J-A06014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ASHLEY DEVELOPMENT CORPORATION IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

PPL ELECTRIC UTILITY CORPORATION 

F/K/A PENNSYLVANIA POWER & LIGHT 

CO.

Appellee No. 1416 EDA 2014

Appeal from the Judgment Entered April 14, 2014

In the Court of Common Pleas of Northampton County

Civil Division at No(s): C0048-CV-2010-780

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 27, 2015

Appellant Ashley Development Corporation (“Ashley”) appeals from the 

judgment entered in favor of Appellee PPL Electric Utilities Corporation 

(“PPL”) and against Ashley. We affirm.

The trial court set forth the following facts:

On October 28, 2005, [Ashley] entered into an agreement 

of sale (“the 2005 Agreement”) with [PPL] to purchase an 

approximately 164-acre parcel of land in Bethlehem 

Township, Northampton County, Pennsylvania. On 

December 24, 2007, [Ashley] entered into an agreement 

(the “Sewage Capacity Agreement”) with, inter alia, the 

City of Bethlehem (the “City”) for confirmed access to 

sewage capacity for future development on the property. 

As part of the Sewage Capacity Agreement, [Ashley] was 

required to make three installment payments to the City in 

a total sum of $813,700.00. The first installment payment 

of $325,480.00 was due on or before February 29, 2008; 

the second installment payment of $325,480.00 was due 

on or before December 31, 2008; and the third and final 
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installment payment of $162,740.00 was due on or before 

December 31, 2009. [Ashley] executed a promissory note 

in favor of the City on February 25, 2008 (the "Promissory 

Note"), by which [Ashley] promised to make the 

aforementioned installment payments. [Ashley] and the 

City extended the payment dates set forth in the 

Promissory Note multiple times. Moreover, also on 

February 25, 2008, [Ashley] and [PPL] entered into an 

agreement (the “Assignment and Assumption Agreement”) 

by which [PPL] agreed to assume [Ashley’s] obligations to 

make the installment payments to the City pursuant to the 

terms of the Sewage Capacity Agreement. 

Due to a downturn in the real estate market, [Ashley] had 

difficulty closing on the property at the sale price set forth 

in the 2005 Agreement. Consequently, on October 15, 

2008, [Ashley] and [PPL] entered into an “Amended and 

Restated Agreement for the Sale and Purchase of Real 

Estate” (“the 2008 Agreement”). The 2008 Agreement 

reduced the purchase price of the property and set a 

closing date of on or before June 30, 2009. The 2008 

Agreement also required [Ashley] to make the second 

$325,480.00 payment to the City, pursuant to the Sewage 

Capacity Agreement, due on December 31, 2008. 

Additionally, in the 2008 Agreement, the parties “agree[d] 

that times contained in this Agreement shall be of the 

essence.”

In 2009, [PPL] learned that [Ashley] had failed to make 

the second sewage capacity payment to the City, which 

had been due on December 31, 2008. Despite [Ashley’s] 

failure to perform its obligations pursuant to the 2008 

Agreement, [PPL] chose to provide [Ashley] with a lastchance opportunity to close on the property, and, 

accordingly, on July 17, 2009, the parties entered into an 

addendum to the 2008 Agreement (“the July 2009 

Addendum”), which extended the closing date to 

December 31, 2009. In consideration of [PPL] again 

extending the closing date, [Ashley] agreed 

to make the payment to the City of Bethlehem in the 

amount of Three Hundred Twenty-Five Thousand 

Four Hundred Eighty and 00/100 ($325,480.00) 

Dollars on or before July 31, 2009, and agrees to 

make the final payment to the City of Bethlehem in 
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the amount of One Hundred Sixty-Two Thousand 

Seven Hundred Forty ($162,740.00) Dollars on or 

before October 31, 2009. Any extensions of the 

payment dates by the City of Bethlehem shall not in 

any manner change [Ashley’s] obligations pursuant 

to this paragraph.

Further, [Ashley] agreed that, if it wanted to extend the 

closing date beyond December 31, 2009, it would be 

required to pay [PPL] an extension fee of $1,000,000.00 

on or before that date. 

On July 30, 2009, [Ashley] delivered a check to the City in 

the amount of $325,480.00. However, [Ashley] made 

arrangements with the City to hold the check until given 

word by [Ashley] to cash or deposit it. No such word was 

ever given to the City by [Ashley], and the check was not 

cashed or deposited by the City. 

In December 2009, [Ashley] approached [PPL] about 

extending the closing date called for by the July 2009 

Addendum, but [PPL] rejected an extension and confirmed, 

via email, that [Ashley] would be required to perform its 

obligations under the July 2009 Addendum or would be in 

breach thereof. [Ashley] did not close on the property nor 

did [Ashley] pay the $1,000,000.00 extension fee prior to 

December 31, 2009. The instant suit and counterclaim 

followed.

Trial Court Opinion, 4/4/2014, at 4-7 (internal citations to the record 

omitted).

On January 26, 2010, Ashley filed a complaint seeking damages for 

breach of contract, misrepresentation, and promissory estoppel/unjust 

enrichment. It also sought declaratory relief, specific performance, and 

injunctive relief. On March 1, 2010, PPL filed an answer, new matter, and 

counterclaim. The counterclaim sought damages for breach of contract and 

abuse of process. PPL withdrew the abuse of process claim before trial.
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On March 9, 2010, after a two-day hearing, the trial court denied 

Ashley’s request for a preliminary injunction. 

On January 17, 2013, the trial court issued an order bifurcating the 

trial, with the issue of liability to be presented to a jury prior to the issue of 

damages. On January 22, 2013, a jury trial commenced. Following Ashley’s 

case-in-chief, the trial court granted PPL’s motion for a compulsory nonsuit 

for the misrepresentation claim.1 N.T., 1/19/2013, at 7. On January 30, 

2013, the jury returned a verdict in favor of PPL and against Ashley on the 

breach of contract claims and the trial court entered a verdict in favor of PPL 

and against Ashely on Ashley’s claims for declaratory relief, specific 

performance, and injunctive relief. N.T., 1/30/2013, at 122-25. On March 

27, 2013, the parties entered a written stipulation, and the court entered an 

agreed upon order molding the verdict and entering an award in favor of PPL 

in the amount of $203,500.00.

On April 8, 2013, Ashley filed a post-trial motion seeking judgment 

notwithstanding the verdict or, in the alternative, a new trial.2 The trial 

court held a hearing and, on April 4, 2014, it denied the motion. After 

Ashley filed a praecipe for judgment, the prothonotary entered judgment on 

April 14, 2014. On May 2, 2014, Ashley filed a timely notice of appeal. Both 

____________________________________________

1 Ashley does not challenge the compulsory nonsuit for the 

misrepresentation claim on appeal.

2 Ashley filed its brief in support of the motion on October 25, 2013.
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Ashley and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.3

Ashley raises the following claims on appeal:

1. Was it reversible error for the trial court to rule and 

instruct the jury that as a matter of law that [sic] 

Ashley’s tender of payment to the City of Bethlehem by 

a promissory note was not a “payment.”

2. Was it reversible error for the trial court not ruling as a 

matter of law that PPL extended the December 31, 

2009 deadline for Ashley to pay the $1,000,000.00 

extension fee by virtue of a written communication 

between Richard Brooks on behalf of Ashley and Robert 

J. Farley on behalf of PPL?

Appellant’s Brief at 2.

Ashley challenges the trial court’s denial of its post-trial motions. 

When reviewing a trial court’s decision whether to grant judgment 

notwithstanding the verdict, this Court “must consider the evidence, 

together with all favorable inferences drawn therefrom, in a light most 

favorable to the verdict winner.” Reott v. Asia Trend, Inc., 7 A.3d 830, 

835 (Pa.Super.2010) (quoting Campisi v. Acme Markets, Inc., 915 A.2d 

117, 119 (Pa.Super.2006)). The Superior Court “will reverse a trial court’s 

grant or denial of a judgment notwithstanding the verdict only when we find 

an abuse of discretion or an error of law that controlled the outcome of the 

____________________________________________

3 The trial court issued a 1925(a) statement incorporating its April 4, 2014 

opinion.
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case. Further, the standard of review for an appellate court is the same as 

that for a trial court.” Id.

The Superior Court’s “standard of review from an order denying a 

motion for a new trial is whether the trial court committed an error of law, 

which controlled the outcome of the case, or committed an abuse of 

discretion.” Mirabel v. Morales, 57 A.3d 144, 150 (Pa.Super. 2012). An 

abuse of discretion occurs where the trial court “rendered a judgment that is 

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, 

or was motivated by partiality, prejudice, bias, or ill will.” Id. (quoting 

Rettger v. UPMC Shadyside, 991 A.2d 915, 924 (Pa.Super.2010)).

Ashley first challenges the court’s jury instruction that the promissory 

note did not constitute payment. Appellant’s Brief at 2. The argument 

section of Ashley’s brief discusses the jury instructions regarding both the 

promissory note and the check Ashley provided to the City. Appellant’s Brief 

at 21-43. Ashley did not object to the jury instruction regarding the check 

at the time of trial and, therefore, waived this argument. N.T., 1/29/2013, 

at 1-17; see McManamon v. Washko, 9060 A.2d 1259, 1283 

(Pa.Super.2006) (finding challenge to jury instruction waived where party 

did not object at trial). Ashley also waived this issue because the question 

presented section of its brief does not mention the check provided to the 

City. See Commonwealth v. Sepulvida, 55 A.3d 1108, 1133 (Pa.2012) 

(issue waived when not raised in statement of questions presented). 

Regarding the promissory note, the trial court found the following:
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In its second issue, [Ashley] asserts that the [c]ourt erred 

by holding that [Ashley’s] Promissory Note and the check 

tendered to the City on July 30, 2009, did not constitute 

“payment” pursuant to the terms of the July 2009 

Addendum. In its closing charge, the Court instructed the 

jury that “the term payment as used in the July 17, 2009 

addendum means cash, certified check, or an uncertified 

check collectable by the City of Bethlehem, but not a 

promissory note.” 

[T]he rules of contract interpretation provide that the 

mutual intention of the parties at the time they 

formed the contract governs its interpretation. Such 

intent is to be inferred from the written provisions of 

the contract. 

When the words of an agreement are clear and 

unambiguous, the intent of the parties is to be 

ascertained from the language used in the 

agreement, which will be given its commonly 

accepted and plain meaning.

Miller v. Poole, 45 A.3d 1143, 1146 (Pa.Super.2012) 

(citations omitted) (internal quotation marks omitted).

[Ashley] argues that its Promissory Note was a negotiable 

instrument and thus constituted payment, pursuant to the 

July 2009 Addendum. “Payment is defined as the 

[p]erformance of an obligation, [usually] by the delivery of 

money.’” Romaine v. W.C.A.B. (Bryn Mawr Chateau 

Nursing Home), 901 A.2d 477, 482 (Pa.2006) (quoting 

BLACK'S LAW DICTIONARY 1150 (7th ed. 1999)). In the 

case of In re De Roy’s Estate, 157 A. 800, 801 

(Pa.1931), the decedent, a partner in a law firm, issued 

promissory notes to the firm, which were endorsed and 

given to a bank. After his death, the surviving partners 

continued as a new firm and issued new notes to the bank 

for the amount due on the prior notes. Id. The bank 

retained the old notes as security. Id. When the bank 

attempted to collect from the decedent’s estate, the estate 

argued that the new notes constituted payment of the 

prior ones. Id. The Supreme Court disagreed with the 

estate and held that “[p]ayment in commercial paper 

constitutes only conditional payment, and, since 

conditional payment does not discharge the original 
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indebtedness, it does not discharge the surety for such 

indebtedness.” Id.

[Ashley] argues that the factual scenario in the case of In 

re DeRoys Estate, which the [c]ourt relied upon in 

making its ruling at trial, is distinguishable from that of the 

instant case. Initially, the [c]ourt notes that it never held 

that the Supreme Court’s decision in the case of In re 

DeRoy’s Estate sets forth a blanket rule that a 

promissory note can never constitute payment. The [c]ourt 

actually agrees with [Ashley] that context is critically 

important in ascertaining the meaning of “payment” here 

at issue. Thus, the definition of “payment” is not to be 

determined in a vacuum or by simply importing the 

definition of “negotiable instrument” from Article 3 of the 

Uniform Commercial Code, 13 Pa.C.S.A. § 3104(a), as 

[Ashley] seeks to do. Rather, the meaning of the term 

“payment” as used in the July 2009 Addendum must be 

ascertained by looking to the parties’ intentions as 

expressed in the language of the addendum. See Miller, 

45 A.2d at 1146.

It is clear that, by insisting that [Ashley] agree to the 

terms of the July 2009 Addendum, [PPL] sought to prevent 

[Ashley] and the City from extending the Sewage Capacity 

Agreement payment dates, as had previously occurred 

multiple times. It cannot be emphasized enough that a 

promissory note is a “promise to pay money.” Lebanon 

Bank v. Mangan, 28 Pa. 452, 455 (1857). . . . Thus, “[a] 

promissory note is not money, but only an engagement to 

pay money at a future time, which perhaps may never be 

complied with.” Leighty v. The President, Managers, 

and Co. of the Susquehanna and Watefford Tpk. Co., 

14 Serg. & Rawle 434, 435 (Pa.1826). Here, treating the 

Promissory Note as payment would defeat the very 

purpose of the July 2009 Addendum—to ensure that 

payment was made on the dates specified rather than on 

some uncertain future date agreed to by [Ashley] and the 

City but without [PPL’s] knowledge or consent. In that 

regard, the fact that [Ashley] executed the Promissory 

Note more than one year before it executed the July 2009 

Addendum only operates to confirm that the parties did 

not intend that the Promissory Note could satisfy 

[Ashley’s] payment obligations pursuant to the addendum. 

Finally, the Court notes that [Ashley’s] obligation, pursuant 
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to the July 2009 Addendum, was to make “payment” to 

the City, not to deliver to the City a negotiable instrument 

promising to pay the sum due. Thus, [Ashley’s] reference 

to the definition of “negotiable instrument” in Article 3 of 

the Uniform Commercial Code has little, if any, relevance 

to the definition of “payment” in this case. As in the case 

of In re DeRoy’s Estate, the factual circumstances 

surrounding the execution of the July 2009 Addendum 

demonstrates that the parties did not intend for a 

promissory note to be “payment.”

Additionally, the [c]ourt would be remiss if it did not point 

out that the City’s Solicitor, John F. Spirk, Jr., Esquire, who 

testified for [Ashley], stated that he did not consider the 

Promissory Note to be payment for [Ashley’s] obligations 

pursuant to the Sewage Capacity Agreement. To the 

contrary, Attorney Spirk testified that, despite [Ashley’s] 

tendering of the Promissory Note, [Ashley] “still owed 

money” because the City “wanted the money, not the 

paper,” i.e., the Promissory Note. (N.T., 1/23/2013, at 

62:13-14.)

N.T., 1/30/2013, at 85:24-86:25 (emphasis and internal footnotes omitted).

In support of its argument that the trial court erred when it instructed 

the jury that, as a matter of law, Ashley’s tender of a promissory note to the 

City of Bethlehem was not a “payment,” Ashley relies on out-of-state cases 

finding a promissory note constitutes payment. These cases, however, were 

fact-specific and focused on the parties’ intent. See Boozer v. Chandler, 

509 So.2d 1293 (Fla. Dist. App. 4th 1987) (noting payor sued on contract 

and notes and finding intent of parties was clear and, if default occurred, 

seller would retain cash deposited and notes would be credited against the 

sums paid); Cala v. Gerami, 484 N.E.2d 1199 (Ill. App. 1985) (noting 

“[g]enerally a promissory note may operate as a payment if the parties so 

agree,” finding “it appears that the promissory note was given and accepted 
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as a payment due under the installment contract” and concluding 

“promissory note is a payment within the terms of paragraph 12 of the 

installment agreement”).4

The trial court acted within its discretion in instructing the jury that the 

promissory note was not a payment. In 2008, Ashley entered an agreement 

with the City and provided the City with a promissory note, promising to pay 

its obligations in three installments. It then assigned the obligations under 

the agreement with the City to PPL, who made the first payment thereunder. 

PPL and Ashley entered into addendums to their agreement for the sale of 

land, pursuant to which Ashley agreed to make the final two installments. 

Because these addendums were entered into after Ashley provided the 

promissory note to the City, the parties could not have intended the 

promissory note to constitute payment. This is further evidenced by the 

following language of the July 2009 addendum: “Any extensions of the 

payment dates by the City of Bethlehem shall not in any manner change 

[Ashely’s] obligations pursuant to this paragraph.” We agree with the trial 

court that, under the circumstances of this case, the promissory note 

constituted a promise to pay, not actual payment.

____________________________________________

4 Ashley also relies on cases which found that submitting a check suspended 

the payment obligation. Appellant’s Brief at 25-35. As noted above, Ashley 

waived its argument challenging the jury instruction regarding the check. 
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Ashley next challenges the trial court’s denial of Ashley’s request that 

it find, as a matter of law, that PPL extended the December 31, 2009 

deadline for Ashley to pay the $1,000,000.00 extension fee. Appellant’s 

Brief at 43. Ashley maintains it informed PPL on December 22, 2009 and 

December 29, 2009 that it had the $1,000,000.00 extension fee, but PPL 

extended the deadline until January 8, 2010. Id. at 43-44. Ashley bases 

this argument on the following email Ashley received from PPL on December 

29, 2009:

Richard,

I planned to contact you this morning to let you know 

where it stands. Bottom line is that PPL will not enter into 

another extension, but we are willing to discuss the 

proposal after we enter the new year. Unless you would 

be able to keep the terms of the current contract, you will 

be in default of the current agreement. I have a 

commitment from Bernhard that we will not immediately 

call the Letter of Credit, but will need a written proposal by 

1/8/2010 to present for consideration to PPL Electric 

Utilities executives.

Call me if you want to discuss.

Bob

Exhibit 25 to Defendant PPL Electric Utilities Corporation’s Motion for 

Summary Judgment; N.T., 1/29/2013, at 167.

This claim lacks merit. The email does not extend the deadline for the 

$1,000,000.00 payment to January 8, 2010 and advises Ashley that it 

would be in default if unable to meet the requirements of the July 

Addendum. Further, the testimony regarding the telephone calls 
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surrounding the email differed, making it a factual issue for the jury. 

Compare. E.g., N.T., 1/25/2013, 189-193 (testimony by Ashley’s witness 

PPL informed Ashley it did not have to pay extension fee on or before 

December 31, 2009 and agreement was extended), with, e.g., N.T., 

1/29/2013, 168-69 (testimony by PPL’s witness denying PPL granted 

extension). 

Judgment affirmed.

Judge Ott joins in the memorandum.

Judge Panella did not participate in this decision.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2015