J-A02024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JPM NORTHERN, LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

CRAIG E. DALLMEYER, TAMMIE K. 

DALLMEYER AND CARL E. DALLMEYER

Appellees No. 1229 MDA 2015

Appeal from the Order June 23, 2015

In the Court of Common Pleas of York County

Civil Division at No(s): 2007-SU-1843-Y01

BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED MAY 24, 2016

Appellant, JPM Northern, LLC (“JPM”), appeals from the order entered 

June 23, 2015, in the Court of Common Pleas of York County, which entered 

summary judgment in favor of Appellees, Craig E. Dallmeyer, Tammie K. 

Dallmeyer and Carl E. Dallmeyer. We affirm. 

We take the underlying facts of this matter from the trial court’s 

opinion.

In this case, [Appellees] were developing a piece of real 

estate located in East Manchester Township, known as the 

Northern Heights Development. No later than June 18, 2004, 

[Appellees] retained Gregory & Sons, Inc. (“Gregory”) to install 

certain improvements at Northern Heights, including storm and 

sanitary sewer drains. On September 17, 2004, [Appellees], as 

Carobell, Inc., entered into a second construction agreement 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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with Gregory that superseded the first. The second agreement 

described that [Appellees] would retain an on-site manager, 

John Hertzog of James R. Holley & Associates to oversee 

Gregory’s work.

On October 22, 2004, [JPM] and [Appellees] entered into 

the Agreement of Purchase and Sale [(the “Agreement”)] that 

detailed the terms of the Northern Heights Development sale 

from [Appellees] to [JPM]. The purchase price was 

$1,460,000.00. The [Agreement] contains certain provisions, 

including that: (1) the property was sold “as-is” and [JPM] will 

not rely on [Appellees’] representations;[Fn2] (2) [JPM] was 

provided a 30-day “conditions period” to inspect the property 

and terminate the [Agreement] within that timeframe at its 

discretion;[Fn3] (3) [JPM] would assume all [Appellees’] rights and 

obligations under the [contract with Gregory], and indemnify and 

hold [Appellees] harmless under such contract; (4) an 

integration clause; (5) a provision limiting damages and 

remedies[; and (6)] a provision prohibiting oral modifications.

[JPM] avers that after the [Agreement] was executed, but 

before the 30-day conditions period expired, the Parties 

discussed concerns regarding Gregory’s workmanship. [JPM] 

alleges that [Appellees] provided assurances that Gregory’s work 

would be performed properly since James R. Holley & Associates 

was overseeing the work. [JPM] avers that [Appellees], on 

multiple occasions during the conditions period, and again at 

closing, guaranteed that Gregory’s work would be properly 

installed. [JPM] contends that it proceed to closing based on 

[Appellees’] oral assurance of the quality of Gregory’s work.

After closing, [JPM] alleges that it discovered that 

Gregory’s work was not performed correctly and that it “did not 

meet applicable municipal codes, ordinances and regulations.” 

[JPM] wrote to [Appellees] on April 6, 2005 and September 8, 

2005 notifying [them] of the deficiencies and requested payment 

for remediation. [Appellees] produced a letter, dated February 2, 

2007, purportedly from [JPM] requesting a $25,000.00 payment. 

[JPM] is seeking approximately $208,000.00 in damages to 

correct Gregory’s work. 

On November 8, 2007, [JPM] filed [a Complaint seeking 

damages for breach of contract and warranty]. After [Appellees] 

filed a first set of Preliminary Objections (“POs”), [JPM] filed an 

Amended Complaint on March 3, 2008. [Appellees] filed a 
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second set of POs to the Amended Complaint on March 27, 2008, 

and [the trial court] overruled the same on May 14, 2009. 

[Appellees] filed the instant Motion for Summary Judgment, and 

a Brief in [s]upport [thereof] on April 16, 2013. 

[Fn2] [Appellees’] Mot. For Summ. J., Ex. B, [Agreement] 

Section 4.1(f):

“Upon closing, seller shall sell and convey to buyer and 

buy shall accept the property “as is, where is, with all 

faults.” Except as otherwise provided in this agreement, 

buyer has not relied upon and will not rely upon, either 

directly or indirectly, any representation or warrant of 

seller with respect to the property. Buyer will conduct such 

investigations of the property including but not limited to, 

the physical and environmental conditions thereof, as buy 

deems necessary to satisfy itself as to the condition of the 

property and will rely solely upon the same and not upon 

any information provided by or on behalf of seller. Upon 

closing, buyer shall assume the risk that adverse matters, 

including but not limited to, construction defects and 

adverse physical and environmental conditions, may not 

have been revealed by buyer’s investigations, except to 

the extent that seller intentionally withheld such 

information. The terms, conditions of this Section 4.1 shall 

expressly survive the closing and not merge therein...”

[Fn3] Id. at [Agreement] Section 2.1(a):

“Buyer shall have thirty (30) days from the date of a fully 

executed [Agreement] to satisfy the conditions set forth in 

Section 2.1(a) and (b)...”

Trial Court Opinion, 6/23/15 at 2-4 (some footnotes omitted). Following a 

hearing, the trial court granted Appellees’ motion and entered judgment in 

their favor. This appeal followed. 

JPM raises the following issues for our review.

A. Did the [l]ower [c]ourt commit an error of law and abuse its 

discretion in determining that there was no consideration for 

an oral modification of a contract where evidence supported a 

finding that JPM refused to proceed with the settlement on 
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the property unless the Dallmeyers agreed to guaranty the 

workmanship of Gregory & Sons’ on the infrastructure 

improvements?

B. Did the [l]ower [c]ourt commit an error of law and abuse its 

discretion in finding JPM assumed the Dallmeyers’ rights and 

obligations under the Dallmeyers’ construction contract [with] 

Gregory & Sons’ where evidence supported a finding that JPM 

and the Dallmeyers modified their contract to remove such 

[an] assumption?

C. Did the [l]ower [c]ourt commit an error of law and abuse its 

discretion in failing to view all facts of record and reasonable 

inferences therefrom in a light most favorable to JPM, as the 

non-moving party, resolving all doubts as to the existence of 

a genuine material fact against the Dallmeyers, as the moving 

party?

D. Did the [l]ower [c]ourt commit an error of law and abuse its 

discretion in imposing a clear and convincing evidence 

standard on JPM, the non-moving party, to withstand a 

motion for summary judgment?

Appellant’s Brief at 4-5.

We review a challenge to the entry of summary judgment as follows.

[We] may disturb the order of the trial court only where it is 

established that the court committed an error of law or abused 

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule 

states that where there is no genuine issue of material fact and 

the moving party is entitled to relief as a matter of law, 

summary judgment may be entered. Where the nonmoving 

party bears the burden of proof on an issue, he may not merely 

rely on his pleadings or answers in order to survive summary 

judgment. Failure of a non-moving party to adduce sufficient 

evidence on an issue essential to his case and on which he bears 

the burden of proof establishes the entitlement of the moving 

party to judgment as a matter of law. Lastly, we will review the 

record in the light most favorable to the nonmoving party, and 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party.
J-A02024-16

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E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) 

(citation omitted). 

The Agreement between JPM and Appellees provides for modification 

“only by a written instrument signed by Buyer and Seller.” Agreement, 

Section 10.10. This Court has recognized that 

[a]lthough the [a]greement states that it cannot be altered 

except in writing, the law in this jurisdiction holds otherwise, towit:

[A] written contract may be orally modified, even when the 

contract expressly provides that modifications must be in 

writing. [...] Somerset Community Hospital v. Mitchell, 

[685 A.2d 141 (Pa. Super. 1996)]. As Somerset indicates, 

“an agreement that prohibits non-written modification may 

be modified by [a] subsequent oral agreement if the 

parties' conduct clearly shows the intent to waive the 

requirement that the amendments be made in writing.” 

Finally, an oral modification of a written contract must be 

proved by clear, precise and convincing evidence.

Fina v. Fina, 737 A.2d 760, 764 (Pa. Super. 1999) (citations 

omitted). Accord Solazo v. Boyle, 76 A.2d 179, 180 (Pa. 1950) 

(“It is true that a written contract may be modified by parol 

[...].”)[.] 

ADP, Inc. v. Morrow Motors, Inc., 969 A.2d 1244, 1249-50 (Pa. Super. 

2009) (some brackets added).

Viewing the facts in the light most favorable to the non-moving party, 

as we must, we agree that JPM failed to produce clear and convincing 

evidence of an oral modification of the written Agreement. JPM’s argument is 

based mainly upon the testimony of its members that Appellees made 

repeated assurances that the work performed by Gregory & Sons would be 
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done properly. JPM claims that it was induced to sign the Agreement based 

upon Appellees’ assurances, even while admitting that no member ever 

communicated to Appellees that JPM would not have closed on the property 

if no assurances were made. See Appellant’s Brief at 13. Assuming, for the 

sake of argument, that Appellees made such workmanship assurances, JPM’s 

reliance thereon was certainly misplaced. Section 4.1(f) of the Agreement 

clearly stipulates that the Buyer shall accept the property upon closing “as 

is” and that Buyer “has not relied upon and will not rely upon, either directly 

or indirectly, any representation or warrant of seller with respect to the 

property.” Therefore, JPM was clearly not entitled to rely upon any 

workmanship assurances Appellees may have made. Further, there is no 

indication that Appellees failed to disclose any potential concerns over the 

quality of work furnished by Gregory & Sons, as JPM concedes that Appellees 

“had general discussions with the members of JPM about concerns regarding 

the timeliness and quality of Gregory’s work.” Appellant’s Brief at 14. 

The only signed writing memorializing any modification to the 

Agreement is a Bond and Warrant executed at closing, which provided JPM 

with a right to setoff up to $25,000.00 of the purchase price to “repair 

deficiencies to the installed storm water improvements.” It is uncontested, 

however, that JPM did not exercise the right of set off under the Bond and 

Warrant, but instead paid the full purchase price for the property. JPM points 

to no other signed writing suggesting Appellees agreed to modify the 
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Agreement to provide any type of guarantee for work completed under the 

Gregory & Sons contract. 

JPM counters that an Assignment Agreement, signed by the parties on 

January 10, 2005, evidenced the parties’ intent that Appellees would assume 

the rights and obligations under the Gregory & Sons contract. In the 

Assignment Agreement, the provision providing for the assignment to JPM of 

“[t]he improvement contract for phase I of Northern Heights dated 

September 17, 2004 with Gregory and Sons, Inc.” is crossed out and 

initialed by the parties’ representatives. See Assignment Agreement, Section 

2(c)(vi). Although JPM suggests that the strike-through of that section 

evidences its refusal to close absent the alleged workmanship guarantee, 

this argument ignores the fact that JPM had already assumed the rights and 

obligations under the Gregory & Sons construction agreement when it signed 

the underlying sale Agreement. Section 7.5 of the Agreement states that

Buyer and Seller agree that Buyer shall assume all rights and 

obligations of Seller under an in connection with Seller’s 

Construction Contract with Gregory & Sons, Inc. dated 

September 17, 2004, and shall indemnify and hold harmless 

Seller from and against any claims, demands, courses of action 

and liabilities of the “Contractor” under such contract as defined 

therein. 

(emphasis added). 

Notwithstanding the modification of the Assignment Agreement, there 

is no evidence that the parties intended to modify the assignment set forth 

in Section 7.5. Absent a clear written modification to that section, the 

assignment provision in the Agreement remains valid and enforceable. Thus, 
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we disagree that the modified Assignment Agreement alone constitutes 

evidence that the parties intended to alter the assignment provision 

contemplated in the original Agreement. 

In light of the foregoing, we find that Appellees’ verbal assurances on 

the workmanship under the Gregory & Sons contract alone do not constitute 

clear and convincing evidence1of the parties “intent to waive the 

requirement that the amendments be made in writing.” ADP, supra. In the 

absence of such evidence, we agree with the trial court’s determination that 

JPM has failed to raise a genuine issue of material fact with respect to the 

oral modification of the Agreement to include workmanship guarantees. 

Thus, we conclude that the trial court neither abused its discretion nor 

committed an error of law in granting summary judgment.2 

____________________________________________

1

JPM incorrectly asserts that the trial court erroneously utilized a “clear and 

convincing evidence” standard when weighing the entry of summary 

judgment in this case. Appellant’s Brief at 21. The trial court correctly noted 

that JPM had the burden of establishing an oral modification of the 

Agreement by clear and convincing evidence. See Trial Court Opinion, 

6/23/15 at 9. There is no evidence the trial court imposed this standard 

when weighing Appellees’ Motion for Summary Judgment. 

2

JPM additionally contests the trial court’s determination that an oral 

modification of the Agreement, if it existed, was not supported by adequate 

consideration. See Appellant’s Brief at 11. As we have already determined 

that JPM failed to meet its burden of establishing an oral modification of the 

Agreement by clear and convincing evidence, we need not speculate whether 

any modification would have been supported by adequate consideration. See

Richmond v. McHale, 35 A.3d 779, 786 (Pa. Super. 2012). (citation 

omitted) (“[W]e are not bound by the rationale of the trial court and 

may affirm on any basis.”).
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016