J-A11026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BALMORAL HOMEOWNERS                            IN THE SUPERIOR COURT OF
MAINTENANCE CORP.,                                   PENNSYLVANIA

                         Appellant

                    v.

MICHAEL PASQUARELLO AND YEN
PASQUARELLO,

                         Appellees                  No. 3071 EDA 2014


                Appeal from the Order Dated October 1, 2014
              In the Court of Common Pleas of Chester County
                   Civil Division at No(s): 2014-04854-CT


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 05, 2015

      Appellant, Balmoral Homeowners Maintenance Corp., appeals from the

order entered on October 1, 2014, sustaining preliminary objections filed by

Michael and Yen Pasquarello (the Pasquarellos) and transferring the action

from Chester County to Delaware County. Upon review, we affirm.

      We briefly summarize the facts and procedural history of this case as

follows.    The Pasquarellos are residential homeowners in a planned

community maintained by Appellant. The parties entered into a settlement

and release agreement (the agreement) on May 1, 2012, whereby Appellant

agreed to make improvements to the Pasquarellos’ residence. The parties

entered into the agreement to resolve a civil libel action pending in Delaware

County.    On May 23, 2014, Appellant filed a complaint in Chester County
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against the Pasquarellos, alleging interference with the agreement when the

Pasquarellos     refused    to   permit    home    improvement   companies    from

completing work on their residence.            On June 17, 2014, the Pasquarellos

filed preliminary objections to the complaint alleging that the agreement

contained a clause providing that all causes of action were to commence in

Delaware County.        By order entered on October 1, 2014, the trial court

agreed, sustained the Pasquarellos’ preliminary objections, and transferred

the case to Delaware County. This timely appeal resulted.1

       On appeal, Appellant presents one issue for our review:

         Did the trial court err in relying on a settlement agreement
         in a different case to transfer venue to Delaware County
         when such settlement agreement provided that venue
         would lie in Delaware County for disputes arising under that
         settlement agreement but the dispute in the present case
         does not arise under such agreement?

Appellant’s Brief at 4.

       Appellant initially argues it is unclear whether it was a party to the

agreement, because the agreement contains “a number of signatures of

individuals but that of the [Appellant homeowner’s] association nowhere

appears.” Id. at 7.       Thus, Appellant “dispute[s] whether [it] ‘freely’ entered

into a forum choice agreement[.]”              Id. at 18. Alternatively, Appellant
____________________________________________


1
    Appellant filed a notice of appeal on October 30, 2014. On October 31,
2014, the trial court filed an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on December 17, 2014.



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contends that the underlying dispute was not an action to enforce the

provisions of the agreement.     Instead, Appellant argues the Pasquarellos

have allegedly interfered with separate construction contracts between

Appellant and independent contractors. More specifically, in the current

complaint, Appellant averred that it contracted with two home improvement

contractors to make repairs required under the agreement.            On two

occasions when the contractors arrived to perform the home repairs,      the

Pasquarellos refused to allow them to complete the job.           Therefore,

Appellant seeks damages. In that same complaint, Appellant also “instituted

litigation in Chester County to collect allegedly unpaid dues and assessments

from [the Pasquarellos] for [their] unit in the Balmoral community.” Id. at

18. Thus, Appellant suggests that the current litigation did not arise under

the agreement and the trial court’s decision to transfer was erroneous.

Finally, Appellant argues that a plaintiff’s choice of venue is entitled to

deference and the only nexus with Delaware County is the location of the

Pasquarellos’ attorneys’ offices. Id. at 18-20.

      We have previously determined that a venue selection clause can

serve as the basis for sustaining preliminary objections.    See O'Hara v.

First Liberty Ins. Corp., 984 A.2d 938 (Pa. Super. 2009). “Generally, this

Court reviews a trial court order sustaining preliminary objections based

upon improper venue for an abuse of discretion or legal error.” Autochoice

Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 1211 (Pa.

Super. 2010).”

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     Regarding contract formation, our Supreme Court concluded:

       The law of this Commonwealth makes clear that a contract
       is created where there is mutual assent to the terms of a
       contract by the parties with the capacity to contract. If the
       parties agree upon essential terms and intend them to be
       binding, a contract is formed even though they intend to
       adopt a formal document with additional terms at a later
       date. As a general rule, signatures are not required unless
       such signing is expressly required by law or by the intent of
       the parties.

Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd.,

739 A.2d 133, 136 (Pa. 1999).

     Moreover,

       [signatures] may [] be required if the parties intended that
       a contract would not exist until all the signatures were
       affixed. Lower Frederick Township v. Clemmer, 543
       A.2d 502, 510 (Pa. 1988)(“[A] fundamental rule in
       construing a contract is to ascertain and give effect to the
       intention of the parties.”); Stephens v. Carrara, 401 A.2d
       821, 824 (Pa. Super. 1979)(“[W]here the written
       agreement contains the names of certain persons as
       parties, and one or more do not sign while others do, the
       question of whether those who sign are bound is to be
       determined by the intention and understanding of the
       parties.”). It is firmly settled that the intent of the parties to
       a written contract is contained in the writing itself.
       Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa.
       Super. 1993); accord Steuart v. McChesney, 444 A.2d
       659 (Pa. 1982). When the words of a contract are clear and
       unambiguous, the intent is to be found only in the express
       language of the agreement. For example, in Franklin
       Interiors v. Wall of Fame Management Co., Inc., 511
       A.2d 761 (Pa. 1986), a term of the contract provided that
       “this document does not become a contract until approved
       by an officer of Franklin Interiors.” 511 A.2d at 762. Based
       upon this express term, [our Supreme Court] concluded
       that an enforceable contract did not exist in the absence of
       the required approval. Id. at 763.


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Id. at 137-138 (one citation omitted).

     This Court previously determined:

        Because contract interpretation is a question of law, this
        Court is not bound by the trial court's interpretation. Our
        standard of review over questions of law is de novo and to
        the extent necessary, the scope of our review is plenary as
        the appellate court may review the entire record in making
        its decision. This Court must construe the contract only as
        written and may not modify the plain meaning under the
        guise of interpretation.   When a contract is free from
        ambiguity, the court must interpret the contract as written.

Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014) (internal citations,

quotations and brackets omitted).

    The agreement stated, in relevant part:

                SETTLEMENT AND RELEASE AGREEMENT

            THIS SETTLEMENT AND RELEASE AGREEMENT is
        made this 1st day of May, 2012, by and among:
        BALMORAL HOMEOWNERS MAINTENANCE CORP.
        (referred to hereinafter as “ASSOCIATION”), MYRNA
        FARINA, ARIS LEE, BRENT MCDOUGALL, CRAIG
        PARRISH, PATRICK RITA, MARCUS & HOFFMAN, P.C.
        (referred to hereinafter as “PLAINTIFFS”) and YEN and
        MICHAEL PASQUARELLO (referred to hereinafter as
        “DEFENDANTS”). PLAINTIFFS and DEFENDANTS are
        hereinafter referred to as “PARTIES”.

                               BACKGROUND

        WHEREAS, this is a Settlement and Release Agreement
        (“Agreement”) whereby the parties desire to extinguish
        their rights and claims against each other arising from their
        disputes and differences as to their rights, duties and
        obligations including, but not limited to, all claims set forth
        in: Balmoral Homeowners Maintenance Corp., et al, v. Yen
        and Michael Pasquarello, Delaware County Court of



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        Common Pleas, 10-13391 (referred to hereinafter as the
        “ACTION”).

        NOW, THEREFORE, in consideration of the promises of the
        several mutual covenants and/or promises and/or
        agreements contained, the parties hereto, intending to
        legally bind themselves, their heirs and successors hereby
        promise, covenant and agree as follows:

                           *         *           *

        [1.]e.   Replacement of Siding – The Association will cause
                 the [Pasquarellos’] home to receive new vinyl
                 siding of the kind currently on the party wall
                 adjoining the [Pasquarellos’] neighbor. Instillation
                 of this siding will be done in a manner in
                 accordance with acceptable building practices [].
                 The vinyl siding will be new and will cover the
                 front, back and open side of the home (and garage
                 wall). The siding will be completed in the current
                 year which will allow time for the Association to
                 develop specifications, receive bids from at least 3
                 contractors and to bundle the additional items of
                 work which must be repaired []. All costs and
                 expenses regarding the siding replacement, (vinyl
                 siding installation with all related flashing, taping,
                 insulation and similar items) shall be paid by the
                 Association.

                           *             *       *

        7.         Controlling    Law/Venue/Enforcement      –    All
                   provisions of this Agreement shall be interpreted
                   and enforced in accordance with the substantive
                   laws of the Commonwealth of Pennsylvania.
                   Any action necessary to enforce any of the
                   provisions of this Agreement shall be brought in
                   the Court of Common Pleas, Delaware County,
                   Pennsylvania.

Agreement, 5/1/2012, at 1-4 (handwritten notations in parentheticals).




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      Robert J. Hoffman, Esquire, on behalf of Marcus & Hoffman, P.C.,

Myrna Farina, Brent McDougall, Aris Lee, Craig Parrish and Patrick Rita, all

signed the agreement. The Pasquarellos’ are signatories, as well. Appellant

is correct that there is no signature by Appellant, or an agent on its behalf.

However, as previously stated, a signature is not necessarily required to

enforce a contract. A signature is not required unless it is the intent of the

parties that no contract exists until all signatures are affixed. While there is

no direct signatory for Appellant to the agreement, there is also no provision

in the agreement that states that an enforceable contract did not exist in the

absence of the required approval.     Thus, we reject Appellant’s suggestion

that a signature was necessary.

      In viewing the agreement’s plain terms, we further conclude that

Appellant intended the terms of that contract to be binding. The agreement

defined Appellant as a “party.”    The parties expressed a mutual desire to

extinguish their rights and claims and to settle Balmoral Homeowners

Maintenance Corp., et al, v. Yen and Michael Pasquarello, Delaware County

Court of Common Pleas, 10-13391. In addition, it was agreed that new vinyl

siding would be installed on the Pasquarellos’ home. The agreement has a

choice of venue clause included that clearly delineates that any action

necessary to enforce any provision of the agreement shall be brought in

Delaware County.     Here, as explained below, Appellant sought damages

allegedly incurred when it endeavored to install vinyl siding, as per the terms

of the agreement, and the Pasquarellos allegedly interfered with that work.

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Thus, Appellant’s claims sought recovery for expenses incurred in attempting

to fulfill obligations under the agreement.2 Thus, it was required to do so in

Delaware County. Hence, sustaining preliminary objections and transferring

the case to the appropriate court was proper.

       We also reject Appellant’s claim that the present dispute did not arise

under the agreement. Appellant’s complaint alleged, in pertinent part:

                                *          *     *

         7. On May 1, 2012, [Appellant] entered into a written
         agreement with the owner and the owner’s husband,
         hereinafter called “the settlement agreement,” whereby
         [Appellant] undertook to make certain improvements to the
         unit. [Appellant attached a copy of the agreement to the
         complaint as an exhibit.]

         8. Pursuant to the settlement agreement, [Appellant]
         entered into a written contract with a home improvement
         company known as KPI 2 to make certain improvements to
         unit 319, hereinafter called “the first contract.”

         9. On or about August 7, 2012, the owner’s husband
         interfered with the first contract by refusing to allow KPI 2
         to install siding at the unit, as had been promised by
         [Appellant] in the settlement agreement.

         10. Thereafter, the owner claimed that [Appellant] had
         failed to perform its obligations under the settlement
         agreement and on or about July 3, 2013, pursued frivolous
         legal proceedings in the Court of Common Pleas of Delaware
____________________________________________


2
    We reject Appellant’s suggestion that its complaint also encompassed
allegations that the Pasquarellos’ failed to pay unpaid association dues and
assessments as a reason to deny the transfer. It seems clear that the
failure to pay dues and assessments is intertwined with the claim that
contracting work was not completed.



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        County which caused [Appellant]          to   incur   otherwise
        unnecessary legal expenses.

        11. Thereafter, pursuant to the settlement agreement,
        [Appellant] entered into a written contract with a different
        home improvement company known as Ingram to make
        certain improvements to unit 319, hereinafter called “the
        second contract.”

        12. On or about May 12, 2014, the owner’s husband
        interfered with the second contract by refusing to allow
        Ingram to install siding at the unit, as had been promised
        by [Appellant] in the settlement agreement.

        13. The owner’s husband knew, or should have known, that
        his conduct on August 7, 2012, and on May 12, 2014, would
        prevent the contractors who had been hired by [Appellant]
        to perform its obligations under the first contract and the
        second contract.

Complaint, 5/23/2014, at 2-3 (page numbers supplied).          Appellant seeks

specific monetary damages that resulted.

      Curiously, as set forth above, Appellant’s complaint maintains that it

was acting pursuant to the terms of the agreement when the Pasquarellos

purportedly interfered with construction.       Thus, Appellant’s complaint

concedes that it entered into the agreement at issue. However, in arguing

that the venue provision in the agreement does not apply, Appellant changes

tactic and claims it was not a party to the agreement. In filing the complaint

and requesting damages because it could not fulfill its obligation under the

agreement, Appellant’s intent to be bound by the terms of the agreement is

clear for this additional reason.   Thus, Appellant is bound to the choice of

venue clause, as well.    Accordingly, we discern no error in granting the




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Pasquarellos’ preliminary objections and transferring the case to Delaware

County.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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