44 Pa. D. & C.5th 498
Pennsylvania Court of Common P...2015Background
- PCRE (broker) and Warner Pacific Properties, LLC (owner) executed an exclusive six‑month leasing agreement beginning Feb. 1, 2011 that included a 180‑day post‑termination protection ("tail") and a provision that PCRE would provide a list of protected prospects within 30 days after expiration.
- The contract obligated owner to pay a commission if a lease during the term or within 180 days after termination was made with a tenant to whom PCRE had "submitted" the premises.
- The contract expired Aug. 1, 2011; PCRE did not deliver the prospect list within 30 days but provided it Nov. 3, 2011. During the 180‑day tail the University of Pittsburgh leased part of the premises on Dec. 21, 2011.
- PCRE sued for the scheduled commission; bench trial resulted in a verdict for PCRE ($338,478) plus interest and attorneys' fees. Warner appealed raising multiple contract‑interpretation and statutory issues.
- The trial court held (1) the 30‑day prospects list was not a condition precedent to earning a commission, (2) PCRE had "submitted" the premises during the listing term, (3) PCRE's late delivery was not a material breach, and (4) assignees were liable; attorney fees and interest were awarded per the contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether timely (30‑day) delivery of prospect list is a condition precedent to commission | List is not a condition precedent; contract promises payment if tenant was procured or submitted by PCRE | Timely delivery within 30 days is required before commission is owed | Not a condition precedent; contract did not expressly make timely delivery a condition precedent |
| Admissibility of lease evidence from tail period | Lease during 180‑day tail is relevant to liability and damages | Lease inadmissible because protected list was late | Admissible; tail lease is highly relevant despite late list delivery |
| Compliance with RELRA (contract duration requirement) | Contract sufficiently specifies term + 180‑day tail; complies with RELRA | Contract allegedly indefinite, violating RELRA | Contract provides definite six‑month term and explicit 180‑day protection; RELRA satisfied |
| Meaning of "submitted" (whether PCRE submitted premises during term) | Multiple emails, calls and invitations to tour amounted to submitting the property to University during term | "Submitted" requires showing the premises during the term | "Submitted" satisfied by communications and commitment to consideration; trial testimony corroborates submission |
| Whether PCRE's late list delivery was a material breach | Late delivery was immaterial because Warner knew PCRE was working the University and would not be prejudiced | PCRE intentionally withheld list until after Warner hired new broker; material breach forfeits commission | Not a material breach; Restatement §241 factors favor PCRE and Warner suffered no forfeiture of the lease |
| Liability of assignees/agents and entitlement to fees/interest | Assignee/agent that acquired property is bound by contract assigns; contract mandates interest and legal fees on nonpayment | Assignees not parties; fees/interest improper | Assignment clause binds assigns; attorney fees and 10% interest recoverable under contract |
Key Cases Cited
- Wineburgh v. Wineburgh, 816 A.2d 1105 (Pa. Super. 2002) (condition‑precedent requires express contractual language)
- International Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261 (Pa. Super. 2012) (factors for material breach analysis following Restatement §241)
- Cordero v. Potomac Ins. Co. of Illinois, 794 A.2d 897 (Pa. Super. 2002) (ambiguity construed against drafter)
- Kalins v. Commonwealth State Real Estate Commission, 500 A.2d 200 (Pa. Cmwlth. 1985) (RELRA to be construed liberally to protect consumers)
- TEC Realtors, Inc. v. D&L Fairway Property Management, L.L.C., 42 So.3d 1116 (La. App. 1 Cir. 2010) (property can be "submitted" without an in‑person showing)
- Gardner v. Blahnik, 832 S.W.2d 919 (Mo. App. 1992) (same principle on submission absent showing)