J-S06018-19

2019 PA Super 226

MICHAEL AND LINDA, LLC 

v.

ROBERT S. SMITH AND RENEE M. 

SMITH, 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2654 EDA 2018

Appeal from the Judgment Entered August 2, 2018

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2016-10803

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.: FILED JULY 25, 2019

Robert S. Smith and Renee M. Smith (hereafter, Sellers) appeal from 

the Judgment entered against them on August 2, 2018, in this real estate 

transaction dispute. We discern no trial court error of law or abuse of 

discretion and, therefore, affirm.

We derive the following statement of facts from the trial court’s 

Decision, which is supported by the record. See Trial Ct. Decision, 7/3/18, at 

1-4.1

Sellers owned vacant real estate in Towamencin Township, Montgomery 

County. Buyer, Michael and Linda, LLC, is a homebuilder. 

The parties executed an Agreement of Sale in December 2015 for three 

adjacent parcels of real estate (collectively, the Property). The three parcels 

were identified as Lots 25, 26, and 27, which corresponded to parcel 

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1 Sellers do not challenge the trial court’s factual findings on appeal. See 

generally Sellers’ Br.; Sellers’ Pa.R.A.P. 1925(b) Statement, 9/27/2018.
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identification numbers: 533-00-00943-003, 53-00-00942-004, and 53-00-

08142-004, respectively. The total, negotiated purchase price for these lots 

was $370,000.2 

The Agreement of Sale included a “time is of the essence” provision. It 

obligated Sellers to provide good and marketable title, free and clear of all 

liens and encumbrances. The Agreement of Sale set settlement for January 

29, 2016, but also provided for the extension of the settlement date by written 

agreement of the parties.

Prior to settlement, a title search revealed a mortgage on Lot 27. The 

parties agreed to settle on the other lots for two-thirds of the negotiated price 

and, further, to extend settlement on Lot 27 to February 29, 2016. As the 

new settlement date approached, because the title issue remained unresolved, 

the parties agreed to extend settlement further until March 14, 2016. At some 

point thereafter, when it became clear that the title issue was yet unresolved, 

Buyer proposed a third extension to the settlement date, but Sellers refused.

In April 2016, Buyer learned that the title issue was resolved and, 

therefore, advised Sellers that settlement could proceed. However, Sellers 

refused to settle on Lot 27.

In May 2016, Buyer commenced this litigation by Summons, thereafter 

filing a Complaint asserting breach of contract. Complaint, 8/22/16. Following 

a bench trial in May 2018, the court found in favor of Buyer, granting its 

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2 The trial court also noted that Lot 27 was considerably larger than the other 

two lots. See Trial Ct. Decision at 1.
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request for specific performance and thus directing Sellers to convey Lot 27 

to Buyer.

Sellers timely filed a Post-Trial Motion seeking judgment 

notwithstanding the court’s verdict. Sellers’ Post-Trial Motion, 7/12/18. The 

trial court denied the Motion and entered Judgment in favor of Buyer. Trial 

Ct. Order, 7/31/18; Trial Ct. Judgment, 8/2/18.

Sellers timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

Statement. The trial court issued a responsive Opinion, citing its prior 

Decision. See Trial Ct. Op., 10/24/18.

Sellers raise the following issues on appeal:

[1.] [Whether] the [t]rial [c]ourt err[ed] as a matter of law in 

holding that [Sellers] were in breach of the Agreement of Sale 

because they were unable to provide [Buyer] with clear title to Lot 

27[;]

[2.] [Whether] the [t]rial [c]ourt err[ed] as a matter of law in 

holding that [Sellers] were in breach of the Agreement of Sale by 

failing to close on the sale of Lot 27 to [Buyer] by the March 14, 

2016 [c]losing date[;]

[3.] [Whether] the [t]rial [c]ourt err[ed] as a matter of law in 

holding that [Sellers’] refusal to agree to continue to extend the 

March 14, 2016 [c]losing date did not terminate the Agreement of 

Sale[; and]

[4.] [Whether] the [t]rial [c]ourt err[ed] as a matter of law in 

granting the extraordinary remedy of specific performance to 

[Buyer] where [Buyer] had no clear right to relief and justice did 

not require the relief.

Sellers’ Br. at 7-8.
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Sellers contend that we should reverse the court’s Order denying their 

Motion for judgment notwithstanding the verdict (JNOV). Our standard of 

review is well settled.

A JNOV can be entered upon two bases: (1) where the movant is 

entitled to judgment as a matter of law; and/or, (2) the evidence 

was such that no two reasonable minds could disagree that the 

verdict should have been rendered for the movant. When 

reviewing a trial court’s denial of a motion for JNOV, we must 

consider all of the evidence admitted to decide if there was 

sufficient competent evidence to sustain the verdict. In so doing, 

we must also view this evidence in the light most favorable to the 

verdict winner, giving the victorious party the benefit of every 

reasonable inference arising from the evidence and rejecting all 

unfavorable testimony and inference. Concerning any questions 

of law, our scope of review is plenary. Concerning questions of 

credibility and weight accorded the evidence at trial, we will not 

substitute our judgment for that of the finder of fact. If any basis 

exists upon which the [court] could have properly made its award, 

then we must affirm the trial court’s denial of the motion for JNOV. 

A JNOV should be entered only in a clear case.

Haan v. Wells, 103 A.3d 60, 69-70 (Pa. Super. 2014) (citation omitted).

Sellers’ first three issues, which we address concurrently, concern the 

proper interpretation of the parties’ Agreement of Sale, a real estate contract. 

As such, the scope of our review is plenary, and our standard of review is de 

novo. Maisano v. Avery, 204 A.3d 515, 520 (Pa. Super. 2019).

Sellers assert that (1) they did not breach the Agreement of Sale; (2) 

they never refused to convey the title they were able to convey; and (3) Buyer

allowed the Agreement of Sale to expire when it failed to close on the 

transaction. Sellers’ Br. at 29. In support of these bold assertions, Sellers

principally rely on what is commonly known as a “time is of the essence” 
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provision in their contract. Id. at 36. According to Sellers, because the parties 

had agreed that time was of the essence, upon learning that Sellers were 

unable to convey clean title to the Property, Buyer was required to terminate 

the Agreement or “take such title as [Sellers were] able to convey.” Id. at 

25. For the following reasons, we reject these assertions as devoid of merit.

“The fundamental rule in interpreting the meaning of a contract is to 

ascertain and give effect to the intent of the contracting parties.” Maisano, 

204 A.3d at 520 (citation omitted). We determine that intent from the written 

agreement, provided the language employed is clear and unequivocal. Id.

(citation omitted). “In the absence of an ambiguity, the plain meaning of the 

agreement will be enforced.” Id. (citation omitted).

“When parties have deliberately by their agreement or covenants fixed 

a time for the performance of an act, a court of equity will be very cautious 

how it interferes in disregard of it, and thus in effect change the contract which 

the parties have made.” Doughty v. Cooney, 109 A. 619, 619 (Pa. 1920) 

(citation omitted). 

However, “the law will not require the doing of a futile act.” Messina 

v. Siberstein, 528 A.2d 959, 961 (Pa. Super. 1987) (citing Williams v. 

Barbaretta, 59 A.2d 161 (Pa. 1948)). Thus, for example, a buyer’s obligation 

to tender by a fixed date is excused where it is established that the seller is 

not ready to settle. Id. at 62 (declining to enforce a “time is of the essence” 

provision in a real estate contract where sellers conceded they were unable to 

convey good title on the settlement date); but see McKuen v. Serody, 112 
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A. 460, 461 (Pa. 1921) (holding that mere allegation that seller was unable to 

convey title at designated time was insufficient to excuse buyer’s non-tender); 

Phaff v. Gerner, 303 A.2d 826, 830-31 (Pa. Super. 1973) (foreclosing 

specific performance as remedy to buyer where (1) buyer failed to timely 

tender and (2) seller denied that timely tender would have been futile).

The contract at issue here is not ambiguous. Pursuant to their 

Agreement of Sale, in exchange for Sellers’ conveyance of the Property, Buyer

agreed to tender the purchase price of $370,000. Complaint, Exh. A 

(Agreement of Sale, 12/10/15, at 2 ¶¶ 1, 2(A)). 

The parties further agreed that the Property “will be conveyed with good 

and marketable title . . . free and clear of all liens, encumbrances, and 

easements.” Agreement of Sale at 8 ¶ 18(A) (recognizing certain exceptions 

regarding easements not relevant to this dispute). In the event a title issue 

arose, the Agreement provides a remedy:

If [Sellers] [are] unable to give good and marketable title . . . 

[Buyer] may terminate this Agreement by written notice to 

[Sellers], with all deposit monies returned . . . Upon termination, 

[Sellers] will reimburse [Buyer] for any costs incurred[.]

Id. at 8 ¶ 18(D) (emphasis added). Thus, in its discretion, Buyer was free to 

terminate the Agreement, without penalty, if Sellers were unable to meet their 

obligation to provide clean title to the Property. Id.3

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3 Absent equitable claims, “[g]enerally, a vendee’s [i.e., a purchaser’s] action 

for breach of contract to sell land is limited to recovery of the consideration 

paid plus reasonable expenses incurred.” Baldassari v. Baldassari, 420 
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The Agreement of Sale set the date for settlement, January 29, 2016, 

but also provided for the extension of that date “by mutual written agreement 

of the parties.” Id. at 2 ¶¶ 4(A), 5(D). Finally, as highlighted by Sellers, the 

parties agreed that “[t]he [s]ettlement [d]ate and all other dates and times 

identified for the performance of any obligations of this Agreement are of the 

essence and binding.” Id. at 2 ¶ 5(B).

As found by the trial court, the evidence established that Sellers were 

unable to convey the Property as agreed. Specifically, Sellers were unable to 

convey Lot 27 with clean title on the negotiated settlement date. Trial Ct. 

Decision at 3.4 Nevertheless, Buyer tendered two-thirds of the negotiated 

purchase price for the Property, and the parties twice agreed to extend the 

settlement date, eventually setting settlement for March 14, 2016. Id.; see 

also Answer and New Matter, Exh. D1 at 3 (Signed Addendum). These 

extensions afforded Sellers an opportunity to meet their contractual obligation

to convey clean title. Thus, we discern no breach of the Agreement of Sale at 

this point.

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A.2d 556, 561 (Pa. Super. 1980) (footnote omitted). In this case, Paragraph 

18(D) of the Agreement of Sale embodies this remedy. Alternatively, there 

exists a narrow claim for “loss of bargain” damages premised upon a vendor’s 

bad faith. Id. at 561-62 (quoting Seidlek v. Bradley, 142 A. 914, 915 (Pa. 

1928)). Buyer has not pursued such a claim in this litigation.

4 As noted, Sellers do not challenge the findings of the trial court. Supra at 

n.1. Nevertheless, we note further that Sellers conceded this specific fact 

prior to trial. Answer and New Matter, 12/29/2016, at 2 ¶ 7 (admitting their 

inability to convey clear and marketable title).
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On the extended settlement date, Sellers were not yet able to convey 

clean title. Trial Ct. Decision at 3. Therefore, as of March 14, 2016, Sellers

were in breach of Paragraph 18(A) of the Agreement of Sale. Pursuant to 

Paragraph 18(D), Buyer was empowered to terminate the Agreement of Sale. 

Further, Buyer was entitled to the return of deposit monies paid and costs 

incurred. However, there is no evidence that Buyer terminated the Agreement 

by written notice to Sellers, nor is there evidence that Sellers returned deposit 

monies or reimbursed Buyer for its costs. Absent such evidence, and mindful 

that Paragraph 18(D) affords Buyer sole discretion to terminate, we conclude 

that the Agreement of Sale remained in force. 

Moreover, in light of these facts—in particular, (1) Buyer’s partial 

performance in tendering two-thirds of the negotiated price, (2) Sellers’ 

inability to meet their contractual obligation to convey the Property with clean 

title, and (3) the parties’ multiple agreements to extend settlement for the 

express purpose of affording Sellers an opportunity to remedy the title issue 

on Lot 27—we conclude that there is no legal basis to enforce Paragraph 5(B) 

to Sellers’ benefit. The evidence is indisputable that Sellers were not ready 

to settle on the last negotiated settlement date, March 14, 2016. Therefore, 

any tender by Buyer on that date would have been futile, and its obligation to 

tender the balance of the negotiated sale price is excused. Messina, 528 

A.2d at 961. 

Thereafter, in April 2016, Sellers successfully cleared the encumbrance 

upon Lot 27, thus potentially curing their prior breach of the Agreement of 
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Sale. This afforded Sellers yet another opportunity to meet their contractual 

obligation to convey the Property to Buyer. However, in May 2016, upon 

refusing to complete settlement, Sellers eschewed this opportunity. 

Accordingly, we conclude that Sellers remained in breach of their contractual 

obligation. Maisano, 204 A.3d at 520.

In their fourth issue, Sellers assert that the trial court erred in granting 

specific performance to Buyer. Sellers’ Br. at 39-41. 

Specific performance is an equitable remedy in which the court compels 

performance of a contract. Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 

2006). A claim for specific performance “should only be granted where the 

facts clearly establish the plaintiff’s right thereto; where no adequate remedy 

at law exists; and, where the [court] believes that justice requires it.” Payne 

v. Clark, 187 A.2d 769, 771 (Pa. 1963).

Due to the unique qualities of real estate, “[c]ourts in this 

Commonwealth consistently have determined that specific performance is an 

appropriate remedy to compel the conveyance of real estate where a seller 

violates a realty contract and specific enforcement of the contract would not 

be contrary to justice.” Oliver v. Ball, 136 A.3d 162, 167 (Pa. Super. 2016)

(citing Borie v. Satterthwaite, 37 A. 102 (Pa. 1897)).

In light of the foregoing analysis, the trial court properly granted specific 

performance. Sellers clearly violated the terms of the Agreement of Sale when 

they refused to convey the entire Property, including Lot 27. Their refusal left 
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Buyer without an adequate remedy at law, and it would be inequitable to deny 

Buyer relief under the circumstances of this case. Id. 

Accordingly, we affirm the trial court’s denial of Sellers’ Motion for JNOV. 

Haan, 103 A.3d at 70.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/19