February 28, 2014
U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION, AS SUCCESSOR-IN-INTEREST TO THE FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR CALIFORNIA NATIONAL BANK. Appellee
GERSON I. FOX, AN INDIVIDUAL, AND GERSON I. FOX, AS TRUSTEE OF THE GERSON AND GERTRUDE FOX FAMILY TRUST DATED JULY 17, 2006. Appellant
Appeal from the Order November 9, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-12-00817
BEFORE: PANELLA, J., OLSON, J., and MUSMANNO, J.
Appellant, Gerson I. Fox, in his individual capacity, as well as his capacity as trustee of the Gerson and Gertrude Fox Family Trust, appeals from the order entered by the Honorable Robert J. Colville, Court of Common Pleas of Allegheny County, that denied his petition to open the default judgment entered by Appellee, U.S. Bank National Association. After careful review, we affirm.
In 2008, an entity known as 501 Grant Street Partners borrowed $34, 580, 000.00 from U.S. Bank National Association's predecessor in interest, California National Bank, to finance improvements to real property located in Pittsburgh, Pennsylvania. In conjunction with this loan, Fox and the Fox Family Trust signed a Continuing Guaranty in favor of California National Bank. The Continuing Guaranty provides that Appellants' liability is a "guaranty of payment and performance of the [underlying] Note and not of collectability only." Continuing Guaranty, at ¶ 1(c). Furthermore, the Guaranty contains a clause whereby Appellants waived their rights to require California National Bank to "proceed against or exhaust any other security or collateral Lender may hold." Id., at 3(d)(ii).
On January 11, 2012, U.S. Bank National Association filed a complaint in confession of judgment asserting that 501 Grant Street Partners was in default of the loan agreement, and that Appellants were fully liable to the extent provided for in the Continuing Guaranty. Appellants responded by filing a petition to show cause why the confessed judgment should not be stricken or opened, arguing that amount of damages available to U.S. Bank was not yet certain due to the pending foreclosure action on the subject real estate. U.S. Bank filed an answer to Appellants' petition, and the trial court ultimately denied the petition to open and strike on November 9, 2012. This timely appeal followed.
On appeal, Appellants purport to raise three separate issues. However, these issues are all challenges to the trial court's conclusion that the Appellants' challenge to the amount of damages was irrelevant under the Continuing Guaranty. To determine whether the trial court's conclusion was correct, we must interpret the terms of the Continuing Guaranty.
Interpretation of a contract poses a question of law and our review is plenary. See Charles D. Stein Revocable Trust v. General Felt Industries, Inc., 749 A.2d 978, 980 (Pa. Super. 2000). "In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished." Id. (citation omitted).
To give effect to the intent of the parties, we must start with the language used by the parties in the written contract. See Szymanski v. Brace, 987 A.2d 717, 722 (Pa. Super. 2009), appeal denied, 606 Pa. 688, 997 A.2d 1179 (2010). Generally, courts will not imply a contract that differs from the one to which the parties explicitly consented. See Kmart of Pennsylvania, L.P. v. M.D. Mall Associates, LLC, 959 A.2d 939, 944 (Pa. Super. 2008), appeal denied, 602 Pa. 667, 980 A.2d 609 (2008). We are not to assume that the language of the contract was chosen carelessly or in ignorance of its meaning. See id.
Where the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Prudential Property and Casualty Ins. Co. v. Sartno, 588 Pa. 205, 212, 903 A.2d 1170, 1174 (2006). Contractual language is ambiguous "if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 201, 519 A.2d 385, 390 (1986) (citations omitted).
As noted previously, the Continuing Guaranty provided that Appellants' liability under the Guaranty was premised on payment, and not collectability. The clear import of this language was that the lender was not required to exhaust other remedies before resorting to seeking payment from Appellants under the Continuing Guaranty. This conclusion is reinforced by the similar explicit language whereby Appellants waived their rights to require the lender to exhaust any other remedy before seeking payment from them. The explicit language of the Continuing Guaranty is clear and unambiguous; Appellee has the right to first seek payment from Appellants, if Appellee so chooses. See Meeting House lane, Ltd. v. Melso, 628 A.2d 854 (Pa. Super. 1993) (similar guaranty language found to unambiguously permit lender to choose, without condition, to pursue remedy from guaranty), appeal denied, 537 Pa. 633, 642 A.2d 486 (1994). Accordingly, the trial court's conclusion was correct, and none of Appellants' issues on appeal merit relief.
Order affirmed. Jurisdiction relinquished.