was apparently not 

the one signed. I have a check from Bob for the $50,000 which 

I will send with a cover letter for your delivery to Mrs. Hinton.

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit F (Vogt Email, 

4/2/08, 3:20 P.M.). The proposed fifth addendum was not signed.

____________________________________________

2

 Bob is presumably Robert Brown, MPL manager, who signed the 

Agreement for MPL.
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As September 30, 2009, approached, Attorney Wolf of the Trust sent 

Attorney Vogt of MPL an email on September 16, 2009, summarizing the 

events up until that point and asking how MPL wished to proceed. That 

email, verbatim, stated as follows:

I had to blow the dust from the yellowed pages of my file to 

research the significance of the end of this month (9/30/09, not 

9/25/09) with respect to the Agreement of Sale. The Fourth 

Addendum signed by Bob on 7/19/07 extended the Approval 

Period through 3/30/08 for an additional payment of $50,000. 

Thereafter, he has exercised his right to extend the Approval 

Period for an additional 12 months at $5,000 per month. That 

would get us to 9/30/09. The Approval Period time frame is set 

forth in Paragraph 11 of the original Agreement. Please let me 

know how Bob wants to proceed. Thanks.

Appellees’ Motion for Summary Judgment, 9/3/13, at Exhibit G (Wolf Email, 

9/16/09, 2:51 P.M.).

MPL maintains that the April 2, 2008 letter and Appellees’ subsequent 

actions reflect an acceptance of the letter’s terms, and that Appellees’ failure 

to negotiate the deposit checks after September 2009 was a breach of the 

Agreement. Appellees assert that the April 2, 2008 letter “merely 

commemorated the emails between counsel confirming that a 5th Addendum 

was unnecessary because MPL already had an extension through September 

2009.” Appellees’ Brief at 9. Appellees contend the April 2, 2008 letter was 

merely MPL’s attempt to negotiate a fifth addendum providing for an openended Approval Period.

“The goal of contractual interpretation is to ascertain the intent of 

parties at the time they entered the disputed agreement and to give effect 
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to the agreement’s terms.” Helpin v. Trustees of Univ. of Pennsylvania, 

969 A.2d 601, 610 (Pa. Super. 2009). “In cases of a written contract, the 

intent of the parties is the writing itself.” Lesko v. Frankford Hosp.-Bucks 

Cnty., 15 A.3d 337, 342 (Pa. 2011). “[I]n determining the intent of the 

contracting parties, all provisions in the agreement will be construed 

together and each will be given effect.” LJL Transp., Inc. v. Pilot Air 

Freight Corp., 962 A.2d 639, 647 (Pa. 2009).

We agree with the trial court that a plain reading of the Agreement 

and the four addenda, “notwithstanding the support offered by the April 2, 

[2008] letter and series of emails between the parties’ attorneys,” compels 

the conclusion that Appellees did not breach the Agreement by refusing to 

negotiate any of the checks received after September 30, 2009. Trial Court 

Opinion, 6/27/14, at 8. We rely on the trial court’s reasoning, as follows:

As originally drafted and executed on August 4, 2005, the 

Agreement provided [MPL] with nine months from the date of 

execution to obtain approvals from the township. Under the 

third addendum, the parties agreed that the original nine-month 

Approval Period would not begin to run until January 1, 2007, 

and would expire on September 30, 2007, “unless extended as 

provided.” Under the fourth addendum, the parties agreed to 

increase the original Approval Period by an additional six months 

through March 30, 2008. At no point, however, did the parties 

agree to modify the terms of Paragraph 11(b)(iii), which 

permitted [MPL], in the event it had not obtained the necessary 

approvals within the Approval Period, to extend the Approval 

Period “for an additional Six (6) months . . . by paying an 

additional deposit in the amount of $50,000 to [Appellees] by 

[MPL’s] plain check (the “Extension Deposit”) sent not later than 

the end of the Approval Period.” ([Appellees’] Mot. Ex.A.) For 

the purposes of Paragraph 11(b)(iii), the original Approval Period 

ended on March 30, 2008, meaning that [MPL] had the option to 
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extend the Approval Period until September 30, 2008, by 

providing a $50,000 lump sum payment to [Appellees]. And this 

is exactly what [MPL] did, as evidenced by the April 2 letter and 

the set of emails the parties’ attorneys exchanged. In the April 

2 letter, [MPL’s] attorney specifically wrote that “the 

understanding is that the payment of this amount is in the form 

of an additional deposit and acts to extend to the Approval

Period for 6 months through September 30, 2008.” This 

language is entirely consistent with the terms of Paragraph 

11(b)(iii).

So, too, was [MPL’s] attorney’s note in the April 2 letter 

“that beginning October 1, 2008 [MPL] may at its option further 

extend the Approval Period on a month to month basis upon the 

payment of additional deposits in the amount of $5,000 per 

month.” As previously noted, Paragraph 11(c)(iii) allowed for 

[MPL] to further extend the Approval Period “on a month to 

month basis for up to twelve (12) additional months . . . by the 

payment of FIVE THOUSAND ($5,000.00) DOLLARS per month.” 

Without further written amendment, the Agreement did not 

provide for any extension of the Approval Period beyond twentyseven months.3

3

 The Agreement allowed for an initial nine-month 

Approval Period, followed by the additional sixmonth period at the cost of $50,000 and the final 

month-to-month period for up to twelve months as 

the cost of $5,000 per month for a total of twentyseven months.

Despite claims to the contrary now, [MPL’s] understanding 

of these provisions was demonstrated through its remittal of the 

$50,000 check with the April 2 letter in order to extend the 

Approval Period through September 30, 2008, and the 

subsequent $5,000 checks that it sent to [Appellees] each month 

to extend the Approval Period through September 30, 2009. By 

returning the checks that [they] received for October, November 

and December of 2009 and January 2010, [Appellees] exhibited 

[their] understanding of the Agreement, an understanding that 

perfectly coincided with the terms of Paragraph 11 and reflected 

the mutual understanding of the parties’ attorneys, as expressed 

in the April 2 letter.
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Despite all of this, [MPL] argues that the April 2 letter was 

actually an offer to modify the terms of the Agreement to reflect 

an open-ended Approval Period, an offer [Appellees allegedly] 

demonstrated acceptance of through [their] subsequent actions. 

[MPL] makes this argument despite an express provision in the 

Agreement that any modifications to the Agreement had to be 

made in writing and signed by both parties. Under Paragraph 

23, the Agreement “may not be modified or terminated, unless 

in accordance with the terms of the Agreement, except by a 

writing signed by the parties.” The parties, evidently fully aware 

of this provision and its requirements, acted in accordance with 

it four times, as expressed by each of the addenda. Conversely, 

the much-discussed and long-negotiated fifth addendum never 

came to fruition, as the parties could not reach agreement on 

how to extend the Approval Period, whether by a set term or on 

an open-ended basis.

Trial Court Opinion, 6/27/14, at 8–10.

The trial court went on to reference the Agreement’s provision that it 

“may not be modified or terminated, unless in accordance with the terms of 

the Agreement, except by a writing signed by the parties.” Agreement, 

8/4/05, at ¶ 23. Acknowledging that parol negotiation still may alter such 

an agreement, the trial court stated that here, MPL could not show a 

modification.

[MPL] freely admits that the parties never reached agreement on 

the terms of a fifth addendum, whether in writing or orally, and 

offers no evidence of any other express agreement. [MPL] 

argues that by accepting and negotiating the $50,000 check and 

the subsequent $5,000 checks, [Appellees] acquiesced to what it 

argues are the terms of the April 2 letter. As previously 

discussed, [Appellees] did no such thing. [Appellees] cashed all 

of the checks received between April 2, 2008, and September 

30, 2009, because [Appellees were] acting in accordance with 

the terms of Paragraphs 11(b)(iii) and (c)(iii) from the original 

Agreement, terms that [MPL] had agreed to and its attorney was 

aware of, as evidenced by the email chain between the parties’ 

attorneys.
J-A05043-15

- 18 -

Trial Court Opinion, 6/27/14, at 11.

Thus, we conclude that as the April 2, 2008 letter merely expressed “a 

mutual understanding of certain original terms of the Agreement,” it did not 

constitute a modification of the original terms. Trial Court Opinion, 6/27/14, 

at 12. The parties did not agree to a Fifth Addendum, either orally or in 

writing, and Appellees’ actions following receipt of the April 2, 2008 letter 

were in accordance with paragraphs 11(b)(iii) and 11(c)(iii) of the 

Agreement. Id. Therefore, the trial court did not err in concluding that the 

matter presented no genuine issue as to any material fact, and it is clear 

that Appellees were entitled to judgment as a matter of law.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015