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NATIONAL DATA PAYMENT SYS. v. MERIDIAN BANK

September 22, 1998

NATIONAL DATA PAYMENT SYSTEMS, Inc., a New York corporation, Plaintiff,
v.
MERIDIAN BANK a Pennsylvania corporation and CORESTATES FINANCIAL CORPORATION, a Delaware corporation, Defendants.



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 September 22, 1998

 Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 on all counts of Plaintiff's complaint and Plaintiff's Motion for Partial Summary Judgment as to liability only for counts I, III, and V of Plaintiff's complaint. For the following reasons Defendants' Motion is granted and Plaintiff's Motion is denied.

 BACKGROUND

 Plaintiff, National Data Payment Systems ("NDPS" or "Plaintiff"), entered into a Purchase Agreement (the "Agreement") with Defendant, Meridian Bank ("Meridian"), on September 15, 1995 for the purchase of Meridian's merchant credit card business. The Agreement did not include a specific date for closing, other than indicating that the closing should occur "on the date to be mutually agreed upon by the parties which shall be within thirty (30) days after the expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976." (Agreement at 3.1). However, the Agreement did include a termination provision stating that "this Agreement may be terminated by either Meridian or NDPS and shall be of no further force and effect (subject to (a) and (b) below) . . . (b) in the event the Closing shall not have occurred by October 30, 1995." (Agreement at 11.1). The Agreement also provided that if either party terminated the Agreement according to the termination provision in section 11.1 that there would be no "liability of any kind." (Agreement at 11.2(a)). Another provision of the contract provided that the Agreement "shall not be amended, modified or waived in any fashion except by an instrument in writing signed by the parties hereto." (Agreement at 15.8).

 The parties did not close the transaction by October 30, 1995, the date in the termination provision. However, the parties remained in contact up to and after October 30. *fn1"

 On October 30, 1995, a Meridian representative called NDPS to ascertain "where NDPS was" in the decision making process. The NDPS representative responded that NDPS would get back to Meridian later in the day on October 30 or on October 31, 1995, to which the Meridian representative responded "fine." On November 2 and November 3, 1995, representatives of Meridian and NDPS had further telephone conversations concerning whether NDPS was going to close the transaction. During these conversations, Meridian stated its position that it could terminate the Agreement if it so chose given the passing of October 30, 1995 and section 11.1 of the Agreement. Sometime after the last phone conversation between the parties on November 3, NDPS sent a letter to Meridian indicating its intent to close the transaction and its belief that Meridian had agreed to close the transaction on November 7, 1995. On November 6, 1995, Meridian sent NDPS a letter indicating that it was exercising the termination option in section 11.1 of the Agreement. After receipt of the November 6, 1995, letter from Meridian and after the passing of the alleged closing time agreed to by the parties on November 7, 1995, NDPS sent a letter to Meridian indicating its belief that Meridian had breached the Agreement by not closing the transaction.

 NDPS first filed a breach of contract action in the District Court in Georgia which was dismissed for lack of jurisdiction. In October of 1997, NDPS filed the current action. This action is governed by Pennsylvania law in accordance with the express intention of the parties. See (Agreement at 15.11).

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. at 249). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 II. The Termination Provision

 Both parties seek summary judgment concerning the termination provision of the Agreement which provides that the Agreement "may be terminated by either Meridian or NDPS and shall be of no further force and effect . . . (b) in the event the Closing ...


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