J-S57039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JERZY WIRTH                                           IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellant

                      v.

JOHN R. SEITZ, III AND                   SEITZ
TECHNICAL PRODUCTS, INC., PC

                           Appellees                       No. 853 EDA 2015


                Appeal from the Order entered March 3, 2015
              In the Court of Common Pleas of Chester County
                        Civil Division at No: 14-10947


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED DECEMBER 21, 2015

       Appellant/plaintiff Jerzy Wirth pro se appeals from an order of the

Court of Common Pleas of Chester County (“trial court”), which sustained

Appellees/defendants John R. Seitz, III and Seitz Technical Products, Inc.,

PC’s   preliminary    objections   and    dismissed    with      prejudice   Appellant’s

complaint. Upon review, we reverse.

       On November 6, 2014, Appellant, a Delaware resident, filed a

complaint   against    Appellees    John    R.   Seitz,   III,    a   Chester   County

(Pennsylvania) resident, and Seitz Technical Products, Inc. PC, a Chester

County business, for breach of contract, seeking, among other things,

$251,837.70 in damages.         Appellees were served with the complaint in

Chester County. On February 4, 2015, Appellees filed preliminary objections

under Pa.R.C.P. No. 1028(a)(1), asserting improper venue.                In support of
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their preliminary objections, Appellees argued only that, pursuant to an

agreement dated February 4, 2011 and titled “Amendment to the below

copies of Agreement of December 18, 2010” (2011 Agreement), “the laws of

Delaware shall govern this business dispute.”1                Appellees’ Preliminary

Objection, 2/4/15, at ¶¶ 14-16. In other words, Appellees relied on a choice

of law provision of the 2011 Agreement to argue that venue was improper in

Chester County.       On March 3, 2015, the trial court sustained Appellees’

preliminary objections and dismissed with prejudice Appellant’s complaint.

Appellant appealed to this Court.

        On appeal,2 Appellant argues only that the trial court erred in

sustaining Appellees’ preliminary objections.         Specifically, Appellant argues

that, under the express language of the 2011 Agreement, he was not

prohibited from bringing the breach of contract action in Chester County,

Pennsylvania. We agree.

        Because the issue sub judice is one of contract interpretation, we note

that our standard of review regarding contract interpretation is well-settled.

“Because contract interpretation is a question of law, this Court is not bound

by the trial court’s interpretation.”          Ragnar Benson, Inc. v. Hempfield

Township Municipal Authority, 916 A.2d 1183, 1188 (Pa. Super. 2007)

____________________________________________


1
 We observe that Appellees failed to challenge venue under either Pa.R.C.P.
No. 1006 or Pa.R.C.P. No. 2179.
2
    Appellees failed to file a brief in the instant matter.



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(citing Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005)).

“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.” Id.

        Our Supreme Court has set forth the principles governing contract

interpretation as follows:

        The fundamental rule in contract interpretation is to ascertain
        the intent of the contracting parties. In cases of a written
        contract, the intent of the parties is the writing itself. When the
        terms of a contract are clear and unambiguous, the intent of the
        parties is to be ascertained from the document itself. When,
        however, an ambiguity exists, parol evidence is admissible to
        explain or clarify or resolve the ambiguity, irrespective of
        whether the ambiguity is patent, created by the language of the
        instrument, or latent, created by extrinsic or collateral
        circumstances.    A contract is ambiguous if it is reasonably
        susceptible of different constructions and capable of being
        understood in more than one sense.             While unambiguous
        contracts are interpreted by the court as a matter of law,
        ambiguous writings are interpreted by the finder of fact.

Ins. Adjustment Bureau, Inc., v. Allstate Ins. Co., 905 A.2d 462, 469

(Pa. 2006) (citations omitted).

        Instantly, the provision of the 2011 Agreement, upon which Appellees

predicated their preliminary objections based on improper venue, provides in

part:

        The undersigned do hereby authorize and empower any Justice
        of the Peace of Delaware or elsewhere, without process, in the
        event of default, to enter judgment, or any Clerk, Prothonotary,
        or Attorney of any Court of Record in Delaware, or elsewhere,
        without process, to appear for them and to confess judgment in
        the Superior Court of the State of Delaware or any other Court of
        Record in Delaware or elsewhere on the above obligation with
        legal interest, together with the greater of: 1) all collection,
        administrative and/or legal fees, or 2) twenty percent (20%) of
        the amount of debt and interest as collection, administrative
        and/or legal fees, without process against their heirs, personal

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       representatives, executors, administrators or assigns, at the suit
       of the holder of this Note, their successors or assigns, at any
       time, with stay of execution until day of payment; and they do
       waive the benefit of any and all exemption laws of the State of
       Delaware or elsewhere. And the maker and endorser hereby
       waives demand, protest and notice of non-payment hereof. All
       to the benefit of [Airborn LLC] only. All Parties acknowledge the
       severe terms of this Business Agreement, and freely enter into
       this Agreement. All Parties agree that this Agreement is not
       usurious, unlawful, predatory, or excessive, and agree that no
       claims to such conditions will be used as a defense for
       nonpayment or noncompliance of this Agreement, and that the
       laws of Delaware shall govern this Business transaction.

2011 Agreement, 2/4/11 (emphasis added).             Upon review of the 2011

Agreement, we conclude that the above-quoted provision does not bar

Appellant from initiating the instant breach of contract action in Chester

County. In fact, the 2011 Agreement is silent as to where venue properly

lies with respect to a breach of contract action.3     Although we agree with

Appellees’ argument that Delaware law governs disputes arising out of the

2011 Agreement, we must conclude that the choice of law provision has no

bearing on whether Chester County is a proper venue. Thus, based on our

determination that the 2011 Agreement does not bar Appellant from

bringing a breach of contract action in Chester County, the trial court erred

in concluding that venue here was improper to entertain Appellant’s breach

of contract action. Accordingly, we reverse the trial court’s order sustaining

Appellees’ preliminary objections based on improper venue and remand this

matter to the trial court for further proceedings.

____________________________________________


3
  The 2011 Agreement addresses venue only in the context of confessions of
judgment and does not limit it to Delaware.



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     Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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