H. Schwartz v. Allegheny County PA, and Value-Added Communications, Inc. ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Howard Schwartz :
:
v. :
Allegheny County Pennsylvania, :
and Value-Added Communications, Inc. :
:
Value-Added Communications, Inc. :
:
v. : No. 385 C.D. 2015
:
Securus Technologies, Inc. :
and The County of Allegheny :
:
Appeal of: Howard Schwartz and :
Securus Technologies, Inc. :
Howard Schwartz :
:
v. :
:
Allegheny County Pennsylvania, :
and Value-Added Communications, Inc. :
:
Value-Added Communications, Inc. :
:
v. : No. 416 C.D. 2015
: Argued: November 17, 2015
Securus Technologies, Inc. :
and The County of Allegheny :
:
Appeal of: Securus Technologies, Inc. :
and Howard Schwartz :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 5, 2016
This is the fourth time since 2006 that we have been asked to review
Allegheny County’s (County) award of a contract for an inmate telephone system
(ITS) for the County Jail and juvenile detention facility (collectively, the Jail).
Most recently, in 2014 this Court affirmed an order of the Court of Common Pleas
of Allegheny County1 (trial court) that denied Howard Schwartz’s (Schwartz)
motion for preliminary injunction through which he sought to enjoin the County’s
award of the contract to the successful bidder, Value-Added Communications, Inc.
(VAC). Schwartz v. Allegheny Cnty. (Pa. Cmwlth., No. 1769 C.D. 2013, filed
May 23, 2014), 2014 WL 2160138 (unreported), appeal denied, 104 A.3d 527 (Pa.
2014) (Schwartz I).
Thereafter, Schwartz (acting essentially on behalf of Securus
Technologies, Inc. (Securus)) filed a motion for summary judgment, asserting that
newly produced evidence showed that the County’s Request For Proposals (RFP)
was ambiguous and distorted the bidding process in favor of VAC. Thus,
Schwartz sought to permanently enjoin the award of the County’s contract to VAC
and require the County to conduct a re-bid. VAC filed a cross-motion for
summary judgment, asserting the County’s award of the contract to VAC was
valid, and Schwartz did not provide any factual support for his allegations that the
bidding process was unfair. Ultimately, the trial court granted VAC’s motion for
summary judgment, and it denied Schwartz’s motion for summary judgment.
In these consolidated appeals, Schwartz and Securus (collectively,
Securus) ask whether the trial court erred in denying Schwartz’s motion for
1
The Honorable Christine Ward presided.
1
summary judgment and granting VAC’s motion for summary judgment.
Additionally, as a threshold procedural matter, VAC and the County argue that this
Court should quash Securus’ appeal on the ground that the trial court’s order is
interlocutory and, therefore, unappealable. Upon review, we affirm.
I. Background
The extensive background to the litigation involving the County’s
award of the ITS contract is set forth in our decision in Schwartz I. The following
brief factual background is relevant to the current dispute.
The Jail uses telephone systems installed and maintained by third
party vendors to provide telephone service for inmates. The system charges
inmates, their families, or other end users for each call made. The vendor
operating the telephone system retains a portion of the revenue generated for itself
and provides a portion to the County. The funds paid to the County are referred to
as commissions.
On June 1, 2012, the County sent out an RFP for an ITS and related
technology for the Jail. The County was to award the contract to the bidder whose
proposal earned the highest score based on an evaluation of various criteria. The
proposals were to be evaluated by an evaluation committee that would recommend
a vendor. The evaluation committee consisted of County representatives and an
independent consultant, none of whom served on the evaluation committees in the
previous two inmate phone system proceedings. Four vendors submitted responses
2
to the RFP: ICSolutions, Inc.; CenturyLink Correctional Communications
Services; VAC; and Securus.
During the bidding process, VAC and Securus had different
interpretations of Sections IV(A) and (B) of the RFP. Securus interpreted those
sections to mean that a vendor had to pay commissions on “all additional charges
and fees” it disclosed in Appendix B.2 Tr. Ct., Slip Op., 4/11/15, at 4. However,
VAC and the County interpreted these sections to mean that a vendor only needed
to pay commissions on the fees it charged without first obtaining the County’s
permission to charge the fee.
Using the mathematical formula set forth in the RFP, Joseph Webb,
the County’s independent consultant, scored the competitors’ financial proposals.
VAC offered the highest commission at 82% and received the highest possible
financial proposal score of 250 points. Securus offered the second-highest
commission of 81.1% and received the second-highest score of 247.3 points.
At the conclusion of the RFP proposal evaluation process, VAC
ranked first, with a total of 651.5 points out of a possible 674, and Securus ranked
second, with a total of 605.8 points. VAC was the successful bidder. The contract
was awarded to VAC on October 22, 2012.
2
Appendix B required vendors “to detail all additional charges and fees that will be
assessed for all collect, debit and pre-paid inmate telephone calls including all set up fees and
deposit fees associated with pre-paid accounts[,]” on a form to be submitted with each vendor’s
proposal. Reproduced Record at 42a-45a.
3
In February 2013, after the County denied Securus’ bid protest, VAC
filed a complaint for declaratory relief seeking to obtain a declaration that the
County’s award of the contract to VAC was proper. Securus, through Schwartz,
filed a complaint challenging the award of the contract to VAC through which it
sought preliminary and permanent injunctive relief in order to enjoin the award of
the contract as well as a declaration that the award of the contract to VAC was
unlawful and void. The trial court consolidated the actions. Additionally, the trial
court issued a consent order prohibiting VAC from removing, replacing, de-
installing, or transitioning any of Securus’ ITS equipment until further order of
court.
In September 2013, the trial court denied Securus’ motion for
preliminary injunction; Securus appealed to this Court. In May 2014, this Court
affirmed the trial court’s decision. See Schwartz I.
Several months later, the trial court granted VAC’s motion to modify
the consent order, specifying that: (1) the County and VAC were authorized to take
the actions necessary to implement the Jail ITS contract; (2) the County and VAC
shall begin the transition of services at the Jail; and, (3) Securus shall cooperate
fully in the transition of the ITS. On the same date, Securus filed a motion for
summary judgment, arguing there were no genuine issues of material fact, and
Securus was entitled to a re-bid based on what it alleged was an unfair bidding
process. Thereafter, VAC filed a cross-motion for summary judgment.
4
Ultimately, the trial court issued an opinion and order in which it
granted VAC’s motion for summary judgment and denied Securus’ motion for
summary judgment for four reasons. First, the trial court determined that Securus
did not show that its interpretation of the language in Sections IV(A) and (B) of the
RFP was reasonable and affected the outcome of the bidding process. Second, the
trial court explained, Securus’ ambiguity argument (that VAC’s “Read and do not
comply response” violated the RFP and therefore was proof of an ambiguity)
lacked merit. Third, the trial court determined, this case is readily distinguishable
from earlier cases in which courts ordered the bidding process to begin anew.
Fourth, the trial court stated, even if it accepted Securus’ argument that there was
an ambiguity in the RFP, VAC still would have won the bid. Securus appealed to
this Court.
The trial court ordered Securus to file a concise statement of the errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b), which it did. The trial
court then issued an opinion pursuant to Pa. R.A.P. 1925(a). This matter is now
before us for disposition.
II. Issues
As a threshold procedural matter, VAC and the County argue that this
Court should quash Securus’ appeal on the ground that the trial court’s order is
interlocutory and, therefore, unappealable.
5
As to the merits,3 Securus asserts the trial court erred in finding the
RFP was not ambiguous and in concluding that, even if the RFP was ambiguous,
VAC did not receive an unfair competitive advantage.
III. Discussion
A. Appealability
1. Contentions
Initially, VAC and the County argue this Court lacks jurisdiction over
Securus’ appeal. They assert Securus had no right to appeal the trial court’s order
as that order is interlocutory; therefore, this Court should quash Securus’ appeal.
Specifically, VAC and the County contend the trial court’s order
granted summary judgment regarding VAC’s claim for declaratory judgment, but it
did not resolve VAC’s claim for damages. As such, the order is interlocutory, and
not appealable as of right pursuant to Pa. R.A.P. 341(a). See Bolmgren v. State
Farm Fire & Cas. Co., 758 A.2d 689, 690-91 (Pa. Super. 2000). VAC and the
County argue an order granting summary judgment that resolves issues related to
equitable claims for declaratory judgment, but does not resolve a legal claim for
damages is interlocutory and, thus, not appealable. Id.; see also Reading v.
Feltman, 562 A.2d 926, 928 (Pa. Cmwlth. 1989) (citing City of Reading v.
Templin, 489 A.2d 272 (Pa. Cmwlth. 1985)). Here, VAC and the County assert,
VAC was granted summary judgment as to its declaratory judgment claim;
however, the trial court has yet to address VAC’s claim for damages, set forth in its
3
Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Kuniskas v.
Commonwealth, 977 A.2d 602 (Pa. Cmwlth. 2009).
6
complaint (and reiterated throughout its various pleadings). See Reproduced
Record (R.R.) at 575a. As such, the trial court’s order is not final and thus not
appealable as of right. Thus, Securus’ appeal is not allowable and should be
quashed.
Securus counters that the trial court’s order is a final order that is
appealable as of right pursuant to Pa. R.A.P 341. As the Pennsylvania Supreme
Court holds, pursuant to the Declaratory Judgment Act (DJA), 42 Pa. C.S. §§7532-
7551, “an order in a declaratory judgment action that either affirmatively or
negatively declares the rights and duties of the parties constituents a final order.”
Nationwide Mut. Ins Co. v. Wickett, 763 A.2d 813, 818 (Pa. 2000). If a trial court
fully adjudicates the claims by ruling that there is no “conceivable legal theory”
under which a party could prevail, its order final and immediately appealable.
Consolidation Coal Co. v. White, 875 A.2d 318, 324, 325 (Pa. Super. 2005).
Here, Securus asserts, the trial court’s order resolved the only issue
presented—whether the award to VAC was legal and valid. The trial court made
the following declaration in its order: “[The] County’s award of the 2012 Inmate
Telephone System to VAC is legal and valid.” Tr. Ct., Mem. & Order, 2/19/15, at
14. Further, the trial court fully adjudicated the parties’ claims by: (i) denying
Securus’ motion for summary judgment; and, (ii) granting VAC’s motion for
summary judgment. In other words, the trial court found there was no
“conceivable legal theory” under which Securus could show the award to VAC
was not legal and valid. Consolidation Coal. As such, Securus contends, the trial
7
court’s order is a final order and immediately appealable as of right pursuant to Pa.
R.A.P. 341.
Securus acknowledges the argument made by VAC and the County
that the trial court’s order is not a final order because the trial court did not yet
address the claim for damages set forth in VAC’s complaint. However, Securus
asserts, this claim is absurd. It contends VAC does not have a claim for damages
here. Indeed, VAC’s complaint is titled “Complaint for Declaratory Judgment,”
R.R. at 564a, and it contains one count titled “Count I – Declaratory Judgment that
VAC is Properly Awarded as the Successful Vendor of the 2012 Inmate Telephone
System RFP.” R.R. at 573a. Securus asserts that, although VAC and the County
point to VAC’s boilerplate request for attorney fees in the last sentence of the
complaint’s prayer for relief, this is not a pending “claim for damages.” Securus
argues VAC and the County point to nothing in the record where VAC ever even
mentioned this boilerplate request, let alone requested the trial court award some
type of damages.
Securus further contends, to the extent VAC’s boilerplate language
could be interpreted as a request for damages, the trial court denied that request by
granting VAC’s request for declaratory relief without any award of damages or
fees. Additionally, it argues, the Superior Court’s decision in Bolmgren, relied on
by VAC and the County, does not support their position. Unlike the plaintiffs in
Bolmgren, VAC only sought a declaratory judgment that it was properly awarded
the 2012 ITS contract. VAC did not bring any civil claim, let alone a claim where
it would remotely be entitled to damages or attorney fees. The trial court granted
8
the relief VAC requested by granting its motion for summary judgment. Securus
argues VAC has no pending claim.
2. Analysis
Contrary to the assertions of VAC and the County, the trial court’s
order here is a final, appealable order. That order states: “[I]t is hereby
ORDERED that [Schwartz] and [Securus’] Motion for Summary Judgment is
DENIED. It is further ORDERED that [VAC’s] Motion for Summary Judgment is
GRANTED. Allegheny County’s award of the 2012 Inmate Telephone System to
VAC is legal and valid.” Tr. Ct., Mem. & Order at 14 (emphasis added).
VAC and the County assert the trial court’s order is non-final because
it did not resolve VAC’s claim for damages. However, our review of VAC’s
complaint reveals that the pleading, styled as a complaint for declaratory judgment,
contains a single count, seeking a declaratory judgment that VAC was properly
deemed the successful vendor of the 2012 ITS RFP. R.R. at 566a-575a. In its
prayer for relief, VAC did also request “attorney fees, costs, pre-judgment and
post-judgment interest and any such other and further relief as the Court deems just
and proper.” R.R. at 575a. The inclusion of this boilerplate language in the prayer
for relief is not tantamount to a distinct claim seeking monetary damages.
To that end, pursuant to Section 7532 of the DJA:
Courts of record, within their respective jurisdictions,
shall have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed. … The declaration may be either affirmative or
negative in form and effect, and such declarations shall
have the force and effect of a final judgment or decree.
9
42 Pa. C.S. §7532 (emphasis added).
Applying this statutory provision, our Supreme Court in Wickett held
that a trial court’s orders that sustained preliminary objections in the nature of
demurrers in actions brought under the DJA were immediately appealable where
the orders affirmatively or negatively declared the legal rights of the parties. See
Pa. R.A.P. 341(b)(2) (defining a “final order” as an order that is “expressly defined
as final by statute”).
Here, the trial court’s order resolving the parties’ cross-motions for
summary judgment is final under Section 7532 of the DJA and Wickett because it
effectively declares the legal rights of the parties in determining the County’s
award of the 2012 ITS contract to VAC is legal and valid. Indeed, no additional
claims remain outstanding (despite the inclusion of the boilerplate language
seeking fees, costs and interests in VAC’s prayer for relief). To that end, in its
motion for summary judgment, VAC only referenced its sole claim declaratory
relief. R.R. at 352a-54a. Thus, the trial court’s order was immediately appealable
and is not interlocutory as VAC and the County assert.
Moreover, Bolmgren, relied on by VAC, is distinguishable. There,
the Superior Court determined that a trial court’s order was non-final where it
resolved three counts of a four-count complaint seeking declaratory relief, but did
not resolve the fourth count that sought damages. In so doing, the Superior Court
explained that, generally, an order dismissing some but not all counts of a multi-
count complaint is interlocutory and not appealable. Because the trial court’s order
in Bolmgren resolved the claim for declaratory relief but did not resolve the claim
10
for damages, the Superior Court determined the order was not final pursuant to Pa.
R.A.P. 341.
Here, unlike in Bolmgren, the trial court’s order did not dismiss some
but not all counts of a multi-count complaint. Rather, the trial court’s order
resolved the single count for declaratory relief set forth in VAC’s complaint by
granting summary judgment on that count. Unlike in Bolmgren, no count of the
complaint remains outstanding.
Also distinguishable is Feltman, a case in which this Court noted that
it quashed as interlocutory a prior appeal of a trial court’s order that granted
summary judgment where the trial court left undetermined matters of attorney fees,
costs and punitive damages and failed to direct a party to carry out the provisions
of the order. Here, unlike in Feltman, VAC’s complaint did not include a request
for damages.
For these reasons, we reject the argument that the trial court’s order is
an interlocutory order that is unappealable.
B. Merits
1. Clarity of RFP
a. Contentions
As to the merits, Securus first argues, despite the undisputed facts of
record (including internal emails between VAC representatives sent before the
award) showing the RFP and the accompanying question and answer clarification
process (Q & A) could be, and were, reasonably interpreted in two different ways,
11
the trial court found the RFP was not ambiguous because Securus’ (and another
bidder’s, (CenturyLink)) interpretation was unreasonable. Securus contends this
finding is erroneous for at least two reasons.
Securus argues the trial court never even mentioned—let alone
analyzed—the undisputed record facts that show Securus, CenturyLink and VAC
interpreted Sections IV(A) and (B) of the RFP and the Q & A to mean they would
have to pay commissions on any fees they disclosed in Appendix B. The County,
on the other hand, took the position that Sections IV(A) and (B) of the RFP meant
that a vendor only needed to pay commissions on any fees that were charged
without first obtaining the County’s permission to charge such fees. Thus, the
undisputed facts (including Q & A #9 and internal emails between VAC
representatives sent before the award, neither of which were analyzed by the trial
court) show the RFP, which included the Q & A, was subject to more than one
reasonable interpretation and thus, was ambiguous. Securus maintains where an
RFP is ambiguous, a reviewing court’s “only remedy is to enjoin performance of
the contract between the successful bidder and the public authority.” Greenstar
Pittsburgh, LLC v. Allegheny Cnty. (Pa. Cmwlth., Nos. 1890, 1970 C.D. 2012,
filed January 30, 2014), 2014 WL 346613 (unreported); see also Ezy Parks v.
Larson, 454 A.2d 928 (Pa. 1983).
In addition, Securus maintains the trial court erred by failing to
analyze the RFP in its entirety. Indeed, despite extensive briefing and discussion
of the issue of Q & A #9 at oral argument, the trial court unbelievably never even
mentioned Q & A #9 in its opinion. Q &A #9 is incorporated into and is part of
12
the RFP. Neither VAC nor the trial court ever explained why it was unreasonable
for Securus to rely on Q & A #9 in interpreting the RFP as requiring all additional
fees to be commissioned. Instead of analyzing Q & A #9, the trial court simply
relied on this Court’s memorandum opinion in Schwartz I. However, that opinion
only affirmed the trial court’s denial of Schwartz’s request for a preliminary
injunction and, as a matter of law, is not legally relevant to whether the trial court
should grant a permanent injunction.
In any event, Securus asserts, when it affirmed the trial court’s denial
of a preliminary injunction, this Court never decided whether Sections IV(A) and
(B) and Q & A #9 were clear and unambiguous; rather, this Court only determined
there were apparently reasonable grounds for the trial court to deny a preliminary
injunction. In fact, Schwartz never had an opportunity to raise this issue at the
preliminary injunction hearing because VAC never produced its internal emails
showing that VAC adopted the same interpretation of the RFP and Q & A as
Securus until after this Court issued its opinion affirming the trial court’s
preliminary injunction order.
VAC and the County respond that Sections IV(A) and (B) of the RFP
are not subject to more than one reasonable interpretation, as the trial court
correctly found and which this Court already decided in Schwartz I. Further, VAC
and the County contend, even if this provision is “ambiguous”—which VAC, the
record, and this Court state it is not—VAC did not receive a competitive advantage
from its interpretation of these sections.
13
VAC and the County argue the RFP is clear on its face, and was
interpreted as such by VAC, the County, the trial court, and this Court. VAC and
the County maintain Securus’ argument that Sections IV(A) and (B) of the RFP are
ambiguous flies in the face of the fact that this Court already provided the proper
interpretation of these provisions, when read in context (which Securus refuses to
do). VAC and the County assert Securus’ alleged “alternate” interpretation is
simply not reasonable, and is merely an attempt to repackage an argument that was
already definitively decided by the trial court and this Court.
VAC and the County acknowledge that, according to Pennsylvania
law, if an RFP actually contains an ambiguous provision; that is, a provision
capable of more than one reasonable interpretation and a party’s interpretation of
that ambiguous provision gives him a competitive advantage, the contract may be
enjoined and the project rebid. Greenstar Pittsburgh; see Conduit & Foundation
Corp. v. City of Phila., 401 A.2d 376 (Pa. Cmwlth. 1979). Contractual terms are
ambiguous “if they are subject to more than one reasonable interpretation when
applied to a particular set of facts.” Madison Constr. Co. v. Harleysville Mut. Ins
Co., 735 A.2d 100, 106 (Pa. 1999) (emphasis added); see also Commonwealth,
State Highway & Bridge Auth. v. E. J. Albrecht Co., 430 A.2d 328, 330 (Pa.
Cmwlth. 1981) (“A contract is 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 rendered ambiguous by the mere fact
that the parties do not agree upon the proper construction.”)
14
VAC and the County maintain it is evident that the mere fact that
respondents to an RFP may have had an alternate interpretation to a certain RFP
provision does not render that interpretation “reasonable” and the misinterpreted
provision thereby ambiguous. For example, in Greenstar Pittsburgh, the appellant
asserted three different RFP provisions were subject to more than one reasonable
interpretation. Although the appellant clearly interpreted the RFP differently than
the winning bidder and the County, this Court determined that, as to two of the
three provisions, the appellant’s alternate interpretation was not reasonable. Thus,
two of the challenged provisions were not ambiguous.
Here, VAC and the County maintain Securus did not show that VAC
and CenturyLink interpreted the RFP instructions incorrectly as Securus allegedly
did. VAC and the County argue that Securus makes much of VAC’s “internal
emails” and the question submitted by CenturyLink, claiming these items provide
“undisputed evidence” that VAC and CenturyLink interpreted the RFP as Securus
allegedly did. Appellees’ Br. at 19. First, VAC and the County argue these items
do not show that VAC or CenturyLink adopted an erroneous interpretation. In
addition, such a determination is irrelevant because ambiguity is determined from
the face of the document and mere proof of alternate interpretations does not show
such interpretations are reasonable.
VAC and the County maintain the purported “new evidence,” which
consists of two emails from Anthony Pellegrino, VAC’s Vice President of Mid-
Atlantic Sales, to Steve Montanaro, VAC’s Vice President of Sales and Marketing
Operations, simply does not support Securus’ argument that VAC adopted
15
Securus’ alleged interpretation of the RFP. Id. The only evidence regarding the
correct interpretation of Pellegrino’s emails comes from the deposition testimony
of Montanaro and Pellegrino, both of whom clearly stated that they understood the
RFP to require vendors to pay commissions on additional fees that are generated
by completion of a call. See R.R. at 245a; 250a; 259a-261a. Further, regardless of
Pellegrino’s emails, the language of the RFP is clear as to its requirements and is
not subject to other reasonable interpretations.
In addition, VAC and the County argue, claiming to have definitively
determined CenturyLink’s interpretation of the RFP based on the plain text of a
question submitted to the County is unreasonable. Indeed, when reading the text of
CenturyLink’s question, it is doubtful that the question even indicates that it
considered Securus’ alleged alternate interpretation. Moreover, the County made
clear that, whatever CenturyLink was asking, the plain language of the RFP
controlled, stating: “This RFP specification remains as written.” R.R. at 34a.
Thus, Securus has not shown CenturyLink and VAC interpreted the RFP as
Securus alleges it did.
In any event, VAC and the County contend, such a showing is
irrelevant to the initial determination of whether an RFP is ambiguous. The issue
of whether a provision is ambiguous is an initial legal determination made by
reference to the face of the instrument itself. Steuart v. McChesney, 444 A.2d 659,
661-62 (Pa. 1982). It is after the court makes this initial determination of
ambiguity that extrinsic or parol evidence as to the intent of the parties may be
considered. Id. Thus, in its determination of whether the RFP was ambiguous, a
16
court need only consult the actual language of the RFP itself, without regard to the
extrinsic evidence of alleged interpretations by the parties responding to the RFP.
In addition, VAC and the County argue, the trial court properly held
that Securus’ alleged alternate interpretation of the RFP instructions is not
reasonable, and the provisions are, in fact, clear when read in context. VAC and
the County assert that while Securus attempts to show with very tenuous
arguments that Sections IV(A) and (B) were in fact interpreted in more than one
way by various respondents to the RFP, it fails to show its alleged alternate
interpretation is reasonable. Securus, in fact, cannot make such a showing in this
case, as the issue was already addressed by this Court in resolving Securus’ prior
appeal. See Schwartz I.
VAC and the County contend, as they previously argued, and as the
trial court and this Court accepted in Schwartz I, the provisions regarding the
definition of gross revenue and commissionable fees are not ambiguous when the
RFP is read in context. This Court, in Securus’ prior appeal, already directly
decided, as a matter of law, the issue of the clarity of Sections IV(A) and (B).
Thus, this Court already decided the proper interpretation of these provisions and
held Securus’ interpretation was incorrect. As such, according to the law of the
case doctrine, not only is this Court’s prior determination “legally relevant” to the
present appeal, but the trial court was correct to rely on this Court’s determination.
Appellees’ Br. at 22.
17
Finally, VAC and the County assert the actual language of the RFP’s
definition of “Gross Revenues” states: “Gross Revenue includes, but is not limited
to, all Local, IntraLATA/Intrastate, InterLATA/Intrastate, InterLATA/Interstate,
and International revenues and any and all additional charges and fees generated
by completion of all collect debit and pre-paid calls from Vendor’s inmate
telephones.” R.R. at 31a (emphasis added). Michael Hamann, Securus’ account
manager, testified in his deposition that the term “completed call” has a particular
meaning in the ITS industry, namely “a call that is connected between the inmate
and the called party.” R.R. at 703a. Thus, any interpretation of the RFP stating
that all fees are commissionable, regardless of whether they are generated by
completion of a call, is simply unreasonable and contrary to the RFP’s plain
language.
b. Analysis
In Greenstar Pittsburgh, this Court recently set forth the following
overarching principles:
Legislative and municipal regulations requiring
competitive bidding of public contracts are intended to secure
for the public ‘the benefit and advantage of fair and just
competition between bidders, and at the same time close, as far
as possible, every avenue to favoritism and fraud in its varied
forms.’ Mazet v. Pittsburgh, [20 A. 693, 697 (Pa. 1890)]; see
also Yohe v. City of Lower Burrell, [208 A.2d 847, 850 (Pa.
1965)]; Louchheim et al. v. City of Philadelphia et al., [66 A.
1121, 1122 (Pa. 1907)]. In furtherance of this principle, our
Supreme Court has held that, ‘[t]he expression, ‘lowest bidder,’
necessarily implies a common standard by which to measure
the respective bids, and that common standard must necessarily
be previously prepared specifications of the work to be done,
and materials to be furnished, etc., specifications freely
accessible to all who may desire to compete for the contract,
and upon which alone their respective bids must be based.’
18
Mazet, [20 A. at 698]; see also Page v. King, [131 A. 707, 708-
709 (Pa. 1926)]; [Conduit]. The necessity of a common
standard to secure a fair and just competitive process and to
guard against favoritism and fraud has led to the well-settled
law of this Commonwealth that ‘requirements set forth in a
bidding document are mandatory and must be strictly adhered
to for the bid to be valid.’ Fedorko Properties, Inc. v. Millcreek
Township School District, 755 A.2d 118, 122 (Pa. Cmwlth.
2000); see also Jay Township Authority v. Cummins, 773 A.2d
828, 832 (Pa. Cmwlth. 2001); Kimmel v. Lower Paxton
Township, 633 A.2d 1271, 1276 (Pa. Cmwlth. 1993).
Our Supreme Court has also recognized that the common
standard required to ensure free and fair competition among
bidders extends to the form as well as the substance of an
invitation to bid for a public contract. In Guthrie v. Armstrong,
[154 A. 33 (Pa. 1931)], the Court concluded that: ‘The form of
the contract is often as vital as anything involved in the
transaction, and, unless bidders are on an equality as to
knowledge of its proposed provisions, there may be a great
advantage to a bidder who has a certain understanding with
which the public authorities may agree, over a bidder whose
understanding is otherwise.’ [Id. at 35]. Where a public
authority has issued an invitation to bid with provisions subject
to more than one reasonable interpretation, while the authority
may not have acted in bad faith, the effect may be the same: the
common standard is eroded and the public authority can no
longer ensure that the public has gained the benefit of fair and
just competition among bidders. See Page [131 A. at 708-709]
(“[I]f bidders are misled by anything which the [public
authorities] may have done, or the notice may have required,
the bidding was not on a common basis; the lowest figure
submitted would not, in law, be the lowest bid, because it
lacked fair competition.”). As with an ambiguous contract
provision, if a provision in bidding specifications is subject to
more than one reasonable interpretation, the ambiguous
provision must be interpreted against the drafter. Jay Township
Authority, 773 A.2d at 828 & n. 3.
If a provision in bidding specifications denies the public
the benefit of a fair and just competitive process by which the
public authority can select the lowest responsible responsive
bidder due to its ambiguity, the only remedy is to enjoin
19
performance of the contract between the successful bidder and
the public authority. Weber v. City of Philadelphia, [262 A.2d
297, 301, 302 (Pa. 1970)] (‘In passing upon the propriety of the
actions of municipal officials, judicial restraint rather than
judicial intervention should guide the courts.’); Conduit, 401
A.2d at 380 (‘Absent evidence of fraud or collusion, our courts
have consistently upheld the rejection of all bids and
readvertisement for new bids by public officials in the exercise
of their informed discretion to decide that it is in the best
interest of the public to do so.’)
Greenstar Pittsburgh, slip op. at 3-5, 2014 WL 346613 at *1-*2.
An ambiguity exists where language is subject to two or more
reasonable interpretations and not merely because two conflicting interpretations
may be suggested. Adams Outdoor Adver., L.P. v. Zoning Hearing Bd. of
Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006). Further, “[w]here the terms
of a contract are clearly expressed, interpretation of those terms must be
determined from the language itself.” Dep’t of Transp. v. Brozzetti, 684 A.2d 658,
663 (Pa. Cmwlth. 1996). Only where the language in a written contract is
ambiguous may extrinsic or parol evidence be considered to determine the intent of
the parties. Id. Whether a contract is ambiguous is a question of law fully
reviewable by this Court. Id. A contract will be found ambiguous:
If, and only if, it is reasonably or fairly susceptible to 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 upon the proper construction.
20
Id. Additionally, the ambiguity must appear on the face of the agreement and not
be created by the parol evidence which is offered. Id.
At issue here are Sections IV(A) and (B) of the RFP, which state:
IV. Compensation
A. Vendor shall pay commissions calculated on all Gross
Revenues generated by and through the ITS [(Inmate
Telephone System)] including collect, debit and pre-paid
inmate calls placed from the inmate telephone equipment
located at the Facilities. Gross revenues are generated by
completed calls (see description of a completed call).
Any additional fees to be added to the called party’s bill
or paid by the called party (including those associated
with establishing/funding pre-paid collect accounts) for
inmate telephone calls from the Facilities must be
approved by the [County] prior to implementation. Any
charges/fees added to the called party’s bill without the
express written consent of [the] County shall carry a fine
of five hundred dollars ($500.00) per day from the date
the additional charges/fees were first added through the
date the charges/fees were discontinued. Additionally,
Vendor shall refund each called party for the unapproved
charges/fees from the date the charges/fees were
implemented until the date the charges/fees were
discontinued. The additional fees/charges will be
commissioned at the proposed commission rate and shall
follow Section VII — Commission Payment and
Reporting.
B. Gross Revenue includes, but is not limited to,
all Local, IntraLATA/Intrastate, InterLATA/Intrastate,
InterLATA/Interstate, and International revenues and any
and all additional charges and fees generated by
completion of all collect, debit, and pre-paid calls from
Vendor’s inmate telephones.
21
R.R. at 205a (underlined emphasis added). Additionally, Q & A #9, referenced by
Securus, states:
9. Page 17 – Section IV – A, B ( & Appendix B)
‘Additional fees will be commissioned at the proposed
commission rate …’ Prepaid collect funding fees are assessed
on a per-transaction rather than a per-call basis, and cannot be
specifically attributed to [the] County because called parties
receive calls from multiple facilities. As a result, to our
knowledge all providers exclude them from gross revenue in
monthly reporting.
a) Would the County eliminate this requirement, and in
its place require all vendors to separately disclose all
charges and policies in their initial bids, then set them as
fixed in a Best and Final Offer? This would provide the
best opportunity for a more ‘apples to apples’
comparison.
This REP specification remains as written. For the
identification of additional fees associated with the
proposed ITS billing, please refer to the additional table
provided in Appendix B.
R.R. at 209a (emphasis added).
In rejecting Securus’ argument that Sections IV(A) and (B) of the
RFP were ambiguous, the trial court explained:
Here, Securus alleges that Sections IV(A) and (B) of the
RFP are ambiguous. Section IV(A) requires that the ‘vendor
shall pay commissions calculated on all Gross Revenues …’
and that ‘all additional fees /charges will be commissioned at
the proposed commission rate.’ Section IV(B) defines ‘Gross
Revenue’ on which commissions were to be paid to include
‘any additional charges and fees.’
Securus interpreted this language to mean that a vendor
had to pay commissions on ‘all additional charges and fees’ it
22
disclosed on Appendix B. [Securus’] Brief in Support of
Motion for Summary Judgment … at 6. But [the] County and
VAC interpreted these sections to mean that a vendor only
needed to pay commissions on the fees that it charged without
first obtaining the County’s permission to charge the fee.
Securus has failed to show either that [its] interpretation
of the language in question was reasonable or that the alleged
ambiguity conferred an unfair advantage on VAC. The
Commonwealth Court addressed both of these issues in
[Schwartz I], and ruled squarely in favor of VAC. First, the
Commonwealth Court held that the language in Sections IV(A)
and (B) of the RFP clearly favored VAC’s interpretation:
‘[W]hen read in context, the “additional fees /charges” referred
to in the last sentence relate to the penalties for unapproved fees
and charges set forth in the preceding two sentences.’
[Schwartz I, slip op. at 26, 2014 WL 2160138 at *13]. Second,
the Commonwealth Court held that the bidding process was
conducted fairly. See [Schwartz I, slip op. at 25, 2014 WL
2160138 at *13] (explaining that ‘no matter how many
additional charges or fees were identified by a vendor, there
would be no difference in the County’s scoring of the vendors’
financial offers under the terms of the RFP.’).
This court therefore rejects [Securus’] ambiguity
argument.
Tr. Ct., Slip Op. at 7-8 (emphasis added). No error is apparent in the trial court’s
determination that Sections IV(A) and (B) of the RFP are not ambiguous.
More specifically, while Securus contends that both it and other
vendors who responded to the RFP interpreted Sections IV(A) and (B) and Q & A
#9 to mean that it had to pay commissions on “all additional charges and fees” they
disclosed in Appendix B so that Securus had to factor this cost into the commission
percentage it offered, in Schwartz I, this Court explained:
23
[C]ontrary to Schwartz’s assertions, there is no indication that
the County’s evaluation was not an ‘apples-to-apples’
comparison. Schwartz maintains that all other vendors were of
the belief that they were required to pay the County
commissions on the fees and charges beyond those generated
by completed calls, but the record belies this contention.
Each vendor was given the same opportunity to propose a
percentage commission based on the ‘per minute calling rates’
and ‘surcharges’ set by the County. Also, in a separate table,
each vendor was given the right to identify any ‘additional
charges and fees’ that it requested that the County approve prior
to implementation. The County notified each vendor that the
evaluation committee would not evaluate these ‘additional fees
or charges’ in its consideration of the bids received. Thus, all
of the vendors’ proposals were evaluated on the commission
percentage the County would receive based on the applicable
per minute calling rates and surcharges, and not based on any
additional fees or charges. Indeed, the RFP made clear that
each vendor’s financial proposal would be scored solely on the
vendor’s proposed commission rate, which was based on the
applicable calling rates and surcharges set by the County for
collect, pre-paid collect and debit or inmate based pre-paid
calls.
Consistent with this evidence (and contrary to Schwartz’
assertions), Michael Hamann, Securus’ account manager,
testified it was clear the County would score the vendors’
proposals on their proposed commission offers only. Further,
he agreed that no matter how many additional charges or fees
were identified by a vendor, there would be no difference in the
County’s scoring of the vendors’ financial offers under the
terms of the RFP.
Nevertheless, as further support for his argument that the
commission payable to the County included charges and fees,
Schwartz points to the final sentence of Section IV(A) of the
RFP. That Section states, in relevant part:
Any additional fees to be added to the called party’s bill
or paid by the called party (including those associated
with establishing/funding pre-paid collect accounts) for
inmate telephone calls from the Facilities must be
24
approved by the [sic] Allegheny County prior to
implementation. Any charges/fees added to the called
party’s bill without the express written consent of
Allegheny County shall carry a fine of five hundred
dollars ($500.00) per day from the date the additional
charges/fees were first added through the date the
charges/fees were discontinued. Additionally, Vendor
shall refund each called party for the unapproved
charges/fees from the date the charges/fees were
implemented until the date the charges/fees were
discontinued. The additional fees/charges will be
commissioned at the proposed commission rate and shall
follow Section VII — Commission Payment and
Reporting.
Schwartz asserts the last sentence of this provision indicates
that vendors were also required to pay commissions on fees and
charges (in addition to the revenue generated by completed
calls).
Contrary to this assertion, when read in context, the
‘additional fees/charges’ referred to in the last sentence relate to
the penalties for unapproved fees and charges set forth in the
two preceding sentences. … This interpretation is bolstered by
[the testimony of Joseph M. Webb, the independent consultant
selected by the County to assist in preparation of the RFP and
evaluation of vendor proposals, and a member of the evaluation
committee]. Webb explained: ‘We told [the vendors] that they
weren’t allowed to charge fees without approval of the
[C]ounty, and then we told them if they did charge fees that
there would be a punishment which was basically a fine, the
refund of fees and the bringing of a commission to the [C]ounty
on the fees they charged they hadn’t been approved.’
Schwartz I, slip op. at 24-26, 2014 WL 2160138 at *13-*14 (record citations
omitted) (underlined emphasis added).
Thus, in Schwartz I, we essentially rejected the argument that Securus
presents here. In short, as the trial court determined here, the challenged RFP
25
specifications are not subject to two reasonable interpretations, and an ambiguity
does not exist simply because Securus suggests a conflicting interpretation.
To that end, Greenstar Pittsburgh, relied on by Securus is
distinguishable. There, this Court affirmed a trial court decision that enjoined the
award of a contract for the processing of recyclable materials where one of the bid
specifications stated: “The Contractor’s facility shall be located within a fifteen
(15) mile radius from the City’s Department of Public Works … located at 30th
and A.V.R.R.” Id., slip op. at 7, 2014 WL 346613 at *4 (emphasis added).
Specifically, we determined that the term “facility” was ambiguous where it could
reasonably be understood to denote either “other receiving site” or a contractor’s
“processing facility,” both of which were referenced throughout the bid
specifications. Id., slip op. at 8, 9, 2014 WL 346613 at *4. In short, because the
term “facility” was susceptible to different meanings, both of which were
reasonable, we determined the specification was ambiguous on its face. Moreover,
we stated:
[T]he fact that [the disappointed bidder] was the only contractor
to operate a facility within the fifteen mile radius only
buttresses our conclusion that the ambiguous language in [the
bid specification at issue] failed to encourage participation and
to ensure free and fair competition among bidders. We are left
to speculate how many potential bidders failed to participate in
the bidding process because they did not have the interpretation
shared by the [successful bidder] and [the contracting authority]
and instead shared the same reasonable interpretation of [the
bid specification at issue] made by [the disappointed bidder].
Id., slip op. at 10, 2014 WL 346613 at *5.
26
Unlike in Greenstar Pittsburgh, the bid specifications at issue here did
not utilize an ambiguous term that was susceptible to two different meanings, both
of which were reasonable, based on the terms used throughout the bid
specifications. Rather, in the case there is only one reasonable interpretation of the
challenged specifications. The mere fact that Securus suggests a different
interpretation does not render the specifications ambiguous.
In addition, as we explained in Schwartz I, also distinguishable are
Conduit and Shaeffer v. City of Lancaster, 754 A.2d 719 (Pa. Cmwlth. 2000). In
particular, unlike Shaeffer4 and Conduit,5 this is not a case in which the successful
4
In Shaeffer v. City of Lancaster, 754 A.2d 719 (Pa. Cmwlth. 2000), we enjoined the
award of a publicly bid contract to a bidder who violated bid specifications by offering the city a
$1,200 “contract credit” that would effectively reduce its total bid and render it the lowest
bidder. Id. at 721. We explained the successful bidder’s inclusion of such a credit, which was
not permitted by the bid specifications, conferred upon it an express competitive advantage over
other bidders. This Court stated, “[o]nly if the [s]pecifications permitted the use of contract
credits would the bidding have been fair and on a common basis.” Id. at 723.
5
In Conduit & Foundation Corp. v. City of Philadelphia, 401 A.2d 376 (Pa. Cmwlth.
1979) (en banc), we enjoined the award of a publicly bidded construction contract where the
lowest bidder listed alternative suppliers for the project’s components, while all other bidders
listed a single supplier for each component. After the bids were opened, the city contacted the
successful bidder and allowed it to designate specific suppliers for the project’s components.
Determining the successful bidder received an unfair advantage, this Court held:
The most reasonable interpretation [of the bid instructions] seemed
to be that only one [supplier] listing would be permitted, and that was in
fact how all the other bidders understood the instruction. The notice at
best left room for an unfair advantage to be taken by a bidder. …
Because the city’s specifications have led the bidders to believe
that only one listing would be permitted, and the city then accepted the
low bid from the only bidder who made alternative listings, we believe
that the case falls, by analogy, under the line of cases raising the issue, not
as to the city’s discretion, but as to whether a bidder had a competitive
advantage in preparing his bid because of the city’s incomplete or
(Footnote continued on next page…)
27
bidder unlawfully deviated from the bid specifications by availing itself of a
purported ambiguity in the bid instructions and receiving a resultant unfair
advantage. Rather, VAC, the successful bidder here, utilized the process expressly
contemplated by the RFP in submitting a compliant bid. See Schwartz I.
In addition, while Securus points out that the trial court did not
specifically address Q & A #9, excerpted above, in its answer to the question posed
regarding Sections IV (A) and (B) of the RFP, the County expressly stated: “This
REP specification remains as written. For the identification of additional fees
associated with the proposed ITS billing, please refer to the additional table
provided in Appendix B.” R.R. at 209a (emphasis added). Thus, the County
declined to alter or expound on the meaning of the express language of the RFP
specifications through the Q & A.
Finally, Securus asserts that “newly discovered” emails from VAC’s
representatives Pellegrino, VAC’s Vice President of Mid-Atlantic Sales, and
Montanaro, VAC’s Vice President of Sales and Marketing Operations, show that
VAC interpreted Sections IV(A) and (B) of the RFP in a manner similar to Securus
and other vendors. See R.R. at 90-94. We reject this argument.
(continued…)
misleading bid specifications or the city’s having negotiated after the
formal bid-opening[.]
Therefore, we agree that [the successful bidder’s] multiple listing
of subcontractors deprived this bidding of the statutory requisite of open
competition, and was thus not such an irregularity as could be waived in
the city’s discretion.
Id. at 379-80 (citations omitted).
28
In particular, our review of the emails reveals that VAC indicated it
needed to file an exception to Sections IV (A) and (B) of the RFP in order to
clarify its understanding that commissions were not due on fees. R.R. at 94a. As
we explained in Schwartz I, the express terms of the RFP permitted vendors to file
exceptions through the use of an exceptions addendum, which VAC did with
regard to Sections IV (A) and (B) of the RFP. Id., slip op. at 19, 2014 WL
2160138 at *10. In Schwartz I, we stated that Joseph Webb, the County’s
independent consultant, reviewed VAC’s exceptions addendum and explained that
it merely reiterated the terms of Sections (IV) and (B) of the RFP and, therefore,
the County did not consider VAC’s bid as non-compliant with the terms of the
RFP. Id., slip op. at 22-23, 2014 WL 2160138 at *11-12.
Further, in his deposition testimony Pellegrino explained that, in
formulating its response to the RFP, VAC merely sought to clarify its
understanding of Sections IV (A) and (B) because the County’s third-party
auditing firm will, at times, dispute whether certain fees are contained within the
definition of “gross revenue,” and, therefore are commissionable fees. R.R. at
247a. Pellegrino’s testimony was consistent with that of Montanaro regarding
VAC’s need for clarification concerning fees on which commission is paid in
anticipation of an audit by the County’s third-party auditing firm. R.R. at 263a-
64a. We specifically discussed Montanaro’s testimony on this point in Schwartz I,
see slip op. at 24, 2014 WL 2160138 at *12. For these reasons, we reject Securus’
assertions that the emails from VAC’s representatives show that VAC interpreted
Sections IV(A) and (B) of the RFP in a manner similar to Securus and other
vendors.
29
2. Competitive Advantage
a. Contentions
Securus next points out that the trial court also found that, even if the
RFP was ambiguous, VAC did not receive an unfair competitive advantage.
Securus contends this finding is erroneous for at least two reasons. First,
Pennsylvania law makes clear that a court need not find an unfair competitive
advantage to enjoin an award issued pursuant to an ambiguous RFP. See Greenstar
Pittsburgh. As Greenstar Pittsburgh and other cases show, as a matter of law, an
ambiguous RFP prevents the RFP process from being fair, open and performed on
a competitive basis. As such, when an RFP is ambiguous, there is no legal
requirement to show an unfair competitive advantage. A trial court’s only option
is to enjoin the award. Id.; Shaeffer; Conduit.
In any event, Securus argues, the record shows VAC did receive an
unfair competitive advantage as a result of the RFP’s ambiguity. VAC’s failure to
agree to pay commissions on the fees it disclosed on Appendix B provided VAC
with an unfair financial advantage that no other offeror received. VAC—unlike
the other offerors that were agreeing to pay commissions on the fees they disclosed
in Appendix B—would have incurred less costs to account for than the other
vendors and, therefore, could offer a higher commission rate.
Securus contends the commission offerings were extremely close—
VAC offered a commission rate that was 0.9% higher than the commission rate
offered by Securus. R.R. at 447a. VAC admitted it was not agreeing to pay
commissions on the fees it disclosed on Appendix B. R.R. at 76a-78a; 87a-88a.
Securus and Century Link, on the other hand, were agreeing to pay commissions
30
on the fees disclosed on Appendix B. R.R. at 57a. If Securus knew it did not have
to pay commissions on the fees it disclosed in Appendix B it would not have had to
compensate for paying commissions on fees, and it could have provided the
County with a higher commission rate than VAC. Securus argues the RFP
ambiguity, therefore, provided VAC with an unfair financial advantage that no
other offeror received.
VAC and the County respond that Securus failed to show any
competitive advantage that VAC gained, and Securus refuses to acknowledge the
fact that, based on the undisputed scores in the other scoring categories, VAC
would have won the Jail ITS bid, regardless of the commission percentages offered
by VAC and Securus.
VAC and the County assert, although Securus disputes that it needed
to show VAC received a competitive advantage, the cases Securus relies on all
involve instances where the alleged issue with the RFP process affected the
outcome of the bid.
VAC and the County contend that, while Securus attempts to liken the
facts of this case to those in Shaeffer and Conduit, such an analogy fails, as already
noted by the trial court and this Court in Schwartz I. To that end, VAC and the
County assert, unlike in those cases, VAC did not “win” the bidding process based
on the parties’ understanding of Sections IV(A) and (B) of the RFP. The Jail ITS
contract was not awarded to the party offering the highest commission rate to the
County. Rather, the RFP responses were scored on a number of different
31
categories. See R.R. at 359a-362a; 306a-312a. Thus, while Securus was awarded
just 2.7 fewer points than VAC for its financial offering (the only scoring category
affected by Sections IV(A) and (B)), Securus lost the overall bid by 45.7 points.
R.R. at 306a. Therefore, even if Securus offered a commission rate as high as or
higher than VAC’s offering, VAC would still have won the bid based on the points
it earned in the other categories. See id. As a result, VAC and the County argue,
Securus’ claim that VAC received an unfair competitive advantage is simply
untrue.
b. Analysis
Securus’ assertions on this point hinge entirely on the success of its
argument that Sections IV(A) and (B) of the RFP are ambiguous. For the reasons
set forth above, however, we agree with the trial court that Sections IV(A) and (B)
are not ambiguous.
Moreover, as the trial court explained:
Even if this court were to hold that the language of
Sections IV(A) and (B) was ambiguous and that [Securus’]
interpretation of this language were reasonable, VAC would
still have emerged victorious because it won by 45 points, and
Sections IV(A) and (B) only involve a dispute over [2.7] of
those points. …
Sections IV(A) and (B) only pertained to the Financial
Proposal section of the bidding process, which VAC won by a
margin of 2.7 points over Securus. Even if Securus were
awarded those 2.7 points, it would still have lost the bid to
VAC because VAC scored a total of 651.5 points to [Securus’]
605.8. No matter how one analyzes the Financial Proposal
scores, they would not have affected the overall score.
32
Tr. Ct., Slip Op. at 11-12. Our review of the record confirms the trial court’s
determination. R.R. at 306a. Moreover, Securus offers no direct response to the
trial court’s analysis.
Based on the foregoing, we affirm.
ROBERT SIMPSON, Judge
Judge McCullough did not participate in the decision in this case.
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Howard Schwartz :
:
v. :
Allegheny County Pennsylvania, :
and Value-Added Communications, Inc. :
:
Value-Added Communications, Inc. :
:
v. : No. 385 C.D. 2015
:
Securus Technologies, Inc. :
and The County of Allegheny :
:
Appeal of: Howard Schwartz and :
Securus Technologies, Inc. :
Howard Schwartz :
:
v. :
:
Allegheny County Pennsylvania, :
and Value-Added Communications, Inc. :
:
Value-Added Communications, Inc. :
:
v. : No. 416 C.D. 2015
: Argued: November 17, 2015
Securus Technologies, Inc. :
and The County of Allegheny :
:
Appeal of: Securus Technologies, Inc. :
and Howard Schwartz :
ORDER
AND NOW, this 5th day of January, 2016, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED.
ROBERT SIMPSON, Judge