Estate of Sinclair v. Levin

38 Pa. D. & C.5th 319, 2014 Phila. Ct. Com. Pl. LEXIS 149
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 21, 2014
DocketNo. 01277
StatusPublished

This text of 38 Pa. D. & C.5th 319 (Estate of Sinclair v. Levin) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Sinclair v. Levin, 38 Pa. D. & C.5th 319, 2014 Phila. Ct. Com. Pl. LEXIS 149 (Pa. Super. Ct. 2014).

Opinion

DJERASSI, «/.,

— This appeal follows a bench trial where defendant, Harvey Levin, failed to appear and plaintiff, Estate of George D. Sinclair, was unprepared. Defendant (“Levin”) is the appellant here; plaintiff (“estate”) is the cross-appellant. Glenmede Trust Co. administered the estate.

In dispute was a $150,000 promissory note and an incorporated financing agreement through which Levin had agreed to purchase a Center City Philadelphia commercial property owned by the estate. The note was issued by the estate.

The chief trial issue was how to calculate monies Levin owed the estate after repeated defaults over a nine year period. The judgment turned on when “default,” as defined in the instrument, actually took place. Application of [321]*321different interest rates depended on the timing of various defaults.

After trial, the estate was awarded $130,003.19. More than half this amount was unpaid interest.

Levin is now hoping to reopen a factual claim that he could not prove at trial, having failed to appear. In his absence, Levin’s lawyer argued Levin was not responsible for any payments because the promissory note itself was unsigned. Levin, however, had made dozens of payments since 2006 on the loan, and counsel’s argument was rejected.

For its part, the estate complains that an evidentiary ruling merits a new trial. However, the estate sought admission of a financial summary under Pa R.E. 1006 without giving the opposing party a chance to see the underlying records. As their procedure violated Rule 1006, the summary was precluded. The ruling did not prevent the estate from proving Levin’s liability.

Finally, Levin challenges this court’s arithmetic on how much he owes. Having not raised this issue at post-sentence motions, it is waived. Nonetheless, a review was conducted because judgment was not entered until after Levin’s notice of appeal was filed. There is indeed an error in the amount of $656.96 in favor of Levin. Remand is requested for the purpose of correcting the judgment order.

I. PROCEDURAL HISTORY

The estate filed a complaint on May 15, 2012 alleging breach of contract. On June 12,2013, after a non-jury trial, this court filed findings of fact and conclusions of law and [322]*322awarded $130,003.19 in favor of the estate. Judgment was docketed after both parties had filed notices of appeal in September 2013 after post-trial motions were denied.

OnNovember 7,2013, aRule 1925(b) order was issued to the parties, both of whom responded before judgment was finally docketed in January 2014.

II. STATEMENT OF FACTS

In December 2003, the estate loaned Levin $150,000 by promissory note. The loan was issued to finance Levin’s purchase of the estate’s real property at 2009 Chestnut Street in Philadelphia. For the next three years, Levin was supposed to make monthly payments on the principal but tendered no payments whatsoever. After this, the parties signed a new agreement in the fall of 2006 (“2006 agreement”) setting new terms governing Levin’s $150,000 obligation on the promissory note.

Under the new terms, Levin owed the principal but the parties renegotiated what would happen if: 1) Levin failed to pay consecutively every month, and 2) there was a “default” as defined under the 2006 agreement. The parties had agreed that interest would be waived post-2006 if Levin made ninety (90) payments of $1666.66 in consecutive fashion, on time and in full. If Levin did not make these 90 payments in consecutive fashion, then interest would be paid by Levin at two different rates. Which of the two interest rates would apply depended on whether there was a default as defined in the 2006 agreement. If Levin failed to make the 90 consecutive payments and there was a default, then the interest rate during any period in default was 11%. If interest must be [323]*323paid because there was a gap in the 90 monthly payments but there was no default as defined in the 2006 agreement, then the interest rate would only be 8%. If there was a default under the 2006 agreement, the interest rate would be 11% until the default was cured.

After default, the estate had the right to accelerate and demand full payment of both principal and accumulated interest at any time.

The parties stipulated at trial that Levin signed the 2006 agreement. They disputed whether the underlying promissory note was attached, signed, or enforceable.

At trial, Ed Rouh, the director of specialized fiduciary services for Glenmede Trust Co., testified that he signed the 2006 agreement on behalf of the estate as appointed executor. He was shown the 2006 agreement and identified the signature of Hazel Sinclair, executor and wife of the late George Sinclair. Rouh also testified that when he signed the 2006 agreement himself, the promissory note was attached to the 2006 agreement. Rouh also said he believed the phone number on a faxed copy of the 2006 agreement was Levin’s attorney’s phone number, but he could not be sure. The faxed copy, he said, was sent to him as estate administrator by Levin’s agents or attorneys.

In its amended complaint, the estate averred at paragraph 8 that Levin had made “monthly payments of $1666.66 from November 2006 through August 2010 but has made only one payment of $ 1666.67 since then, on February 11, 2011.” This was read into the record and accepted.

III. ISSUES RAISED BY LEVIN

[324]*324On cross-appeal, after failing to appear at trial, Levin argues that the wrong interest rate was applied to calculate the money he owes. He also claims he owes no interest whatsoever, and that if he does, it is only the legal rate of interest, a rate never mentioned in the 2006 agreement.

A. This Court Properly Awarded Interest To The Estate As Required By The 2006 Agreement.

1. The Promissory Note is enforceable.

Levin’s claim that interest rates are misapplied essentially concedes that the promissory note itself is enforceable. The court agreed that it was enforceable because the 2006 agreement was a signed written contract, with a clear inference that both parties had also agreed to the promissory note securing Levin’s $150,000 payment for 2009 Chestnut Street.

A written contract may consist of several signed and unsigned writings if one of the writings is signed and: 1) the signed writing is physically attached to the unsigned writing; 2) the signed writing refers explicitly or impliedly to the unsigned writing; or 3) based on examination of all the writings, the signed writing was signed with reference to the unsigned writings. Target Sportswear, Inc. v. Clearfield Found, 327 Pa. Super. 1, 11, 474 A.2d 1142, 1147 (1984) citing Restatement (Second) of Contracts § 132, comment C (1981); see also Sw. Energy Prod. Co. v. Forest Res., LLC, 2013 Pa. Super. 307, 83 A.2d 177, 187, reargument denied (Feb. 4, 2014), quoting Huegel v. Mifflin Const. Co., Inc., 796 A.2d 350, 354-355 (Pa. Super.

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38 Pa. D. & C.5th 319, 2014 Phila. Ct. Com. Pl. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-sinclair-v-levin-pactcomplphilad-2014.