American Winter Services v. Limerick Village, LP ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMERICAN WINTER SERVICES, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LIMERICK VILLAGE, LP, LONGVIEW : No. 947 EDA 2017
MANAGEMENT, LP, ROYERSFORD :
CENTER, LP, TARRYTOWN PLAZA, LP, :
THORNDALE WEST, LP, LONGVIEW :
FIELDSTONE, LP, TRAPPE CENTER, :
LP, PHOENIXVILLE TOWN CENTER, :
LP, QUEEN ANNE PLAZA, LP, :
WESTGATE PLAZA, LP, THORNDALE :
CENTER, LP, POTTSTOWN CENTER, :
LP :
Appeal from the Order January 31, 2017
In the Court of Common Pleas of Chester County
Civil Division at No(s): No. 2014-12100-CT
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 13, 2017
Appellant, American Winter Services, LLC (“AWS”), contracted with
Appellee, Longview Management, LP (“Longview”),1 to remove snow and ice
at twelve different properties during the 2013-2014 winter season. At some
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* Former Justice specially assigned to the Superior Court.
1 The other parties in the caption are the property owners. While the
contract for each property differs in certain respects, these differences are
not relevant to this appeal. We therefore will refer to all Appellees as
Longview, and refer to the separate agreements as a single agreement.
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point during the contract, Longview began refusing to pay invoices
submitted by AWS, claiming they had reached the contractual cap for
charges during the season. AWS disagreed that the contracts contained a
seasonal cap on charges, and therefore instituted the instant suit.
The trial court dismissed Longview’s preliminary objections, concluding
the cap language relied upon by Longview was ambiguous. See Trial Court
Order, 6/30/15, at 3 n.5. Discovery ensued, and Longview subsequently filed
a motion for summary judgment. The trial court granted the motion for
summary judgment, finding “[t]he parties agree that the terms” relevant to
this appeal “are unambiguous.”2 In the alternative, the trial court reasoned
the parol evidence submitted by Longview was sufficient to establish
Longview’s preferred interpretation.
AWS disagreed with these conclusions, and filed this timely appeal.
AWS argues the court erred in concluding that the contracts were
unambiguous, particularly after it had found them ambiguous after
preliminary objections. Furthermore, AWS contends the court improperly
made credibility determinations when concluding the parole evidence
favored Longview’s interpretation of the contracts.
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2 The court also partially denied Longview’s motion for summary judgment
leaving several of AWS’s claims intact. The parties settled these claims by
way of a stipulated payment to AWS of $2,890.79.
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After careful review, we agree with AWS. The relevant terms of the
contracts are ambiguous, and the trial court explicitly engaged in weighing
the evidence of record when it concluded summary judgment was
appropriate. We therefore vacate and remand for further proceedings.
The relevant contracts are entitled “Snow Removal Agreement.” They
provide for AWS to remove snow and ice in a timely manner from the
subject property starting, subject to weather conditions, on November 1,
2013, and ending on April 15, 2014.
There are two relevant provisions in the contracts that form the basis
of the parties’ dispute. First, under paragraph 2.A.vi.F., the contract
provides “AGREEMENT CAP FOR INVOICES FOR SERVICES $[X].”3 Longview
contends this provision is a hard cap on the amount it could be billed for
snow removal during the season.
In contrast, AWS cites to paragraph 3.C., which provides “[i]nvoices …
relating to the Services over and above [Longview’s] budgeted amount, …
may be paid to [AWS] in eight equal monthly installments between May 1,
2014 and December 31, 2014.” AWS maintains this paragraph reveals the
cap in paragraph 2.A.vi.F. is merely a cash-flow protection for Longview - in
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3 As noted in n.1, each contract had different dollar amounts. This number is
irrelevant to the legal analysis here, and we therefore assign the variable “X”
for ease of reading.
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the event that a snow season is particularly severe, Longview may arrange
to pay a portion of the bills over a longer time period.
We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused
its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
states that where there is no genuine issue of material fact and
the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
judgment. Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Lastly, we will review the
record in the light most favorable to the nonmoving party, and
all doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted; brackets in original).
Interpretation of a contract poses a question of law and our review is
plenary. See Charles D. Stein Revocable Trust v. General Felt
Industries, Inc., 749 A.2d 978, 980 (Pa. Super. 2000). “In construing a
contract, the intention of the parties is paramount and the court will adopt
an interpretation which under all circumstances ascribes the most
reasonable, probable, and natural conduct of the parties, bearing in mind the
objects manifestly to be accomplished.” Id. (citation omitted).
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To discern the parties’ intent, we must start with the language used by
the parties in the written contract. See Szymanski v. Brace, 987 A.2d 717,
722 (Pa. Super. 2009). Generally, courts will not imply a contract that differs
from the one to which the parties explicitly consented. See Kmart of
Pennsylvania, L.P. v. M.D. Mall Associates, LLC, 959 A.2d 939, 944 (Pa.
Super. 2008). We are not to assume that the language of the contract was
chosen carelessly or in ignorance of its meaning. See id.Where the language of the contract is clear and unambiguous, a court
is required to give effect to that language. See Prudential Prop. and Cas.
Ins. Co. v. Sartno, 903 A.2d 1170, 1174 (2006). Contractual language is
ambiguous “if it is reasonably susceptible of different constructions and
capable of being understood in more than one sense.” Hutchison v.
Sunbeam Coal Co., 519 A.2d 385, 390 (Pa. 1986) (citation omitted). “This
is not a question to be resolved in a vacuum. Rather, 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) (citations
omitted).
When a contract is found to be ambiguous, “extrinsic or parol evidence
may be considered to determine the intent of the parties.” Z & L Lumber
Co. of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super. 1985)
(citations omitted). “While unambiguous contracts are interpreted by the
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court as a matter of law, ambiguous writings are interpreted by the finder of
fact.” Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted).
We agree with the trial court’s initial assessment of the relevant
language in the agreement: the meaning is not clear by simply reading the
contract. Neither the term “cap” nor the term “budgeted amount” are
defined in the contract. While the term “cap” has an objective dollar value
ascribed to it under the contract, the term “budgeted amount” does not.
Also, as the trial court observes, the term “budgeted amount” is not present
anywhere else in the contract. Under these circumstances, it is not possible
to determine what “budgeted amount” refers to simply by referencing the
written contract.
Thus, the trial court correctly allowed for discovery in this matter.
Multiple witnesses were deposed, and, as the trial court notes, the
overwhelming theme among the deposition testimony was that the
“budgeted amount” was an internal cash flow estimate generated by
Longview. See, e.g., N.T., Deposition of Robin McGill, 1/11/16, at 45-48.
This number was never shared with AWS. See id., at 49.
The sole exception was the deposition testimony of Charles Gaudioso,
the principal of AWS.4 He testified he understood “budgeted amount” to be a
reference to the dollar value listed as “cap.” N.T., Deposition of Charles
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4Gaudioso is the owner of Laurel Gardens Holdings, LLC, which is the sole
member of AWS.
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Gaudioso, 2/4/16, at 82-84. Thus, he believed the contracts provided for the
possibility of an unusually heavy snow season by allowing Longview to pay
the extra money over an additional six months. See id., at 82-83.
Thus, the parol evidence before the court at the summary judgment
stage revealed a conflict in the interpretation of the contract. The court
devalued Gaudioso’s testimony in two ways. However, in both instances, the
court exceeded its purview and intruded upon the province of the ultimate
finder of fact.
First, the court observed that Timothy McKenna, Michael McKenna, and
Laura Mohr were employees of Longview. See Trial Court Order, 12/28/16,
at 4 n.1. Furthermore, it is also true that all three offered deposition
testimony that the term “budgeted amount” was unrelated to the “cap.”
See, e.g., N.T., Deposition of Timothy McKenna, 2/18/16, at 21-22. All
three agreed the “budgeted amount” referred to an internal budget number
kept by Longview. Id., at 62-63.
However, by the time of the depositions, AWS had asserted that none
of the three were still employed by AWS. See AWS’s Responses to
Longview’s First Set of Interrogatories, 8/11/15, at ¶ 9. Thus, they were no
longer agents for AWS whose testimony could be taken as admissions that
bound AWS. Furthermore, AWS presented evidence that the McKennas had a
motive to testify in manner consistent with Longview’s position: Longview
had awarded their new company, “MAT,” contracts for snow removal during
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the subsequent snow season. N.T., Deposition of Timothy McKenna,
2/18/16, at 51-52; Deposition of Robin McGill, 1/11/16, at 128.
Thus, the record reveals not only a factual dispute in the parol
evidence, but also evidence capable of impeaching the testimony of the
witnesses that were not agents of Longview. We conclude that, drawing all
inferences in favor of AWS, as the non-moving party, the trial court erred in
concluding the testimony of the McKennas and McGill was sufficient to
establish the absence of any dispute of material fact.
Next, the trial court found Gaudioso’s testimony incredible due to
alleged inconsistencies. The trial court notes Gaudioso “concluded that the
figures in the contracts for seasonal caps are the budgeted figures despite
the fact that he was adamant that Longview never told him the internal
budget figures.” Trial Court Order, 12/28/16, at 4 n.1. However, Gaudioso
consistently testified he understood Longview had an internal budget value
that was never shared with him. See N.T., Deposition of Charles Gaudioso,
2/4/16, at 206-207. He contrasted the internal budget number with the
contractual budget number contained in the contract. See id. (“There’s her
internal budget for her planning process and there’s a budget figure in the
contract.”)
We cannot conclude Gaudioso’s testimony is so internally inconsistent
as to remove it fully from evaluation by a finder of fact. Drawing all
inferences in favor of AWS, a reasonable fact-finder could conclude Gaudioso
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is correct in his assertion that Longview had an internal budget for planning
purposes, and an external budget number contained in the contracts. Under
these circumstances, it was not proper for the trial court to decide these
issues of credibility pursuant to a motion for summary judgment.
AWS has presented sufficient evidence to allow presentation of its
claims to a fact-finder. We therefore reverse the order granting partial
summary judgment and remand for further proceedings.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Justice Fitzgerald joins the memorandum.
Judge Dubow files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2017
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