IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antoine Gardiner, Bizness :

as Usual Inc., Biz as Usual LLC, :

and King Kole Cafe Inc., : No. 382 C.D. 2022

Appellants :

v. : Submitted: November 6, 2023

:

City of Philadelphia :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: December 4, 2023

Appellants Antoine Gardiner (Gardiner), Bizness as Usual Inc., Biz as 

Usual LLC, and King Kole Cafe, Inc. (Corporate entities) (collectively, Landowners) 

appeal from the April 5, 2022 judgment entered by the Court of Common Pleas of 

Philadelphia County (trial court) in favor of Appellee City of Philadelphia (City) on 

Landowners’ claims for declaratory and injunctive relief. Landowners argue on appeal 

that the trial court erred in concluding that Landowners materially breached a 

settlement agreement (Agreement) that they executed with the City to secure 

substantially reduced tax and municipal liabilities. After careful review, we affirm. 

I. FACTS AND PROCEDURAL HISTORY

The trial court cogently summarized the material facts of this case, which 

we restate, in pertinent part, as follows:

This matter arises from [the] [Agreement] entered into by 

[Landowners] with the [City] on August 14, 2019[,] to resolve 

[Landowners’] outstanding real estate taxes, water bills, 

[business income and receipts tax (BIRT)] delinquencies, 

[u]se and [o]ccupancy tax delinquencies, [ ] [judgments]

taken by [the City’s Department of Licenses and Inspections
2

(L&I)], and various penalties assessed pursuant to the 

Philadelphia Code [(Phila. Code)].

[1] The combined liabilities 

owed by [Landowners] to the City totaled $2,298,669[.00].

[ ] 

[ ] [Landowners] have owned some [65] properties 

throughout [the City] for the past [30] years. In March[ ] 

2019, [ ] Gardiner and representatives of the City[’s]

[Department of Revenue] met to reach a resolution to collect 

the delinquent balances owed by [Landowners]. As a result 

of that meeting, the parties entered into the [ ] Agreement. 

The City agreed to significantly discount the amount owed 

[(Total Liabilities)] to $1,650,000[.00,] in exchange for 

[Landowners’] agreement to make installment payments to be 

completed by July 1, 2021[,] without the need for further 

litigation to collect the arrearages. 

The [pertinent] terms [of the Agreement] are set forth in 

paragraph K [of the Agreement] [and read] as follows: 

[ ] To resolve the Total Liabilities without the need for 

additional litigation, the City agrees to resolve Total 

Liabilities, as referenced on Exhibits A through I, for a 

settlement amount of [$1,650,000.00 (Settlement 

Amount)], to be paid in quarterly installments beginning 

on or before September 3, 2019[,] with an initial payment 

in the amount of $412,500.00. The [ ] Agreement 

payments will be tendered as follows: 

[ ] DATES AMOUNT [ ] 

September 3, 2019 $412,500.00

January 2, 2020 $176,785.71

April 1, 2020 $176,785.71

July 1, 2020 $176,785.71

October 1, 2020 $176,785.71

January 4, 202[1] $176,785.71

April 1, 2021 $176,785.71

July 1, 2021 $176,785.74

TOTAL 1,650,000.00

1 Philadelphia, Pa., The Philadelphia Code (2020), available at

https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-266407 (last visited 

December 1, 2023).

 
3

Payments must be made by certified funds, made payable 

to the [City] and directed to the attention of Anthony P. 

Barreca [(Barreca)], Legal Assistant Supervisor, City [ ] 

Law Department . . . . Any payment not made timely will 

be subject to interest at the same rate as provided for 

business taxes by [Philadelphia Code] § 19-509(3)(a).[2]

. . . . 

By [subsequent] agreement of the parties, the due date for the 

first payment of $412,500.00 was extended from September 

3, 2019[,] to October 1, 2019. On that date, [ ] Gardiner 

delivered [two] certified checks to [ ] Barreca [totaling] 

$30,000.00. 

The next day, October 2, 2019, those checks were returned to 

[ ] Gardiner, accompanied by a letter (Letter) signed by 

[Frances Beckley, Chief Counsel for the Department of 

Revenue (Beckley)]. 

The [L]etter states: 

Please find enclosed two checks totaling around 

$30,000[.00] from your client [ ] Gardiner that I am 

returning to you in order to avoid any 

misunderstanding. As you are aware, [ ] Gardiner 

entered into [the Agreement] with the [City] after 

which the City stayed all enforcement actions against 

him. Under that [A]greement[,] [ ] Gardiner’s first 

down payment of [$412,500.00] was due September 3, 

2019. Although that commitment was clear and a quid 

pro quo for the stay of enforcement, [ ] Gardiner 

claimed confusion, and the City agreed to extend the 

due date for that payment to October 1, 2019.

Because your client is in breach of our 

[A]greement, the City intends to [file] in personem 

actions promptly against [ ] Gardiner, [Bizness] as 

Usual [Inc.,] and Biz as Usual [LLC]. The City also 

will proceed with all available enforcement action[s]—

2 Section 19-509(3)(a) of the Phila. Code provides a method to calculate simple interest on all 

unpaid taxes except for delinquent real estate taxes. Phila. Code § 19-509(3)(a). 
4

including, but not limited to, foreclosure, sequestration, 

water shut off[,] and denial of permits. No payment 

agreements will be available; payment in full will be 

the only way to stop enforcement. 

[(Letter, Reproduced Record (R.R.) at 32a.

3

)] Immediately 

thereafter, Bizness as Usual [Inc.], Biz as Usual [LLC][,] and 

[ ] Gardiner filed for Chapter 11 Bankruptcy on October 15, 

2019. [ ] Gardiner testified that he then made payments 

through the [C]ity’s electronic automatic payment system 

over the telephone, and at trial he claimed to have paid the 

City $540,000.00 toward his back taxes.[4] He also stated that 

he listed two properties for sale from which he thought he 

could raise another $500,000[.00,] that he would then pay 

toward his delinquent taxes at some point in the future. 

(Trial Ct. Op. at 2-5) (citations and footnotes omitted). 

[Landowners] initiated this action by filing a complaint on 

October 9, 2019, seeking [(]1) injunctive relief that would 

enjoin the [C]ity from selling any real property owned by 

[Landowners] at a tax sale or sheriff’s sale[ ] pending the 

outcome of the action; and [(]2) [ ] a declaratory judgment 

that[,] based on the plain meaning of the [A]greement . . ., the 

only penalty for the failure to timely make a payment would 

3 Although Landowners’ Reproduced Record is paginated using the format “R.__”, we omit 

the “R.” and refer only to the numeric designations followed by a small “a.” See Pa.R.A.P. 2173. 

[4] With regard to the amount paid by Landowners via the City’s automated payment system, 

the trial court noted: 

[Landowners] produced a schedule of payments at trial . . . . However, 

because [Landowners] did not produce this document to the City until 

the day before trial, counsel for the City was unable to confirm that the 

sum of $540,000.00 was received or how it was distributed to cover 

[Landowners’] indebtedness. Counsel for the City was able, at the [trial 

c]ourt’s request, to account for the amount paid during a break in the 

trial. Counsel was able to account for payment of $250,000[.00] toward 

their indebtedness.

(Trial Court Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a) Opinion (Trial Ct. Op.)

at 5 n.3.) 
5

be the imposition of interest[ ] and that the City is not to be 

permitted to schedule properties owned by [Landowners] for 

tax or [sheriff’s] sale. . . . A non-jury trial was held before [the 

trial] [c]ourt on October 21, 2021. . . . [On December 9, 2021,] 

[the trial] [c]ourt issued its [decision] finding against 

[Landowners] and in favor of the City . . . .

(Trial Ct. Op. at 1-2) (citations omitted) (footnote in original). 

In its December 9, 2021 decision, the trial court found that Landowners’ 

failure to tender the initial payment due was a material breach that justified the City’s 

termination of the Agreement. (December 9, 2021 Trial Ct. Op. ¶ 11.) The trial court 

rejected Landowners’ argument that, because the Agreement did not expressly define 

“material breach,” they could not be in default for failing to make the initial payment. 

Id. ¶ 12. The trial court also rejected Landowners’ arguments that (1) the City was 

limited in remedy under the Agreement to recovering interest on untimely payments; 

and (2) the Agreement was modified by the City’s receipt and acceptance of 

Landowners’ tax payments made through the City’s automated payment system. Id.

¶¶ 13-14. The trial court concluded that Landowners were liable to the City for the full 

amount of Landowners’ Total Liabilities and, accordingly, denied Landowners’ claims 

for injunctive and declaratory relief. Id. ¶ 15. 

Landowners filed a motion for post-trial relief on December 17, 2021, and 

after oral argument on April 1, 2022, the trial court denied the motion by order filed

April 4, 2022. Judgment was entered in favor of the City on April 5, 2022. Landowners 

timely appealed to this Court on April 14, 2022, after which both the trial court and 

Landowners complied with Pa.R.A.P. 1925. 

II. ISSUES PRESENTED

Landowners raise a single overarching issue on appeal, namely, whether 

the trial court erred as a matter of law in concluding that their failure to pay in full the 

first installment payment due under the Agreement constituted a material breach 
6

justifying the City’s termination of the Agreement.5In response, the City argues that

Landowners’ issues on appeal (1) lack merit; (2) are waived due to Landowners’ failure 

to identify in their motion for post-trial relief the location in the record where the 

grounds for the sought relief were preserved;

6

and (3) are barred by res judicata and 

collateral estoppel. 

III. DISCUSSION7

A. Pa.R.Civ.P. 227.1/Res Judicata/Collateral Estoppel

We preliminarily address the City’s arguments that Landowners’ issues 

on appeal are (1) waived and (2) barred by res judicata and/or collateral estoppel. First, 

the City argues that all of Landowners’ issues on appeal are waived because they did 

not, as required by Pa.R.Civ.P. 227.1(b)(2), include in their motion for post-trial relief8

5 Although Landowners identified two additional issues in their Pa.R.A.P. 1925(b) Concise 

Statement of Errors Complained of on Appeal (Concise Statement), they have not pursued those 

issues in this appeal. (Landowners’ Br. at 11 n.3.)

 

6 Pennsylvania Rule of Civil Procedure (Pa.R.Civ.P.) 227.1(b)(2) requires that a motion for 

post-trial relief specify all grounds for such relief and include a statement of how those grounds were 

asserted prior to or during trial. Pa.R.Civ.P. 227.1(b)(2). “Grounds not specified are deemed waived 

unless leave is granted upon cause shown to specify additional grounds.” Id.

 

7

“Our standard of review of a non-jury trial is to determine whether the findings of the trial 

court are supported by [substantial] evidence, and whether an error of law was committed.” Swift v. 

Department of Transportation, 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007). We may not reweigh 

the evidence or substitute our own judgment for that of the factfinder. Id. “[F]indings of the trial 

[court] in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury 

and will not be disturbed absent an error of law or abuse of discretion.” M&D Properties, Inc. v. 

Borough of Port Vue, 893 A.2d 858, 861 n.4 (Pa. Cmwlth. 2006) (citation omitted). 

8 Landowners’ motion for post-trial relief is not included in the Reproduced Record. It is, 

however, included in the Original Record (O.R.) received from the trial court at document number 

(Doc. No.) 35.

 
7

a statement of how they asserted the grounds for relief identified therein prior to or 

during trial.

9

 We will not find waiver in this instance. 

Rule 227.1(b)(2) requires that all asserted grounds for relief be identified 

in a motion for post-trial relief, together with a statement of how those grounds were 

asserted either before or during trial. Pa.R.Civ.P. 227.1(b)(2). Failure to so identify 

any grounds for relief will result in their waiver. Id.; Hinkson v. Pennsylvania 

Department of Transportation, 871 A.2d 301, 303 (Pa. Cmwlth. 2005). The official 

comment to Rule 227.1 provides, in pertinent part, as follows:

[Subsection] (b) states two requirements for the granting of 

post-trial relief. First, the grounds for the relief requested 

must have been raised in pre-trial proceedings or at trial and, 

second, they must be stated in the motion. Under [Subsection]

(b)(1), if no objection is made, error which could have been 

corrected in pre-trial proceedings, i.e., a ground for a new trial 

or a judgment notwithstanding the verdict, or during trial by 

timely objection, may not constitute a ground for post-trial 

relief. It must be raised timely in pre-trial proceedings or 

during the trial, thus affording the court the opportunity to 

correct the error.

. . . . 

Under [Subsection] (b)(2), motions which set forth mere 

“boilerplate” language are specifically disapproved. Rather, 

the motion must state “the specific grounds therefor.” A posttrial motion must set forth the theories in support thereof “so 

that the lower court will know what it is being asked to 

decide.” Frank v. Peckich, 391 A.2d 624, 632-633 (Pa. Super. 

1978).

Pa.R.Civ.P. 227.1, Comment. The Explanatory Comment—1983 to the rule further 

explains: 

9 The City raised this issue before the trial court in its brief in opposition to Landowners’ 

motion for post-trial relief. See City Brief in Opposition to Post-Trial Motions, O.R. Doc. No. 39. 
8

[Rule 227.1(b)(2)’s] requirement that the motion state how 

the grounds were raised at trial indicates compliance with the 

requirements of [Dilliplaine v. Lehigh Valley Trust Co., 322 

A.2d 114 (Pa. 1974),] and [Subsection] (b)(1) that there be a 

timely objection in pre-trial proceedings or at the trial.

Id., Explanatory Comment—1983. Subsection (b)(2)’s requirement that a party state 

how the asserted grounds for relief were raised either prior to or during trial serves to 

further the purpose of Rule 227.1, which is “to provide the trial court with an 

opportunity to correct errors in its ruling and avert the need for appellate review.” M.C. 

and E.K. Lees, Inc. v. Capenos, 119 A.3d 1092, 1098 (Pa. Cmwlth. 2015) (quoting 

Chalkey v. Roush, 805 A.2d 491, 494 (Pa. 2002)). “[P]ost-trial motions are filed when 

the [trial] court still has jurisdiction to correct the asserted errors ‘at that early stage 

without necessitating the expenditure of time and judicial energy in taking a costly 

appeal to the appellate courts.’” Diener Brick Co. v. Mastro Masonry Contractor, 885 

A.2d 1034, 1039 (Pa. Super. 2005) (quoting Diamond Reo Truck Co. v. Mid-Pacific 

Industries, 806 A.2d 423, 428 (Pa. Super. 2002)). 

In their motion for post-trial relief, Landowners raised five issues, each of 

which challenged a particular finding of fact or conclusion of law made by the trial 

court in its December 9, 2021 opinion. See Landowners’ Post-Trial Motion, O.R. Doc. 

No. 35. Landowners did not expressly challenge any of the trial court’s pre-trial or 

trial rulings. Their grounds for post-trial relief therefore could not have been asserted 

prior to the trial court’s final decision. Any omission of how those grounds were raised 

prior to or during trial from Landowners’ motion therefore did not, in this instance, 

deprive the trial court of the ability to address Landowners’ issues prior to appeal. For 
9

these reasons, we conclude that Landowners have not, by any failure to comply with 

Pa.R.Civ.P. 227.1(b)(2), waived any issues for appellate review.10 

The City argues secondly that Landowners’ claims are barred by res 

judicata and/or collateral estoppel because Bizness as Usual Inc. and Biz as Usual LLC 

previously were involved in two tax collection actions in the trial court presided over 

by a different judge. Bizness as Usual Inc. and Biz as Usual LLC apparently filed 

motions to stay execution in those cases, in which they argued that the collection 

actions were barred by the terms of the Agreement. The City argues that the trial court 

rejected that argument and denied the motions, which decision was not appealed. The 

City thus contends that the issues involved in this appeal, save one, previously were 

presented to and decided by the trial court, and accordingly cannot be relitigated here. 

We disagree. 

Although the City alleges that it asserted the affirmative defenses of res 

judicata and collateral estoppel in the trial court, it does not identify where in the record 

those defenses appear. The City filed its answer to Landowners’ complaint on March 

1, 2021, which answer was not accompanied by new matter asserting any affirmative 

defenses. (O.R. Doc. No. 15.) The City thereafter, by leave of court, amended its 

answer to include, as new matter, the defenses of “breach of contract” and “res 

judicata.” (O.R. Doc. Nos. 27, 29.) However, the trial court ultimately issued its 

decision on the merits of Landowners’ claims and made no findings or conclusions on 

the merits of the City’s affirmative defenses. Additionally, although the City 

references at length the two related tax collection actions in the trial court, the issues 

and parties involved therein and their dispositions do not appear in the record before 

10 The trial court concluded that Landowners sufficiently identified the grounds for relief in 

their motion for post-trial relief. (Trial Ct. Op. at 6 n.4.) 
10

us. We accordingly have nothing from the trial court to review in this respect, and we 

will not rule on the City’s affirmative defenses in the first instance. 

B. Breach/Materiality

Landowners do not dispute that they paid less than 10% of the initial 

installment payment due on October 1, 2019 (after a one-month extension granted by 

the City). Rather, they argue that their failure to pay the entire amount due did not 

constitute a material breach of the Agreement that justified the City’s termination of 

the Agreement. Landowners contend that their breach of the Agreement was not 

material because (1) the Agreement does not expressly make “time of the essence” 

regarding payments, and (2) the failure to make the first installment payment in full 

was not willful. (Landowners’ Br. at 16-29.) Landowners further suggest that their 

subsequent payments made through the City’s automated tax payment system rendered 

the City’s termination of the Agreement “ambiguous” and unenforceable. The City 

argues in response that Landowners’ interpretation of the Agreement would render it 

void for lack of consideration, that Landowners’ failure to pay was a material breach 

because timely payment without the need for further litigation was the entire benefit of 

the City’s bargain, and the Agreement was not subsequently ratified by the City via 

Landowners’ automated tax payments.

It is axiomatic in Pennsylvania that questions involving the interpretation 

of a contract are questions of law for the Court, and not questions of fact. Wert v. 

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1259 (Pa. 2015). A determination as 

to whether a contract’s terms are ambiguous also is a question of law for the court. 

Starling v. Lake Meade Property Owners Association, Inc., 162 A.3d 327, 346 (Pa. 

2017). “A contract is ambiguous if it is reasonably susceptible of different 

constructions and capable of being understood in more than one sense.” Insurance 
11

Adjustment Bureau v. Allstate, 905 A.2d 462, 468-69 (Pa. 2006). The “reasonably” 

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

unreasonable. Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009).

“It is [also] well established that the intent of the parties to a written 

contract is to be regarded as being embodied in the writing itself, and when the words 

are clear and unambiguous the intent is to be discovered only from the express language 

of the agreement.” Wert, 124 A.3d at 1259.

[W]hen a written contract is clear and unequivocal, its 

meaning must be determined by its contents alone. It speaks 

for itself and a meaning cannot be given to it other than that 

expressed. Where the intention of the parties is clear, there is 

no need to resort to extrinsic aids or evidence. Hence, where 

language is clear and unambiguous, the focus of interpretation 

is upon the terms of the agreement as manifestly expressed, 

rather than as, perhaps, silently intended.

Id.

The Pennsylvania Superior Court has discussed at length the law 

governing whether a breach of contract is material: 

When performance of a duty under a contract is due, any 

nonperformance is a breach. If a breach constitutes a material 

failure of performance, then the non-breaching party is 

discharged from all liability under the contract. If, however, 

the breach is an immaterial failure of performance, and the 

contract was substantially performed, the contract remains 

effective. In other words, the non-breaching party does not 

have a right to suspend performance if the breach is not 

material.

Whether a breach is so substantial as to justify an injured 

party’s regarding the whole transaction as at an end is a 

question of degree; and it must be answered by weighing the 

consequences in the actual custom of men in the performance 

of contracts similar to the one that is involved in the specific 
12

case. In determining materiality for purposes of breaching a 

contract, we consider the following factors:

a) the extent to which the injured party will be deprived of 

the benefit which he reasonably expected;

b) the extent to which the injured party can be adequately 

compensated for that part of the benefit of which he will 

be deprived;

c) the extent to which the party failing to perform or to 

offer to perform will suffer forfeiture;

d) the likelihood that the party failing to perform or offer 

to perform will cure his failure, taking account of all the 

circumstances including any reasonable assurances;

e) the extent to which the behavior of the party failing to 

perform or offer to perform comports with standards of 

good faith and fair dealing.

Widmer Engineering Inc. v. Dufalla, 837 A.2d 459, 467-68 (Pa. Super. 2003) (internal 

citations and quotations omitted).

11

 See also McCausland v. Wagner, 78 A.3d 1093, 

1101 (Pa. Super. 2013). 

The trial court aptly analyzed the materiality of Landowners’ breach. We 

quote its analysis at length: 

First, when [Landowners] agreed to pay $412,500.00 by 

October 1, 2019, and instead paid $30,000[.00], the City was 

significantly deprived of the benefit for which [it] had 

bargained. The entire benefit to the City conferred by this 

Agreement was that it would collect the delinquencies within 

eight [ ] months without the need for further litigation. 

Payment of the money itself was not consideration for the 

City—[Landowners] already owed these monies to the City 

by operation of law. Second, the City cannot be adequately 

compensated for its loss. Once [Landowners] failed to make 

the agreed[-]upon payments, the City lost the benefit of [its] 

bargain and was left to resort to litigation to collect the 

11 Although not binding, reported decisions of our sister appellate court may be cited for their 

persuasive value. See In re Superior-Pacific Fund, Inc., 693 A.2d 248, 253 (Pa. Cmwlth. 1997).
13

amount owed. With regard to the third factor, [Landowners] 

will lose the discounted rate that the City previously agreed 

to[;] however, they are put back to their original status of 

indebtedness. 

With regard to the fourth factor, “the likelihood that a party 

failing to perform will cure his failure,” even considering the 

payments made by [Landowners] up until the time of trial in 

October 2021, [Landowners] fall drastically short of the 

$1,650,000[.00] that should have been paid in full by July 

2021. [Landowners] have offered no concrete assurance of 

when or how they will complete the payments. [Landowners] 

have already disregarded all terms of the [Agreement], further 

lowering expectation that the terms would be completed in 

any timely fashion, if at all.

. . . . 

When [a] “debtor gives nothing he was not already bound to 

give, and the creditor receives nothing [it] is not already 

entitled to receive, there is [therefore] no consideration.[”] 

PNC Bank, [National Association] v. Balsamo, 634 A.2d 645, 

655 (Pa. Super. 1993) [(citation omitted)]. . . . [Landowners’] 

consideration was the City’s willingness to forgive nearly 

$650,000[.00] of what was already owed; the City’s 

consideration was [the]pay[ ]off of this discounted amount in 

accordance with the schedule of payments [ ] to be completed 

by July[ ] 2021[,] without further litigation. 

Finally, [Landowners] argue that the [ ] Agreement itself 

provides that [Landowners’] failure to pay $412,500.00 on 

October 1, 2019[,] did not constitute a material breach. 

Specifically, they argue [that] [a]ny payment not made timely 

will be subject to interest at the same rate as provided for 

business taxes by [Philadelphia Code §] 19-509(3)(a). 

According to [Landowners], this language absolves them 

from the promise to pay on time, and that if they failed to do 

so, the only remedy available to the City would be to collect 

interest on untimely payments. Under this interpretation, 

[Landowners] were free to breach the Agreement at any time 

without consequence, other than collection of interest on 
14

some future, unpaid monies. This interpretation defies 

reason.

In weighing the above factors, it is clear that [Landowners’] 

breach was of a degree sufficient to allow the [Agreement] to 

be suspended. After negotiating and agreeing to the terms of 

the Agreement, and after obtaining an additional [(30)] days

to make the first payment, [Landowners] still paid a small 

percentage of what was agreed upon [sic]. There were only 

two [] requirements for [Landowners]: [(]1) pay the 

installment amounts agreed upon [(]2) by certified check to [ 

] Barreca. Failure to pay more than a fraction of [the] amount 

owed was a material breach justifying suspension of 

[performance] by the City. Once [Landowners] breached the 

Agreement, they were no longer entitled to the benefit of the 

deal struck with the City, and they are placed back into the 

position they were in prior to the Agreement. Even assuming, 

arguendo, that payments totaling $540,000[.00] were made at 

the time of the trial in October 2021 (which [Landowners] 

failed to prove), that sum is less than one third of the total 

amount of $1,650,000[.00] that should have been paid by July 

1, 2021.

. . . . 

[Landowners] argue that the failure of the City to include a 

clause that defines what constitutes a default and the resulting 

remedies precludes the City from [terminating the 

Agreement]. . . . [Landowners argue] that the Agreement not 

only contemplates, but actually permits late payments. . . . and 

subjects them to interest[,] but does not provide that the 

failure to make a full payment in accordance with the payment 

schedule constitutes a material breach or default. . . . The 

remedy for non-payment, according to this argument, is 

limited to payment of interest on some type of future 

payments. In other words, unless the City spelled out that 

failure to pay on time would constitute a default and/or time 

was of the essence, [Landowners] were free to disregard the 

payment schedule entirely and . . . effectively eliminate the 

essence of the City’s part of the bargain. This is not a 

reasonable interpretation of the terms of this Agreement. 
15

(Trial Ct. Op. at 7-12) (some internal citations and quotations omitted) (emphasis in 

original). 

The trial court’s analysis is on point and correct. The City forwent

collection from Landowners of over $600,000.00 in liabilities to which it already was 

entitled by operation of law. In exchange, Landowners agreed, without further 

litigation, to make eight pre-scheduled payments in defined amounts, the first and 

largest of which constituted one-quarter of Landowners’ entire negotiated liability. 

The form and location of the payments is specified in the Agreement, which requires 

that they be made in “certified funds” directly to the City’s Law Department. Although 

the Agreement does not contain a provision making time of the essence, no such 

provision is required where the intent of the parties otherwise is clear that the timing 

of payments is material. Bogojavlensky v. Logan, 124 A.2d 412, 415 (Pa. Super. 1956). 

Here, the language of the Agreement and the circumstances it recites clearly indicate 

that the timing of the payments, each of which was given a specific date and amount, 

was material to the parties’ bargain and constituted the entire consideration for the 

City’s execution of the Agreement.

Moreover, and importantly, Landowners here did not merely make a late 

payment. After receiving an almost 30-day extension from the City, they paid 

approximately eight percent of the total amount due on October 1, 2019. Although 

technically timely, the payment was woefully inadequate, leaving from the get-go a 

past due amount of approximately $382,500.00. Landowners’ breach thus went far 

beyond a timeliness issue and, as emphasized in the City’s October 2, 2019 Letter,

struck at the heart of the parties’ bargain. The mere fact that the Agreement includes a 

term providing for the assessment of interest on late payments does not preclude a 

finding of material breach where Landowners fail to pay more than a trivial portion of 
16

what is owed on any one payment. It is reasonable to interpret the Agreement’s clear 

terms as providing that, where Landowners substantially comply with the payment 

terms in both timing and amount, any immaterial breach in either sense would not 

authorize the City’s termination of the Agreement; the City nevertheless could assess 

interest on any smaller past due amounts caused by such a breach. However, where, 

as here, Landowners failed to substantially perform and paid only a trivial amount on 

the first payment due, their breach is material and justifies regarding the whole 

transaction as at an end. In that instance, the City need not resort to mere collection of 

interest; it may terminate and seek full payment of Landowners’ Total Liabilities. The 

trial court found Landowners’ breach to be material, and we discern no error or abuse 

of discretion in that finding. 

Finally, we, like the trial court, reject Landowners’ arguments that their 

subsequent payments through the City’s automated tax payment system, which they 

contend were accepted by the City, both ratified the Agreement and proved that their 

failure to make the initial payment in full was not “willful.”

12

 (Landowners’ Br. at 25-

28.) First, in its October 2, 2019 Letter, the City unequivocally indicated its intent to 

terminate the Agreement based on Landowners’ failure to make the initial payment due 

on October 1, 2019. Second, Landowners made all subsequent payments via the City’s 

automated tax payment system. In light of the City’s October 2, 2019 Letter, the City 

would have allocated the payments to Landowners’ Total Liabilities and not their 

obligations under the Agreement, particularly since the payments were not made in 

certified funds to the City’s Law Department as the Agreement required. Thus, 

12 We need not determine whether Landowners’ breach was willful because we conclude that 

the clear terms and circumstances of the Agreement evidence the parties’ intent that time (and 

substantial payment) were of the Agreement’s essence. Bogojavlensky, 124 A.2d at 415; Morrell v. 

Broadbent, 140 A. 500 (Pa. 1928). 
17

although Landowners will receive credit for whatever payments they made toward their 

Total Liabilities, such payments neither nullify nor render ambiguous the City’s 

unequivocal termination of the Agreement on October 2, 2019. 

IV. CONCLUSION

The trial court did not err or abuse its discretion in concluding that 

Landowners materially breached the Agreement, entitling the City to suspend its own 

performance and terminate the Agreement. The trial court therefore did not err or abuse 

its discretion in entering judgment in favor of the City on all claims asserted in 

Landowners’ complaint. The judgment of the trial court is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antoine Gardiner, Bizness :

as Usual Inc., Biz as Usual LLC, :

and King Kole Cafe Inc., : No. 382 C.D. 2022

Appellants :

v. :

:

City of Philadelphia :

ORDER

AND NOW, this 4

th day of December, 2023, the April 5, 2022 

judgment of the Court of Common Pleas of Philadelphia County hereby is 

AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge