                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2004

In Re: Fidelity Bond
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3986




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Recommended Citation
"In Re: Fidelity Bond " (2004). 2004 Decisions. Paper 192.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/192


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                                                       NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                             No: 03-3986

        IN RE: FIDELITY BOND & MORTGAGE COMPANY,

                                             Debtor


       ARTHUR L. POWELLL, TRUSTEE UNDER INDENTURE
       OF TRUST OF LEA R. POWELL DATED JULY 19, 1993;
     HAROLD G. SCHAEFFER, TRUSTEE UNDER INDETURE OF
     TRUSTEE OF ADELE K. SCHAEFFER DATED JULY 19, 1993;
  RICHARD POWELL; JON R. POWELL; CAROL HELLER; NANCY E.
POWELL; JAMES R. SCHAEFFER; ANTHONY L. SCHAEFFER; ROBERT D.
  SCHAEFFER; JAMES M. DOUGHERTY; STEVEN D. BRAND; FBMC
       AQUISITION CO, A Pennsylvania Corporation; FIDELITY
  BOND & MORTGAGE, FIDELITY BOND & MORTGAGE COMPANY,

                                      Appellants


                                        v.

     FIRST REPUBLIC BANK, A Pennsylvania Banking Corporation;
      YERE A. YOUNG; GEORGE A. RAPP; HARRY MADONNA


                                        v.

                        DONALD SALMON,

                            Third Party Defendant

            On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                  (Civil Action No. 02-MC-00064)
                  District Judge: Hon. Marvin Katz
                              Argued: September 23, 2004

                         Before: McKEE, Circuit Judge,
                 ALDISERT and GREENBERG, Senior Circuit Judges.

                            (Opinion filed: October 27, 2004)

David L. Braverman, Esq.(Argued)
Steve, L. Bloch, Esq.
Michelle S. Walker, Esq.
BRAVERMAN DANIELS KASKEY LTD.
1650 Market Street, 21st Floor
Philadelphia, PA 19103
Attorneys for Appellants

Tina L. Colman, Esq. (Argued)
Paul R. Rosen, Esq.
Suzanne Ilene Schiller, Esq.
SPECTOR GADON & ROSEN, P.C.
Seven Penn Center
1635 Market Street, 7 th Floor
Philadelphia, PA 19103
Attorneys for Appellees

                                        OPINION

McKEE, Circuit Judge.

      Appellants, the “Fidelity Shareholders,” appeal from the district court’s summary

judgment ruling, which (1) dismissed the Fidelity Shareholders’ claims for breach of

fiduciary duty, tortious interference with prospective economic advantage, and

negligence, and (2) entered judgment against the Fidelity Shareholders in the amount of

$195,000.00, plus prejudgment interest, on First Republic Bank’s breach of contract

counterclaim. For the reasons set forth below, we will affirm.



                                            2
       Inasmuch as we are writing only for the parties who are familiar with the

background of this case, we need not repeat the factual or procedural history except to the

extent that it may be helpful to our brief discussion.

       We reject appellants’ first contention – that the district court erred in granting First

Republic Bank’s motion for summary judgment on the Fidelity Shareholders’ breach of

fiduciary duty, tortious interference with prospective economic advantage and negligence

claims – substantially for the reasons set forth in the district court’s July 29, 2003

Memorandum Opinion.

       Appellants’ second contention – that the district court erred in entering summary

judgment against the Fidelity Shareholders on First Republic’s counterclaim requires a

brief discussion.

        Under ¶ 4 of the Memorandum of Understanding (“M OU”) between the Fidelity

Shareholders and First Republic Bank, the Shareholders were to pay the Bank “the sum of

$195,000 which sum represents the reconciliation of the purchase price pursuant to the

terms of the Purchase Agreement and the LOI.” The Shareholders never paid this amount

to First Republic Bank and now maintain that the district court committed reversible error

in granting summary judgment to the Bank for breach of contract. The Shareholders

claim that the district court’s judgment was based on an erroneous “factual finding that

the Memorandum of Understanding [“MOU”] and its addendum were fully and finally

executed.” According to the Shareholders, “the Republic Defendants have never



                                               3
produced, and indeed, the evidentiary record is devoid of, a final Addendum to the MOU

executed by First Republic.”

       However, at oral argument, we requested from appellees a Rule 28(j) letter

advising us of the location of the executed MOU in the record. Appellees’ Rule 28(j)

letter directed us to Volume II of the Joint Appendix at 506-519. Pages 506-513 of the

Joint Appendix contain a faxed copy of the MOU followed by five pages of signatures.

Those signatures include the signatures of Jere A. Young, Steven Brand, James Schaeffer,

Richard S. Powell, Donald Salmon, Ronald H. White, Michael Wheeler and Edward

Fallon. App 514-19. All of the necessary signatures appear to be present, and, in fact,

during argument, appellants conceded that the MOU had been signed.

       Although appellees have failed to direct us to a similarly signed Addendum to the

MOU, we do not find this failure to be of any consequence. Paragraph 13 of the MOU

states that the MOU “constitutes the entire agreement of the parties with respect to the

matters set forth herein, and may not be further modified, altered, or changed in any

amount except in writing executed by all parties hereto.” Moreover, ¶ 10 of the

Addendum states: “This Agreement is intended to supplement and modify the

Memorandum. Except as expressly set forth herein, the terms of provisions of the

Memorandum shall remain in full force and effect.” The Addendum does not appear to

have been properly executed and nothing in the Addendum expressly addresses the

provisions of ¶ 4 of the MOU. Thus, pursuant to ¶ 13 of the MOU and ¶ 10 of the



                                             4
Addendum, we conclude that the Addendum did not alter the Fidelity Shareholders’

obligation under the MOU. Accordingly, the district court did not err in granting

appellees’ motion for summary judgment on their counterclaim for breach of contract.

      For the reasons set forth above, we will affirm the judgment of the district court.




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