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Radon Construction, LLC v. Land Endeavor 0-2, Inc.

Superior Court of Pennsylvania

October 18, 2019

RADON CONSTRUCTION, LLC AND GREGORY RADON Appellants
v.
LAND ENDEAVOR 0-2, INC., JOHN ARCIDIACONO & DONNA ARCIDIACONO Appellees

          Appeal from the Order entered May 26, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No: 1601-00329

          BEFORE: OLSON, J., STABILE, J., and STRASSBURGER, J. [*]

          OPINION

          STABILE, J.

         Appellants, Radon Construction, LLC and Gregory Radon ("Greg") (collectively "Radon"), appeal from the May 26, 2017 order entered in the Court of Common Pleas of Philadelphia County, granting partial summary judgment in favor of Appellees, Land Endeavor 0-2, Inc., John Arcidiacono ("John") (collectively "Land Endeavor"), and Donna Arcidiacono ("Donna").[1]Radon argues that Greg was under duress when he signed a June 2015 contract between Radon and Land Endeavor, a contract that Land Endeavor terminated on November 24, 2015. Following review, we affirm.

         In an opinion issued following its May 26, 2017 order, the trial court explained:

This lawsuit arises from a failed joint venture agreement between [Radon] and [Land Endeavor] to develop real estate in Philadelphia. The parties' agreement provided that [Radon] would provide the labor and supplies for the project, and [Land Endeavor] would provide the financing and construction plans. [Radon was] to provide labor "at cost" so that the final cost of each home was $126, 000. When the properties were eventually sold, [Land Endeavor] would receive 51% of the profits and [Radon] would receive 49%.
Subsequent to signing the joint venture agreement, the parties entered into two separate subcontract agreements-in March 2015 and June 2015. The March 2015 agreement allowed [Land Endeavor] to "terminate" the agreement "upon 48 hours notice" to [Radon] of [Radon's] default "on any of the terms or conditions" in the contract. One of those conditions required [Radon] to complete each project phase within seven days "unless otherwise specified in a work order." The contract did not give [Radon] an opportunity to cure any alleged default.
The later executed June subcontract was largely the same as the March 2015 subcontract; however, it included more specific paragraphs regarding default. The provision provided [Radon] with 48 hours to cure any breach of the parties' agreement. If [Radon] did not cure within that allotted period of time, [Land Endeavor] had the sole right to terminate the parties' venture. If [Land Endeavor] chose that route, however, [Radon] would be provided a "termination payment" which would be "equal to the sum of payment for all work performed and unpaid to the date of termination and all direct costs reasonably incurred by [Radon] in connection with the termination period."
The joint venture was ultimately terminated in November 2015 when [Radon] installed improper structural beams. On November 11, 2015, [John] notified [Radon] of the issue with the beams via e-mail. Apparently, on November 19, 2015, [Greg] met with a structural engineer, Chris Menna, to review the issue and determine a solution. [Greg], however, misinformed Mr. Menna of [Land Endeavor's] concerns with the beams, and, as a result, Mr. Menna's proposed solution did not solve the identified problem. Therefore, pursuant to ¶ 14 of the June 2015 subcontract, [John] terminated the parties' venture in a detailed letter to [Greg] on November 24, 2015.

Trial Court Opinion, 7/11/17, at 2-3 (unnumbered) (citations to contract provisions omitted).

         The trial court noted that Pa.R.C.P. No. 1035.2 governs the disposition of summary judgment motions and that the court is to view the record in the light most favorable to the non-moving party, resolving any doubts as to the existence of genuine issues of material fact against the moving party. Id. (citation omitted). The court then determined that Land Endeavor's termination under the plain terms of the June 2015 contract was proper. Although that contract afforded Radon 48 hours to cure a default, Radon was actually provided thirteen days to cure the problem with the beams. Nevertheless, Radon was "incapable of curing the issue because [Radon] not only improperly installed the beams, it misunderstood [Land Endeavor's] issue with the installation[.]" Id. at 3. The court concluded:

[Radon] argue[s] that the June subcontract is null and void because it was signed under duress. This court disagrees. "[I]n the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel." Carrier v. William Penn Broad. Co., 233 A.2d 519, 521 (Pa. 1967). Here, Mr. Radon had an opportunity to consult with counsel and there was no threat of actual bodily harm. In his deposition, Mr. Radon stated he did not feel physically threatened, but rather felt "emotionally threatened." Furthermore, Mr. Radon stated he had the opportunity to speak about the contract with "everyone" which he defined as his wife, father, friends, and best friend []-who consequently all advised him not to sign the contract. Mr. Radon can hardly argue he did not have the opportunity to consult with an attorney prior to signing the contract.

Id. Consequently, the trial court granted partial summary judgment in favor of Appellees on all counts of Radon's complaint-including the duress claims in Count IV-with the exception of Count II, which alleged breach of the June 2015 contract. The court explained that while Land Endeavor's termination under the June contract was proper, Radon had not been paid its termination payment under the terms of Paragraph 14 of the agreement. Because the court was unable to determine the amount of damages, it transferred Count II to the Philadelphia County arbitration program, confident the amount at issue was clearly within that program's $50, 000 jurisdictional limits. Id. at 3-4 (unnumbered).

         Radon filed an appeal to this Court from the May 26, 2017 order. We quashed the appeal because the May 26, 2017 order was not a final order. Order, 9/26/17, at 1. The remaining claims asserted in Count II of the complaint were subsequently submitted to an arbitration panel, which awarded Radon the sum of $13, 537.92. Arbitration Award, 2/6/18. Radon appealed from the arbitration award. On October 30, 2018, the trial court awarded damages to Land Endeavor in the net amount of $16, 198.68. Disposition, 10/30/18.

         Radon filed an appeal from the October 30, 2018 adjudication. The trial court issued an opinion on December 18, 2018, suggesting the appeal should be dismissed in light of Radon's failure to file post-trial motions as required by Pa.R.C.P. No. 227.1. We issued a rule directing Radon to show cause why the appeal should not be dismissed for failure to preserve any issues for appellate review. We further instructed, in part:

[I]f the appellants are merely seeking review of the May 26, 2017 order, review of this matter indicates that no judgment has been entered on the trial court docket as required by Pa.R.A.P. 301. Pursuant to this court's policy, the appellant is directed to praecipe the trial court Prothonotary to enter judgment on the decision of the trial court. The appellant is further directed to file with the Prothonotary of the Superior Court within ten days a certified copy of the trial court docket reflecting the entry of the judgment. Upon compliance with Pa.R.A.P. 301, ...

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