J-A08029-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

NATIONSTAR MORTGAGE, LLC, D/B/A                 :    IN THE SUPERIOR COURT OF
CHAMPION MORTGAGE COMPANY,                      :          PENNSYLVANIA
                                                :
                   v.                           :
                                                :
LEE AUDREY WILLIAMS AND GEORGE E.               :
WILLIAMS                                        :
                                                :
APPEAL OF: LEE AUDREY WILLIAMS                  :        No. 1742 EDA 2015

              Appeal from the Judgment Entered May 4, 2015
              in the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): July Term, 2013 No. 4566

BEFORE:       BOWES, OLSON, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED SEPTEMBER 12, 2016

      I respectfully dissent.

      The fundamental rule in construing a contract is to ascertain and give

effect to the intention of the parties. Lower Frederick Township v.

Clemmer, 43 A.2d 502 (Pa. 1988). The intention of the parties must be

ascertained    from     the   document    itself,   if    its   terms   are   clear   and

unambiguous. Hutchison v. Sunbeam Coal Corp., 519 A.2d 385 (Pa.

1986). Further, it is well-settled that

      the intent of the parties to a written contract is to be regarded
      as being embodied in the writing itself, and when the words are
      clear and unambiguous the intent is to be discovered only from
      the express language of the agreement. As this Court [has]
      stated…, [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. Where the intention of the parties is clear, there is no
      need to resort to extrinsic aids or evidence. Hence, where
      language is clear and unambiguous, the focus of interpretation is

*Retired Senior Judge assigned to the Superior Court.
J-A08029-16


      upon the terms of the agreement as manifestly expressed,
      rather than as, perhaps, silently intended.

Steuart v. McChesney, 444 A.2d 659, 661 (Pa. 1982) (citations omitted;

emphasis in original).

      Instantly, the first page of the mortgage document states as follows:

“The mortgagor is [decedent], as to a life estate interest and [Appellant] and

George E. Williams, as to the remainder, whose address is 5918 Larchwood

Avenue,    Philadelphia,   Pennsylvania      19143   (“Borrower”).”   Mortgage,

3/9/2010, at 1. All three named borrowers signed this document. Id. at 8.

The above-quoted language is unequivocal: Appellant was intended as a

borrower under the terms of the mortgage.        Therefore, the court erred in

relying on extrinsic evidence to determine the parties’ intent.

      Even if there were some ambiguity with respect to this mortgage

language, “[a]s a general rule, agreements will be construed against the

drafter when terms are ambiguous.” Gallagher v. Fidelcor, Inc., 657 A.2d

31, 34 (Pa. Super. 1995).        Construing the terms of the mortgage against

Nationstar compels the same result: Appellant is a named borrower and is

therefore entitled to remain in the property.

      Accordingly, because I believe the trial court committed an error of law

in going outside of the mortgage document to ascertain its meaning, I would

reverse the trial court order.




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