J. S36041/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


FRANK MARANO AND DONALD MARANO, :                 IN THE SUPERIOR COURT OF
                                :                      PENNSYLVANIA
                     Appellants :
                                :
               v.               :
                                :
                                :
FULTON BANK, N.A. D/B/A FULTON  :
FINANCIAL ADVISORS AND FULTON   :
FINANCIAL ADVISORS, N.A.,       :
                                :
                     Appellees  :                 No. 3572 EDA 2013


                Appeal from the Order Entered December 4, 2013
              In the Court of Common Pleas of Montgomery County
                        Civil Division No(s).: 2013-26372

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 29, 2014

        Appellants, Frank Marano and Donald Marano, appeal from the order

entered in the Montgomery County Court of Common Pleas sustaining the

preliminary objections of Appellees, Fulton Bank, N.A., doing business as

Fulton Financial Advisors, and Fulton Financial Advisors, N.A.    Appellants

suggest the trial court erred by enforcing a forum selection clause in the

parties’ promissory notes and transferring the case from Montgomery

County to Lancaster County without considering the Pennsylvania Rules of

Civil Procedure. We affirm.


*
    Former Justice specially assigned to the Superior Court.
J. S36041/14


      Given the procedural posture, we view the record in Appellants’ favor,

and set forth the following facts. See Gall v. Hammer, 617 A.2d 23, 25-26

(Pa. Super. 1992).         Before joining Appellees1 as financial advisors,

Appellants worked for Wachovia Securities, Inc.           Appellants’ Compl.,

8/22/13, at 3. Appellants and Appellees “executed . . . promissory note[s]

on   December   17,   2008[,]    which   granted   Appellant   Donald   Marano

$1,329,746.00 and Appellant Frank Marano $554,125.00 in consideration of

employment with Appellees.”       Trial Ct. Op., 2/7/14, at 1 (capitalization

omitted).2   According to Appellants, financial advisors typically execute

promissory notes with their employers:

        [Appellees] would pay bonuses to [Appellants, who] would
        conditionally agree to repay the bonuses as set forth in the
        promissory notes, but [Appellees] would progressively
        reduce and ultimately eliminate the balance owing on the
        promissory notes during the course of [Appellants’]
        employment with [Appellees].

Appellants’ Compl. at 7.

      The promissory notes contain a forum selection clause:

        Governing Law; Jurisdiction. . . . For the purpose of any
        suit, action or proceeding arising out of or relating to this
        Note, [Appellees] and [Appellants] agree that the
        jurisdiction and venue shall lie only in the Court of

1
   We acknowledge the numerous record references to Appellee Fulton
Financial Advisors, N.A., only. For the sake of convenience, this Court will
use “Appellees” to refer to either one or both of the defendants.
2
  Although dated February 3, 2014, the trial court’s opinion was docketed on
this date.




                                     -2-
J. S36041/14


         Common Pleas of Lancaster County or the Federal District
         Court for the Eastern District of Pennsylvania and each of
         [Appellees] and [Appellants] hereby irrevocably consents
         and submits to the jurisdiction of such courts. [Appellees]
         and [Appellants] irrevocably waive any objection which
         [Appellees] or [Appellants] may now or hereinafter have to
         the laying of the venue of any such suit, action or
         proceeding brought in such court and any claim that such
         suit, action or proceeding brought in such a courts [sic]
         has been brought in an inconvenient forum.

Ex. C and Ex. D to Appellants’ Compl.          The promissory notes can be

discharged only by a signed, written agreement:

         12. Miscellaneous

                                 *    *    *

            (b) Amendment of Note. This Note may be modified,
         amended, discharged or waived only by an agreement in
         writing signed by the party against whom enforcement of
         any such modification, amendment, discharge or waiver is
         sought.

Id.

      After Appellants left Wachovia to join Appellees as financial advisors,

Wachovia pursued legal action before the Financial Industry Regulatory

Authority (“FINRA”) against, inter alia, Appellees and Appellant Frank

Marano, but not Appellant Donald Marano.       Appellants’ Compl. at 9.   The

parties in the FINRA suit settled; the settlement agreement states in

relevant part:3


3
  The Wachovia settlement agreement was filed under seal with this Court,
as well as the trial court. The parties, however, referred to or quoted from
the settlement agreement in their briefs, which were not filed under seal.



                                     -3-
J. S36041/14


        [(6) Releases.]

                                *    *    *

           (b) Wachovia, on the one hand, and [Appellees], on the
        other hand, hereby release each other, as well as all of
        their past, present, and future agents, representatives,
        shareholders, principals, attorneys, affiliates, parent
        corporations, subsidiaries, officers, directors, employees,
        predecessors and successors and heirs, executors and
        assigns, from any and all legal, equitable or other claims,
        counterclaims, demands, setoffs, defenses, contracts,
        accounts, suits, debts, agreements, actions, causes of
        action, sums of money, reckonings, bonds, bills,
        specialties, covenants, promises, variances, trespasses,
        damages, extents, executions, judgments, findings,
        controversies and disputes, and any past, present or future
        duties, responsibilities, or obligations, from the beginning
        of the world to the date hereof, which are now known or
        unknown and arise out of, or which may, can, or shall arise
        out of, or which have or ever had arisen out of, or which
        could have arisen out of, the departure of Frank Marano,
        Trotta, Cohn, Hoenninger, Reed, Nix, Katz, MacCormack,
        Petruso, Frick and Hoffman from Wachovia employment
        and their subsequent hiring and employment at
        [Appellees], including, without limitation, any and all
        claims and counterclaims which have been or could have
        been raised in the FINRA Action, the Gonter Action or
        elsewhere, including but not limited to any and all claims
        for injunctive relief, conversion, misappropriation of trade
        secrets, breach of fiduciary duty, breach of contract, unfair
        competition,    interference     with    contractual  and/or
        prospective relationships, raiding, and any and all other
        claims, counterclaims, and/or third-party claims of any
        kind, which have been, or could have been asserted by any
        party hereto in any court, arbitration, or other forum
        involving the subject matter of this Release.

Appellants’ Brief at 28-29 (emphases omitted) (quoting paragraph 6(b) of

settlement agreement). Wachovia, Appellees, and Appellant Frank Marano




                                    -4-
J. S36041/14


signed the settlement agreement. Appellant Donald Marano did not sign the

settlement agreement, as he was not a party to the FINRA action.

       Subsequently,    Appellants   became      dissatisfied   with   working   for

Appellees, quit, and began working for Morgan Stanley. Ex. C to Appellees’

Prelim. Objections to Appellants’ Compl., 9/17/13.          On August 22, 2013,

Appellants    sued     the   underlying    Appellees      for   fraud,    negligent

misrepresentation,     breach   of   contract,     promissory    estoppel,   unjust

enrichment, and declaratory judgment.        Appellants’ Compl. at 15-19. The

complaint alleged that based upon Appellees’ representations, Appellants

agreed to leave Wachovia, join Appellees, and execute the promissory notes.

Id. at 4, 8.         Appellants averred that but for Appellees’ purported

representations, Appellants would not have executed the notes.                   Id.

Appellants’ complaint extensively discussed the promissory notes and

alleged that assuming the notes were valid, Appellees “breached the terms

of the promissory notes. . . .”      Id. at 7-9.    Appellants’ counts for fraud,

negligent misrepresentation, breach of contract, and declaratory judgment

each contain a paragraph alleging that Appellees are liable “assuming

arguendo the promissory notes are valid and otherwise enforceable.”4 Id. at


4
    For example:

          63. As set forth above, assuming arguendo that the
          promissory      notes      are     valid   and     otherwise
          enforceable, [Appellees’] unlawful conduct [deprived
          Appellants] of their right . . . to have the balance owing, if



                                       -5-
J. S36041/14


16-17, 19.     The remaining claims of promissory estoppel 5 and unjust

enrichment derive from Appellees’ alleged misrepresentations.      Appellants’

Brief at 25; see, e.g., Appellants’ Compl. at 9, 18 (alleging Appellees

breached terms of promissory notes and, inter alia, overcharged Appellants

thus unjustly enriching Appellees).

      On September 17, 2013, Appellees filed preliminary objections

pursuant to Pa.R.C.P. 1028(a)(1), referencing the forum selection clause in

the promissory notes. On December 9, 2013, the court sustained Appellees’

preliminary objections and transferred the case to Lancaster County.       On

December 11, 2013, Appellants timely appealed and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.        See generally Pa.R.A.P. 311(c)

(stating appeal may be taken as of right from order changing venue).

      Appellant raises the following seven issues:

         1. Did the trial court commit reversible error in sustaining
         [Appellees’] preliminary objections finding that the forum
         selection clause in the promissory notes requires


         any, on the promissory notes fully satisfied, and causing
         [Appellants] to incur damages in the amount of their
         liability, if any, in respect to the promissory notes.

Appellants’ Compl. at 16 (emphasis added).
5
  “Where there is no enforceable agreement between the parties because the
agreement is not supported by consideration, the doctrine of promissory
estoppel is invoked to avoid injustice by making enforceable a promise made
by one party to the other when the promisee relies on the promise and
therefore changes his position to his own detriment.” Crouse v. Cyclops
Indus., 745 A.2d 606, 610 (Pa. 2000) (citations omitted).




                                      -6-
J. S36041/14


       [Appellants] to file causes of action unrelated to the
       promissory notes in the Court of Common Pleas for
       Lancaster County?

       2. Did the trial court commit reversible error in sustaining
       [Appellees’] preliminary objections finding that “the
       allegations in [Appellants’] complaint are directly related to
       the notes executed by the parties” and that the “notes
       govern [Appellants’] claims”?

       3. Did the trial court commit reversible error in sustaining
       [Appellees’]    preliminary  objections    and     depriving
       [Appellants] of their chosen forum even though
       [Appellees] regularly conduct business within Montgomery
       County, thereby making Montgomery County a proper
       venue under Pa.R.C.P. 1006(b) and 2179?

       4. Did the trial court commit reversible error in sustaining
       [Appellees’] preliminary objections finding that “[a]ny
       argument that the settlement agreement and release
       executed by the parties on June 10, 2009 released any and
       all debts which arose out of [Appellants’] employment with
       [Appellees] and has no venue selections clause is
       meritless”?

       5. Did the trial court commit reversible error in sustaining
       [Appellees’] preliminary objections [by] prematurely
       finding that the “Release specifically exempts any claims
       for recovery of any outstanding balances and any and all
       affirmative claims and defenses that have been or could be
       asserted by [Appellant] Frank Marano”?

       6. Did the trial court commit reversible error in sustaining
       [Appellees’] preliminary objections in prematurely and
       arguably dismissing [Appellants’] claims for declaratory
       relief, which were not before the [trial] court, under the
       settlement agreement and release (containing no forum
       selection) without allowing [Appellants] the right to
       discovery?

       7. Did the trial court commit reversible error in sustaining
       [Appellees’] preliminary objections in arguably adjudicating
       [Appellants’] declaratory judgment claims which were not
       before the [trial] court?


                                   -7-
J. S36041/14



Appellants’ Brief at 5-6 (reordered to facilitate disposition) (footnote and

some capitalization omitted).

       We summarize Appellants’ arguments for their first two issues.6

Appellants contend that because they sued Appellees for breach of an

employment agreement, the forum selection clause in the promissory notes

does not apply. Specifically, Appellants claim that each of their counts “arise

out    of   [Appellees’]   initial   and   ongoing   failure   to    comply     with    the

representations      [Appellees]      made    to     [Appellants]     regarding        their

employment with Appellees.”            Appellants’ Brief at 26.           Appellants thus

suggest the subject matter of their complaint—Appellees’ failure to comply

with   their   purported representations—falls         outside      the    scope   of the

promissory notes’ forum selection clause.               Id.      In support of their

suggestion, Appellants cite Morgan Trailer Mfg. Co. v. Hydraroll, Ltd.,


6
  Despite raising seven issues in their brief, Appellants divide their argument
into only three parts, thus violating Pa.R.A.P. 2119(a), which mandates that
“argument shall be divided into as many parts as there are questions to be
argued.” See Pa.R.A.P. 2119(a). We decline to quash, however. PHH
Mortg. Corp. v. Powell, ___ A.3d ___, ___, 2014 WL 4437646, *3 (Pa.
Super. Sept. 10, 2014) (declining to quash appeal despite numerous
violations of appellate briefing rules); see also Commonwealth v. Briggs,
12 A.3d 291, 343 (Pa. 2011) (“The briefing requirements scrupulously
delineated in our appellate rules are not mere trifling matters of stylistic
preference; rather, they represent a studied determination by our Court and
its rules committee of the most efficacious manner by which appellate
review may be conducted so that a litigant’s right to judicial review as
guaranteed by Article V, Section 9 of our Commonwealth’s Constitution may
be properly exercised.”).




                                           -8-
J. S36041/14


759 A.2d 926 (Pa. Super. 2000) (“Morgan”).7 Because Appellants have not

satisfied their requisite burden of proof, we discern no basis for relief.

      We review “a trial court order sustaining preliminary objections based

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

Timberline Post & Beam Structures Co., 947 A.2d 1279, 1281 (Pa.

Super. 2008) (affirming application of contractual forum selection clause). If

venue is based upon the interpretation and application of a forum selection

clause in a contract, then we conduct a de novo review of the trial court’s

conclusions of law. Autochoice Unlimited, Inc. v. Avangard Auto Fin.,

Inc., 9 A.3d 1207, 1211 (Pa. Super. 2010) (“Autochoice”) (affirming grant

of preliminary objections based on, inter alia, venue lying in Florida because

parties agreed to forum selection clause in contract).8

      With respect to forum selection clauses, the Autochoice Court

observed:

         The modern and correct rule is that, while private parties
         may not by contract prevent a court from asserting its
         jurisdiction or change the rules of venue, nevertheless, a
         court in which venue is proper and which has
         jurisdiction should decline to proceed with the cause
         when the parties have freely agreed that litigation

7
  Appellants also quoted from Kelly v. Bear Stearns & Co., 2001 WL
1807360 (C.C.P. Phila. Dec. 18, 2001), a trial court decision that is not
binding on this Court. See Commonwealth v. Phinn, 761 A.2d 176, 179
(Pa. Super. 2000) (holding trial court decisions are not binding precedent).
8
 The Autochoice Court also examined whether the plaintiff’s fraud claim
was barred by the gist-of-the-action doctrine. Autochoice, 9 A.3d at 1212.




                                      -9-
J. S36041/14


          shall be conducted in another forum and where such
          agreement is not unreasonable at the time of
          litigation.     Such an agreement is unreasonable only
          where its enforcement would, under all circumstances
          existing at the time of litigation, seriously impair [the]
          plaintiff’s ability to pursue his cause of action.       Mere
          inconvenience or additional expense is not the test of
          unreasonableness since it may be assumed that the
          plaintiff received under the contract consideration for these
          things. If the agreed upon forum is available to plaintiff
          and said forum can do substantial justice to the cause of
          action then plaintiff should be bound by his agreement.
          Moreover, the party seeking to obviate the agreement
          has the burden of proving its unreasonableness.

                                  *     *      *

          In light of these controlling principles from Central
          Contracting and prevailing case law, a forum selection
          clause in a commercial contract between business entities
          is presumptively valid and will be deemed unenforceable
          only when: 1) the clause itself was induced by fraud or
          overreaching; 2) the forum selected in the clause is so
          unfair or inconvenient that a party, for all practical
          purposes, will be deprived of an opportunity to be heard;
          or 3) the clause is found to violate public policy.

Id. at 1215 (citations omitted and emphases added) (quoting, inter alia,

Cent. Contracting Co. v. C.E. Youngdahl & Co., 209 A.2d 810, 816 (Pa.

1965)).

     “[W]hen a written contract is clear and unequivocal, its meaning must

be determined by its contents alone.        It speaks for itself and a meaning

cannot be given to it other than that expressed.” Steuart v. McChesney,

444 A.2d 659, 661 (Pa. 1982) (citation omitted). “Arise” is defined as, inter

alia, “to originate from a specified source.”      Webster’s Third International

Dictionary 117 (1971); see also Mfrs. Cas. Ins. Co. v. Goodville Mut.


                                      - 10 -
J. S36041/14


Cas. Co., 170 A.2d 571, 573 (Pa. 1961) (“Goodville”) (defining “arising out

of” in insurance policy as “causally connected with, not proximately caused

by.”); see generally McCabe v. Old Republic Ins. Co., 228 A.2d 901,

903 (Pa. 1967) (holding phrase “arising out of” in insurance policy is

unambiguous, “clear and definite”).      “Related” is defined as, inter alia,

“having relationship : connected by reason of an established or discoverable

relation.” Webster’s Third International Dictionary 1916 (1971).

      For example, in Smay v. E.R. Stuebner, Inc., 864 A.2d 1266 (Pa.

Super. 2004), our Court construed a contract “requiring that the parties

arbitrate ‘[a]ny controversy or Claim arising out of or related to the

Contract.’” Id. at 1273. The Smay Court held that because the appellees

averred “the injury arose from the contract, their . . . claims clearly are

subject to arbitration.” Id.; accord Elwyn v. DeLuca, 48 A.3d 457, 463

(Pa. Super. 2012); Pittsburgh Logistics Sys., Inc. v. Prof’l Transp. &

Logistics, Inc., 803 A.2d 776, 782 (Pa. Super. 2002).

      In Morgan, our Court examined the import of an international forum

selection clause binding the parties to litigation in England.   Morgan, 759

A.2d at 927.    The Morgan Court examined whether litigation in England

would “seriously impair” the plaintiff’s ability to pursue its contract and tort

causes of action. Id. at 930; see Autochoice, 9 A.3d at 1215. The Court

noted that all of the relevant employees resided in Pennsylvania, the plaintiff

had offices in Pennsylvania, most witnesses and documentary evidence were



                                     - 11 -
J. S36041/14


located in the United States, and one of the defendants was also located in

Pennsylvania. Id. at 931. Accordingly, the panel reversed the trial court’s

order enforcing the parties’ forum selection clause because the plaintiff’s

ability to pursue its claims in England would be “seriously impair[ed].” Id.;

see Autochoice, 9 A.3d at 1215. The Morgan Court also noted that even if

the clause did not impair the plaintiff’s contract claims, “pleading alternate

non-contractual theories is not alone enough to avoid a forum selection

clause if the claims asserted arise out of the contractual relation and

implicate the contract’s terms.”     Morgan, 759 A.2d at 931 (citation

omitted).

      Instantly, as noted above, the interpretation of the phrase, “For the

purpose of any suit, action or proceeding arising out of or relating to this

Note,” is at issue. Ex. C and Ex. D to Appellants’ Compl. (emphasis added).

“Arising out of” is an unambiguous, clear, and definite phrase. Cf. McCabe,

228 A.2d at 903. Any suit “originat[ing] from” the promissory notes or any

suit “having [a] relationship” with or “connected by reason of an established

or discoverable relation” to the promissory notes would be subject to the

forum selection clause.   See Webster’s Third International Dictionary 117,

1916; see also Goodville, 170 A.2d at 573. Appellants’ complaint alleges

that if the promissory notes are “valid and otherwise enforceable,” then

Appellees are liable and “breached the terms of the promissory notes.”

Appellants’ Compl. at 7-9, 16-17. Because Appellants’ claims are premised



                                    - 12 -
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on, inter alia, the validity and enforceability of the promissory notes, their

claims arise from or relate to the promissory notes and “clearly are subject”

to the forum selection clause. See Smay, 864 A.2d at 1273; Morgan, 759

A.2d    at   931   (holding   non-contract   claims   deriving   from   contractual

relationship and implicating contract are subject to forum selection clause);

see also Appellants’ Brief at 25.

        Appellants also failed to establish the unreasonableness of the forum

selection clause. See Autochoice, 9 A.3d at 1215; Morgan, 759 A.2d at

931. Because Appellants elected not to challenge reasonableness before the

trial court, this Court cannot consider it.9    See Pa.R.A.P. 302. Appellants’

reliance on Morgan, therefore, is inapt.       See Morgan, 759 A.2d at 930.

Accordingly, with respect to Appellants’ first two issues, we discern no error

of law or abuse of discretion by the trial court. See Stivason, 947 A.2d at

1281.




9
  Given the relatively short distance between Montgomery and Lancaster
Counties, it seems unlikely Appellants’ ability to pursue their claims would be
impaired, unlike the plaintiff in Morgan. We note that in a recent decision
applying the doctrine of forum non conveniens, our Supreme Court observed
that the distance between Philadelphia and Bucks County is “mere[ly]
inconvenien[t],” but “as between Philadelphia and counties 100 miles away,
simple inconvenience fades in the mirror and we near oppressiveness with
every milepost of the turnpike and Schuylkill Expressway.”            Bratic v.
Rubendall, ___ A.3d ___ 2014 WL 4064028, *7 (Pa. Aug. 18, 2014). We
take judicial notice that the distance between the county seats of
Montgomery and Lancaster Counties is sixty-six miles, a distance which
seems, at most, a minor inconvenience, but certainly not oppressive.




                                      - 13 -
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      For their third issue, Appellants suggest Appellees failed to establish

Montgomery County was an improper venue under the Rules of Civil

Procedure.      Appellants claim that because Appellees have offices in

Montgomery County, it is a proper venue under Pa.R.C.P. 2179. Appellants

state that the trial court erred by giving undue weight to Appellees’ contacts

in Lancaster County under Pa.R.C.P. 1006(b) and 2179. We hold Appellants

are not entitled to relief.

      In Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614 (Pa.

Super. 2013), this Court discussed venue as follows:

         [V]enue is an incident of procedure. It is part of that body
         of law which bounds and delineates the forum and the
         manner and mode of enforcing a litigant’s rights. It is
         distinguishable from and is not within the field of law,
         known as substantive, which recognizes, creates and
         defines rights and liabilities and causes of action. As a
         matter of procedure, and not substantive law, venue is
         considered a personal privilege belonging to the defendant
         and can be waived by failing to raise an objection to venue
         in timely filed preliminary objections or waived by written
         agreement or waived by tacit agreement through
         participation in the proceedings.

Id. at 628 (citations omitted).   The principle that venue can be waived is

well-settled.   See Cent. Contracting Co., 209 A.2d at 816 (holding, “a

court in which venue is proper and which has jurisdiction should decline to

proceed with the cause when the parties have freely agreed that litigation

shall be conducted in another forum and where such agreement is not

unreasonable at the time of litigation.” (citations omitted)); accord Atl.

Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct.


                                    - 14 -
J. S36041/14


568, 581 (2013)10 (holding “enforcement of valid forum-selection clauses,

bargained for by the parties, protects their legitimate expectations and

furthers vital interests of the justice system” and thus, “a valid forum-

selection clause should be given controlling weight in all but the most

exceptional cases” (alteration and citations omitted)); M/S Bremen v.

Zapata Off-Shore Co., 407 U.S. 1, 9 (1972) (holding contractual forum-

selection “clauses are prima facie valid and should be enforced unless

enforcement is shown by the resisting party to be ‘unreasonable’ under the

circumstances”).

        Instantly,   as   set   forth   above,   Appellants   waived   in   written

agreements—the promissory notes—any objections they had to venue in the

Lancaster County Court of Common Pleas:



10
     The Atlantic Marine Court also made two observations:

           First, the plaintiff’s choice of forum merits no weight.
           Rather, as the party defying the forum-selection clause,
           the plaintiff bears the burden of establishing that transfer
           to the forum for which the parties bargained is
           unwarranted. . . . Second, [w]hen parties agree to a
           forum-selection clause, they waive the right to challenge
           the preselected forum as inconvenient or less convenient
           for themselves or their witnesses, or for their pursuit of
           the litigation. . . .

Atl. Marine, 134 S. Ct. at 581-82. While we recognize “that federal court
decisions do not control the determinations of the Superior Court,” NASDAQ
OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012),
decisions such as Atl. Marine remain persuasive authority on questions of
state law.




                                        - 15 -
J. S36041/14


        [Appellees] and [Appellants] irrevocably waive any
        objection which [Appellees] or [Appellants] may now or
        hereinafter have to the laying of the venue of any such
        suit, action or proceeding brought in such court and any
        claim that such suit, action or proceeding brought in such
        a courts [sic] has been brought in an inconvenient forum.

Ex. C and Ex. D to Appellants’ Compl. (emphasis added).          Thus, when

Appellants agreed to the forum selection clauses, they waived any argument

that the trial court failed to adhere to Rules 1006(b) and 2179.11       See

Lopez, 78 A.3d at 628; accord Atl. Marine, 134 S. Ct. at 581-82;

Bremen, 407 U.S. at 9.      Indeed, the Autochoice Court did not even

address the applicability of the procedural rules given its ruling that the

parties’ contractual forum selection clause applied. See Autochoice, 9 A.3d

at 1215-16.

     For their last four issues, Appellants suggest that their claims are

outside the scope of the forum selection clause. Appellants refer this Court

to the release language within paragraph 6(b) of the Wachovia settlement

agreement resolving the FINRA action.       Appellants maintain that language

negates all debts, including the promissory notes executed by Appellants

and Appellees.   See Appellants’ Brief at 30.     In other words, Appellants

opine the settlement agreement voided the promissory notes executed by

Appellants and Appellees. See id. at 26 (arguing Appellants are entitled to

11
   Appellants apparently presume that when a contractual forum-selection
clause exists, courts are nonetheless required to comply with Rules 1006(b)
and 2179. Appellants cite no authority for this proposition.




                                   - 16 -
J. S36041/14


“a ruling that they do not owe [Appellees] any money under the promissory

notes because they have been released from all such obligations as a result

of the Wachovia Settlement Agreement.”), 30 (suggesting Appellees

released Appellants from any legal debts). We hold Appellants are due no

relief.

          As set forth above, the standard of review is de novo. Autochoice, 9

A.3d at 1211.       “[S]ettlement agreements are regarded as contracts and

must be considered pursuant to general rules of contract interpretation.”

Friia v. Friia, 780 A.2d 664, 668 (Pa. Super. 2001) (citation omitted). In

ascertaining the meaning of the settlement agreement, we must give effect

to the intent of the parties. Id. The intent of the parties is paramount, and

“the court will adopt an interpretation which under the circumstances

ascribes the most reasonable, probable, and natural conduct of the parties,

bearing in mind the objects manifestly to be accomplished.”      Id. (quoting

Charles D. Stein Revocable Trust v. Gen. Felt Indus., Inc., 749 A.2d

978, 980 (Pa. Super. 2000)). Where the language of the agreement is plain

and unambiguous, the plain meaning of the words is determinative of the

parties’ intent. Id. (citation omitted). “A contract is deemed ambiguous if it

is reasonably susceptible [to] different constructions and capable of being

understood in more than one sense. Therefore, a contract will be deemed

unambiguous if reasonable persons could not differ as to the contract’s




                                      - 17 -
J. S36041/14


interpretation.”   Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998)

(citation and quotation marks omitted).

      Instantly, Appellants have not cited, and we are unaware of, any

reference to the record suggesting that Appellants and Appellees considered

the Wachovia settlement agreement—which resolved the FINRA action—as

also voiding any debt Appellants owed to Appellees. Indeed, the settlement

agreement is binding as between Wachovia and Appellees only.           See

Settlement Agreement, at ¶ 6(b) (stating release is between “Wachovia, on

the one hand, and [Appellees], on the other hand, hereby release each

other” and their employees). The language does not release any debts, let

alone legal claims, between Appellants, “on the one hand,” and Appellees,

“on the other hand.”    See id. This interpretation is the most reasonable,

probable, and natural given the intent of the settlement agreement to

resolve the FINRA action.     See Friia, 780 A.2d at 668.   Conversely, no

reasonable person could construe a settlement agreement resolving the

FINRA action as also releasing Appellants from their obligation to repay

Appellees the balance owed on the promissory notes. See id.; Purdy, 715

A.2d at 475. Such a construction is not the “most reasonable” construction.

See Friia, 780 A.2d at 668.

      Further, the instant claims arise out of the departure of Appellants

from Appellees, and not Wachovia.      See Ex. C and Ex. D to Appellants’

Compl.    Moreover, Appellant Donald Marone did not sign the Wachovia



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settlement agreement or any other agreement to discharge the note. See

id.   We reject Appellants’ interpretation of the settlement agreement and

thus agree with the trial court’s conclusion that Appellants’ claims are

subject to the forum selection clause.   See Autochoice, 9 A.3d at 1211.

Accordingly, having discerned no abuse of discretion or error of law, we

affirm the order below. See Stivason, 947 A.2d at 1281.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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