NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1677

_____________ PAUL RATHBLOTT ,

Appellant

v. PEOPLESTRATEGY , INC

.

______________ On Appeal from the United States District Court f or the Eastern District of Pennsylvania (D.C. No. 2

- 15

- c v - 0 4293 ) District Judge: Honorable Jan E. DuBois

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

January 24, 2017

______________ Before: CHAGARES, RESTREPO , and ROTH , Circuit Judges

(F iled: April 12, 2017 )

______________ OPINION *

______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitu te binding precedent.2

RESTREPO, Circuit Judge Paul Rathblott appeals the decision of the District Court dismissing his amended complaint for breach of a settlement agreement

. W e will affirm.
I As we write for the benefit o f the parties, we set out only the facts necessary for the discussion that follows. In 2012, Rathblott and a business partner sold an interest in a company to PeopleStrategy, in return for which PeopleStrategy signed a purchase agreement and promissory no te. T he parties soon disagreed about the terms

. PeopleStrategy sued Rathblott , who counterclaimed

. The parties settled that suit in 2014. This suit pertains to the 2014 settlement agreement. That agreement provides for PeopleStrategy to pay Rathblott $900,000 in 72 monthly payments of $12,500 , plus
interest calculated at an annualized rate of 1% per year on the unpaid balance. Those monthly payments are due on the first b anking day of each month, and are considered to be paid only upon the funds actu ally being available to Rathblott. In April 2015, PeopleStrategy made a payment for which the funds did not become available in Rathblott’s account until the second banking day of the month

. The 2014 settlement agreement contained a number of provision s addressing late payments and consequences. Section 3(c) says that the 1% interest rate increases to 6% per year upon the first “payment default.” App. 26. Section 5(a) says that a payment default occurs when a payment remains unpaid for ten days after the receipt of notice

— a ten day “cure period.” App. 27. Section 5(b) says that the balance accelerates and the3

interest rate increases from 1% to 6% if PeopleStrategy resorts to the cure provision more than three times in any twelve

- month period. Whe n PeopleStrategy made the April 2 nd payment, Rathblott insisted that PeopleStrategy increase its payments going forward to reflect the higher interest rate required upon a payment default. Under Rathblott’s reading of the settlement agreement , the cure pr ovision only saves PeopleStrategy from having the entire balance accelerate forward upon default, and does not prevent the increase in the interest rate. When PeopleStrategy disputed that interpretation and continued to pay 1% interest in subsequent month s , Rathblott sued for breach of contract. The District Court granted PeopleStrategy’s motion to dismiss Rathblott’s amended complaint, with prejudice. In granting the motion, the District Court determined that the contract language was not ambiguous, a nd that the interest rate increase in S ection 3 (c) applies upon the first uncured late payment

. Rathblott appeals

. II 1 Under Pennsylvania law, a plaintiff pressing a breach of contract claim must allege “ (1) the existence of a contract, including its ess ential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Kaymark v. Bank of America, N.A. , 783 F.3d 168, 182 (3d Cir. 2015) (internal citation omitted). A ssessing the meaning of a

1 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a District Court’s grant of a motion to dismiss is plenary. N.Y. Shipping Ass’n Inc. v . Waterfront Comm’n of N.Y. Harbor , 835 F.3d 344, 352 (3d Cir. 2016). On review, we apply the same standard as the District Court

. Id

. To survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face

. Ashcroft v. I qbal , 556 U.S. 662, 678 (2009).4

contract’s ambiguous terms, and whether tho se terms have been breached, is the role of the fact

- finder. Bohler

- Uddenholm America, Inc. v. Ellwood Gr p. , Inc. , 247 F.3d 79, 94 (3d Cir. 2001). However, a court must make “a preliminary inquiry ” as to whether the
contract is ambiguous. Hullett v. Tow ers, Perrin, Foster & Crosby, Inc. , 38 F.3d 107, 111 (3d Cir. 1994). If the contract is not ambiguous

— that is, if the terms “can only be read one way”

— “the court will interpret the contract as a matter of law.” Id. “Although extrinsic evidence may be co nsidered under proper circumstances, the parties remain bound by the appropriate objective definition of the words they use to express their intent.” Mellon Bank , N.A. v. Aetna Bus

. Credit, Inc. , 619 F.2d 1001, 1013 (3d Cir. 1980). Further, words that ar e legal terms of art should be given meaning “in accord with specialized or accepted usage.” Id

. The question in this case, as the District Court ably summarized, “is whether PeopleStrategy’s right to cure also protects it from default interest.” A pp. 1 0. I t does. 2 In undertaking the preliminary inquiry based on the plain text of the cure provision and the context of the entire settlement agreement, the meaning of the cure period is not ambiguous. First, “cure” is a legal term of art in contract law , and a cure provision typically allows one party to submit a late payment without suffering the consequences of default. See , e.g. , Rake v. Wade , 508 U.S. 464, 474 (1993); In re Connors , 497 F.3d 314,

2 R athblott also a rgued that PeopleStrategy defaulted by neither paying the higher interest rate in any subsequent month, nor curing those insufficient payments. H e argues that PeopleStrategy defaulted on the promissory n ote accompanying the contract for the same reason . Because either of those claims d epends on PeopleStrategy having owed Rathblott a higher interest rate after the April 2nd payment , our determination that PeopleStrategy did not owe the higher rate obviate s the factual basis for those claims.5

319 (3d Cir. 2007); Marra v. Stocker , 615 A. 3 d 3 26, 3 29 (Pa. 1992)

. Second, as a general matter, in interpreting the contract, we should assess it on the whole. See, e.g. , Bethlehem Steel Corp. v. MATX, Inc. , 703 A.3d 39 , 42 (Pa. Super. Ct. 1997) (directing review of the whole contract when assessing possi ble ambiguity in a provision). In determining whether a contract is ambiguous or not, judges “take[] care not to render other portions of a provision or contract superfluous when construing contract language.” Meyer v. CUNA Mut. Ins. Soc. , 648 F.3d 154, 167 (3d Cir. 2011) ( quot ing New Castle
C ty., Del

. v. Nat’l Union Fire Ins. Co. of Pittsburgh , 174 F.3d 338, 349 (3d Cir. 1999)). Rathblott argue s that the cure provision in the contract protected PeopleStrategy only from acceleration of the full balance a nd not from the increased interest rate. As the District Court noted, however, in the context of the entire settlement agreement , saying that the cure provision applies to forestall the acceleration consequence but not the incre ased interest rate is belie d by Section 5(b). If the interest rate increased from 1% to 6% upon the first late payment of any kind, this would render superfluous the provision specifying that the interest rate would increase from 1% to 6% upon the third instance within twelve month s of PeopleStrategy curing a defau lt by submitting a late payment. The only plausible reading of S ections 3(c), 5(a), and 5(b) together is that the interest rate increases from 1% to 6% in the event of either a single uncured default, or three instances

o f PeopleStrategy resorting to the cure provision within twelve months.
III For the foregoing reasons, we will affirm the judgment of the District Court

.