Somerset Motel Partners v. U.S. National Bank

21 Pa. D. & C.4th 227, 1993 Pa. Dist. & Cnty. Dec. LEXIS 66
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedApril 14, 1993
Docketno. 51 Civil 1990
StatusPublished

This text of 21 Pa. D. & C.4th 227 (Somerset Motel Partners v. U.S. National Bank) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Somerset Motel Partners v. U.S. National Bank, 21 Pa. D. & C.4th 227, 1993 Pa. Dist. & Cnty. Dec. LEXIS 66 (Pa. Super. Ct. 1993).

Opinion

CASCIO, J,

This case is before us on defendant’s motion for summary judgment. For the reasons herein, defendant’s motion is granted.

A motion for summary judgment may be sustained “if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b); Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). Summary judgment may only be entered in cases which are clear and free from doubt. Id. at 134-135, 589 A.2d at 206. If the relevant facts are not in dispute, we may reach a conclusion as a matter of law. Askew by Askew v. Zeller, 361 Pa. Super. 35, 42, 521 A.2d 459, 463 (1987).

The moving party has the burden of demonstrating the nonexistence of any genuine issue of fact. Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-469 (1979). The motion must be considered in the light most favorable to the non-moving party, with all doubts resolved against the moving party, all reasonable inferences made in favor of the opposing party and all well-pleaded facts of the opposing party accepted by the court. Thompson, supra at 204, 412 A.2d at 469; Dibble v. Security of America Life Insurance Company, 404 Pa. Super. 205, 207, 590 A.2d 352, 353 (1991); Lower Lake Dock Company v. Messinger Bearing Corporation, 395 Pa. Super. 456, 461, 577 A.2d 631, 634 (1990).

The facts as alleged by plaintiff, the non-moving party, are as follows. Plaintiff, Somerset Motel Partners is engaged in the business of operating hotel franchises, one of which is the Somerset Holiday Inn in Somerset, Pennsylvania. Defendant, United States National Bank [229]*229in Johnstown is a national banking association. On December 29,1986, SMP executed a mortgage and security agreement, a mortgage note, and a loan agreement with USNB in the face amount of $2,000,000. The purpose of the loan was to provide funding for Somerset Holiday Inn to remodel the hotel as required by Holiday Inns, Inc. to obtain a permanent franchise.

On April 7, 1987, SMP approached USNB for additional financing in the amount of $500,000. Among the provisions of the executed mortgage and security agreement was the following paragraph:

“(12) Secondary Liens. Except for a junior lien in favor of InnKeepers Supply Company, which may be assigned to General InnKeepers Acceptance Corporation, securing a debt of not more than $400,000, mortgagor will not create, incur, assume, or suffer to exist any mortgage, lien, charge, security interest, or other encumbrance upon the premises, improvements, hereditaments, rents, building equipment, or lease other than the liens created hereby, without the prior written consent of mortgagee, which consent mortgagee may in its discretion withhold.”

Additionally, a provision in the executed loan agreement stated:

“(13) Borrower covenants and agrees that, from the date of this agreement until this agreement has terminated and until no obligation arising under this agreement shall be outstanding, whichever last occurs, unless the lender shall otherwise consent thereto in writing, it will not, directly or indirectly:
“(a) create, incur, assume, or suffer to exist any indebtedness, except (i) indebtedness to lender, (ii) accounts payable incurred in the ordinary course of business and not more than 60 days past due, (iii) any subordinated indebtedness to or indebtedness guaran[230]*230teed in form and substance satisfactory to lender by any government or governmental agency...; and (iv) purchase money indebtedness incurred in the ordinary course of business for the acquisition of equipment or inventory used in borrower’s business provided that such purchase money indebtedness is secured only by the equipment or inventory and proceeds from such equipment or inventory which is used to acquire, and, further, provided that such purchase money indebtedness shall not in the aggregate at any one time exceed $50,000 and all such purchase money indebtedness must be on terms satisfactory to lender who must be given prior notice thereof;...
“(14) In addition to anything contained in the loan documents, the following shall be considered events of default:...
“(f) if borrower fails to fully and timely perform all terms and conditions of the commitment;...”

USNB either failed or refused to respond to the request for additional financing. In the meantime, Jeffrey S. Wilder, a general partner in SMP, provided alternate, unsecured financing to SMP’s operating entity, R&W Motel of Somerset, Inc. in the amount of $600,000. R&W is a corporation owned by SMP which received and disbursed all cash transactions, including payment of the USNB mortgage.

On November 9, 1987, SMP approached USNB for approval of additional financing with a financing source other than the one specified in paragraph 12 of the mortgage and security agreement. Again, USNB either failed or refused to respond to the request. Also on November 9, 1987, USNB notified SMP that it was uncomfortable with the loan and encouraged SMP to seek refinancing of the loan elsewhere.

[231]*231In December 1987, SMP received a permanent franchise from Holiday Inn, Inc. On April 4, 1988, SMP again requested approval of additional financing with a financing source other than the one specified in paragraph 12 of the mortgage and security agreement. On May 5, 1988, USNB denied the request without reason or explanation.

On February 16, 1988, USNB requested audited financial statements of SMP and R&W for the year ending December 31, 1987. Among the provisions of the executed loan agreement was the following requirement:

“(12) Borrower covenants and agrees that, from the date of this agreement until this agreement has terminated and until no obligation arising under this agreement has terminated and until no obligation arising under this agreement shall be outstanding, whichever last occurs, unless the lender shall otherwise consent thereto in writing, borrower will:...
“(m) deliver to lender, when requested by lender, (i) financial statements and information, including statements of financial condition and related statements of income, equity and changes in financial position, for such periods audited, reviewed, compiled, or prepared as lender shall require, (ii) listings of accounts receivable and payable and other obligations and (iii) other material, reports, records, or information;
“(n) deliver to lender copies of all of borrower’s federal, state, and local tax returns or other filings;...”

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Related

Bohm v. Commerce Union Bank of Tennessee
794 F. Supp. 158 (W.D. Pennsylvania, 1992)
Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co.
560 A.2d 151 (Supreme Court of Pennsylvania, 1989)
Lower Lake Dock Co. v. Messinger Bearing Corp.
577 A.2d 631 (Supreme Court of Pennsylvania, 1990)
Thompson Coal Co. v. Pike Coal Co.
412 A.2d 466 (Supreme Court of Pennsylvania, 1979)
Rutherfoord v. Presbyterian-University Hospital
612 A.2d 500 (Superior Court of Pennsylvania, 1992)
Overly v. Kass
554 A.2d 970 (Supreme Court of Pennsylvania, 1989)
Askew by Askew v. Zeller
521 A.2d 459 (Supreme Court of Pennsylvania, 1987)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
Dibble v. Security of America Life Insurance
590 A.2d 352 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
21 Pa. D. & C.4th 227, 1993 Pa. Dist. & Cnty. Dec. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/somerset-motel-partners-v-us-national-bank-pactcomplsomers-1993.