author: CAVANAUGH, Judge:

text:
    657 A.2d 12
    Barbara G. LITTLE, Appellant, v. Scott Q. LITTLE, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1994.
    Filed April 10, 1995.

      Daniel R. Lovette, Johnstown, for appellant.
    I. Samuel Kaminsky, Johnstown, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   CAVANAUGH, Judge:

This matter is presently before the court on the appeal of wife/appellant Barbara Little (“Wife”) from the order of February 9, 1994 of the Court of Common Pleas of Cambria County. The February 9, 1994 order dismissed Wife’s exceptions and sustained the exception of Scott Little (“Husband”) to the Court’s order of November 18, 1993. The November 18, 1993 order resolved the issues of child support and alimony between the parties.

For the reasons which follow, we affirm the decision which granted Husband’s petition to terminate alimony but vacate and remand to the trial court its denial of Wife’s request for child support.

Barbara and Scott Little were married on August 3, 1985 and divorced on January 14, 1991. On January 4, 1991 the parties entered into a “Marriage Settlement Agreement” aimed at resolving certain issues relating to their anticipated divorce. Article 3 of the agreement, which concerned alimony to Wife, stated that Wife would receive $1600 per month alimony from January 1, 1991 through December, 1994 so long as Wife did not, at any time, “fail or cease to be enrolled in a college or university as a full-time student.” Husband also agreed to pay child support of $1500 per month for the benefit of their two minor children who resided with Wife. A final decree in divorce was entered on January 14, 1991.

In March 1991 Wife voluntarily entered a twenty-eight day in-patient alcohol rehabilitation program in Pittsburgh. Prior to entering the program Wife asked Husband to care for their children while she was away and Husband agreed. Prior to Wife’s entry into the program Husband had filed a petition to terminate alimony, after her entry into the program Husband filed additional petitions to terminate child support and to change custody of the children. After Wife’s release from the program a court conference (but no formal hearing) was held after which, on May 22, 1991, the court entered orders vacating the child support order, increasing Wife’s alimony to $2000 per month, and permitting Wife certain visitation with the children.

On March 19, 1992 the May 22, 1991 order was modified, with consent of the parties, slightly altering the custody and visitation arrangements. Even though Husband was considered the primary custodial parent, and the children resided with him, on July 6, 1992 Wife requested that the court award her child support. Husband responded with a petition to terminate alimony, alleging a violation of Article 3 of the Marriage Settlement Agreement in that Wife was not enrolled in college on a full-time basis. Wife responded with a request to increase alimony.

On November 18, 1993 the court below denied Wife’s petition to increase alimony and Husband’s petition to terminate alimony. It also denied Wife’s petition for child support. Exceptions were filed by both parties. The court then denied Wife’s exceptions but granted Husband’s exception which terminated his responsibility to pay alimony. Wife then appealed to this court.

On appeal, Ms. Little raises the following two issues:

I. Under the terms and conditions of a Marital Settlement Agreement, providing for alimony for the Wife, should a condition precedent be enforced when an intervening illness renders performance by her impossible?
II. Should a father, who is the primary custodial parent be required to pay child support in a “Melzer” formula case, where the mother and father spend almost an equal amount of time with the minor children?

We first address Wife’s claim that the trial court erred in terminating alimony pursuant to the provisions of the marriage settlement agreement. Wife claims that the condition precedent of Article 3.02 of the agreement (that she attend school full time) does not apply because of her medical condition and also that the parties, by their actions, have treated the agreement as modifiable.

We begin our discussion with a review of the relevant provisions of the marital settlement agreement.

3.02 Alimony
(A) Husband agrees to pay alimony to Wife in the sum of $1,600 per month. The alimony payments shall commence January 1, 1991 and continue on a monthly basis to and including December of 1994, at which time the alimony payments will cease. However, should, at any time, Wife fail or cease to be enrolled in a college or university as a full-time student or should she choose to voluntarily withdraw from school or is involuntarily required to cease her education as a full-time student, [except Wife may be part-time student for the spring term starting January 3, 1991], the obligation for alimony shall be immediately terminated and shall not be subject to reinstatement. However, in the event that Wife completes her schooling by receiving a four-year degree before December, 1994, then the funds provided to be paid as alimony hereunder shall continue to be paid through the month of December, 1994 as rehabilitative alimony for the purposes of enabling Wife to have adequate time to obtain a job and settling herself after her schooling is completed.
(B) The alimony obligation set forth hereunder in 3.02(A) as conditioned, is non-modifiable as to amount or duration (and the parties hereto specifically waive any right to modify the same except as set forth under Paragraph 3.02(C) hereunder except said alimony shall cease with the occurrence of any one of the following events:
(i) Death of Wife;
(ii) Death of Husband;
(iii) Remarriage of Wife;
(iv) Wife’s cohabitation with an unrelated adult male person.
(v) Husband’s disability or unemployment.
(C) In the event Husband is terminated from his employment position -with Allegheny Orthodontic Associates, Ltd., for cause prior to the payment of the final payment of Alimony as provided hereunder, Husband shall immediately be permitted to Petition for Modification and/or Suspension through the Court of Common Pleas of Cambria County-Domestic Relations Division, and the Court shall make a determination as to the continuation, modification or suspension of said obligation, if any.

The trial court terminated Husband’s alimony obligation as of July 8, 1992 finding that the parties’ property settlement agreement provided clear and unambiguous language that Husband’s responsibility to pay alimony would terminate should Wife not be enrolled as a full-time college student. Since Wife was not a full-time student the court decided it could not, and should not, modify the agreement without the consent of the parties. Accordingly, the court, reluctantly, terminated Husband’s alimony obligation.

We first note that since the instant alimony obligation arose out of a settlement agreement, rather than a court order, it is governed by contract law. Bullock v. Bullock, 432 Pa.Super. 643, 639 A.2d 826 (1994). “[A] settlement agreement between a husband and wife is governed by the law of contracts unless the agreement itself provides otherwise.” Brower v. Brower, 413 Pa.Super. 48, 604 A.2d 726, 730 (1992). (Citation omitted). A basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the contract itself. Halpin v. LaSalle University, 432 Pa.Super. 476, 639 A.2d 37 (1994). “The Court must construe the contract only as written and may not modify the plain meaning under the guise of interpretation.” McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360, 1364 (1992).

We have reviewed the marital settlement agreement entered into by the parties and can find no ambiguity in its terms regarding alimony. Husband agreed to pay Wife alimony only for so long as she remained a full-time student. Husband moved for termination when Wife was not in compliance with this requirement. The court below was correct in terminating the alimony payments since the circumstances that the parties agreed would trigger a termination of alimony had occurred. The appellant’s argument that her alcohol treatment was a change in circumstances not anticipated by the parties will not afford her the relief she requests as the clear and unambiguous language of the contract into which she entered provided for no such occurrence. Unfortunately for appellant, in this jurisdiction this contract may not be modified by a court absent an ambiguity or fraud. Woodings v. Woodings, 411 Pa.Super 406, 601 A.2d 854, 858 (1992). Accordingly, appellant cannot prevail on this claim.

Wife next claims that that the parties’ prior consent to court-ordered modification of their agreement should permit subsequent court-ordered modification. In support she cites the case of Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 627 A.2d 1210 (1993).

In Ashbaugh the parties entered into a settlement agreement which was incorporated, but not merged, with their divorce decree. The husband on appeal argued that the court should look at the parties’ conduct subsequent to the execution of the agreement to determine their intent to treat their agreement as a court order subject to modification. A panel of this court, while first observing that husband’s unique argument was not supported by any relevant authority, found that the parties conduct and the trial court’s prior rulings (which all resulted in the enforcement of the written agreement) “evidenced no intent to treat the agreement as a modifiable court order.” Id. at 599, 627 A.2d at 1216.

We reach the same conclusion today. We find that the parties’ consent to the court order which increased Husband’s alimony payment to Wife from $1600 to $2000 per month did not evidence their future consent to any court-ordered modification of their agreement which agreement specifically stated that its terms regarding alimony were non-modifiable. Accordingly, appellant is no longer entitled to alimony payments from appellee.

Appellant’s last claim is that the trial court erred in refusing her request for child support.

The trial judge denied appellant’s petition for child support because it was “clear ... that [appellant] as a noncustodial parent, even though she may spend considerable time with the children, is not entitled to receive support from [appellee], the custodial parent.” Trial court opinion, pp. 2-3. The court below based its decision on the fact that Wife is not named as the primary custodial parent of her two minor children.

Before this court Wife argues that Husband, with net monthly income in excess of $20,000, should be ordered to pay child support, even though the children’s primary residence may be with Husband, in that the parties share physical custody of the children for nearly an equal amount of time over each month. Husband responds that Wife is entitled to receive no child support.

Pursuant to orders of May 22, 1991 and March 19, 1992, Husband is named as the “primary custodial parent” of the minor children. Wife has “partial custody and/or visitation” on Tuesday, Wednesday, Thursday, and Friday from 6:45 a.m. through 5:00 p.m. from June through August and from 7:45 a.m. through 6:00 p.m. from September through May. Wife is responsible for all transportation of the children to and from this “visitation.” Wife also has “visitation” every other weekend from Friday at 7:45 a.m. through Sunday at 5:00 p.m. and “visitation” every Wednesday from 7:45 a.m. through 6:00 p.m. Thursday.

A review of this schedule reveals a pattern of such significant custody/visitation that it is more properly labeled “shared” custody. The parties, de facto, share both the legal and physical custody of their children. Accordingly, Wife who claims the attendant expenses of child custody, requests that a child support calculation be ordered and support awarded.

We agree that a child support calculation should be made by the court below and that after such a review child support may be ordered to Wife. Given the testimony of the extensive amount of time the children are in the custody of Wife, and of wife’s limited income versus Husband’s $20,000 per month income, such an award may be appropriate. “Parents are liable for the support of their children who are unemancipated and eighteen (18) years of age or younger.” 23 Pa.C.S.A. § 4321(2), Luzerne County Children and Youth Services v. Cottam, 412 Pa.Super. 268, 603 A.2d 212, 214 (1992), alloc. denied 530 Pa. 666, 610 A.2d 45 (1992), cert. denied, -U.S. -, 113 S.Ct. 425, 121 L.Ed.2d 347 (1992). “Child support is a shared responsibility; both parents must contribute to the support of their child in accordance with their relative income and ability to pay.” Depp v. Holland, 431 Pa.Super. 209, 636 A.2d 204, 206 (1994).

Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) stated that a hearing court should calculate child support awards by: calculating the reasonable expenses of raising the children involved; determining the respective abilities of the parents to support their children; calculating each parent’s total support obligation; and, finally, determining what portion of the obligation is offset by support provided directly to the children and what portion must be satisfied by support payments to the other parent. We believe, given the facts before us today, that the court below should make this analysis to determine if child support to Wife is appropriate.

Accordingly, we hold that where parents of minor children share custody to the extent that the non-custodial parent has the children for nearly fifty (50%) percent of the hours of each month and has, in addition, the entire responsibility for transporting the children to and from her home, their father’s home, their schools and other activities; and where the “primary” custodial parent’s earnings or earning potential varies significantly from the other parent, child support may be ordered to be paid to the “non-custodial” parent. We would anticipate that such shared child support would be limited to cases such as this where the “visitation” amounts to de facto shared custody and where the non-primary custodial parent is able to demonstrate regular, necessary and reasonable expenses incurred attendant to the visitation/custody.

Accordingly, that portion of the court’s order of February 9, 1994 which denied appellant’s request for child support is vacated and this matter is remanded to the trial court for proceedings consistent with this opinion.

That portion of the February 9, 1994 court order which terminated appellee’s obligation to pay alimony is affirmed.

Jurisdiction is relinquished.

      . Melzer was decided prior to the adoption of the present support guidelines contained in Pa.R.C.P. 1910.16. However, Rule 1910.16— 5(a) (support guidelines operation) provides that Melzer continues to apply in those cases, like the instant action, where the parties income exceeds the amount which can be calculated by the formula.


source: Caselaw Access Project

author: HESTER, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    657 A.2d 17
    SAMUEL RAPPAPORT FAMILY PARTNERSHIP, Appellant, v. MERIDIAN BANK.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1994.
    Filed April 11, 1995.

      David L. Braverman, Philadelphia, for appellant.
    Michael Onufrak, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   HESTER, Judge:

The Samuel Rappaport Family Partnership appeals from the order entered in the Court of Common Pleas of Philadelphia County on February 1, 1994, which granted Meridian Bank judgment notwithstanding the verdict. For the reasons set forth below, we affirm.

The facts and procedural history of this case may be summarized as follows. On May 7, 1985, McKlan, Inc., apparently seeking to take over the operation of a Philadelphia restaurant, agreed to lease from several individuals and entities property housing both the restaurant and a delicatessen. The lease, which incorporated by reference a contemporaneously executed escrow agreement, encompassed an initial term of five years and could be renewed at McKlan’s option for two additional five-year periods. Although the lease’s effectiveness was contingent upon the Pennsylvania Liquor Control Board approving the transfer of the landlords’ liquor license, it required McKlan to post a substantial cash security deposit with a named escrow agent pending the Board’s decision. In addition, the lease obliged McKlan to substitute an irrevocable $100,000 letter of credit for the cash security deposit upon approval of the liquor license transfer. The terms of the lease required the letter of credit to be drawn on a reputable bank and made payable to the escrow agent upon the presentation of his sight draft and certain other documentation. That documentation was to consist of the escrow agent’s certification that McKlan had been given ten days notice of the sight draft’s presentment and the landlords’ certification regarding the existence of an uncured default.

In August, 1985, Marvin Orleans purchased the property, and the original landlords assigned their interest in the lease to him. I. David Pincus, Esquire, was named the new escrow agent. On October 2, 1985, at McKlan’s behest, Central Penn National Bank issued the letter of credit required by the lease. The letter of credit provided that it would remain effective for a period of one year and that payment was contingent upon the bank’s receipt of certain documentation. Specifically, it required the presentation of Mr. Pincus’s sight draft along with his certification that McKlan had received ten days notice of the presentment. The letter of credit also required the submission of a certificate signed by Mr. Orleans indicating that an event of default had occurred under the terms of the lease, that McKlan was notified of the default’s existence, and that McKlan failed to cure it in a timely fashion.

Following the issuance of the letter of credit, Central Penn merged into Meridian Bank. Meridian subsequently advised both McKlan and Mr. Pincus that all sight drafts seeking payment under the letter of credit would have to be drawn upon it. On September 24, 1986, Meridian amended the letter of credit to extend its effective period for another year. Shortly thereafter, Mr. Orleans died. Later, when appellant purchased the property from Mr. Orleans’s estate, the estate assigned the lease to it. None of appellant’s agents examined the letter of credit prior to the purchase.

On September 14, 1987, after McKlan instituted bankruptcy proceedings, Meridian again amended the letter of credit to provide for a one-year extension of its effective period. McKlan subsequently defaulted under the lease, and Samuel Rappaport, appellant’s sole general partner, examined the letter of credit’s terms for the first time. Later, Mr. Pincus submitted a $100,000 sight draft to Meridian, which certified that McKlan had received the requisite notice of presentment. Among the documents accompanying the sight draft was a certification signed by Mr. Rappaport. In that certification, Mr. Rappaport indicated that appellant was the lawful assignee of Mr. Orleans’s interest in the lease, that an event of default had occurred under the lease’s terms, and that McKlan had failed to cure that default in a timely fashion. In addition, he noted that appellant and McKlan had amended the lease on April 5, 1985, to restate its provisions relating to the letter of credit.

Michael Bohley, one of Meridian’s employees, examined both the letter of credit and the documentation supporting the sight draft’s presentment. He noticed that Mr. Pincus failed to include in his presentment the required certificate signed by Mr. Orleans. Consequently, Mr. Bohley contacted McKlan to see if it would waive that requirement and permit payment. McKlan’s representatives informed him that it would not consent to payment. Accordingly, Meridian refused to honor Mr. Pincus’s sight draft.

On October 28, 1988, shortly after Meridian dishonored the sight draft, appellant filed a complaint against it. In that complaint, appellant asserted causes of action for both breach of contract and breach of the implied warranty of good faith. In addition, it requested a declaration of the parties’ rights and obligations with respect to the letter of credit.

On November 18, 1988, Meridian filed an answer and new matter, which denied liability and asserted numerous defenses. The parties subsequently engaged in discovery and filed additional pleadings. On January 6, 1989, alleging that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law, Meridian moved for summary judgment. In support of its request for relief, Meridian relied upon both an affidavit of Mr. Bohley and a memorandum of law. In the memorandum, Meridian asserted, among other things, that appellant lacked the standing necessary to obtain relief.

On May 16, 1989, the trial court denied Meridian’s summary judgment motion. Forty-seven months later, a jury found that Mr. Pincus’s presentment complied with the terms of the letter of credit and determined that Meridian’s improper dishonor of the sight draft caused appellant to sustain $100,-000 in damages. Consequently, the jury awarded appellant the face amount of the letter of credit. Meridian subsequently filed post-trial motions, which reasserted its standing claim and requested both the entrance of judgment n.o.v. and the grant of a new trial. On January 31, 1994, sitting en bane, the trial court denied Meridian’s request for a new trial. However, the court, which did not address Meridian’s standing claim, concluded that Meridian properly dishonored the sight draft due to the presentment’s failure to comply with the strict terms of the letter of credit. Accordingly, it granted Meridian judgment n.o.v. This timely appeal followed the entrance of the court’s order on the docket.

Raising a purely legal claim, appellant challenges the propriety of the trial court’s decision to grant judgment n.o.v. in Meridian’s favor. In support of its challenge, appellant relies upon the principles of contract interpretation and asserts that the death of Mr. Orleans created an ambiguity in the terms of the letter of' credit, which the jury properly resolved after examining extrinsic evidence. We conclude that this claim entitles appellant to no relief. Consequently, we need not consider questions related to the particularly thorny threshold issue of whether appellant possessed the standing necessary to contest Meridian’s failure to honor the sight draft presented by Mr. Pincus.

It is clear in this Commonwealth that issues not asserted in the trial court may not be raised for the first time on appeal. See Weir v. Weir, 428 Pa.Super. 515, 631 A.2d 650 (1993); Kryeski v. Schott Glass Technologies, Inc., 426 Pa.Super. 105, 626 A.2d 595 (1993); Pa.R.A.P. 302. Thus, a party cannot rely upon one theory of relief in the trial court and pursue a different theory on appeal. Kryeski v. Schott Glass Technologies, Inc., supra; Guidry v. Johns-Manville Corp., 377 Pa.Super. 308, 547 A.2d 382 (1988).

In the present case, our review of the record reveals that appellant did not assert its ambiguity theory in the trial court. Rather, our examination of the record demonstrates that appellant alleged the existence of an obvious mistake in the renewal of the letter of credit which rendered performance impossible. Accordingly, we conclude that the theory of relief presently relied upon by appellant has not been preserved for our review.

Our conclusion in this regard is supported by an examination of both the notes of testimony and certain memoranda filed by appellant. Our review of the notes of testimony reveals that appellant noted in its closing argument that Meridian’s sole reason for dishonoring Mr. Pincus’s sight draft was the lack of an accompanying certificate signed by Mr. Orleans. See Notes of Testimony (“N.T.”), 4/14/93, at 109. Consequently, appellant argued that since the letter of credit had been renewed after Mr. Orleans’s death, the document signed by Mr. Rappaport should be considered adequate to satisfy the terms of the letter of credit. Id. Appellant attempted to buttress its argument by pointing out that it was to receive any money paid in accordance with the letter of credit and that the requirement at issue was not essential to the lease transaction because no provisions in either the lease or the escrow agreement referred to Mr. Orleans. Id. at 110. However, appellant never mentioned the term “ambiguity,” never indicated that the death of Mr. Orleans rendered the terms of the letter of credit unclear, and never asked the jurors to resolve any lack of clarity. Furthermore, we note that the notes of testimony are devoid of any indication that appellant requested a jury instruction related to its ambiguity theory.

Our examination of the memoranda filed by appellant in the trial court demonstrates that they essentially are consistent with appellant’s trial argument. Those memoranda are nearly identical. While they referred to the term “ambiguity” briefly in both the headnotes and the body, the references were made in conjunction with the term “mistake.” Moreover, the thrust of the arguments in the memoranda related to appellant’s mistake theory and included no demonstration that an ambiguity even existed. Indeed, we find it instructive that the conclusion of appellant’s memorandum in opposition to Meridian’s post-trial motions refers only to matters relating to McKlan’s allegedly bad faith conduct and appellant’s theory of mistake.

As we have demonstrated, the theory utilized by appellant to support its challenge to the contested grant of judgment n.o.v. has not been preserved for our review. However, even if we assumed that appellant had preserved it, we would find appellant’s challenge devoid of merit. In this regard, we note that our standard for reviewing the propriety of a grant of judgment n.o.v. is well-established. A grant of judgment n.o.v. is appropriate only in a clear case, one where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. See Scott v. Southweste rn Mut. Fire Assn., 436 Pa.Super. 242, 647 A.2d 587 (1994). Thus, in order to examine the propriety of a decision granting judgment n.o.v. “[w]e must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences.” Id., 436 Pa.Super. at 247, 647 A.2d at 590. We will not reverse the trial court’s decision absent the demonstration of either an abuse of discretion or an error of law. Id. Keeping these principles in mind, we will examine certain basic principles relating to letters of credit and consider the merits of appellant’s claim.

The provisions of the Uniform Commercial Code (“U.C.C.”), as adopted by the legislature, govern commercial activity in this Commonwealth. See 13 Pa.C.S. § 1101 et seq. According to the U.C.C., a letter of credit is “[a]n engagement by a bank or other person made at the request of a customer and of a kind ... that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit.” 13 Pa.C.S. § 5103(a). Thus, a transaction involving a letter of credit encompasses at least three distinct agreements: 1) the underlying contract between the customer and the beneficiary, the person entitled to demand payment; 2) the contract between the bank and its customer relating to both the issuance of the letter of credit and the reimbursement of the bank upon honoring a demand for payment; and 3) the letter of credit obligating the bank to pay the beneficiary. See Sound of Mkt. St. v. Continental Bank Int’l, 819 F.2d 384 (3d Cir.1987) (applying Pennsylvania law).

Moreover, the primary purpose of a letter of credit is to provide the assurance of prompt payment upon the presentation of documents. See Intraworld Indus. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316 (1975). The issuing bank’s obligation under the letter of credit is independent from the other agreements and arises only upon the presentation of documents which conform to the requirements of the letter of credit. See Intraworld Indus. v. Girard Trust Bank, supra (issuer deals only in documents and must honor demand for payment if documents conform with letter of credit); Sound of Mkt. St. v. Continental Bank Int’l, supra, 819 F.2d 384 (the three agreements created by letter of credit transaction remain distinct); Five Star Parking v. Philadelphia Parking Auth., 703 F.Supp. 20 (E.D.Pa.1989) (obligation under letter of credit separate and distinct from any contract or course of dealing between bank’s customer and beneficiary of letter of credit; issuer charged only with reviewing documents to determine if they conform with the requirements of the letter of credit).

In the present case, appellant attempts to overcome the necessity of presenting documents which conform strictly to the requirements of the letter of credit. Specifically, appellant asserts that the death of Mr. Orleans rendered ambiguous the question of the continuing vitality of the requirement of the letter of credit regarding the presentation of a certificate signed by him. Thus, appellant argues that the jurors’ verdict was supported by adequate evidence. We reject this claim.

Generally, under the U.C.C., the law of contracts may be utilized to supplement the law relating to letters of credit as long as it does not interfere with the unique nature of letters of credit. See Tradax Petroleum American, Inc. v. Coral Petroleum, Inc., 878 F.2d 830 (5th Cir.1989). Consequently, rules of contract interpretation which are not inconsistent with the nature of letters of credit may be utilized to examine the terms of a letter of credit, determine whether they are ambiguous, and resolve any perceived ambiguity. In this regard, we note:

It is firmly settled that the intent of the parties to a written contract is contained in the writing itself. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (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. Id. Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract. D’Huy [v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) ]. Where the contract terms are ambiguous and susceptible of more than one reasonable interpretation, however, the court is free to receive extrinsic, ie., parol evidence, to resolve the ambiguity. Id. A contract will be found ambiguous:
if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.
Z & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. 580, 585-86, 502 A.2d 697, 700 (1985) (citations omitted).
Ambiguity within a contract may be latent or patent. A patent ambiguity appears on the face of the contract and is a result of defective or obscure language. Id. A latent ambiguity arises from collateral facts which make the meaning of the contract uncertain, although the language appears clear on the face of the contract. Id.

Krizovensky v. Krizovensky, 425 Pa.Super. 204, 211-12, 624 A.2d 638, 642-43 (1993). Thus, extrinsic evidence may be utilized to demonstrate the existence of a latent ambiguity. See Lohmann v. Piczon, 338 Pa.Super. 485, 487 A.2d 1386 (1985).

While courts are responsible for deciding whether, as a matter of law, written contract terms are either clear or ambiguous, it is for the fact finder to resolve ambiguities and find the parties’ intent. Easton v. Washington County Insurance Co. 391 Pa. 28, 137 A.2d 332 (1957); Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 228, 310 A.2d 331 (1973).

Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 385-86, 476 A.2d 1, 5 (1984).

It is undisputed that the requirement in the letter of credit relating to the presentation of a certificate signed by Mr. Orleans facially is unambiguous. Consequently, the question becomes whether that requirement latently was ambiguous. Appellant claims that extrinsic evidence establishing Mr. Orleans’s death rendered the question of the requirement’s continuing vitality latently ambiguous. In support of that claim, appellant relies upon Frickert v. Dexter Bros. Fuel Co., 464 Pa. 596, 347 A.2d 701 (1975), Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963), and Ress v. Barent, 378 Pa.Super. 397, 548 A.2d 1259 (1988), cases in which our courts found ambiguities arising in connection with the death of a party to a contract.

We have examined those cases with care and conclude that they are distinguishable from the situation instantly at issue. While the terms of the letter of credit conditioned payment, in part, upon conduct to be performed by Mr. Orleans, Mr. Orleans clearly was neither its beneficiary nor its issuer. Thus, he was not a party to the document. See Sound of Mkt. St. v. Continental Bank Int’l, supra (discussing the three separate agreements in a letter of credit transaction). Accordingly, we find appellant’s reliance upon the cited cases misplaced.

The death of Mr. Orleans did not render the provisions of the letter of credit ambiguous regarding the continuing necessity of submitting a certificate signed by him in order to obtain payment. Rather, it rendered performance on the requirement impossible. Although appellant characterizes this conclusion as “ludicrous,” see Appellant’s brief at 19, we believe that it conforms with both the nature and purpose of letters of credit. As mentioned previously, the purpose of letters of credit is to assure prompt payment upon the presentation of documents. Moreover, the issuer’s payment obligation comes into play only upon the presentation of conforming documents. Finding an ambiguity due to the death of a person mentioned in a letter of credit would have the practical effect of requiring banks and other issuers to go beyond the mere examination of documents to determine whether they facially comply with the terms of the letter of credit. Specifically, issuers would have to determine whether all such people are living and adjust the requirements of the letter of credit accordingly. Such a result would destroy the assurance of prompt payment and lead to uncertainty regarding the requirements necessary to obtain payment. Consequently, it would impair the basic utility of letters of credit.

Our resolution affects only Meridian’s payment obligation under the letter of credit. It has no impact upon appellant’s rights, if any, against McKlan. In addition, we note that had appellant’s agents examined the terms of the letter of credit prior to completing the purchase of the leasehold premises, this entire litigation might have been avoided. Had appellant’s agents examined the letter of credit’s terms prior to the purchase, appellant could have declined to complete the transaction or made the purchase contingent upon Mr. Pincus and McKlan agreeing to modify the requirement at issue. See 13 Pa.C.S. § 5106(b) (“Unless otherwise agreed once an irrevocable credit is established as regards the customer it can be modified or revoked only with consent of the customer and once it is established as regards the beneficiary it can be modified or revoked only with his consent.”). In the event that appellant chose to exercise neither of those options and completed the purchase, it promptly could have attempted to invoke a lease provision requiring McKlan to take all action necessary to cause the letter of credit to remain in full force and effect during the term of the lease. See Lease § 56(b). Appellant’s agents, however, did not examine the terms of the letter of credit until after McKlan had declared bankruptcy and defaulted and thus, could not exercise any of the described options. Accordingly, appellant must bear the burden of the impossibility of performance occasioned by Mr. Orleans’s death.

As we have concluded that the terms of the letter of credit were not rendered ambiguous by the death of Mr. Orleans, they must be considered to embody the intent of both Meridian and Mr. Pincus. Thus, the premise underlying appellant’s challenge to the trial court’s grant of judgment n.o.v. to Meridian must fail. Accordingly, we need not consider other issues related to appellant’s challenge and decline to disturb the trial court’s decision.

Relying upon Pa.R.A.P. 2741, appellant requests an award of costs. However, as we have affirmed the order of the trial court, appellant is not entitled to such an award. Indeed, costs must be taxed against it. See Pa.R.A.P. 2741(2) (“If an order is affirmed, costs shall be taxed against the appellant unless otherwise ordered.”).

Meridian, however, requests an award of counsel fees. In support of its request, Meridian relies upon Pa.R.A.P. 2744, which permits us to award counsel fees upon determining that an appeal is frivolous. Specifically, Meridian implies that the appeal was frivolous since appellant raised issues not preserved in the trial court. Although we have concluded that the issues raised by appellant were waived, we decline to exercise the discretion granted to us by the rule and impose the fees requested by Meridian.

Order affirmed.

OLSZEWSKI, J., files a concurring statement.

OLSZEWSKI, Judge,

concurring:

We are constrained to concur with the majority that Mr. Rappaport cannot avail himself of the letter of credit. The letter required that Mr. Orleans, as landlord, sign a certificate that his tenants had defaulted on their rent payments. Orleans died and Rappaport bought the property, assuming all of Orleans’s rights. When the same tenants defaulted, Rappaport signed the certification of default as landlord, explaining that he was Orleans’s lawful assignee under the lease.

While common sense would dictate that Rappaport stood in Orleans’s shoes as landlord, the law of letters of credit does not follow the dictates of common sense. Rather, it follows a rule of strict compliance. The letter required Orleans’s signature, and once he died, the letter of credit became worthless. It was Rappaport’s burden to discover this, and because he did not, he cannot blame the Bank for refusing to honor the letter. Such a departure from reasonable expectations might be unconscionable in the realm of consumer transactions. In the sophisticated area of high finance, it is a valid risk-shifting device.

We therefore concur in the result reached, despite its harsh and counter-intuitive appearance.

      . A sight draft may be defined as an instrument payable upon presentment. Black’s Law Dictionary 1238 (5th ed. 1979).

      . Appellant later evicted McKlan from the leasehold premises.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    657 A.2d 24
    Delaine ANDREWS, Appellant, v. Janet WALLACE, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed April 12, 1995.

      Paul J. Furlong, Philadelphia, for appellant.
    Robert J. Campbell, Jr., Voorhees, NJ, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Delaine Andrews appeals an order denying her petition to equitably modify a default judgment. This saga begins in New Jersey, where Wallace rented a house from Andrews. Andrews sued Wallace for some overdue rent, and Wallace took the opportunity to counterclaim for a rent abatement on grounds of uninhabitability. The New Jersey trial court agreed with Wallace that her rented house was partially uninhabitable, and determined that she had been overpaying her rent for some time. Thus, the court entered a judgment for $3,000 against Andrews in the action that Andrews initiated. Andrews appealed this decision to the New Jersey appellate courts, and lost.

Before Wallace could take steps to collect this judgment, Andrews transferred title to her New Jersey property into a relative’s name, becoming judgment-proof in that state. To collect on her judgment, Wallace had to execute against Andrews’ Pennsylvania property. Wallace therefore transferred her judgment from New Jersey to Pennsylvania. Notice of this transfer was sent by the prothonotary and Wallace’s counsel. Andrews failed to appear to contest Wallace’s petition to transfer the foreign judgment, and it was entered as a default judgment. A few months later, Wallace filed a petition to reassess her Pennsylvania judgment by adding interest and attorney’s fees available under New Jersey law. Again, Andrews chose not to respond to the notices sent her. Thus, Wallace obtained a Pennsylvania judgment against Andrews for about $6,700.

Apparently, a writ of execution finally got Andrews’ attention. She filed a petition to stay execution of the judgment, which was denied. She appealed that decision to this Court, and we affirmed. Andrews then filed a petition in equity to modify the judgment. That too was denied, and she again appeals to this Court.

Andrews’ pro se briefs present a maze of argument and allegation. She insists that every proceeding against her was fraught with error, and asks us to revisit and correct her entire case. We have read her briefs and spent some time reviewing the considerable record, and must conclude that her claims are either meritless or not cognizable. In hopes of preventing further baseless litigation, we will take a moment to explain to Andrews some basics about the court system and jurisdiction.

There is no question that the original New Jersey judgment which underlies this case is valid. Andrews took an appeal to the New Jersey Superior Court, Appellate Division, which found no merit to her argument. That much is settled, and not subject to review by this Court.

Nor does Andrews convince us that the Philadelphia Court of Common Pleas erred in allowing Wallace to reassess damages after she transferred her judgment to Pennsylvania. From what Andrews presents, we glean that Common Pleas Court granted Wallace counsel fees and interest because Andrews’ New Jersey appeal was frivolous. Andrews did not respond to the petition to reassess damages, and it was entered by default. She therefore should have sought to open the judgment when the writ of execution issued. The trial court found, and we agree, that Andrews can offer no excuse for her failure to respond to Wallace’s petition to reassess damages. In fact, our review of the record reveals that Andrews intentionally refused to accept registered mail delivered to her address, so she could contend that she never received notice of the petition to reassess damages.

The only possibly cognizable issue Andrews presents concerns jurisdiction. She strenuously argues that she never received proper notice of the transfer of the New Jersey judgment to Pennsylvania. Andrews presumes that notice must take the form of personal service of process, which she never received. Hence, she argues that Pennsylvania courts lack jurisdiction over her. As we will explain, the notice which the record shows she has received is adequate for these proceedings.

In our system of justice, a person cannot be brought into court and sued without the court first obtaining jurisdiction over that person. This is called in personam jurisdiction; to obtain it usually requires personal service of process. Andrews began this case when she sued Wallace for back rent. By filing suit in a New Jersey court, Andrews voluntarily submitted herself to that court’s jurisdiction. That is why no one has ever served original process on Andrews in this case: she started it herself. Hence, Andrews’ extraordinary ability to avoid service of process, which is well documented by the record, availed her not.

With a touch of poetic justice, Andrews’ New Jersey suit resulted in a judgment against her. Because Andrews effectively shielded her New Jersey property from execution, Wallace was forced to transfer this judgment to Pennsylvania, pursuant to the Full Faith and Credit Clause of the United States Constitution. Personal service was not necessary in Pennsylvania, however, because Pennsylvania courts do not need to exercise any jurisdiction over Andrews’ person: no one has ever hauled her into court here. Rather, Wallace only wants the Commonwealth to exercise control over some of Andrews’ Pennsylvania real estate. This is called in rem jurisdiction, because it involves the state exercising authority over things, not people.

Pennsylvania courts have automatic in rem jurisdiction over all property located in the Commonwealth. That is part of the inherent power of a sovereign. The Commonwealth makes it possible for Andrews to own real property in Pennsylvania by maintaining a recording system, and authorizing the sheriff to eject trespassers, etc. The Commonwealth also keeps society running by using its sovereign power over property to satisfy valid judgments, through the sheriffs powers of levy and execution. All Wallace seeks is to execute her valid judgment against Andrews’ Pennsylvania property.

The dictates of due process do require that Commonwealth authorities provide some notice before seizing a person’s property to satisfy a judgment. This notice requirement is less stringent than personal service, because the Commonwealth is only going after property to satisfy a judgment which has been obtained with the fullest due process protections our society, or any society, offers. Specifically, the prothonotary must mail notice to the judgment debtor. 42 Pa.C.S.A. § 4306(c)(2). This has been done to the trial court’s satisfaction. See Opinion of 5/23/94 and order of 4/8/94. Wallace’s counsel has documented the lengths to which he has gone to insure that notice was sent to Andrews’ proper address. The record shows that Andrews has received proper notice of the transfer proceeding, but chose not to respond.

We therefore affirm the denial of Andrews’ second petition to halt or modify the underlying judgment.

Order affirmed.

WIEAND, J., dissenting.

WIEAND, Judge,

dissenting.

I respectfully dissent. The courts in Pennsylvania lack jurisdiction to alter the amount of a judgment which has been entered in New Jersey and transferred to Pennsylvania under the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306. Therefore, when a court in Philadelphia purported to increase the amount of a New Jersey judgment by adding counsel fees incurred in the New Jersey action, the order of the Philadelphia court was a nullity.

Janet Wallace had recovered a judgment in New Jersey against Delaine Andrews in the amount of $3,175.92. On or about May 10, 1991, the judgment was transferred to Philadelphia, Pennsylvania, pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306. Thereafter, Wallace filed in Philadelphia a petition to alter the amount of the judgment by adding, in addition to interest, counsel fees and costs incurred in the New Jersey action. On or about October 18, 1991, the court in Philadelphia ordered the judgment increased to $6,669.25. On or about October 31, 1991, Wallace caused execution to be issued on the increased judgment against real estate owned by Andrews in Pennsylvania. A petition for stay was denied by the trial court, whose order was affirmed on appeal to the Superior Court by unpublished memorandum. See: Andrews v. Wallace, 433 Pa.Super. 647, 639 A.2d 835 (1993). In its memorandum decision, the Superi- or Court suggested that error in the computation of damages should be made by a petition to modify judgment and not by a petition to stay the execution.

Andrews then filed pro se a petition to modify the amount of the judgment. .When the trial court refused the requested relief, Andrews appealed to this Court.

The validity of a foreign judgment is established in the transferor court under the Uniform Enforcement of Foreign Judgments Act. 42 Pa.C.S. § 4306. The judgment may not be retried in the transferee court, except for the limited purpose of determining whether the transferor court had jurisdiction to enter the judgment and whether the judgment was obtained without derogating the judgment debtor’s due process rights. Barnes v. Buck, 464 Pa. 357, 364, 346 A.2d 778, 782 (1975); Tronagun Corp. v. Mizerock, 820 F.Supp. 225 (W.D.Pa.1993). Such judgments are entitled to full faith and credit, and the transferee court may not relitigate the amount due. Id. Accord: Matson v. Matson, 333 N.W.2d 862 (Minn. 1983) (Act prohibits Minnesota court from reducing amount of Wisconsin judgment).

Thus in the case sub judice, the court in Philadelphia lacked jurisdiction to reassess the amount of damages awarded by the judgment in New Jersey. That judgment was entitled to full faith and credit in Pennsylvania, where the courts could not relitigate the cause of action to increase or decrease the amount of the judgment. If appellee was entitled to recover counsel fees in connection with the underlying New Jersey litigation, the place to assert that claim was in New Jersey, the transferor state, and not in Pennsylvania, the transferee state.

Because the court in Pennsylvania lacked jurisdiction to relitigate the judgment, its attempt to modify the New Jersey judgment by adding counsel fees incurred in New Jersey was a nullity. The correct amount of appellee’s judgment is $8,175.92, as certified by the New Jersey court on September 13, 1990, plus interest. See: Dooley v. Rubin, 422 Pa.Super. 57, 618 A.2d 1014 (1993).

For these reasons, I would strike from the amended judgment in Pennsylvania all sums in excess of $3,175.92, plus interest.

      . Compare appellee’s brief, exhibits C and E. While the trial court made no findings concerning Andrews' blatant attempts to avoid acknowledging notice, we may make our own findings where the record is clear. Brown v. Great Atlantic and Pacific Tea Co., 314 Pa.Super. 78, 81-83, 460 A.2d 773, 775 (1983).

      . The judgment debtor will usually have had the benefit of personal service in the original action which resulted in the judgment; here, Andrews submitted herself to the jurisdiction of the New Jersey courts.


author: OLSZEWSKI, Judge:

text:
    657 A.2d 27
    F. Robert DIETER, Appellant, v. FIDELCOR, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1995.
    Filed April 12, 1995.

      Harry A. Short, Jr., Philadelphia, for appellant.
    Alfred W. Putnam, Jr., Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

In the mid-1980’s, Joseph Gallagher and appellant F. Robert Dieter, as Chairman and President/Chief Operating Officer of Industrial Valley Bank (1VB), respectively, conducted merger negotiations with appellee Fidelcor. As a part of these negotiations, Gallagher and Dieter made provisions for their own employment at the post-merger Fidelcor. In March of 1986, the merger was completed and IVB was taken over by Fidelcor. On March 31, 1986, Gallagher and Dieter signed new employment agreements with Fidelcor and began working for the new company.

On December 31,1988, Dieter retired from Fidelcor; pursuant to section 6 of his employment agreement (Agreement), he began to receive retirement benefits totalling $135,000 annually. On April 18, 1991, after receiving retirement benefits for over two years, Dieter filed suit against Fidelcor seeking a benefit increase. Dieter claimed that Fidelcor was not correctly computing his retirement benefits because it was undervaluing his averaged “Annual Compensation” under the terms of the Agreement. More specifically, Dieter asserted that certain income derived from the exercise of company stock options should be included in the computation of his “Annual Compensation.”

After completing discovery, both parties moved for summary judgment. The Honorable Clement J. McGovern, Jr., agreed with Fidelcor that the income from the exercise of stock options was not contemplated by the term “Annual Compensation” and granted summary judgment in Fidelcor’s favor. This appeal followed.

The contract clause at issue here reads:

6. Beginning upon such date ... upon Executive’s retirement ... and continuing for the duration of Executive’s life, company agrees to pay Executive each month a retirement allowance ... equal to one-twelfth OÍ2) of the higher of (i) fifty percent (50%) of Executive’s average Annual Compensation (including salary, bonuses and incentive compensation ...) received by Executive during the five (5) consecutive years of his active employment with the company ... in which he received the highest Annual Compensation ... or (ii) ... $135,000 ... less the monthly amount, if any, payable under the company’s retirement plan....

R.R. at 21a. Under Dieter’s reading of this clause, income derived from the exercise of stock options comes within the term “Annual Compensation.” If this income is included, his average Annual Compensation in his five highest years equals $357,196, fifty percent of which is $178,598. Since this is higher than the minimum amount of $135,000, Dieter asserts that he should be paid $178,598 annually pursuant to section 6(i). In contrast, Fidelcor does not include the income from the exercise of stock options in its computation of Annual Compensation. Therefore, its figure for the average Annual Compensation of Dieter’s five highest years is $269,882, fifty percent of which is slightly less than $135,000. Thus, Fidelcor has been paying Dieter $135,000 pursuant to the minimum amount set forth in section 6(ii).

The trial court found, and both parties agreed, that the terms of the Agreement were unambiguous. Therefore, the terms are to be construed by the court as a matter of law. Community College v. Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267, 1275 (1977); Marcinak v. S.E. Greene School District, 375 Pa.Super. 486, 490-92, 544 A.2d 1025, 1027 (1988). In so doing, a court must be guided by the paramount goal of contract interpretation: “to ascertain and give effect to the parties’ intent.” Laudig v. Laudig, 425 Pa.Super. 228, 233, 624 A.2d 651, 653 (1993); Archer v. State Farm Insurance Co., 419 Pa.Super. 558, 564-65, 615 A.2d 779, 783 (1992), alloc. denied, 535 Pa. 612, 629 A.2d 1375 (1992). This intent must be ascertained from the language of the written agreement. Steuart v. McChesney, 498 Pa. 45, 48-51, 444 A.2d 659, 661-62 (1982); Archer, 419 Pa.Super. at 564-65, 615 A.2d at 783; Warren v. Greenfield, 407 Pa.Super. 600, 605-07, 595 A.2d 1308, 1311 (1991). “In the absence of technical terminology, we give the words used in the agreement their plain and ordinary meaning.” Id.

Dieter’s appeal centers around the meaning of the term “Annual Compensation” as used in section 6 of the Agreement. Section 6 states that retirement benefits will be calculated based on the executive’s Annual Compensation, including salary, bonuses, and incentive compensation. It is true, as Dieter asserts, that the use of the term “including” does not limit Annual Compensation to the three listed types of income. Any additional types, however, must still be Annual Compensation, as salary, bonuses, and incentive compensation are parenthetical modifiers of Annual Compensation.

The act of granting stock options could fall within this provision, as it is arguably both annual and compensatory. Since the primary purpose of stock option grants is to compensate employees, these non-cash grants do come under a fair and normal definition of the term “compensation.” Furthermore, options are granted on an annual basis. Therefore, notwithstanding valuation problems, it is at least arguable that the granting of stock options is Annual Compensation within the meaning of this section. As persuasive as this argument is, however, it is irrelevant to our inquiry because Dieter is not asserting that the stock options are Annual Compensation. Instead, Dieter is arguing that the income realized from the exercise of the stock options in later years is Annual Compensation.

In contrast to the annual nature of the grant of a stock option, the exercise of a stock option can occur at any future time, at the sole discretion of the employee. Even if the exercise of the option and the resulting transfer of stock from employer to employee is an act of compensation, there is nothing annual about it. An employee may exercise his or her options annually, or may save them and exercise them all at once in some future year. As the trial court notes, “the issuance of an unvalued right, which may be exercised and converted into stock at any number of years following its issuance, is diametrically opposed to the term ‘Annual.’ ” Opinion 2/17/94 at 11. Given the sporadic and unpredictable nature of the act of exercising stock options, it would require a very strained reading of the term “Annual” to fit the exercise of stock options within this clause.

In addition to the non-annual nature of the act of exercising stock options, Dieter’s interpretation of Annual Compensation would produce a completely unreasonable result. If Dieter’s reading of this clause prevailed, he could unilaterally manipulate the amount of his retirement benefits. Dieter could hold his options, wait for stock prices to soar, and exercise the options all at once. Thus, the company would be forced to include, as part of Dieter’s Annual Compensation, all of the profit accrued since the date of the actual stock option grant.

The inequity of this result is illustrated by analogizing to a scheme where Fidelcor gives Dieter actual shares of stock, rather than stock options. If these shares are to be deemed annual compensation, they would have to be valued in the year they are granted, rather than several years later when they are sold at a profit. It is unreasonable to assume that the company would agree to such a radical formula that gives an employee this much control without any specific discussion in the Agreement.

Dieter attempts to bolster his position by pointing to the fact that the income derived from the exercise of the stock options is treated as compensation for tax purposes. As the trial court noted, however, the issue in this case is the parties’ intent, which is determined by the law of contracts, and not by tax law. Opinion 2/17/94 at 5.

Dieter also asserts that retirement agreements must be construed in favor of the employee and against the employer/drafter. As a general rule, agreements will be construed against the drafter when terms are ambiguous. E.g., Raiken v. Mellon, 399 Pa.Super. 192, 196-98, 582 A.2d 11, 13 (1990). When terms are clear and unambiguous, however, courts must adhere to the written language of the agreement. Id. We find that the term “Annual Compensation” is sufficiently clear and unambiguous that the court need not resort to cannons of interpretation, such as construing the Agreement against the drafter.

Even if we were to assume that there was another reasonable interpretation of Annual Compensation, we would not automatically construe this Agreement against Fidelcor. While the rule that agreements are to be construed against the employer may be true in cases of general retirement plans that are presented to employees on a take-it or leave-it basis, it is not necessarily the case when the employee is in a position to negotiate for his or her benefits. Cf. Levitt v. Billy Penn Corp., 219 Pa.Super. 499, 283 A.2d 873 (1971) (construing a retirement agreement against the employer and emphasizing that the agreement was presented to the employees on a take-it or leave-it basis).

In the present case, Dieter negotiated his employment contract at a time when he had a great deal of bargaining power. Dieter was the President and Chief Operating Officer of a target company. Since a merger is much easier when target' management is cooperative, it was in Fidelcor’s interests to make certain concessions to Dieter. In this situation, we cannot assume that Dieter was presented a standard take-it or leave-it contract. It is more appropriate in this instance to presume that the parties bargained from positions of relatively equal strength, and to construe the contract accordingly.

Lastly, Dieter asserts certain procedural deficiencies in Fidelcor’s summary judgment motion. We agree with the trial court that Dieter waived these arguments by failing to raise them prior to his statement of matters complained of on appeal. See Pa.R.A.P. 302(a); Opinion 2/17/94 at 4.

Since we agree that the language of this Agreement was unambiguous, and that Fidelcor’s reading of the term “Annual Compensation” is more consistent with the parties’ manifested intent, we find that the trial court properly entered summary judgment against Dieter.

Order affirmed.

      . The parties do not dispute that Dieter's five highest earning years are 1984-1988.

      . It appears that most of Dieter’s stock options were actually granted in years prior to 1984, so they would have little impact on his retirement benefits. See Opinion 2/17/94 at 6. This fact explains why Dieter wishes to focus on the exercise of the stock options, which primarily occurred between 1984 and 1988.

      . If the parties truly intended to include income from the exercise of stock options in the calculation of retirement benefits, it would have been a very simple matter to add a specific reference to this type of income in the benefit calculation formula.


text:
    657 A.2d 31
    Joseph A. GALLAGHER, Appellant, v. FIDELCOR, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1995.
    Filed April 12, 1995.

      Pamela Tobin, Philadelphia, for appellant.
    Alfred W. Putnam, Jr., Philadelphia, for appellee.
    Before CIPJLLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

In the mid-1980’s, F. Robert Dieter and appellant Joseph A. Gallagher, as President/Chief Operating Officer and Chairman of Industrial Valley Bank (IVB), respectively, conducted merger negotiations with appellee Fidelcor. As a part of these negotiations, Gallagher and Dieter made provisions for then-own employment at the post-merger Fidelcor. In March of 1986, the merger was completed and IVB was taken over by Fidelcor. On March 31, 1986, Gallagher and Dieter signed new employment agreements with Fidelcor and began working for the new company.

On December 31, 1989, Gallagher retired from Fidelcor; pursuant to section 6 of his employment agreement (Agreement), he began to receive retirement benefits totalling $235,-000 annually. On March 11, 1991, Gallagher filed suit against Fidelcor seeking a benefit increase. Gallagher claimed that Fidelcor was not correctly computing his retirement benefits because it was undervaluing his averaged “Annual Compensation” under the terms of the Agreement. More specifically, Gallagher asserted that certain income derived from the exercise of company stock options should be included in the computation of his “Annual Compensation.”

On November 24, 1993, Fidelcor moved for summary judgment. Gallagher answered by cross-claiming for summary judgment on December 14, 1993. The Honorable Richard S. Lowe agreed with Fidelcor that the income from the exercise of stock options was not contemplated by the term “Annual Compensation” and granted summary judgment in Fideleor’s favor. This appeal followed.

The contract clause at issue here reads:

6. Beginning upon such date ... upon Executive’s retirement ... and continuing for the duration of Executive’s life, company agrees to pay Executive each month a retirement allowance ... equal to one-twelfth (1/12) of the higher of (i) fifty percent (50%) of Executive’s average Annual Compensation (including salary, bonuses and incentive compensation ...) received by Executive during the five (5) consecutive years of his active employment with the company ... in which he received the highest Annual Compensation ... or (ii) ... $235,000 ... less the monthly amount, if any, payable under the company’s retirement plan....

R.R. at 9a. Under Gallagher’s reading of this clause, income derived from the exercise of stock options comes within the term “Annual Compensation.” If this income is included, his average Annual Compensation in his five highest years equals $860,855, fifty percent of which is $430,427.50. Since this is higher than the minimum amount of $235,000, Gallagher asserts that he should be paid approximately $430,500 annually pursuant to section 6(i). In contrast, Fidelcor does not include the income from the exercise of stock options in its computation of Annual Compensation. Therefore, its figure for the average Annual Compensation of Gallagher’s five highest years is $420,281, fifty percent of which is slightly less than $235,000. Thus, Fidelcor has been paying Gallagher $235,000 pursuant to the minimum amount set forth in section 6(ii).

The trial court found that the terms of the Agreement were unambiguous. Therefore, the terms are to be construed by the court as a matter of law. Community College v. Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267, 1275 (1977); Marcinak v. S.E. Greene School District, 375 Pa.Super. 486, 490-92, 544 A.2d 1025, 1027 (1988). In so doing, a court must be guided by the paramount goal of contract interpretation: “to ascertain and give effect to the parties’ intent.” Laudig v. Laudig, 425 Pa.Super. 228, 233, 624 A.2d 651, 653 (1993); Archer v. State Farm Insurance Co., 419 Pa.Super. 558, 566, 615 A.2d 779, 783 (1992), alloc. denied, 535 Pa. 612, 629 A.2d 1375 (1992). This intent must be ascertained from the language of the written agreement. Steuart v. McChesney, 498 Pa. 45, 48-51, 444 A.2d 659, 661-62 (1982); Archer, 419 Pa.Super. at 564-66, 615 A.2d at 783; Warren v. Greenfield, 407 Pa.Super. 600, 605-07, 595 A.2d 1308, 1311 (1991). “In the absence of technical terminology, we give the words used in the agreement their plain and ordinary meaning.” Id.

Gallagher’s appeal centers around the meaning of the terms “Annual Compensation” and “incentive compensation” as used in section 6 of the Agreement. Section 6 states that retirement benefits will be calculated based on the executive’s “Annual Compensation (including salary, bonuses, and incentive compensation).” Salary, bonuses, and incentive compensation act as parenthetical modifiers, listing certain types of income that may be Annual Compensation. The focus, however, must remain on Annual Compensation, which is the unit ultimately being measured. It is not enough to assert, as Gallagher does, that certain income is incentive compensation. The terms salary, bonuses, and incentive compensation do not stand on their own. There are assuredly certain types of incentive compensation that cannot fairly be called “Annual Compensation,” and these types were not meant to be included in the computation. If these terms were meant to add to the term “Annual Compensation,” they would have been listed separately, rather than added as a parenthetical after Annual Compensation. Thus, the relevant issue remains whether income realized from the exercise of stock options is Annual Compensation.

The act of granting stock options could fall within this provision, as it is arguably both annual and compensatory. Since the primary purpose of stock option grants is to compensate employees, these non-cash grants do come under a fair and normal definition of the term “compensation.” Furthermore, options are granted on an annual basis. Therefore, notwithstanding valuation problems, it is at least arguable that the granting of stock options is Annual Compensation within the meaning of this section. As persuasive as this argument is, however, it is irrelevant to our inquiry because Gallagher is not asserting that the stock options are Annual Compensation. Instead, Gallagher is arguing that the income realized from the exercise of the stock options in later years is Annual Compensation.

In contrast to the annual nature of the grant of a stock option, the exercise of a stock option can occur at any future time, at the sole discretion of the employee. Even if the exercise of the option and the resulting transfer of stock from employer to employee is an act of compensation, there is nothing annual about it. An employee may exercise his or her options annually, or may save them and exercise them all at once in some future year. Given the sporadic and unpredictable nature of the act of exercising stock options, it would require a very strained reading of the term “Annual” to fit the exercise of stock options within this clause.

In addition to the non-annual nature of the act of exercising stock options, Gallagher’s interpretation of Annual Compensation would produce a completely unreasonable result. If Gallagher’s reading of this clause prevailed, he could unilaterally manipulate the amount of his retirement benefits. Gallagher could hold his options, wait for stock prices to soar, and exercise the options all at once. Thus, the company would be forced to include, as part of Gallagher’s Annual Compensation, all of the profit accrued since the date of the actual stock option grant.

The inequity of this result is illustrated by analogizing to a scheme where Fidelcor gives Gallagher actual shares of stock, rather than stock options. If these shares are to be deemed annual compensation, they would have to be valued in the year they are granted, rather than several years later when they are sold at a profit. It is unreasonable to assume that the company would agree to such a radical formula that gives an employee this much control without any specific discussion in the Agreement.

Gallagher attempts to bolster his position by pointing to the fact that the income derived from the exercise of the stock options is treated as compensation for tax purposes and wages for Pennsylvania Wage Payment and Collection Law purposes. The issue in this case, however, is the parties’ intent, which is determined by the law of contracts, and not by tax or employment law.

Gallagher also asserts that retirement agreements must be construed in favor of the employee and against the employer/drafter. As a general rule, agreements will be construed against the drafter when terms are ambiguous. E.g., Raiken v. Mellon, 399 Pa.Super. 192, 196-98, 582 A.2d 11, 13 (1990). When terms are clear and unambiguous, however, courts must adhere to the written language of the agreement. Id. We find that the term “Annual Compensation” is sufficiently clear and unambiguous that the court need not resort to cannons of interpretation, such as construing the Agreement against the drafter.

Even if we were to assume that there was another reasonable interpretation of Annual Compensation, we would not automatically construe this Agreement against Fidelcor. While the rule that agreements are to be construed against the employer may be true in cases of general retirement plans that are presented to employees on a take-it or leave-it basis, it is not necessarily the case when the employee is in a position to negotiate for his or her benefits. Cf. Levitt v. Billy Penn Corp., 219 Pa.Super. 499, 283 A.2d 873 (1971) (construing a retirement agreement against the employer and emphasizing that the agreement was presented to the employees on a take-it or leave-it basis).

In the present case, Gallagher negotiated his employment contract at a time when he had a great deal of bargaining-power. Gallagher was the Board Chairman of a target'company. Since a merger is much easier when target management is cooperative, it was in Fidelcor’s interests to make certain concessions to Gallagher. In this situation, we cannot assume that Gallagher was presented a standard take-it or leave-it contract. In fact, Gallagher admits that he specifically negotiated this Agreement to be similar to his prior agreement with IVB. In this case, we have two parties bargaining from positions of relatively equal strength, and we must construe the contract accordingly.

Since we agree that the language of this Agreement was unambiguous, and that Fidelcor’s reading of the term “Annual Compensation” is more consistent with the parties’ manifested intent, we find that the trial court properly entered summary judgment against Gallagher.

Order affirmed.

      . The parties do not dispute that Dieter’s five highest earning years are 1985-1989.

      . If the parties truly intended to include income from the exercise of stock options in the calculation of retirement benefits, it would have been a very simple matter to add a specific reference to this type of income in the benefit calculation formula.


author: DEL SOLE, Judge:

text:
    657 A.2d 34
    Joseph J. WILHELM, Sr., and Leanna J. Wilhelm, Appellants, v. Joseph H. WILHELM, Jr., Donald Wilhelm, Mrs. Debra Fleming and Barbara Kovac Yeager, Integra Bank and Northwest Savings Bank, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1994.
    Filed April 12, 1995.

      Charles R. Rosamilia, Jr., Lock Haven, for appellants.
    George L. Daghir, St. Marys, for appellees.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from the Judgment entered in accordance with the court’s decision which found in favor of defendant/Appellees and against plaintiffs/Appellants, and which directed that certain, bank accounts be utilized for Appellant, Joseph Wilhelm, Sr.’s maintenance and welfare. Whether any such sums are needed is to be determined by defendant, Joseph H. Wilhelm, Jr., with the consent of his siblings who are the remaining defendants.

This action was initiated by Joseph J. Wilhelm, Sr. and his wife, Leanna Wilhelm. Named as defendants were the plaintiffs’ four children, and three banking institutions. Captioned as a “Petition for Injunction” it alleged that Joseph had been in possession of a large sum of money which he received from various sources during his marriage and that for the convenience of the parties he opened several bank accounts in joint names with each of the party’s four children. The plaintiffs averred that all parties agreed that the money placed in the accounts did not belong to the children and that Joseph received all interest which the accounts generated. The Complaint also alleges that because of health problems Joseph turned over all his affairs to his wife as indicated by a power of attorney and that the bank refused to honor Joseph’s intent to withdraw monies when the power of attorney was presented to them by Leanna. The plaintiffs further claimed that their children had refused to turn over the certificates of deposit, which the bank maintained it needed to allow plaintiffs access to the account. Averring that the funds in the accounts belonged to Joseph and Leanna, they requested the court to order their children to turn over all the certificates of deposit and other necessary documents to effectuate transfer of the funds and to order the financial institutions to turn over the funds which they are holding in Joseph’s name alone or in joint accounts he had with his children. In response, the financial institutions denied that they refused to cooperate and liquidate the questioned accounts. They maintained that they informed Plaintiffs that they had to provide appropriate documentation before action could be taken on the accounts and that Plaintiffs indicated they did not have possession of the relevant items. The children also answered denying that the accounts were “convenience accounts” and alleging that Joseph made each of the children co-owners of their respective accounts with rights of survivorship. The children alleged that the plaintiffs, although married, were separated for a period in excess of ten years and that money deposited by Joseph into the accounts did not constitute marital property, rather a large bulk of money was acquired by Joseph as a result of the death of his sister. The children, as individual defendants, also alleged that their father, Joseph, due to various infirmities, became incapable of managing his own financial affairs shortly after he created the accounts. They ultimately requested that the court dismiss their parents’ complaint.

A hearing was held during which each of the parties testified, along with representatives from the various financial institutions involved and doctors who examined Joseph to provide evaluations of his condition. The court also admitted deposition testimony from others who examined Joseph, a Last Will and Testament written by Joseph in 1983, in which he bequeaths all his property in equal shares to his four children without any provision for Leanna, and an Inheritance Tax Return related to the death of Joseph’s sister.

Following the hearing the court made certain findings of fact. Relevant for purposes of our discussion on appeal, the court found that Joseph and Leanna had experienced marital difficulties during the 1970’s and 1980’s which culminated in Leanna filing a complaint in divorce. The complaint was dismissed for failure to prosecute. During that period of marital discord, the court found that Joseph created numerous joint bank accounts with his individual children, which totaled in excess of $100,000.00 as of July 1992. The court also found as a fact that there was “no evidence presented to indicate the monies creating the respective joint and survivorship accounts was marital property” and that Joseph received $48,862.84 upon the death of his sister in 1983. Based upon the reports of the expert witnesses and the court’s observation of Joseph’s testimony, it concluded that Joseph is “generally incapable of handling his financial affairs.” Although the court made mention of the fact that Joseph “attempted” to create a general power of attorney to his wife, it made no factual finding as to whether Joseph’s actions did create a valid power of attorney. The court concluded that the banking institutions acted properly in refusing the plaintiffs’ requests to withdraw funds, since they were unable to produce the relevant documents. The court also concluded that the funds in the accounts are to be maintained and made available to Joseph during his lifetime “upon demonstrated need” and upon his death “the balance of any funds remaining in each account shall pass to the individual surviving joint tenants.” In accordance with its findings of fact and conclusions of law, the court found in favor of all defendants and designated the plaintiffs son Joseph H. Wilhelm “to act on behalf of all said joint tenants to determine, from time to time, whether any of said funds are needed for the maintenance and care of Joseph J. Wilhelm, Sr.” It is only with the “consent of all other joint tenants and/or by order of Court” that he shall disburse the sums for the benefit of Joseph.

Joseph and Leanna filed this appeal raising numerous issues, many of which overlap and concern the overall question of whether the court erred in formulating the order it entered. Because we do find irregularities in the court’s procedures, error in some of its findings and conclusions of law and error in its decision to name an interested and tendentious party as the trustee of the funds, we reverse and remand this matter to the court for further proceedings.

We begin with a discussion regarding ownership of the accounts and the court’s conclusion regarding to whom the funds in these accounts should pass upon Joseph’s death. The law in this Commonwealth regarding joint accounts changed with the passage of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20, Pa.C.S.A. §§ 6301-6306. Under Section 6303 during the lifetime of the parties, a joint account belongs to the party or parties who contributed the funds to the account, unless there is clear and convincing evidence of a different intent. Lessner v. Rubinson, 382 Pa.Super. 306, 555 A.2d 193 (1989) Proof that a different intent existed and a gift was given is the burden of the party who is claiming to have received the benefit of that gift. Such proof must be established by clear, precise, direct and convincing evidence. Id. See also In re Estate of Heske, 436 Pa.Super. 63, 647 A.2d 243 (1994). Thus, as explained in the official comment to Section 6303 there is an “assumption that a person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit.” However, all sums remaining on deposit in a joint account at the death of one of the parties belongs to the surviving party, unless clear and convincing evidence of a different intent exists. 20 Pa.C.S.A. § 6304.

In this case it is clear that the monies placed in the joint accounts were deposited by Joseph. The children each testified that they did not contribute to the accounts, rather the accounts were all opened as a result of deposits made by Joseph. Further, the court did not find, nor would there be any evidence to suggest, that Joseph intended to make an inter vivos gift to his children when he opened joint accounts. As plaintiffs son testified: “It’s his money.... It was to be used basically for him and — I guess just for him, no other reason.” The children, when testifying advised the court that their father created the accounts as a means of keeping the money from their mother. The parties’ daughter Debra testified: “He told me that he was doing it because he did not want my mother to have the money, and if she knew about the money, she would try to take his name off it.” Thus, applying the law to the facts of this case, it appears certain that Joseph had a right to withdraw some or all of the amounts he deposited into the joint accounts as he wished, since he was the sole person responsible for the contributions to the accounts. Likewise, Joseph’s children would be required to turn over those documents which would be necessary to effectuate the transfer.

While it can be readily determined that Joseph had the right to the funds in the accounts over his children, it cannot be said from the record before us whether or not Leanna has any rights to those funds. The trial court made a finding, not supported by the record, that the funds used to create the accounts by Joseph were not marital property. The court found that there was “no evidence presented” to indicate that the monies deposited were marital property. However the law is clear that absent certain exceptions all property acquired during the marriage is marital property. 23 Pa.C.S.A. § 3501. As the court stated in Fidelity Bank v. Carroll, 416 Pa.Super. 9, 13, 610 A.2d 481 (1992): “Under the Divorce Code, 23 Pa.C.S.A. § 3101 et seq., it is presumed that all real and personal property acquired by the parties during marriage is marital property regardless of whether the property is held individually or by some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety, 23 Pa.C.S.A. § 3501(b), and all such property is subject to equitable distribution upon request of either party, 23 Pa.C.S.A. § 3502(a).” The only evidence that some of the property in this case may not have been marital property came from the testimony that Joseph received an certain monies after the death of his sister. Under § 3501(a)(3) of the Act, property acquired by bequest, devise or descent is not included as marital property. The court found as a fact that Joseph obtained $48,862.84 as surviving joint tenant on personal and real property of his deceased sister. There is evidence to support this finding and therefore, the amount acquired by Joseph as a result of his sister’s passing would be excluded from marital property. However since the accounts, according to the findings of the trial court, were worth more that $100,000.00, the presumption would appear to stand as to the remaining amount and it may constitute marital property subject to equitable distribution.

An exception from the conclusion that property acquired during marriage is marital property is also found where the property is acquired after final separation. 23 Pa.C.S.A. § 3501(a)(4). This subsection however does not come into play under the facts of this case. The court made no finding that the property in question was acquired by Joseph after a final separation, nor did the court find that a final separation ever existed. Rather the testimony of both Mr. and Mrs. Wilhelm supports a conclusion that they continue to exist as a married couple.

The court accepted as evidence in this case a copy of a Will signed by Joseph in 1982, which the court found to be “still effective,” and which failed to make any provisions for Leanna. The court also determined that upon Joseph’s death the funds remaining in the joint accounts would pass to the children who were named on the accounts. We find both of these findings to be premature. As we have stated Leanna may have an interest in any marital property deposited into the accounts which she may wish to protect. Further, if in fact Joseph’s 1982 Will remains valid after his death, Leanna, as his wife will have the right to elect against that Will. A surviving spouse has a right to an elective share of one-third of all “property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.” 20 Pa.C.S.A. § 2203(a)(4). Because the funds at issue fall into the category covered by § 2203(a)(4), it cannot be determined at this time who shall recover the monies remaining in the accounts.

Remaining for our discussion is the court’s conclusion that Joseph is no longer able to handle his own financial matters and the court’s designation of his son to act on behalf of all the children to determine if any of the funds are needed for Joseph’s care. Our first concern with result of this ruling is that the court did not have the authority take such action. Section 5511 of 20 Pa.C.S.A. addresses the procedure following petition and hearing in which a person may be found to be incapacitated and in which another may be appointed to serve as guardian of his person. Much as the court avoided reference to other statutory provisions in its rulings in this case, the court did not make reference to, nor did it require the parties to follow the procedure outlined in Subchapter C of Title 20. However, because the parties in this action also proceeded in a most informal fashion and clearly consented to the expert evaluations, we conclude that each party understood that Joseph’s mental capacity and his ability to manage his financial affairs was a question at issue on which the court would rule. Because no objection was raised during the proceedings to this process, we will go on to consider the court’s ultimate determination.

There is ample evidence in the record to support the court’s conclusion that Joseph is no longer capable of handling his financial affairs. The court, however, made no finding as to whether Joseph was capable of naming a person to take charge of his financial concerns. When testifying, Joseph emphatically advised the court that he trusted his wife, Leanna, to manage his care and finances and that he was satisfied with the way in which she was taking care of him. There was evidence offered that in February of 1992 Joseph signed a power of attorney over to his wife Leanna. The court never ruled whether Joseph had the capacity to sign such a document at the time it was signed, or whether he understood what he had signed. There is no clear evidence from the record and the expert reports that Joseph did not understand that he was trusting his care and welfare to his wife. Thus, absent such a ruling, the power of attorney remains valid and Leanna, in that capacity, would have the right and ability to act on behalf of her husband and withdraw the monies he had deposited into the joint accounts. Because no ruling was made on the validity of this critical document, we remand this matter to the trial court for such a finding. The court may take testimony on the question and determine whether Joseph had the capacity to execute a power of attorney at the time the document in question was signed. If he did, the document remains valid and Leanna has a right to proceed in her husband’s behalf and withdraw the funds which he deposited into the joint accounts. If it is determined that the document was executed at a time when Joseph did not appreciate what he was doing, the power of attorney will be invalid.

In the event the power of attorney is not valid, we cannot support the court’s decision naming the parties’ son Joseph H. Wilhelm as guardian of the funds to be distributed to his father where need is demonstrated and where the consent of the siblings and/or the court is obtained. Subsection (f) of 20 Pa.C.S.A. § 5511 directs that the court shall not appoint as a guardian a “person whose interests conflict with those of the incapacitated person except where it is clearly demonstrated that no guardianship support agency or other alternative exists.” It is readily apparent from the nature of the action before us that Joseph H. and his siblings each have an interest which conflicts with that of their father. They each stand to benefit by the amounts of money remaining in the account at the death of their father. It was entirely inappropriate for the court to name any of Joseph’s children as the person responsible for determining how and when his funds may be spent. While the statute does provide that a family relationship “shall not, by itself, be considered as an interest adverse to the alleged incapacitated person,” Id., we have far more in the instant case. The record is replete with evidence that the children and their parents have nothing but a hostile relationship. While this may have initially been directed against their mother, the children each have indicated that they have not spoken or cared for either parent for an extended period of time. More importantly, the children had a direct financial interest in the amounts of money expended on their father’s care and therefore the amounts remaining in the joint accounts. We conclude that it is necessary for the court to reconsider this ruling and name a disinterested party as guardian, if one is necessary.

If the court finds that the power of attorney signed by Joseph was valid, there shall be no need for a guardianship decision to be made with regard to the funds in question. If however, a guardian is found to be necessary the court is to appoint a disinterested party. The person or persons who will be entitled to the funds held in the joint accounts at the time of Joseph’s death, is a question left for another day, which we hope will not be soon to occur.

Reversed. Case remanded for proceedings with this opinion.

      . In their eleventh, and somewhat unrelated issue, Appellants contend that this matter was improperly handled by a senior judge who was also responsible for supervising one of their children, Appellee-Donald Wilhelm, in his role as a District Justice. First we note, Donald Wilhelm was not a District Justice when these proceedings were commenced, nor did he obtain that position prior to or during the hearings in this matter. The only matters pending at the time of Donald Wilhelm's interim appointment to the position of district justice was ihe adjudication and verdict, which was issued prior to the general election. Furthermore, as acknowledged by Appellants, a senior judge does not have direct supervisory capacity over a district justice, such supervision only occurs if the President Judge is no1 available. The judge in this matter advises that he at no time engaged in or was assigned any supervisory responsibilities over Donald Wilhelm. For these reasons we find support for the court's conclusion that no conflict of interest existed and no appearance of impropriety.