J-A25007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ELIZABETH ROBINSON, M.D.                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MADELINE C. WEISER, M.D., P.C.          :   No. 1242 EDA 2018

             Appeal from the Judgment Entered April 16, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                         No(s): No. 2011-27436

 ELIZABETH ROBINSON, M.D.                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MADELINE C. WEISER, M.D., P.C.          :
                                         :
                   Appellant             :   No. 1284 EDA 2018

             Appeal from the Judgment Entered April 16, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                            No(s): 11-27436


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

CONCURRING/DISSENTING MEMORANDUM BY KUNSELMAN, J.:FILED JUNE

27, 2019

      While I agree with the Majority’s decision regarding the Employee’s

issues on appeal, I disagree with the decision regarding the Employer’s first

and second issues. I believe that the trial court erred as a matter of law in

concluding that the contractual term “net collected receipts” is ambiguous.   I

also believe the unambiguous use of that term allowed the Employer to deduct
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its cost of the vaccines from the total collected receipts before calculating the

Employee’s compensation. Thus, I dissent from the majority on those two

issues and concur with the rest of the decision.

       Whether a contract contains ambiguous terms is a question of law.

Walton v. Philadelphia Nat. Bank., 545 A.2d 1383, 1388 (Pa. Super.

1988). “Because contract interpretation is a question of law, this Court is not

bound by the trial court's interpretation.” Mazurek v. Russell, 96 A.3d 372,

378 (Pa. Super. 2014) (citation omitted). “Our standard of review over

questions of law is de novo and to the extent necessary, the scope of our

review is plenary as [the appellate] court may review the entire record in

making its decision.” Id. (citation omitted)

       “A contract is ambiguous if it is reasonably susceptible of different

constructions and capable of being understood in more than one sense.” Ins.

Adjustment Bureau. Inc. v. Allstate Ins. Co, 905 A.2d 462, 469 (Pa.

2006). The fact that the parties do not agree upon a proper interpretation

does not necessarily render a contract ambiguous. Krizovensky v.

Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993).

       Here, the trial court found the term “net collected receipts” ambiguous,

and allowed the parties to testify about their individual understanding of this

term.1 I disagree that the term is ambiguous. The term “net” in business

____________________________________________


1Plaintiff testified that there was no written or oral agreement to include the
cost of vaccines as part of her "net collected receipts" and that she never



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commonly refers to the amount remaining after expenses have been

deducted. See Meriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/net, (last visited 5/16/19) (defining “net” as “free

from all charges or deductions: such as: remaining after the deduction of all

charges, outlay, or loss”). Otherwise, the parties would have used the term

“gross” which refers to the total amount before accounting for any expenses

or deductions. See id., https://www.merriam-webster.com/dictionary/gross,

(last visited 5/16/19) (defining “gross” as “consisting of an overall total

exclusive of deductions”).

       Our court has previously found the term net to be unambiguous. See

Temple      University      v.    Allegheny      Health   Educ.   and   Research

Foundation, 690 A.2d 712, 716 (Pa. Super. 1997) (finding “the term net

payment does not even achieve the need for translation, let alone attain such

uncertainty as to invoke the designation ambiguity and thereby permit . . .

the presentation of extrinsic evidence.”); Faust v. Walker, 945 A.2d 212,

214-15 (Pa. Super. 2008) (finding “net proceeds” is not an ambiguous term).

____________________________________________


would have agreed to include deduction of vaccine costs as part of her
agreement with defendant. N.T., 9/6/17/ at 102-03. The court found Dr.
Robinson's testimony that there was no agreement to include the cost of
vaccines as part of her "net collected receipts" to be credible. Trial Court
Opinion, 10/20/2017, at 4. The fact that the trial court found this testimony
to be credible is of no consequence; the court should never have considered
parole evidence of the parties’ understanding of the term “net collected
receipts” since the term was not ambiguous. See Steuart v. McChesney,
444 A.2d 659, 661 (Pa. 1982). (explaining “[w]hen the words of a contract
are clear and unambiguous, the intent is to be discovered only from the
express language of the agreement”).

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But see contra Lohmann v. Piczon, 487 A.2d 1386 (Pa. Super. 1985)

(remanding to allow parole evidence to determine the meaning of “net income

after taxes” in parties’ support agreement).

      Because the term is unambiguous, the trial court erred when it

considered the Employee’s unilateral understanding of this term.       The trial

court further erred when it completely disregarded the term “net” in

calculating the Employee’s income under the parties’ agreement.        The trial

court calculated the Employee’s salary by taking the total receipts collected

and multiplying by 49%.      By doing so, the court effectively changed the

language in the contract from “net” collected receipts to “gross” collected

receipts.   That clearly was not the parties’ intention, since they specifically

used the word “net” in their contract.

      Moreover, to hold as the Majority and the trial court have done, requires

the Employer to pay twice for the cost of the vaccines. First, the Employer

has to pay the vendors who sold it the vaccines, and second, the Employer

has to pay 49% of that cost again, when it compensates the Employee. That

does not make good business sense, and it is not what the express language

of the parties’ contract provides.

      The fact that the parties did not define this term in their agreement did

not render the term ambiguous. The common, unambiguous, use of that word

meant the parties agreed that they would deduct expenses from the amount

collected before calculating the Employee’s percentage of compensation.




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       As the Employer testified, she did not seek to include other categories

of expenses in the “net” calculation, because they were not easily allocable

among the Employer’s doctors. However, the cost of vaccines was a readily

ascertainable expense that could be individually attributed to each employee.

As such, it was reasonable, foreseeable, and agreed upon by the parties in the

contract that this expense would be deducted as part of “net” receipts, before

calculating the Employee’s salary.2

       Based on the terms of the agreement, the Employee’s compensation

should have been as follows. Total receipts: $424,478.03, less the cost of

vaccines, $132,415.62 = $292,062.41, multiplied by 49% = 143,110.58.

       The trial court also concluded that, under the terms of the contract, the

Employee’s malpractice insurance premium should have been deducted after

calculating the Employee’s 49% share of the total receipts. I agree with this

legal conclusion. Thus, the Employee’s share of the net collected receipts,

$143,110.58,      less   the   cost    of   malpractice   insurance   $13,147.00   =

$129,963.58.

       The parties agreed that the Employer should have paid back $810 it

improperly deducted from the amount it paid to the Employee. Additionally,

the trial court concluded under the facts that the Employee was also due 49%

of the vaccine co-pays for October, which totaled $500, for a net compensation
____________________________________________


2 Arguably, the Employer could have deducted additional, reasonable business
expenses as well to arrive at a true “net” figure before calculating the
Employee’s 49% share of the total net receipts, but the Employer chose not
to attribute any additional expenses to the Employee.

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due to the Employee of $245. The record supports these conclusions. Thus,

adding these sums to the total above gives the Employee total compensation

due under the parties’ contract for the third year of $131,018.58.

     Because the Employer paid Employee more than this amount for the

third year ($137,468.55), and because the Employer did not file a lawsuit

seeking reimbursement of any overpayment to Employee, I would vacate the

award from the trial court in favor of the Employee and remand for entry of

judgment in favor of the Employer on all counts.




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