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WAYNE v. CHOPIVSKY

March 9, 1987

Eugene C. Wayne, John C. Wolfe and Kenneth R. Sandler
v.
George Chopivsky, Jr., Richard E. Horman and Joseph F. Corcoran



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Presently pending are plaintiffs' and defendants' cross motions for summary judgment in this diversity action arising from a contract dispute. *fn1" For the reasons stated below, I grant plaintiffs' motion and deny defendants' motion.

 I. FACTS

 The facts leading up to this litigation are essentially undisputed. Plaintiffs are employees of the Fairmount Institute (TFI), a psychiatric hospital located in Philadelphia. Defendants were controlling shareholders of National Psychiatric Institutes, Inc. (NPI), which owned TFI. In August, 1982, all the stock of NPI was sold to another company, Health Group Inc. (HGI). Upon the sale of this stock, the Release Agreements that are the basis of this dispute were entered into between each of the plaintiffs and defendants. These Agreements provided that each of the plaintiffs would be paid a sum of money (aggregating $150,000.00) in the event that TFI's "net earnings before federal and state income taxes," as defined in the agreements, exceeded $1,500,000.00 for fiscal year 1983. (Plaintiffs' Ex. A). Section 2.1 of the Agreements, the provision that is the basis of the dispute among the parties states:

 
Section 2.1. No monies shall be payable hereunder unless TFI's Earnings Before Federal and State Income Taxes, as hereinafter defined, shall equal or exceed $1,500,000.00 for the first twelve month fiscal year ending after the date hereof ("Fiscal Year"). For purposes of this Agreement, TFI's earnings before federal and state income taxes ("Earnings Before Federal and State Income Taxes") shall be the audited earnings of TFI before any deductions for federal and state income taxes, as determined by TFI's outside auditors (whose determination shall be final), calculated in accordance with generally accepted accounting principles, consistently followed throughout the periods involved, before extraordinary items, and after deducting (a) a management fee payable to NPI in an amount equal to 5% of TFI's gross revenues; (b) TFI's interest and depreciation charges (excluding the effect of the sale of NPI to Health Group, Inc. ("HGI") and (c) bonuses accrued and payable to TFI employees.

 After the completion of TFI's 1983 fiscal year, John Foos, a partner in Peat, Marwick, Mitchell & Co., TFI's outside auditors, prepared an audited financial statement of TFI's earnings. He determined that the net earnings as defined in the Agreements were $1,518,140.00, thus exceeding the target amount by $18,140.00. Plaintiff Wayne then forwarded a copy of the earnings statement and an accompanying written statement prepared by Peat Marwick to each of the defendants, along with a letter of his own requesting payment pursuant to the Agreements. (Plaintiffs' Ex. G and H). A month later, at defendants' request, Wayne also provided defendants with a copy of TFI's audited statement for 1983 (Ex. I). Following receipt of this information, defendants were not satisfied that the calculation of net earnings, as defined in the Agreements, was done properly. They requested additional information, and ultimately a meeting took place between Peat Marwick and defendants' accountants. (Plaintiffs' Ex. K-R). In October 1984, negotiations broke off and this litigation ensued.

 II. DISCUSSION

 The crux of this dispute is the proper interpretation of Section 2.1 of the Release Agreements. Plaintiffs contend that Section 2.1 means that the auditor's calculations are final and binding. They claim the finality language was deliberately included to avoid a future dispute as to whether the earnings target was met. Plaintiffs argue that since the auditor found that the target amount was met, they are entitled to payment pursuant to the contract.

 Defendants assert that plaintiffs are not entitled to payment because the auditor's calculation is not in accordance with the Agreements. They claim that while Section 2.1 means that the auditor's determination is final as to the audited earnings, the contract does not foreclose inquiry into the calculation of the adjustments to earnings that are also provided for in Section 2.1. They further argue that the Agreements require accounting practices, as well as principles, to be consistently followed.

 Interpretation of a contract that is clear and unambiguous is for the court. Pines Plaza Bowling Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672, 676 (1958); County of Erie v. American States Insurance Co., 573 F. Supp. 479, 483 (W.D. Pa. 1983), aff'd, 745 F.2d 45 (3d Cir. 1984). The determination of whether a contract is unambiguous is a matter of law for the court. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir. 1980). "But conflicting conclusions as to the interpretation of a written contract which is clear and unambiguous as to its terms will not create a material issue of fact to bar disposition by summary judgment." County of Erie, 573 F. Supp. at 483. In this case, both sides claim that the language is clear and unambiguous and that the language should be interpreted by the court. See Plaintiffs' Motion for Summary Judgment [hereinafter cited as Plaintiffs' Motion] at 2; Oral Argument at 58-61, 88-95, 109-115. *fn2" I agree that the language is clear and unambiguous and will therefore turn to interpreting the Agreements in accordance with their plain meaning.

 With regard to whether the auditor's determination was intended to be final, I find that the language of Section 2.1 supports plaintiffs' interpretation of the Agreements. Defendants agree that the auditor's determination is final at least as to the audited earnings, but argue that the calculation of the adjustments is distinct from the calculation of audited earnings. The word "audit" is defined as:

 
A formal or official examination and verification of books of account (as for reporting on the financial condition of a business at a given date or on the results of its operations for a given period); by a methodical examination and review of a situation or condition (as within a business enterprise) concluding with a detailed report of findings: a rendering and settling of accounts; 2. the final report following a formal examination of books of account: an account as adjusted by auditors: final statement of account."

 Webster's Third New International Dictionary 143 (1966). By the plain meaning of the word "audit," there is nothing that would exclude the contract adjustments from the audited earnings. The audited earnings are simply the calculation of earnings that are the result of an examination by an auditor. The fact that the parties placed additional restrictions on the definition of earnings does not mean that the adjustments are not part of the calculation of the audited earnings.

 Moreover, defendants' explanation of the meaning of the language "whose determination shall be final" is not logical. Had defendants intended to review the final figure of the auditor, they would have contracted to review all of the auditor's calculations, regardless of whether they related to the adjustments or to other matters. Plaintiffs' explanation of this language is far more persuasive. Plaintiffs assert that this language was included for the purpose of avoiding a future dispute as to whether the target amount had been met. Defendants' construction, which would permit open ended review of every calculation of the auditor, would rob this language of any meaning.

 Defendants argue that Section 4 of the Release Agreements proves that the auditor's determination was not intended to be final as to the adjustments. Section 4 provides:

 
TFI FINANCIAL STATEMENTS.
 
TFI and NPI agree to send to the other parties hereto, within 120 days after the end of the Fiscal Year, in the manner provided in Section 6.2, copies of the audited financial statements of TFI for the Fiscal Year. TFI and NPI further agree to have the outside auditors of TFI provide certificates or other documents reasonably requested by the parties hereto relative to this Agreement or any amounts due hereunder. A delay in the delivery of the financial statements shall not affect the obligation of the Shareholders to pay the Principal Amount, provided that the Conditions Precedent contained in Section 2 have been met.

 Defendants claim that the fact that defendants are entitled to financial statements, certificates and other documents is at odds with plaintiffs' claim that the auditor's determination as to the earnings amount is final. I disagree. There are numerous reasons why defendants may desire this information without contradicting the finality of the auditor's determination. For example, defendants may simply have wanted copies of these documents for their own records for tax or other purposes, or more likely, wanted to verify that the auditor actually determined that the target amount was met without having to take plaintiffs at their word. Whatever defendants reasons may have been, I do not find that this section, which merely allows defendants access to documents, is inconsistent with a provision requiring that the auditor's determination as to net earnings is final.

 Defendants also argue that two responses in Wayne's deposition contradict plaintiffs' assertion that the auditor's determination was intended to be a final one. These exchanges are as follows:

 
Q: (by defendants' counsel) I thought you testified earlier that you thought the auditors' certification was final as to the total income but that defendants were at least entitled to assure themselves that the three adjustments mentioned in paragraph 2.1 were done properly; isn't that right?
 
A: Correct.

 (Wayne dep. at 65).

 
Q: (by defendants' counsel) Is there anything in the Release Agreement or in anything you've said in your correspondence which leads you to believe that the defendants are required to rely simply on the auditors' ...

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