Francis v. Pennpower, Inc. ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL S. FRANCIS, an individual; 
WILLIAM E. CARPENTER, JR., in his
capacity as the executor of the
estate of Jenny L. Francis; MICHAEL
H. SCHWARTZ, an individual,
Plaintiffs-Appellees,
v.  No. 02-1138
PENNPOWER, INCORPORATED, a
Delaware corporation; TAMROCK
CORPORATION, formerly known as
Tampella Corporation,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CA-99-151-5)
Argued: September 25, 2002
Decided: December 10, 2002
Before TRAXLER, Circuit Judge, HAMILTON,
Senior Circuit Judge, and Claude M. HILTON,
Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded with instructions by unpublished per curiam
opinion.
2 FRANCIS v. PENNPOWER, INC.
COUNSEL
ARGUED: Helen Louise Gemmill, MCNEES, WALLACE & NUR-
ICK, L.L.C., Harrisburg, Pennsylvania, for Appellants. James Knight
Brown, Sr., JACKSON & KELLY, P.L.L.C., Charleston, West Vir-
ginia, for Appellees. ON BRIEF: Stephen R. Crislip, Jeffrey G. Wil-
helm, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The plaintiffs brought this breach-of-contract action in state court,
alleging that the defendants, PennPower, Inc. (formerly known as
Sawco) and Tamrock Corporation (formerly known as Tampella Cor-
poration), owed them $250,000 under the terms of a stock option
agreement. The action was removed to federal court on the basis of
diversity of citizenship. See 28 U.S.C.A. § 1332(a) (West 1993 &
Supp. 2002). After a bench trial, the district court ruled in favor of the
plaintiffs and awarded them $250,000, plus interest. The defendants
appeal. We vacate the order of the district court and remand with
instructions to enter judgment in favor of the defendants.1
I.
In 1990, Piney Creek Limited Partnership ("Piney Creek") was
formed for the development, construction, and operation of a power
plant in Pennsylvania. Piney Creek’s general partner was MidAtlantic
1
In its order, the district court rejected a counterclaim raised by the
defendants. Because the defendants did not file a cross-appeal, there is
no issue before us as to that counterclaim.
FRANCIS v. PENNPOWER, INC. 3
Energy of Pennsylvania, Inc. ("MAE"); the plaintiffs were MAE’s
sole shareholders at that time. Piney Creek’s limited partner was
Tampella Power Corporation ("TPC"), a subsidiary of Tampella Cor-
poration. TPC was in the business of manufacturing industrial boilers,
and its initial involvement in the Piney Creek project was to assist
MAE with development costs and to provide MAE with standby
credit in exchange for the exclusive right to supply the boiler for the
project. After an equity infusion in May 1993, Sawco (now known as
PennPower, Inc.), another subsidiary of Tampella Corporation,
became the limited partner. MAE remained the general partner, but
had only a 1% ownership interest in Piney Creek after the equity infu-
sion. Sawco owned the remaining 99%, but, as a limited partner, had
no say in the management of the partnership.
Construction of the plant began falling behind schedule, and MAE
was unable to find an operations and maintenance contractor for the
project. To protect the equity it had already invested in the project
through Sawco, Tampella Corporation created Tampella Services,
another subsidiary, to serve as the operations and maintenance
("O&M") contractor. Swiss Bank Corporation, the project’s primary
lender, conditioned its approval of Tampella Services as the O&M
contractor upon Tampella Corporation posting a letter of credit to
support Tampella Corporation’s $2 million cost overrun guaranty. By
its terms, the letter of credit was to expire on December 1, 1994.
Meanwhile, Sawco and MAE had begun discussing the possibility
of a realignment of their interests in Piney Creek, and they ultimately
agreed to a sale of all MAE stock to Sawco. The terms of this agree-
ment were set forth in a stock option agreement (the "Agreement")
executed on November 15, 1993. Under the terms of the Agreement,
Sawco could initiate the transfer by "calling" MAE’s shares, or MAE
could initiate the transfer by "putting" the shares. If Sawco called the
shares, the purchase price was $1,355,000. If MAE opted to put the
shares, it could require Sawco to purchase its shares for the same
price, provided that three specified conditions were met at the time of
the exercise of the put; if the conditions were not met when the put
was exercised, the Agreement called for a total purchase price of
$1,105,000. The Agreement, however, provided that, after the exer-
cise of the put, "[a]n additional $250,000.00 shall be payable . . . if
and when all of the Conditions have thereafter been satisfied." J.A.
4 FRANCIS v. PENNPOWER, INC.
345-46. The Agreement also included the following termination
clause:
Except with respect to the representations and warranties set
forth in Paragraphs 11 and 12 hereof and to covenants set
forth in Paragraphs 6 and 7 hereof, all of which shall be
without limitation, this Option Agreement, and the obliga-
tions of Sellers, Tampella and Sawco hereunder, shall auto-
matically terminate upon June 30, 1994, at 5:00 p.m., EDT,
unless such termination shall be sooner accomplished by
closing on the Put or Call hereunder.
J.A. 360.
While the plant construction was falling behind schedule, problems
were also developing with the general contractor, who eventually left
the project. Tampella Services entered into a "remediation" agreement
with the Piney Creek partnership through which Tampella Services
agreed to complete the project. Swiss Bank made $1 million available
for the remediation, but required that the letter of credit securing the
cost overrun guarantee remain in place until the remediation was
completed. The remediation, which for a time was projected to be
completed by June 30, 1994, was not completed until December of
that year. Although Swiss Bank initially sought an extension of the
letter of credit, the bank allowed the letter of credit to expire on
December 1, 1994, with no draw having ever been made against it.
The power plant became operational and began earning revenues
even before all construction was completed. Until construction was
completed, however, Swiss Bank controlled the release of construc-
tion funds and the revenue earned through the operation of the plant.
Swiss Bank authorized the use of the plant’s revenues to pay operat-
ing expenses beginning on January 1, 1994. However, because of a
problem with the project’s 1993 budget, Swiss Bank refused to
release funds to pay Tampella Services for O&M charges incurred
from March 1993 through December 1993. By the end of 1993, the
unpaid O&M charges amounted to approximately $1.5 million.
In 1994, Swiss Bank released approximately half of the unpaid
O&M charges, but it refused to release the balance of the funds unless
FRANCIS v. PENNPOWER, INC. 5
Sawco paid a fee of $450,000 to compensate Swiss Bank for what the
bank perceived to be below market fees that it had earned for financ-
ing the project. Sawco refused to pay the fee, believing it unreason-
able to pay $450,000 to receive $750,000 that it was entitled to
receive and expected that it would receive. Swiss Bank never released
the funds for the remaining O&M charges, and the receivable was
"written off" in late 1994 or early 1995.
On January 5, 1994, the plaintiffs exercised their right to put the
shares of MAE. At the time of the exercise, two of the conditions
upon which the payment of the additional $250,000 was dependent
were not satisfied. Near the end of 1994, the plaintiffs became aware
that Sawco was negotiating with a third party for the sale of Sawco’s
interests in the power plant. Counsel for the plaintiffs then began ask-
ing Sawco whether the conditions set forth in the Agreement had yet
been satisfied, to which Sawco responded in the negative. Sawco did
not sell its interests in the Piney Creek project until 1997. Convinced
that the conditions must have been satisfied by the time of the sale,
the plaintiffs sought payment of the additional $250,000. The defen-
dants refused, contending that under the Agreement, its obligation to
make the $250,000 payment terminated on June 30, 1994, in accor-
dance with the termination clause. The defendants also contended that
even if the termination clause did not apply to the obligation to pay
the $250,000, no payment was required because the conditions had
never been satisfied. This action followed.
The district court concluded that the termination clause applied
only to the exercise of the put or call (and certain other obligations
connected to the exercise) and that it did not apply to the defendants’
obligation to pay the additional $250,000 upon satisfaction of the con-
ditions. The court concluded that the conditions had been satisfied
and that the plaintiffs were therefore entitled to payment of the
$250,000, plus prejudgment interest at the rate of six percent (as pro-
vided by Pennsylvania law) beginning January 1, 1995.
II.
On appeal, the defendants first contend that the district court erred
by concluding that the termination clause did not apply to the obliga-
tion to pay the additional $250,000. We need not address that ques-
6 FRANCIS v. PENNPOWER, INC.
tion, however, because we agree with the defendants that even if the
termination clause does not apply, no payment is due because two of
the three conditions were never satisfied.2
A.
Two of the conditions upon which the $250,000 payment was
dependent were directed to issues surrounding the $2 million letter of
credit and the payment of the O&M charges. The first condition
("Condition A") required by the Agreement was "[t]he execution by
Swiss Bank Corporation ("SBC") as lead lender to the Project of a
written agreement with Tampella Corp[oration] . . . . on terms which
require the payment or posting of no additional moneys or recourse
to SBC . . . to the effect that SBC will cause the release of Tampella’s
entire $2,000,000 cost overrun guaranty upon (aa) commercial con-
version of the Project and (bb) remediation of certain Project con-
struction defects . . . by the Contractor or Sawco within a budget
reasonably determined by SBC." J.A. 346. The second condition
("Condition B") was "[t]he agreement by SBC, on terms reasonably
acceptable to Sawco, to release [Piney Creek partnership] funds
and/or Project operating revenues for the payment of the Project oper-
ator’s O&M charges from and after March 6, 1993." J.A. 346.
B.
The district court concluded that Condition A was satisfied when
the letter of credit expired by its own terms on December 1, 1994. We
disagree.
The Agreement required Swiss Bank to "cause the release" of the
$2 million dollar letter of credit. Under Pennsylvania law (which,
under the terms of the Agreement, governs the substantive issues in
this case),3 terms of a contract must be given their plain and ordinary
2
There is no dispute that the third condition was satisfied.
3
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97
(1941) (holding that a federal court sitting in diversity must apply the
choice-of-law rules of the forum state); Nationwide Mut. Ins. Co. v. West,
807 A.2d 916, 920 (Pa. Super. Ct. 2002) ("In contract disputes, Pennsyl-
vania courts generally honor the parties’ choice of law provisions.").
FRANCIS v. PENNPOWER, INC. 7
meaning. See, e.g., Volunteer Firemen’s Ins. Servs. v. Cigna Prop. &
Cas. Ins. Agency, 693 A.2d 1330, 1339 (Pa. Super. Ct. 1997) ("When
the words of the contract are unequivocal, they speak for themselves,
and a meaning other than that expressed cannot be given to them. We
will not rewrite the contract or give it a construction that conflicts
with the plain, ordinary and accepted meaning of the words used."
(internal citation omitted)). "Release," as it is generally understood,
refers to the giving up of an existing and enforceable right or claim.
See Black’s Law Dictionary 1289 (6th ed. 1990) (defining "release"
as "[t]he relinquishment, concession, or giving up of a right, claim,
or privilege, by the person in whom it exists or to whom it accrues,
to the person against whom it might have been demanded or
enforced"). Thus, the requirement that Swiss Bank "release" the letter
of credit must be understood as requiring that Swiss Bank consent to
an early termination of the letter of credit. Merely allowing the letter
of credit to expire in accordance with its terms cannot be considered
a release of the letter of credit, because allowing the natural expiration
of the letter of credit did not require Swiss Bank to give up anything
to which it had an enforceable claim. See id. at 579 (defining "expira-
tion" as "[c]essation; termination from mere lapse of time, as the expi-
ration date of a lease"). The district court therefore erred by
concluding that Condition A was satisfied upon the expiration of the
letter of credit. See, e.g., Scarborough v. Ridgeway, 726 F.2d 132, 135
(4th Cir. 1984) ("We have repeatedly held that interpretation of a
written contract is a question of law subject to de novo appellate
review."); accord Seven Springs Farm, Inc. v. Croker, 801 A.2d 1212,
1216 n.1 (Pa. 2002).4
4
The plaintiffs contend the district court’s determination that the Con-
dition A was satisfied is a factual one that should be reviewed under the
clearly erroneous standard. In some cases, of course, the determination
of whether a contractual condition was satisfied will be a factual one. But
here, the question is whether the expiration of the letter of credit satisfied
Condition A’s requirement that Swiss Bank release the letter of credit,
a question that can be answered only by determining the meaning of
Condition A. Thus, the question is one of contract interpretation and is
reviewed de novo.
8 FRANCIS v. PENNPOWER, INC.
C.
As to Condition B’s requirement that Swiss Bank agree, "on terms
reasonably acceptable to Sawco," to release funds to pay the O&M
charges incurred after March 1993, the district court concluded that
the condition was satisfied when the bank allowed the plant’s operat-
ing revenues to be applied to expenses incurred beginning as of Janu-
ary 1, 1994. As to the O&M expenses incurred between March and
December of 1993, the court noted that Swiss Bank released half of
the funds sought by the defendants and offered to release the balance
upon payment of a $450,000 fee, but that the Sawco "continued its
demand for payment of the labor expenses." J.A. 298. The court
stated that "[w]hile this Court feels that this particular condition has
been satisfied, it also feels that if the condition failed, it was attributed
to the actions of the defendants, or some of the defendants, and not
to any act or omission of the plaintiffs." J.A. 298.
Certainly, Swiss Bank’s release of operating revenues for payment
of expenses incurred as of January 1994 did partially satisfy Condi-
tion B. But Condition B required Swiss Bank’s agreement as to the
release of funds for O&M charges incurred after March 1993; Swiss
Bank’s release of operating revenues for 1994 expenses left unre-
solved the question of payment for expenses incurred between March
and December 1993. Because Swiss Bank released only half of the
funds due for the 1993 O&M charges, Condition B was never satis-
fied. Whether the plaintiffs bore any responsibility for Swiss Bank’s
failure to release the remaining funds is simply irrelevant. Condition
B clearly and only required that Swiss Bank agree to release all of the
funds on terms reasonably acceptable to Sawco; it made no exception
for funds withheld through no fault of the plaintiffs. See Steuart v.
McChesney, 444 A.2d 659, 662 (Pa. 1982) ("It is not the province of
the court to alter a contract by construction or to make a new contract
for the parties; its duty is confined to the interpretation of the one
which they have made for themselves, without regard to its wisdom
or folly." (internal quotation marks omitted)).
The plaintiffs, however, suggest that we should nonetheless treat
Condition B as satisfied. According to the plaintiffs, Sawco acqui-
esced to Swiss Bank’s partial release "by failing to press the issue"
after Swiss Bank conditioned the final release upon payment of
FRANCIS v. PENNPOWER, INC. 9
$450,000. This argument is again resolved by looking to the plain lan-
guage of the Condition B, which required Swiss Bank to release all
funds "on terms reasonably acceptable to Sawco." The evidence
presented to the district court established that Sawco believed it ulti-
mately would be paid in full for the remaining 1993 O&M charges
and that it concluded it would be unreasonable to pay $450,000 to
receive $750,000 that it was entitled to receive and would in fact
receive. The plaintiffs presented no evidence to the contrary, and
there is no other evidence in the record that could support a conclu-
sion that Sawco’s position on the issue was unreasonable. Accord-
ingly, to the extent that the district court’s decision should be
construed as including a factual finding that the defendants’ actions
with regard to the remaining O&M charges were unreasonable, that
finding lacks evidentiary support and is clearly erroneous. See, e.g.,
Consolidation Coal Co. v. Local 1643, United Mine Workers of
America, 48 F.3d 125, 128 (4th Cir. 1995)("A finding is clearly erro-
neous if no evidence in the record supports it. . . .").
The plaintiffs also suggest, albeit without explanation, that their
position is supported by the fact that Sawco wrote off the balance of
the 1993 O&M receivable and later sold its interest in the Piney Creek
project. We are puzzled by this argument. First, we fail to see how
an accounting entry acknowledging that payment would not be forth-
coming can somehow be treated as satisfaction of a condition that
payment actually be made. Second, while Sawco did receive compen-
sation when it sold its interest in the power plant in 1997 to a third
party, that sale simply has no bearing on the question of whether
Swiss Bank ever agreed to the release of the balance of funds for the
1993 O&M charges, as required by Condition B.
Because Swiss Bank’s terms were not reasonably acceptable to
Sawco and Swiss Bank did not release all of the funds required by the
plain language of Condition B, Condition B was never satisfied. The
district court erred in concluding otherwise.
III.
After considering the plain and unambiguous language of the
Agreement and the undisputed facts presented in this record, we con-
clude that Conditions A and B were never satisfied and that the defen-
10 FRANCIS v. PENNPOWER, INC.
dants therefore had no additional monetary obligation to the plaintiffs.
We therefore vacate the district court’s orders and we remand with
instructions to enter judgment in favor of the defendants. Our disposi-
tion of this issue makes it unnecessary to consider the defendants’
challenge to the district court’s award of pre-judgment interest.
VACATED AND REMANDED WITH INSTRUCTIONS