J-A23008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*     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.
J-A23008-17


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.



____________________________________________


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.



                                           -2-
J-A23008-17


       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



____________________________________________


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.



                                           -3-
J-A23008-17


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).


                                      -4-
J-A23008-17


      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


                                     -5-
J-A23008-17


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
____________________________________________


4Gaudioso is the owner of Laurel Gardens Holdings, LLC, which is the sole
member of AWS.



                                           -6-
J-A23008-17


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


                                   -7-
J-A23008-17


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


                                     -8-
J-A23008-17


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




                                    -9-
