Loading...
HomeMy WebLinkAbout98-04434 .1 d. ~l ~ 1 ~' ~\ q:l ~ ~\ ~l l..... L-j ~ ] ~ " . , I " :" ~t-':)''''~' I I I I i , J I I ~I ~1 I i ...........1 ... .1 .:;) I' ~1 ~l ~j ~I , 98-4434 CIVIL TERM Plaintiff filed her complaint on August 3, 1998. Defendant responded by filing the preliminary objections currently addressed by the Court. Plaintiff's complaint alleges that she has suffered harm through Defendant's failure to pay the first two installments. As a result, Plaintiff demands judgment for the entire sum due under the note, $231,935.65. Defendant's preliminary objections, in the form of a demurrer, claim that the Plaintiff has failed to state a cause of action upon which relief may be granted because the promissory note negotiated by the parties does not contain an acceleration clause. Discussion Preliminary objections, in the form of a demurrer, may only be sustained if, after admitting as true all well pleaded, relevant facts and any inferences fairly deduced therefrom, it is clear that there is no theory of law that could provide relief for the claimant. Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613,619,702 A.2d 850,853 (1997). The grant of a demurrer is proper if it is clear and free from doubt that the moving party has failed to state a claim upon which relief can be granted. lfl A court must construe a contract as written and may not modify the plain meaning of the words. Carosone v. Carosone, 455 Pa. Super. 450, 453, 688 A.2d 733,735 (1997). "Furthermore, a written contract must be construed as a whole and 2 98-4434 CIVIL TERM the parties intentions must be ascertained from the entire instrument; effect must be given to each part of a contract," lfl at 454, 688 A.2d at 735. A contract will only be construed against the drafter if the terms are ambiguous. Banks Enaineerina Co.. Inc. v. PoJons, 697 A.2d 1020, 1023 (Pa. Super. 1997). Ambiguity is present in a contract if it is reasonably susceptible to different constructions and could be understood in more than one manner. lfl "[W]hen the language of a contract is clear and unequivocal, courts interpret its meaning by its content alone, within the four corners of the document." Banks Enaineerina Co., Inc. v. Po Ions, 697 A.2d 1020, 1023 (Pa. Super. 1997)(citations omitted). In Vincler v. Vincler, 400 Pa. Super. 157, 583 A.2d 4 (1990), a husband and wife entered into a written agreement for the husband to pay the wife monthly alimony. The agreement contained a confession of judgment provision but no acceleration clause. Id. at 160, 583 A.2d at 5. Husband failed to make the first three payments and wife caused judgment to be confessed for the sum of the first three unpaid installments. Vincler at 159, 583 A.2d at 4. Husband failed to make the fourth payment and wife caused judgment to be confessed for the total sum of all remaining alimony payments. Vincler at 159, 583 A.2d at 4-5. Husband moved to strike or open the judgment and the trial court denied all relief. Vincler at 159, 583 A.2d at 5. On appeal, the Superior Court held that the terms of the agreement must 3 98-4434 CIVIL TERM be strictly construed. !Q, at 160, 583 A.2d at 5. Because the agreement did not contain the authority to confess judgment for an amount in excess of that in actual default, or an acceleration clause, the wife was not entitled to judgment for the full amount of all future alimony payments. !Q, In the case at bar, the Court may not look beyond the four corners of the promissory note unless it is ambiguous. Reviewing the note and the plain meaning of its terms, the agreement is clear and unequivocal. It is clear that the agreement between the parties must be strictly construed. The agreement does not contain an acceleration clause. Although the promissory note is not characterized as an alimony agreement, the dispute between the parties can be analogized to the situation in Vincler. Without an acceleration clause, the Plaintiff is not entitled to acceleration of the payments. The Court will not look beyond the terms of the promissory note negotiated by the parties. The Plaintiff cannot proceed as if an acceleration clause was present. The terms of the note do not expressly proveide for the acceleration of the payments upon default. Therefore, Defendant's preliminary objections, in the form of a demurrer, are sustained and Plaintiff's complaint is dismissed. 4 I'IWMISSORY NOTE Boiling Springs, PA May, 30 1998 FOR VALUE RECEIVED, the undersigned, STREETGARr>, INC. ("Maker"), a Pennsylvania corporation with offices at P.O. Box 604, Boiling Springs, PA 17007 promises to pay to the order of Linda M. Rich ("Holder"), an individual whose address is P.O. Box 174, Boiling Springs, PA 17007, in immediately available funds at Holder's address set forth herein, or at such other location as the Holder may designate from time to time, the principal sum of Two Hundred Thirty One Thousand Nine Hundred Thirty Five Dollars and Sixty Five Cents ($231,935.65) plus interest at 6%. This Note is being issued to Holder in connection with the assignment to Maker of 6,000 shares of stock in Maker previously owned by Holder pursuant to the Assignment Agreement to which this Note is Exhibit A. Maker may prepay this Note in whole or part without penalty at any time or from time to time, provided however, that such prepayment shall first be applied to all sums owed to Holder hereunder other than principal and interest, next to interest, and then to principal. $231,935.65 The principal and interest payments shall be made in Three Hundred and Sixty (360) rqual consecutive monthly installments of One Thousand Three Hundred Ninety One Dollars' and Twenty Nine Cents ($1,391.29) on or before the twentieth of each month beginning in the first full month after the date hereof. If any payment of principal or interest on this Note shall become due on a Saturday, Sunday or on any holiday, such payment shall be made on the next succeeding , business day. All payments made hereunder shall be applied first to all sums owed to Holder hereunder for interest, and then to principal, or in such other order or proportion as the Hold1r, in its sole discretion, may elect from time to time. Maker shall be in default under this Note upon the happening of any of the following events of default (" Event of Default"): (a) default in the payment when due of the principal of or interest on this Note, which default continues unremedied for a period often (10) days after written notice from Holder; . '. (b) any default in the performance by Maker of any other condition o~ cov~nant contained in this Note, which default continues unremedied for a period of ten (10) days after written notice from Holder; (c) all or substantially all, of the assets ofMake1: are sold to a third party ~ho is unaffiliated with Maker or any shareholder of Maker; (d) the dissolution of Maker or the windiDg U!l of its affairs; and \ (e) the insolvency of, the appointment of a receiver of any part of the property of, the assignment for the benefit of creditors by, or the comm.encement of p~o~('('cling~ u~ any bankruptcy or insolvency laws by or against Maker. . " ,r'," ','fl. ,r:.,:' "':7 '... Plalntill:s Exhibit : i '., I'IWMISSORY NOTE $231,935.65 Boiling Springs, PA May, 30 1998 FOR VALUE RECEIVED, thc undcrsigncd, STREETGARD, INC. ("Maker"), a Pcnnsylvania corporation with officcs at P.O. Box 604, Boiling Springs, PA ]7007 promises to pay to the ordcr of Linda M. Rich ("Holder"), an individual whose address is P.O. Box 174, Boiling Springs, PA ] 7007, in immcdiately available funds at Holder's address set forth hcrein, or at such othcr location as the Holdcr may designate from timc to time, the principal sum of Two Hundred Thirty One Thousand Nine Hundred Thirty Fivc Dollars and Sixty Fivc Cents ($231,935.65) plus intcrest at 6%. This Notc is bcing issucd to Holder in connection with the assignment to Makcr of 6,000 sharcs of stock in Makcr prcviously own cd by Holdcr purSullntto thc Assignmcnt Agrccment to which this Notc is Exhibit A. Maker may prepay this Note in whole or part without pcnalty at any timc or from time to timc, providcd howevcr, that such prcpaymcnt shalllirst bc applicd to all Slims owcd to Holdcr hcrcundcr othcr than principal and interest, next to intcrcst, and thcn to principal. Thc principal and intcrest paymcnts shall bc made in Thrce'Hundrcd and Sixty (360) ~qual consccutive monthly installmcnts of Onc Thousand Thrcc Hundrcd Nincty One Dollars' and Twcnty Nine Cents ($1,391.29) on or before the twentieth of each month beginning in the first full month after thc datc hereof. If any payment of principal or intcrcst on this Note shall becomc due on a Saturday, Sunday or on any holiday, such payment shall bc madc on the next succeeding business day. All paymcnts madc hcreunder shall bc applicd first to all sums owed to Holdcr hereunder for intercst, and then to principal, or in such other ordcr or proportion as the Hold1r, in its sole discretion, may elect from timc to time. , Maker shall bc in default under this Note upon the happening of any of the following events of default ("Event of DefauU"): (a) default in the payment when due of the principal of or interest on this Note, which default continues unremedied for a period often (10) days after written notic~fj-om Holder; (b) any default in the performance by Maker of any other condition or oov~nant contained in this Note, which default continues unremedied for a period of ten (10) days after written notice from Holder; (c) all or substantially an. of the assets of Maker. are sold to a third party ",ho is unaffiliated with Maker or any shareholder of Maker; (d) the dissolution of Maker or the windin& up of its affairs; and \ (e) the insolvency of, the appointment of a receiver of any part of the property of, the assignment for the benefit of creditors by, or the commencement. of proCPl,'cling<;. undel; any bankruptcy or insolvency laws by or against Maker.. .\, 'I'; :,. , ' :. Plalntlfl'~ ~xhlblt ,'; ," ~-:..::.' A , i Makcr may not assign its obligations hcrcundcr without prior written conscnt of Holdcr. This Notc shall bind Maker and its pennilled succeSOOfs- and assigns, and the. benefits. herCO\ shall inurc to thc bcnefit of Holdcr and its pcnnittcd successors and assigns. All rcfcrenccs hcrcin to "Maker" and "Holder" shall be. deemed to apply to. Maker and. Holder, respectively... ~ their rcspcctivc pcrmittcd succcssors and assigns. This Notc and thc rights and obligations of thc parties hereto shall for all purposes. be. governed. ~ and. construed and enforced. in- accor4ancc with thc substantivc law ofthc Commonwcalth of Pennsylvania without giving cffcct to princlples of conflicts oflaw. WITNESS the due eKccutioo hc&oof 00 the. date. first aoove. wrillcn \IIitl~ tAc. intention that this Note shall constitutc a scalcd instrumcnt. I MAKER. STREE.TG.ARD.INC., ~~~ John Kr Rich. ('residcnt ---. ..