J-A28037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GMW ORGANIZATION, LLC, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEVEN B. ATLASS, PENNSYLVANIA 

BANCSHARES, INC., HOWELL 

ACQUISITION PARTNERS, L.P., AND 

KREBS PARTNERS, LLC,

Appellees No. 304 EDA 2015

Appeal from the Judgment Entered February 19, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 01597 August Term, 2012

BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 24, 2015

This is a contract dispute between Appellant, GMW Organization, LLC 

(“GMW”), an organization that provides strategic advisory services and 

business advice that is owned by Gregory Weinberg (“Weinberg”), and 

Appellees, Steven B. Atlass (“Atlass”) and his related entities, Pennsylvania 

Bancshares, Inc. (“Bancshares”), Howell Acquisition Partners, L.P. 

(“Howell”), and Howell’s general partner, Krebs Partners, LLC (“Krebs”) (also 

collectively “Appellees”). We affirm.

The trial court summarized the factual and procedural history of the 

case as follows:

On August 16, 2012, GMW . . . commenced the instant 

action by way of a complaint against . . . Atlass, . . . Bancshares, 
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. . . Howell, and . . . Krebs . . .; businesses which were all 

alleged to be affiliated with Atlass. The complaint asserted a 

number of causes of action against [Appellees] related to a 

written compensation agreement [(“Agreement”)] . . . [the] 

parties entered into after Atlass approached GMW’s President 

and owner, Gregory Weinberg . . . in early April 2011 regarding 

GMW finding funding for two hospital projects [that] Atlass was 

involved in.

On July 16, 2014, [GMW’s] causes of action for breach of 

contract and declaratory relief proceeded to bench trial before 

this court.1

1

[GMW’s] cause of action for unjust enrichment, 

which was asserted in the alternative, also 

proceeded to trial.

At trial, the following facts were adduced and arguments were 

made.

On July 20, 2011, GMW and Atlass, Bancshares, and 

Atlass’s “affiliates,” which were collectively referred to as 

“Atlass,” entered into the [Agreement] whereby GMW would 

provide “investment banking services to Atlass with regards to 

capital raising events (‘Transaction(s)’)” for two hospitals, the 

two hospitals being: (1) Northeastern Hospital, which Atlass had 

recently purchased through certain entities and (2) St. Agnes 

Hospital, which Atlass was planning to purchase through another 

entity, Howell. Atlass’ idea was to raise capital with the goal of 

ultimately converting the hospitals into medical office buildings.

On or about December 16, 2010, Northeastern Hospital, 

also known as City Center at Northeastern Hospital, was 

purchased by Haskell Acquisitions Partners I, L.P., Haskell 

Acquisitions Partners II, L.P., and Haskell Acquisitions Partners 

III, L.P. (collectively “Haskell”). On or about July 29, 2011, 

Saint Agnes Hospital was purchased by Howell. Atlass formed 

Howell to purchase Saint Agnes Hospital. Howell is owned 

and/or controlled by entities in which Atlass and Atlass’ 

immediate family members have a majority ownership stake, 

including, but not limited to, its general partner Krebs, which is 

100% owned and controlled by Atlass. Haskell, Howell, and 

Krebs are all Atlass “affiliates” within the meaning of the 

[Agreement].
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Trial Court Opinion, 4/21/15, at 1–2 (internal citations omitted).

GMW contracted with Atlass to assist with raising funds for a joint 

venture concept that Weinberg “believed would be effective for funding 

development of the [h]ospital [p]rojects that Atlass had described to 

Weinberg” at a prior meeting. Complaint, 8/16/12, at ¶ 11. Weinberg 

allegedly explained to Atlass that the joint venture concept likely would 

provide Atlass and the Atlass affiliates “with liquidity, would enable Atlass to 

buy out his partner at Northeastern Hospital, . . . could enable Atlass and 

the Atlass affiliates to share in operational profits and profits from 

refinancing . . . and would allow them to earn a management fee and an 

asset management fee.” Id. at ¶ 12.

The parties exchanged drafts of a compensation agreement, 

Complaint, 8/16/12, at ¶ 30, negotiated terms over several days, id. at 33, 

and ultimately entered into the Agreement on July 20, 2011. Id. The terms 

of the Agreement are relevant herein, and it is reproduced infra.

GMW’s claims for breach of contract and a declaratory judgment were 

based on its contention that the Agreement entitled it to $250,000 and 

twenty-five percent interest in the entity that owned or controlled St. Agnes 

Hospital. The case proceeded to a two-day bench trial on July 16 and 17, 

2014. On September 26, 2014, the trial court found for GMW, awarding it 

$0.00 and a twenty-five percent interest in Krebs, per the Agreement.
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On October 8, 2014, GMW filed a post-trial motion, which the trial 

court denied by order filed on December 18, 2014. GMW filed a notice of 

appeal on January 8, 2015.1 Both GMW and the trial court complied with 

Pa.R.A.P. 1925.

GMW presents the following issues, which are identical to the issues 

raised in GMW’s Pa.R.A.P. 1925(b) statement:

I. Whether the Trial Court erred in failing to enter a specific 

declaration concerning Plaintiff’s rights and interest in the 

carried interest/profit share (also known as the “Promote” 

or the “Carry”) with respect to a real estate investment 

transaction know[n] as the St. Agnes Transaction (both 

“St. Agnes” and the “St. Agnes Transaction” are defined 

below), where: (a) the Court recognized the importance of 

the Promote to the parties; (b) undisputed extrinsic 

evidence existed to support Plaintiff’s interest in the 

Promote; and (c) the Court only awarded Plaintiff an 

interest in Krebs Partners, LLC (“Krebs”) without any 

declaration concerning Plaintiff’s rights to the Promote, 

thereby permitting Defendant to manipulate the 

disbursement of Promote money (including but not limited 

to altering the entity types in the St. Agnes Transaction) 

such that Krebs receives only a minimal amount and 

Defendant avoids having to pay Plaintiff his share of the 

Promote money.

II. Whether the Trial Court erred in ruling that the terms of 

parties’ [A]greement concerning Plaintiff’s entitlement to 

$250,000 from the St. Agnes Transaction was clear and 

unambiguous, where Plaintiff satisfied the conditions 

precedent to its receiving the $250,000, and, in construing 

____________________________________________

1

 Because judgment had not been entered on the docket as required by 

Pa.R.A.P. 301, we directed GMW to praecipe the trial court to enter 

judgment. Judgment was entered on February 19, 2015, and the previously 

filed notice of appeal was treated as filed after the entry of judgment. See

Pa.R.A.P. 905(a).
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such terms, the Court was required to borrow and insert 

clauses from other inapplicable sections of the 

[A]greement to support its conclusion that Plaintiff was not 

entitled to receive $250,000 from the St. Agnes 

Transaction.

III. Whether the Trial Court erred in failing to award Plaintiff 

$250,000 based on the “amount” received by Defendants 

in the St. Agnes Transaction (i.e. $2,500,000), where: (a) 

all “debt” considerations were irrelevant to the St. Agnes 

Transaction because the provisions in the [A]greement 

relating to Plaintiff’s payment entitlements from the St. 

Agnes Transaction did not contain a term allowing for 

“debt” to reduce Plaintiff’s entitlements, and the Court 

found that a capital-raising event (i.e. a “Transaction” (as 

defined in the parties[’ A]greement)) took place; (b) even 

the inapplicable “debt” terms which the Court borrowed 

from other provisions in the [A]greement not relating to 

the St. Agnes Transaction called for using pre-existing debt 

of which the St. Agnes Transaction had none since all 

existing debt was eliminated in the St. Agnes Transaction 

and the $2,500,000 was net of such debt (as admitted by 

Atlass at trial); and (c) there was no genuine debt from 

the St. Agnes Transaction which could be used to reduce 

Plaintiff’s $250,000 payment entitlement.

IV. Whether the Trial Court erred in construing the 

[A]greement of the parties against Plaintiff contrary to the 

doctrine of contra proferentem such that it failed to award 

Plaintiff $250,000 and the Promote pursuant to the St. 

Agnes Transaction where the [A]greement was drafted by 

the Defendants with the assistance of counsel[,] and 

Plaintiff had no counsel.

GMW’s Brief at 4–6.

The Agreement provides as follows:

Compensation Letter Agreement 

July 20, 2011

Gregory Weinberg, President

GMW Organization, LLC
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1650 Market Street, 53rd Floor

Philadelphia, PA 19103

Dear Greg,

This letter agreement (“Agreement”), dated July 20, 2011 (the 

“Effective Date”), confirms the terms and conditions between 

GMW Organization, LLC (“GMW”) and Pennsylvania Bancshares, 

Inc., myself, and/or my affiliates (collectively “Atlass”) whereby 

GMW will be providing investment banking services to Atlass 

with regards capital raising events (“Transaction(s)”) for North 

East Hospital located at 2301 East Allegheny Avenue, 

Philadelphia, PA 19134 (“NE Hospital”) and St. Agnes Hospital 

located at 1930 South Broad Street, Philadelphia, PA 19145 (“St. 

Agnes”). Atlass and GMW are hereinafter referred to individually 

as a “Party” and together as the “Parties.”

This Agreement is an exclusive engagement for a period of 120-

days commencing on the Effective Date. All GMW prospective 

sources of capital for a Transaction shall be identified by GMW 

and listed on Schedule “A” attached hereto, as such schedule will 

be updated from time-to-time by the Parties. Additions and 

updates to Schedule “A” shall be discussed and agreed to by the 

Parties, and such updates and additions shall be submitted in the 

form of electronic mail, and Atlass’ receipt and confirmation (by 

way of electronic mail) of the updates and additions set forth in 

such electronic mail submission constitutes acceptance of any 

such addition and update to Schedule “A”. Expiration of this 

Agreement shall not affect GMW’s right to receive compensation 

(as described below) if a Transaction takes place with a GMW 

prospective source of capital, and takes place subsequent to, but 

within a period of 24-months (the “Tail Period”) from the end of 

the term of this Agreement.

GMW shall:

1) Assist Atlass on structuring the 

Transaction;

2) Assist in the preparation and creation of 

appropriate documentation (e.g. teaser 

and information memorandum (“Sales 

Materials”)); Sales Materials for NE 

Hospital shall [be] prepared by GMW on or 
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before twenty-one days from the Effective 

Date;

3) Initiate contact with prospective investors 

and arrange introductions with prospective 

investors by way of teleconference, inperson meetings and/or email 

communication;

4) Assist Atlass in its evaluation of a 

Transaction proposal;

5) Assist in negotiations.

COMPENSATION

NE HOSPITAL

1) 3% of a NE Hospital Transaction (irrespective of 

who identifies the source of capital; i.e. GMW or 

Atlass);

2) 10% of any funds Atlass receives from an NE 

Hospital Transaction (net of debt and costs) (to 

be paid only if a Transaction effects with a GMW 

prospective source (or sources) of capital, or if a 

Transaction effects by way of the new general 

partner of NE Hospital, and Atlass receives funds 

from such Transaction); and

3) 25% of the general partnership (“GP”) of the 

entity controlling NE Hospital (to be granted only 

if a Transaction effects with a GMW prospective 

source (or sources) of capital[)].

By way of example, should GMW raise $20 million dollars in a 

joint venture (“JV”) structure for NE Hospital from a prospective 

source of capital, GMW’s compensation will be as follows:

1) 3% of $20 million (i.e. $600,000.00);

2) 10% of what Atlass receives (e.g. $20,000,000 

less debt of $12 million, less $2 million buyout of 

partners, less expenses); the net amount of $6 
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million would equal a $600,000 fee payable to 

GMW; and

3) 25% of the GP of the entity controlling (e.g. JV) 

of NE Hospital.

ST AGNES HOSPITAL

Upon closing of the initial St. Agnes Transaction (e.g. $2 million 

bridge financing), irrespective of who identifies the source of 

capital, GMW will receive $30,000.00.

Upon the closing of a subsequent St. Agnes Transaction, GMW 

will receive:

1) 3% of the Transaction amount (irrespective of 

who identifies the source of capital; i.e. GMW or 

Atlass);

2) 10% of the amount Atlass would receive from a 

St. Agnes Transaction (see above example) (to be 

paid only if a Transaction effects with a GMW 

prospective source (or sources) of capital); and

3) 25% of the GP in the entity that controls St. 

Agnes (to be granted only if a Transaction effects 

with a GMW prospective source (or sources) of 

capital).

GMW is affiliated (GMW’s President is a registered 

representative) with Grant Williams, LP (“GWLP”), a Philadelphia, 

Pennsylvania broker-dealer who is a member of FINRA and the 

Securities Investor Protection Corporation (“SIPC”). GMW, 

through GWLP, will comply with all applicable laws, rules, and 

regulations of the Securities and Exchange Commission (the 

“SEC”), the conduct rules of FINRA, and any state securities laws 

and regulations.

Neither Party shall have the right to assign its rights or delegate 

its obligations under this Agreement without the prior written 

consent of the other Party; provided however, that GMW may 

assign its rights or obligations hereunder to GWLP or any other 

FINRA broker-dealer that GMW may associate with during the 
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Term, Tail Period, and any extension thereof, without the prior 

written consent of Atlass.

This Agreement shall be binding on the Parties and their 

successors, assignees, designees or acquired businesses.

If you agree with the terms and conditions of this Agreement, 

please sign and return. It is understood that you will prepare a 

more formal document as soon as practicable.

Sincerely,

PENNSYLVANIA BANCSHARES, INC

Steven B. Atlass

President

Accepted: Signature of Steven B. Atlass

Date: July 20, 2011

Accepted and agreed as of this 20th day of July, 2011

GMW Organization, LLC

By: Signature of Gregory Weinberg

Gregory Weinberg

President

Complaint, 8/16/12, at Exh. A.

In reviewing a decision after a nonjury trial, “we will reverse the trial 

court only if its findings are predicated on an error of law or are unsupported 

by competent evidence in the record.” Deutsche Bank Nat. Trust Co. v. 

Gardner, 2015 PA Super 219, slip op. at 2 (Pa. Super. filed October 14, 

2015) (citing Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 321 (Pa. 

Super. 2015)). We may interfere with the trial court’s conclusions only if 
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they are unreasonable in light of its findings. Zappile v. Amex Assur. Co., 

928 A.2d 251, 254 (Pa. Super. 2007).

GMW’s issues relate to the trial court’s interpretation of the 

Agreement. “[T]he ultimate goal [of contract interpretation] is to ascertain 

and give effect to the intent of the parties as reasonably manifested by the 

language of their written agreement.” Southwestern Energy Production 

Co. v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super. 2013). “In 

cases of a written contract, the intent of the parties is the writing itself.” 

Lesko v. Frankford Hosp.-Bucks Cnty., 15 A.3d 337, 342 (Pa. 2011). 

“[I]n determining the intent of the contracting parties, all provisions in the 

agreement will be construed together and each will be given effect.” LJL 

Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009).

We have made clear:

Determining the intention of the parties is a paramount 

consideration in the interpretation of any contract. The intent of 

the parties is to be ascertained from the document itself when 

the terms are clear and unambiguous. However, as this Court 

stated in Herr Estate, 400 Pa. 90, 161 A.2d 32 (1960), 

“[W]here an ambiguity exists, parol evidence is admissible to 

explain or clarify or resolve the ambiguity, irrespective of 

whether the ambiguity is created by the language of the 

instrument or by extrinsic or collateral circumstances.”

We first analyze the contract to determine whether an ambiguity 

exists requiring the use of extrinsic evidence. A contract is 

ambiguous if it is reasonably susceptible of different 

constructions and capable of being understood in more than one 

sense. The court, as a matter of law, determines the existence 

of an ambiguity and interprets the contract whereas the 

resolution of conflicting parol evidence relevant to what the 
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parties intended by the ambiguous provision is for the trier of 

fact.

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 

6–7 (Pa. Super. 2013).

GMW first argues that the trial court erred in failing to enter a specific 

declaration concerning GMW’s rights and interest “in the carried 

interest/profit share (also known as the “Promote” or the “Carry”)” with 

respect to the St. Agnes Transaction. GMW’s Brief at 4. The trial court 

defined “promote” as “‘a carried interest . . . or what’s also known as a profit 

share whereby . . . a person who’s putting a deal together can share in the 

upside as the property or the entity becomes successful’ and the limited 

partners have been paid back with interest.” Trial Court Opinion, 4/21/15, 

at 16–17 (citing N.T. Volume I, 7/16/14, at 68–69). Appellees assert that 

the term “promote,” as utilized by GMW, is not contained in the Agreement; 

rather, the Agreement addressed GMW’s compensation “without any 

reference to a ‘promote.’” Appellees’ Brief at 7–8. The trial court agreed 

that the Agreement made no mention of a “promote”; rather, the Agreement 

provided that GMW would be entitled to twenty-five percent of the general 

partnership in the entity that controls St. Agnes Hospital. Trial Court 

Opinion, 4/21/15, at 17.

The trial court concluded that Howell controlled St. Agnes Hospital 

within the meaning of the Agreement. Thus, GMW was entitled to twentyfive percent interest in Howell’s general partner, Krebs. While 
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acknowledging that GMW argued that it was entitled to twenty-five percent 

of Howell, the trial court concluded that the Agreement’s terms are clear and 

unequivocal. Therefore, the precept that a court may examine the 

surrounding circumstances to ascertain the intent of the parties when the 

words used in a contract are ambiguous, see, e.g., Keystone Dedicated 

Logistics, 77 A.3d at 6, never came into play. Even if the provision in the 

Agreement was ambiguous, the trial court found that the undisputed 

extrinsic evidence did not support GMW’s interest in the promote. Trial 

Court Opinion, 4/21/15, at 18. After careful review, we conclude that the 

trial court did not err in its determination.

The second issue concerns the trial court’s conclusion that GMW was 

not entitled to $250,000, or ten percent of the $2.5 million Howell received 

as part of the St. Agnes Hospital transaction because the $2.5 million was 

debt; the Agreement excluded debt from funds to which GMW’s ten percent

compensation was applicable. GMW argues that the trial court erred in 

determining that the Agreement was clear and unambiguous, yet it utilized 

clauses from other sections of the Agreement to support its conclusion that 

GMW was not entitled to $250,000. GMW’s Brief at 36. GMW alleges the 

trial court “supplied a term that was intentionally excluded from the St. 

Agnes compensation terms.” Id. at 39. GMW maintains that the trial court 

should have examined the St. Agnes Hospital provision in isolation, without 
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reference to any other language of the Agreement. Thus, GMW avers that 

the trial court erred in its interpretation of the Agreement.

The trial court rightly concluded that it was obligated to view the 

Agreement as a whole and not “in discrete units.” Bethlehem Steel Corp. 

v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super. 1997). The trial court looked to 

the entire Agreement and correctly determined there was no ambiguity. 

Moreover, the trial court found that Weinberg’s testimony that the $2.5 

million was structured as a loan at his suggestion for tax reasons was not 

credible. Trial Court Opinion, 4/21/15, at 24. See Prieto Corp. v. 

Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super. 2014) (“Concerning 

questions of credibility and weight accorded the evidence at trial, we will not 

substitute our judgment for that of the finder of fact.”). Therefore, this issue 

lacks merit.

GMW’s third claim is that the trial court misconstrued the debt terms 

of the Agreement, maintaining that the trial court erred in finding that 

“because Iron Point[2] provided Howell with a loan, that loan was debt that 

should have been deducted from the ‘amount’ received by [Appellees] in 

calculating what [GMW] was due under the Compensation Agreement.” 

GMW’s Brief at 40. Thus, GMW posits that the debt referred to in the 

____________________________________________

2

 Iron Point Partners, LLC is a private equity company that was interested in 

investing in both Northeastern Hospital and St. Agnes Hospital but ultimately 

invested solely on St. Agnes Hospital. Trial Court Opinion, 4/21/15, at 5.
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Agreement was only pre-existing debt. The trial court found that GMW did 

not identify any evidence that the terms “net of debt” and “less debt” used 

in the Agreement referred only to existing debt paid off through a hospital 

transaction rather than funds received by Atlass or an affiliate as new debt. 

The trial court determined that Iron Point dictated the “$2.5 million would be 

structured as a loan in order to provide itself with more protection.” Trial 

Court Opinion, 4/21/15, at 24. The trial court’s conclusions are well 

supported by the record.

Finally, GMW asserts that the trial court should have applied the 

doctrine of contra proferentem. Under that rule, “any ambiguous language 

in a contract is construed against the drafter and in favor of the other party 

if the latter’s interpretation is reasonable.” Municipal Authority of 

Borough of Midland v. Ohioville Borough Municipal Authority, 108 

A.3d 132, 139 (Pa. Cmwlth. 2015). This issue has been discussed in the 

context of the first and second issues; we have noted that the trial court’s 

conclusion that the Agreement lacked ambiguity has record support. Thus, 

the ambiguity issue has no merit. Moreover, the doctrine has no application 

herein because the evidence of record supports the conclusion that the 

Agreement was a freely negotiated instrument. See Kozura v. 

Tulpehocken Area Sch. Dist., 791 A.2d 1169, 1175 n.8 (Pa. 2002) (“The 

principle that a contractual ambiguity is to be construed against the drafter 
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does not apply where, as here, the contract is the result of the joint efforts 

of negotiators.”).

In summary, the trial court provided an exhaustive analysis and 

correct disposition of all of the issues raised by GMW. Accordingly, we affirm 

the judgment, and we do so on the basis of the comprehensive April 21, 

2015 opinion of the Honorable Patricia A. McInerney.3

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015

____________________________________________

3

 The parties are directed to attach a copy of that opinion in the event of 

further proceedings in this matter.
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Cimw Olp,,iulian, Lie VaA1f-Efil.0PFLD 1 

COPIES SENT PURSUANT TO Pa.R.C.P. 236{b) D. SPARACINO 04/21/2015 

number of causes of action against Defendants related to a written compensation agreement 

("Contract") these parties entered into after Atlass approached GMW's President and owner, 

Gregory Weinberg ("Weinberg"), in early Aprll 2011 regarding GMW finding funding for two 

hospital projects Atlass was involved in. (See id. atfl 9-1 J, 33, 46--73.) 

On July 16, 2014, Plaintiff's causes of action for breach of contract and declaratory relief 

instant action by way of a complaint against Steven B. Atlass ("Atlass1'). Pennsylvania 

Bancshares, Inc. (''Bancshares,.), Howell Acquisition Partners, L.P. f'Howell"), and Howell's 

general partner Krebs Partners, LLC ("Krcbs'1) (oollectively, "'Defendants''); businesses which 

were all alleged to be affiliated with Atlass. (Pl. 's Compl. fl' 2 .. s.) The complaint asserted a 

On August 16. 2012, GMW Organization, LLC ('1GMW'1 or "Plaintiff') commenced the 

L BACKGROUND 

motion for post-trial relief. 

Judarne.nt having been entered. this is an appeal from the order denying the plaintiff's 

BY: Patricia A. Mcinerney, J. April 21, 2015 

QPffilON 

Defendant1. 

. . 

. STEVEN B. ATLASS. ET AL., • 

. • 

VI, 

N0.1597 ~~ 

;.,.;• ' r 1· • -~ . t-:~: 

COMMERCE PROGRAMt r .. ~ ... ... , 

t• 

t . 

f:· . ·. '.• -· .. 

Plaintiff, 

• AUGUST TERM, 2012 GMW ORGANIZATION, LLC, • 

IN THE COURT OF COMMON PLEAS OF PMLADELPBIA COUNTY 

FIRST JUDIC~ DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

Circulated 10/30/2015 03:56 PM
1 Plaintifrs cause of action for unjust enrichmen'1 which was asserted in the alternative, 

also proceeded to trial. 

2 

the meaning of the Contract. (N.T~ Vol. r, 129, 208-09; N.T., Vol. 2, 84, 133.) 

Atlass. (Id. at 128-32; Pl!s Ex. lS.) Haskell, Howell, and Krebs are all Atlass "affiliates" within 

entities in which Atlass and AtJass' immediate family members have a majority ownership stake, 

including, but not limited to, its general partner Krebs, which is I 00% owned and controlled by 

"Haskelr'). (See N.T., Vol. I, 206-07; Defs. Bxs. Sl-52.) On or about July 29, 2011, Saint 

Agnes Hospital was purchased by Howell (N.T .• Vol. 1, 146, 208.) Atlass formed Howell to 

purchase Saint Agnes Hospital, (Ste Id. at 205, 208.) Howell is owned and/or controlled by 

buildings. (See N.T., Vol. 1, 53-54, 204-JO; Pl.'s Ex. 22.) 

On or about December 16, 2010, Northeastern Hospital, also known as City Center at 

Northeastern Hospital, was purchased by Haskell Acquisitions ·Partners I, L.P., Haskell 

Acquisitions Partners II, L.P., and Haskell Acquisitions Partners Ill, L.P. (collectively 

for two hospitals, the two hospitals being: (1) Northeastern Hospital. which Atlass bad recently 

purchased through· certain entities end (2) St. Agnes Hospital, which AtJass was planning to 

purchase through another entity, Howell. (See Pl.'s Ex. I; N.T .• Vol. 1, 40-44, 216~18.} Atlass' 

idea was to raise capital with the goal of ultimately converting the hospitals into medical office 

"inv~ent banking services to AtJass with regards to capital raisin& events ('Transaction(s)')" 

collectively referred to as "Atlass.'' entered into the Contract whereby OMW would provide 

arguments were made. 

On July 20, 2011, GMW and Atlas~ Bancshares, and Atlass's "affiliates.° which were 

proceeded to bench trial before this court. 1 At 1rial, the following facts were adduced and 

Circulated 10/30/2015 03:56 PM
I 

I 

3 

Upon closing of the initial St. Agnes TI11I1S2ction ( e.g. $2 million bridge 

ST AGNES HOSPITAL 

I) 3% of $20 million (i.e. $600,000.00); 

2) 10% of what Atlass receives (e.g. $20,000,000 leas debt of $12 

million, less $2 million buyout of partners, less expenses); the net amount 

of $6 million would equal a $600,000 fee payabJe to GMW; and 

3) 25% of the GP of the entity controlling ... NE Hospital. 

1) 3% of a NE Hospital Transaction (irrespective of who identifies the 

source of capital; l.e. OMW or Atlass); 

2) 10% of any funds Atlass receives from aD NB Hospital Transaction 

(net of debt and costs) (to be paid only if a Transaction effccm with a 

GMW prospective source ( or sources) of capital, or if a Transaction 

effects by way of a new general partner of NE Hospital. and Atlass 

receives funds from such Transaction); and 

3) 25% of the general partnership ("OP") of the entity controlling NE 

Hospital (to be granted only if a Transaction effects with a OMW 

prospective source (or sources) of capitalD]. 

By way of example. should OMW raise $20 million dollars in a joint venture 

(nN") structure for NE Hospital from a prospective source of capital, GMW's 

compensation will be as follows: 

(Pl. 's Ex. I, at p. 1.) The Contract then set forth nearly identical compensation structures for 

GMW for both Northeastem Hospital and St. Agnes Hospital, specifically providing: 

COMPENSATION 

NE HOSPITAL 

GMWsball: 

l) Assist Atlass on structurin& the Transaction; 

2) Assist in the preparation and creation of appropriate documentation 

(e.g., teaser and information memorandum ('•Sales Materials',); Sales 

Materials for NE Hospital shall [be] prepared by GMW on or before 

twenty-one days from the Effective Date; · 

3) Initiate contact with prospective investon and arrange in1Toductions 

with prospective investors by way of teleconference, in-person 

meetings and/or email communications; 

4) Assist Atlass in its evaluation of a Transaction proposal; 

5) Assist in negotiations. 

The Contract provided: 

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4 

169.) 

an investment banker may not work between transitioning from one finn to another. (See id. 

"garden leave" expired in Au&USf. (Id. at 169.) A "garden leave" is a set period of time where 

('·Baird"). (Id. at 169.) As he was resigning from FBR and moving to a new firm, Goldberg 

mentioned that he could not work with Atlass or Weinberg/OMW until his industry-required 

Weinberg that he was resignina from FBR and moving to a new firm. Robert W. Baird & Co. 

(N.T., Vol. 1, 103-04, 169-72, 219·20.) To that end, on or about April 2011, Weinberg. 

introduced Atlass to Steve Goldberg ("Ooldberg'1) who was working at Friedman, Billings and 

Ramsey ("FBR"). (Id. at 169-70, 219.) However, on or about May 2011, Goldberg notified 

Upon the closing of a subsequent St. Agnes Transaction, OMW will receive: 

I) 3% of the Transaction amount (irrespective of who identifies the 

source of capital; Le, OMW or Atlass); 

2) 10% of the amount Atlass would receive from a St. Agnes Transaction 

(see above example) (to be paid only if a Transaction effocts with a GMW 

prospective source (or sources) of capital); and 

3} 2S% of the OP in the entity that controls St. Aanes (to be granted only 

if a Transaction effects with a OMW prospective source (or sources) of 

capital). 

(Id. at p. 2.) Regarding sources of capital, the Contract provided "[a]ll OMW prospective 

sources of capital for a Transaction shall be identified by OMW and listed on Schedule 'A' 

attached hereto, as such schedule will be updated from time-to-time by the Parties," (Jd. at p. J .) 

On June 30, 20111 Atlass prepared the first draft of the Contract and sent it to Weinberg. 

(PJ. 's Ex. 11.) Weinberg then made "somewhat substantial" edits to the first draft and provided 

Atlass with several subsequent drafts. (N. T., Vol. l, 98; Oefs/ Exs. 6-9.) 

Before entering into the Contract, Weinberg sought to bring in a co-lnvestment banker. 

financing), itTCspective of who identities the source of capital, OMW will receive 

$30,000.00. 

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banking services agreement with Baird on November 14, 2011 (the "Howell-Baird Agreement"}. ! 

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viability of a joint venture. This work culminated with Atlass entering into a separate investment 

financials, etc.) and answered detailed due diligence questions to enable Baird to assess the 

regarding the JV opportunities with Atlass. (N.T .• Vol. I, 35·36.) And during the momhs of 

September, October, and November of 2011, Weinberg worked diligently with Goldberg and 

O'Bnen, after their respective "'garden leave" periods expired, and other representatives of Baird 

whereby Weinberg created and provided due diligence infonnation (e.g .. an organizational chart, 

period of time following execution of the Contract, Weinbera also contacted numerous investors i I 

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. 

After entering into the Contract, Weinberg began preparing teaser/executive summary 

materials and financial projections. (See N.T., Vol. 1, SS-S8; PJ!s Exs, 22, 25.) During the 

36.) Shortly thereafter, O'Brien notified Weinberg that he too was resigning from FBR and 

moving to Baird and could not discuss any opportunity with Weinberg or Atlass during his 90. 

day garden leave, which would expire in mid..SCptembcr 2011. (See N.T., Vol 2, 6, 49-54; Pl.'s 

Ex. 37.) 

Point Partners, UC ("Iron Point"), a private equity company. (N.T., Vol. 2, 46-47; Pl. 's Ex. 

O'Brien could provide Weinberg with a list of potential investors Weinberg could contact in the 

event FBR or Baird did not engage with Atlass to effect a JV. (N.T., Vol. 2, 4647; Pl. 's Ex. 36.) 

Weinberg diligently pursued a conference call between himself, Atlass, and O'Brien, and 

the call eventually took place on or about May 18, 2011. (See N.T., Vol. 1, SO; N.T., Vol. 2, 48- 

49; Pl. 's Ex. 34.) On June 13, 2011, O'Brien sent a contact list to Weinberg that included Iron 

Knowing that resignin; from FBR would cause an inconvenience, Goldberg 

recommended Weinberg speak with .Jim O'Brien (''O'Brien") at FBR regarding pursuing a JV 

opportwuty. (Id. at 32·33, 49-50; N.T., Vol. 2, p. 12.) To that end, Goldberg offered that 

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believed the term "capital" includes equity, but not debt (N.T., Vol. 1! 217.) Weinberg. on the 

was to be compensated forfmding that capital. (See Pl.'s Ex. 1.) As used in the Contract, Atlass 

6 

parties agreed that GMW would be credited with any SOUIW of capital idcntifiod by Baird so 

long as Baird identified that source between November 141 2011 and some future date. (See id.} 

Certain aspects of the Contract required OMW to find the source or sources of capital ifit 

Baird and Howell Acquisition Partners. LP ('Howell Agreement' dated and executed by Atlass 

November 14, 2011); and (ii) any and all persons or entities identified by Baird dming the term 

of the agreement between Baird and Haskell Acquisition Partners, LP and its affiliates {'Haskell 

Agreement' -to be executed as soon as practicable}; •.. " (PJ.'sEx. 3.) Stated another way, the 

by Robert W. Baird & Co. lncorpomted ('Baird') during the term of the agreement between 

following as GMW prospective sources of capital: "(i) Any and all persons or entities identified 

equity .. finked or senior, mezzanine, subordinated 9r convertible debt financing." (Id.) 

Company or any project, property or business affiliatt.d with the Company may include equity, 

On November JS, 201 I, Weinberg and Atlass amended the Con1ract to include the 

to [Howell] or the St Agnes Continuing Care Center owned by [Howell).n (Defs. • Ex. I 3, at p. 

1.) One y,ay, however, that the Howell-Baird Agreement differs from the Contract is that it 

specifies 41[1}or the avoidance of doubt, an investment or commitment of capital in the JV, the 

Baird's obligations "in connection with the possible ••. investment in or commitment of capital 

(See, e.g., N.T., Vol. 1. 63·67 Pl.'s Bxs., 27, 37; Defs.' Ex. 13.) 

From October through November 2011, Weinberg was involved in negotiating the 

HoweU·Baird Agreement (N.T., Vol.], 46> 70-71. 103-04.) This involvement included 

"advising ... Atlass on how to negotiate and edit" the Howell-Baird Agreement. (Id. at 46.) 

The Howell-Baird Agreement is similar to the Contract in that it sets forth 

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7 

other things, a summary outline to Atlm in preparation for an Iron Point call and recommended 

and/or in-person meetings/tours with Iron Point, among others. Weinberg also provided, among 

diligence requests from investors, and negotiated letters of intent. (N. T., Vol. 2, J 4-16.) In 

January 2012, Baird began to make phone calls to capital sources, including, but not limited to,_ 

Iron Point. On January 20, 2012, a representative from Baird (Kathleen Chekan) sent Weinberg 

and AtJass tbe list of the people that Baird was contacting ( or desired to contact). (See Pl.' s Ex. 

40.) This was the first time Iron Point was identified to AtJass and the Atlass affiliates during the 

tenn of the Contract and durina the tenn of the Howell-Baird Agreement. 

During January. Febnwys and March of 2012, Weinberg participated in conference calls 

marketing materials such as "teasers," contacted 'prospective investors, responded to due 

After it was formally engaged by Howell, Baird eneaged in due diligence, prepared prehis dealinis with Baird. 

prior to trial that the word "capital" could include only equity, and even asserted this position in 

[Howell] must be an equity investment, not debt." (Dcfs. • Ex. 83.) Thus, Weinberg understood 

commitment of capital in the JV, [Howell] or the St. Agnes Continuing care Center owned 

the agreement such that it would have read "for the avoidance of doubt, an investment or 

Upon receiving the Howell-Baird Agreement, which specified .. for the avoidance of 

doubt., capital includes equity and debt with res~t to the services to be provided by Baird, 

Weinbera did not clarify with At)ass that the word "capital~ as used in the Contract also included 

debt. (Id. at I 13-15.) In negotiating the Howell-Baird Aareement, Weinberg marked up the 

drafts proposed by Baird. In doing so, Weinberg at one point proposed to rewrite the terms of 

99-100.) 

other hand, argued the tenn "capital" as used In the Contract included equity and debt. (Id. at 

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8 

27-28.) 

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2. 14, 22.) Weinbera had no involvement with these negotiations with Iron Point. (N. T., Vol. 2, 

On March J 9, 2012, Iron Point submitted a revised proposed term sheet for both 

hospitals. (Defs.' Ex. 26.) Weinberg received a copy of the revised term sheet. (N.T., Vol. 1, 

127-28.) Weinberg knew Iron Point proposed structuring the new entity or entities as a limited 

liabilitywmpany or companies. (N.T., Vol. 1, 127.) Weinberg also understood a limited 

liability company does not have a general partner. (N.T., VoL l, 127-28.) The revised tenn 

sheet valued Northeastern Hospital at St 2~SO,OOO and St. Agnes Hospital at $5,086,500 and 

proposed providing Atlass with a $2.S00,000 "distribution." (Defs.' Ex. 26, at 3-4.) 

Iron Point dictated the structure of the deal; the dollar amount; and how the money would 

be allocated. (N.T., Vol. 2, 20. 30; Defs. 's Exs. 2S-26.) There were only limited negotiations 

between Atlass and hon Point. (N.T., Vol. t, 126--27, 225-26.) And for those limited 

negotiations, Baird took the lead in neaotiating on Atlass' behalf (Id. at 88, 226-21; N.T., Vol. 

Weinberg received a copy of the first term sheet. (N.T.1 Vol. l, 125.) The first term 

sheet proposed fonnins a new limited liability company or c.ompanies to own the hospimls and 

real property at both St. Agnes Hospital and Northeastern Hospital. (Defs.' Ex. 2S, at p. 2.) Iron 

Point was the entity that proposed the limited liability company form rather than the limited 

partnership form. (N.T •• VoL 1, 20, 121.) 

Ex. 2S.) 

and participated in conference calls to prepare for the Iron Point caU. (N.T., Vol. l. 77·82; N.T .• 

Vol. 2, 227; Pl. •s Bxs. 4043.) Weinberg also provided comments on multiple iteration., of a 

draft term sheet/letter of intent from Iron Point, which culminated with Iron Point submitting its 

first proposed term sheet to Atlass on Maroh 6, 2012. (N.T., Vol. 1, 80-81; Pl. 's Ex. 43; Deis! 

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9 

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I and be subject to the direction and controJ of, the Board of Managers," Howell was "responsible 

Iron Point is a GMW prospective source of capital in accordance with the Contract and 

the email amendment dated November 15, 201 l. (See N.T., Vol. 2, 87; Pl.'s Ex. 3.) But for 

GMW's relationship with. Baird, Iron Point would never have funded the St. Apes MOB JV 

Transaction. (N.T., VoJ. 1, 175-76; N.T •• Vol 2, 90.) 

The St. Agnes MOB~ LLC operating agreement specifies that except as otherwise 

provided in the agreement, the new LLC would be controlled by a five-member Board of 

Managers dominated by Iron Point. (Pl. 's Ex. 15, at§§ 5.01, S.02(a).) Howe)~ however, was 

designated as the initial managing member. (Id. at § S.OS(a).) While Howell was to ••rt to, 

which a little over $2 million was used to pay off Howell's existing lender Basilicata Capital and 

$2.5 million was loaned to Howell. (See N.T., Vol. I, 66-67, 146, 230; Pl. 's Ex. 15.) In return, 

Howell contributed the property and Iron Point took a 90% ownership position in St. Agnes 

MOB, LLC, while Howen took a 1 ()OA, ownership interest. (See Id.) 

Agnes MOB, LLC, a limited liability company that would own and operate the St ASIJes 

Hospital business and real property formerly owned and operated by Howell. (N.T., Vol. 1, 229- 

31; Pl.'s Ex. IS.) Pursuant to the terms of the Transaction, Iron Point contributed $6..027,579 of 

On Jtme 1, 2012, Iron Point and Howell closed a transaction whereby they formed St. 

with Northeastern Hospital and focused solely on St Aanes Hospital. (N.T., Vol. 1, 230.) 

As a result, instead of pursuing a deal for the two hospitals Jn the S 17 ,000,000 range. Iron Point 

decided to only pursue a deal for the one in the $5,000,000 range. (Id. at 232-34.) It was also at 

this point Iron Point restructured the proposal such that the $2.S00,000 distribution was changed 

to a proposed $2.5 million loan. (Id. at 230-34; N.T., Vol. 2, 30.) 

At some point inith.c ncaotiations, Iron Point decided against pursuing a joint venture 

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OMW argued lt was entitled to be compensated as such. in part, because "the word 'amount' was 

not defined in any limited way, and any type of capital, including any form of debt. capital, was 

clearly subsumed by the term 'amount"' and ''Mr. Steven Grant (President of Grant Williams, 

LP; the FINRA broker dealerwhezc Weinberg is a registered representative) testified that debt is 

always considered a form of capital." (Pl.1s Proposed Findings of Fact and Conclusions of Law 

158 (citations to the record omitted).) Atlass and his affiliates, on the other hand, argued OMW 

was "not entitled to any monetary compensation in connection with the $2,500,000 loan because 

amount Atlass would receive from a St. Agnes Transaction (see above example) (to be paid only 

if a Transaction effects with a GMW prospective source •.. of capital)(,f' OMW also sought 

10% of the $2,500,000 that was loaned to Howell, or $250,000. (Su, e.g., N.T., Vol. 2, 158-60.) 

Vol. 2, 141, 198.) 

would only be entitled to a 25% interest in the general pamer of Howell, which is Krebs. (N.T., 

even if it was asswned that Howell controls St. Anges MOB, LLC. the Contract provided GMW 

In accordance with the term of the Contract that GMW would receive "10% of the 

the entity that controls St. Agnes,. if a Tr:ansaction effected ''with a GMW prospective source ... 

capital[,)'' GMW sought a 25% interest in Howell. (N.T., Vol. I, 5, 121.) Atlass and his 

affiliates, on the other hand argued, the entity that controls St. Agnes MOB, LLC is the Board of 

Managers, which does not have a GP. (Id. at 16, 247-48.) Atlass and bis affiliates further argued 

In accordance with the term of the Contract that OMW would receive "2S% of the GP in 

for the implementation of the decisions of the Board of Managers and for conducting the day-today- business and affairs of the Company in accordauce with the Annual Plan and Budget." (Id. 

at § S.OS(a).) Howell currently remains the managing member of St. Agnes MOB, LLC and 

receives $15,000 per-month to manaae St. Agnes MOB. (See, e.g., N.T., Vol. 2, 126-27.) 

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11 

with Atlass, Baird reduced the fee splitting agreement so that GMW would only get 25% of the 

directly from Atlass, Baird had agreed to split the fees so that OMW would get 500/o of the net 

revenues Baird received from any Transaction. (N.T., Vol. I, 91-92, 180-82.) 

Before Baird learned from Atlass that OMW was already contracted to receive compensation 

Upon Jeaming Weinberg had not disclosed OMW's pre-existing compensation agreement 

Hospital and/or St. Ago.es Hospital Transaction. (N.T., Vol 1. 180-82; N. T., Vol. 2. 64-65.) 

contracted to receive compensation directly ftom Adass in connection with a Northeastern 

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general partnership of [Howell and/or Haskell]." (Jd. at pp. 1-2.) 

Prior to the spring of 2012, Weinberg did not tell Baird that OMW was already 

Atlass and his Affiliates (4 Atlass') 100~ of the proceeds •.. which Atlass receives by way of the 

JV Formation; additionally, GMW is contracted by Atlass to receive a 25% position in the 

was contracted to receive additional compensation, "(i.e., OMW shall be paid by Mr. Steven 

Weinberg's testimony on the issue was not credible. (Id. at fl 131-40, 148-49.) 

While Baird had been formally engaged by Howell on November 14. 201), it was not 

until April 20, 2012 that GMW entered into a written fee-splitting arrangement with Baird (the 

"GMW-Baird Agreement"). (Pl.'s Ex. 30.) The GMW-Baird Agreement stated "Baird shall pay 

GMW a fee of twenty-five (25%) of Net Fees." (Id.atp.213.) The OMW-Baird Aareement 

further included certain acknowledgments regarding the fact that OMW had already entered into 

a separate compensation agreement with Atlass. Specifically, it was acknowledged that GMW 

Point to Howell was debt0; Atlass did not believe capital included debt under the contract; and 

the Joan was not a capital-raisilli event," (Dcfs/ Proposed Findinas of Fact and Conclusions of 

Law 1149.) Moreover, Atlass and his affiliates argued GMW wu not entitled to any monetary 

compensation in connection with the $2,500.000 loan because "[t]he $2,S00,000 loan from Iron 

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2 This compensation was paid either directly t.o OMW or to its broker-dealer, Grant 

Williams. 

12 

loan. 

determined Iron Point was a GMW prospective source of capital, this court concluded pursuant 

to the Wlambipous terms of the Contract. OMW was not entided to the additional $250,000 in 

compensation as the funding Howell/ Atlass received from Iron Point was debt in the form of a 

purposes of the "100.4 of any funds Atlass receives" is "net of debt," Thus, while having 

compensation structure for Northeastern Hospital also specifically provides the amount for 

however, then provides the amount for purposes of the 10% is "less debt"; and (3) the identicaJ 

$2.5 million Jron Point loaned to Howell was debt. In reaching that conclusion, we noted! (1) 

the Contract provides OMW would be entitled to "10% of the amount Atlass would receive from 

a St. Agnes Transaction (see above ex.ample) {to be paid only if a Transaction effects with a 

GMW prospective source (or sources) of capital) ••. 11; (2) the example the Contract references, 

Howell, this court concluded OMW was not entitled to such additional compensation because the 

Regarding whether GMW was entitled to 1 OOAi of the $2.S million Iron Point loaned to 

have been due under the Contract. 

$108,000 in compensation under the Contract and the OMW·Baird Agreement in connection 

with the St. Agnes Hospital Transaction. 2 Following the conclusion of the bench trial, this court 

issued findings of fact and conclusions of law regarding any a.ddJtional compensation OMW may 

''inappropriate form of business dealings ••.• 0 (N.T., Vol. 1, 182.) 

Prior to the bench trial and the filing ofits complaint, OMW had already received 

net revenues Baird received ftom any Transaction. (N.T., Vol. 1, 180-82; N.T., Vol. 2, 45.) As a 

result of the non-disclosure, Goldberg testified Weinberg was .. disingenuous" and engaged in an 

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13 

term." (Id. 131 (emphasis removed).) As such, OWM argued this court erred in not awarding it 

a "I 0% fee on ftbe} $2,S00,000 transaction .... " (Id. at 1 S.) 

On November 7, 2014, Defendants ftled a response in opposition to Plaintiff's motion for 

post-trial relief. Therein, Defendants argued "[)this [c]ourt need not 'clarify' its decision, which 

clearly states both (P]laintiff's entitlement to onJy a 25% beneficial interest in Krebs and the 

basis for that determination-the unambiguous terms of the [Contract]." (Defs.' Resp. 12.) 

Citing Jar/ Investment, L.P. v. Fleck, 931 A.2d l l J 3 (Pa. Super. Ct. 2007), among others. 

compensation agreement {'net of debt and costs') into the St. Apes Hospital transacti~ where 

Plaintiff's compensation on the St. Agnes Hospital transaction never included the 'net of debt' 

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GMW argued "[t]bis [c]oun should clarify its decision under Rule 227;1 to award ••• 25% of the 

promote [or carried interest in the project] to Plaintill'as part of its interest in Krebs." (Pl.9s 

Post-Trial Mot. 'i 2.) GMW also argued this court "imported a tenn from the NB Hospital 

(2) a Transaction effected with a GMW prospective source of capital, Iron Point; and (3) while 

the Board of Managers of St. Agnes MOB, LLC has the ultimate authority and control over St 

Agnes Hospital, Howell as its managing member controls St. Agnes Hospital wi1hin the meaning 

of the Contract by virtue of its responsibility for implementing the decisions of the Board and for 

conductina the day-to-day· business and affairs of the company. As such, this court concluded 

OMW was entitled to a 25% interest in the genentl partner of Howell (the entity which controls 

St. Agnes Hospital within the meaning of the Contract) and that general partner is Krebs. 

On October 8. 2014, OMW filed a timely motion for posMrial relief. In its motion, 

because: ( 1) the Contract provided OMW would be entitled to "25% of the OP in the mtey that 

controls St. Agnes ... if a Transaction effects with a OMW prospective source ..• of capitalO"; 

This court. however, did conclude OMW was entitled to a 25% interest in Krebs, 

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14 

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I. The Trial Court erred in failing to enter a s~ific declaration 

· concerning Plaintiff's rights and interest in the "promote', with respect to the St. 

Agnes tnmsaction, where: (a) the Court recoanized the importance of the 

66promotc1• to the parties; (b) undisputed extrinsic evidence existed to support 

PJaintilrs interest in the ''promote;" and (c) the Court only awardc:cl Plaintiff an 

interest in Krebs ... without any declaration concerning Plaintiff's rights to the 

'*promote/• thereby permitting Defendant to manipulate the disbursement of 

4'promote" money (including but not limited to altering the entity types in the St. 

Agnes Transaction) such that Krebs receives only a minimal amount and 

Defendant[s] avoidO having to pay PJaintUfhis share of the "promote., money. 

2. The Trial Court erred in ruling that the terms of [the] parties' 

agreement concerning Plaintiff's entitlement to $250,000 &om the St Agnes 

Transaction was clear and unambiguous, where Plaintiff satisfied the conditions 

precedent to its receiving the $250,000, and, in construing such terms, the Court 

was required to borrow and insert clauses from other sections of the agreement to 

support its conclusion that Plaintiff was not entitled to receive $250,000 from the 

St Agnes Transaction. 

complaints of error: 

relief Thereafter, OMW filed a timely notice of appeal and this court <>rdered it file a Pa. R. 

App. P. 192S(b) statement. In its l 92S(b) statement. Plaintiff set forth the following four 

On December 18, 2014, this court entered an order denying OMW's motion for post-trial 

34.) 

Hospital compensation provision also include a deduction for debt and costs." (Id. at fl 4 i3 l, 

included a deduction for debt and costs, demonstrating the parties' intent that the St. Agnes 

provision to the example above, which was for the North East Hospital compensation structure, 

agreement." (Defs.' Resp. 14.) As such, Defendants argued "[this] [c]ourt correctly found that 

no ambiguity existed. as the compensation provision unambiguously provides that [P]laintiff is 

not entitled to 10% o[n] amounts received by {Defendants} as debt .. as "there was one [Contract] 

that governed compensation for both hospitals" and "the reference in the St. Agnes Hospital 

agreement in isolation to det.ermine if an ambiguity exists, but should look to the entire 

Defendants also argued '"[a] court should not look at a single sentence or even provision of 

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deemed to be embodied in 'what the agreement manifestly expressed, not what the parties may 

parties is to be ascertained from the document itself." Id. ''The intent of the parties ... is 

849 A.2d at 11633. "When the terms of a contract are clear and unambiguous, the intent of the 

lS 

intention of the parties must be ascertained from the entire instrument." Bethlehem Steel, 703 

A.2d at 42 (quotations omitted). 

"lf left undefined, the words of a contract are to be given their ordinary meaning." Kripp, 

"each and every part of it must be taken into consideration and given effect, if possible, and the 

writing itself" Kripp v. Krlpp. 849 A.2d I 159, 1163 (Pa. 2004). In interpreting such a contract, 

intent of the parties ... _., BsthleMm Steel Corp. v. MA.TX. Inc .• 703 A.2d 39, 42 (Pa. Super. Ct. 

1997) (quotations omitted). In interpreting a written contract, "the intent of tM parties is the 

. 

"When interpreting a contract, the court's paramount goal is to ascertain and give effect to the 

All ofGMW's complaints oferrorreJateto this court's interpretation of the Contract. 

(Pl.'s 192S(b} Statement fl J 4 (emphasis altered).) 

II. DISCUSSION 

3. The Trial Court erred in failing to award Plaintiff S2SO,OOO based 

on the 0amount" received by Defendants in the St. Apes Transacdon, where: (a) 

all "debt .. considerations were irrelevant to the St, Agnes Transaction because the 

provision., in the agreement relating to Plaintiffs payment entitlements frorn the 

St. Agnes Transaction did not contain a term allowing for "debt" to reduce 

Plainti~s entitlements and the Court found that a capital-raising event took place; 

(b) even the inapplicable "debt" terms which the Court borrowed from other 

provisions in the agreement not rel.atina to the St. Agnes Transaction called for 

using pre-existing debt of which the St. Agnes Transaction had none; and ( e) there 

was no genuine debt from the St. Agnes transaction which could be used to 

reduce PJaintifrs $2SO,OOO payment entidement. 

4. The Trial Court erred in construing the agreement of the parties 

against Plaintiff contrary to the doctrine of contra profere,,tem such that it failed 

to award Plaintiff $250,000 pmsuant to tbe St. Agnes Transaction where the 

agreement was drafted by .•. Defendants with tho assistance of counsel and 

Plaintiff had no counsel. 

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share in the upside as the property or the entity becomes successful" and the limited partners 

16 

Fint, OMW complains this court: 

erred in tailing to enter a specific declaration concerning Plainillr s rights and 

interest in the "promote" with respect to the St. Agnes Transaction, [because) (a) 

the (c]ourt recognized the importance of the ''promote" to the parties; (b) 

undisputed extrinsic evidence existed to support Plainillrs interest in the 

"promote;" and (c) the [c]ourt only awarded Plaintiff an interest in Krebs ... 

without any declaration concerning Plaintiffs rights to the "promote," thereby 

pennittin,g Defendant to manipulate the disbursement of "promote" money 

(including but not limited to altering the entity types in the St. Apes Transaction) 

such that Krebs receives only a minimal amount and Defendant[s) avoid[) having 

to pay Plaintiff"his share of the "promote,. money. 

(Pl.'~ l 925(b) Statement 11.) As explained by Weinberg at trial, ''{g)enerally speaking, in ... 

real estate limited partner/general partner structures, there is a carried interest or promote or 

what's also known as a profit share whereby ..• a person who's putting the deal together[] can 

extrinsic or collateraJ circumstances. n Id. 

units," Bethlehem Steel, 703 A.2d at 42, quoting Halpin, 639 A.2d 37 at 39. uA contract is 

ambigu0tm if it is reasonably susceptible of different constructions and capable of being 

understood in more than one sense." Kr/pp, 849 A.2d at 1163. "When ... an ambisuity exists, 

parol evidence is admissible to explain or clarify or resolve the ambjguity, iJTespective of 

whether the ambiguity is patent, created by the language of the instrument, or latent, created by 

whether a contract is ambiguous, a court must view the contract as a whole and not in discrete 

42, qut>ting Halpin 11. Lasalle Univ., 639 A.2d 37. 39 (Pa. Super. Ct. 1994). "When detennining 

swroWlding circumstances to ascertain the intent of the parties." Bethlehem Ste,/, 703 A2d at 

When, howeYer, ''the words used in a contract are ambiguous, a court may examine the 

County Prison Employees Indep. Union, 713 A.2d 113S, 1138 {Pa. 1998). 

have silently intended."' Greater Nanticoke Area Sch. Dist. v. Greater Nanticolre Area Educ. 

Ass'n, 760 A.2d 1214, 1219 (Pa. Commw. Ct. 2000), quoting Delaware County». Delaware 

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17 

not have a general partner, di.is court concluded Howell as the managing member also has a 

significant amount of control over the business by virtue of its responsibility for implementing 

the decisions of the Board and for conducting the day-to-day business and affairs of the 

company. (See Findings of Fact and Conclusions of Law, at 21 11 SS·S6, citing Black's Law 

Dictionary (9th ed. 2009) (defining control as "exercis[lng] power or influence over .... ").) A1> 

Defendants argued Plaintiff was not entitled to a 25% interest in any Atlass affiliate because it is 

the Board of Managers of St Agnes MOB, LLC that "controls" SL Agnes, and the Board does 

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pm1ies' written agreement. That agreement provided OMW would be entitled to "2S% of the GP 

in the entity that controls St. Agnes [Hospital]" and made no mention of a "promote." While 

As this was a breach of conuact case, this court was focused on the language of the 

interest in the "promote." 

matter made no error in failing to enter a specific declaration concerning Plaintiff's rights and 

controls whether Krebs would receive any of the promote. (See, e.g., Pl. 's Proposed Findings of 

Fact and Conclusions of Law r,J 75, 94.) The Contract, however, only provided GMW was 

entitled to "25% of the OP in the entity that controls St. Aenes (Hospital]" and made no mention 

of the ''promote." AtJ such, this court correctly concluded OMW was only entitled to a 25% 

beneficial interest in Krebs pursuant to the unambiguous temts of the Contract and as a primary 

because it was seeking a 25% beneficial interest in Howell it.self. in part because it argued Atlass 

specific declaration in its count for declaratory relief in its complaint. nor in its proposed findings 

of fact and conclusions of law. The reason Plaintiff did not ask for such a declaration was 

As a pieliminary matter, this court did not err in failina to enter a specific declaration 

concerning Plaintiff's riahts and interest in the promote because Plaintiff did not ask for such a 

have been paid back with interest. (N.T., Vol. 1, 68 .. 69.) 

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25% interest in the existing Howell Acquisition Partners, L.P., which Atlass fonned to purchase 

genemJ partnership that would control St. Agnes Hospital after a Transaction was affected, not a 

in this n,gard was that the parties intended for OMW to receive a 25% interest in a pewly formed 

18 

existed to support Plaintiff's interest in the promote. Rather, what the extrinsic evidence showed 

resolve .. an ambiguity, the court .. first anal>'=fsJ the contract to determine whether an ambiguity 

exists requiring the use of extrinsic evidencej, it is not true undisputed extrinsic evidence 

(Pa. Super. Ct. 2013) (stating before the court admits parol evidence "to explain or clarify or 

evidence, see, e.g., K~ystone Dedicattd Logistics, LLC v. JGD Enterprises, Ine., 77 A.3d 1, 6 

Moreover, even if the provision was ambiguous and required the use of extrinsic 

and unequivocal terms of the Contract the parties actually entered into. 

conclusion that Plaintiff was only entitled to a 25% interest in Krebs, it was enforcing the clear 

to ascertain the intent of the parties.>'), nor ~[ing] the importance of the •promote' to 

the parties .•. "as asserted by Plaintiff, (Pl. 's 1925(b) Statement 11). Rather, in reaching its 

the words used in a contract are ambiguous, a court may examine the surrounding circumstances 

of the parties regarding the promote. see, i.g., Bethlehem Steel, 703 A.2d at 42 {stating, 

14[w]hen 

of a promote, this court was not examining the surrounding circumstances to ascertain the intent 

entitled to 25% of Howell itself because Atlass controls whether Krebs would receive any of the 

promote. However. u the tenns of the Contract were clear and unequivocal that Plaintiff is only 

entitled to"25% of the OP in the entity that con1rols St. Agnes [Hospital]" and made no mention 

of Howell, which is Krebs. 

Contract, and the Contract provided OMW was entitled to a 25% interest in the general partner I 

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In reaching this conclusion, this court was fully aware of Plaintiffs argwnent that it was 

such, this court concluded Howell controls St. Agnes Hospital within the meaning of the 

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used to close the deal with Iron Point)). 

In sum, the unambiguous tenns of the Contact entitled Plaintiff to a 2S% beneficial 

promotes/carried interests ••. (,]n and stating that was generally the structure that was ultimately 

credibility. (see, e.g., N.T., Vol. I., 68 (discussing a 1uly 11, 2011 Jetter to an investor, which 

provided "Howell becomes the OP (Howell OP} of the N with the following approximate 

25% interest in either Krebs or a newly formed "Howell OP,,, regard.less of whom may receive 

or control the promote, and Weinberg's testimony to the contrary was self-serving and lacked 

same, what the extrinsic evidence actually showed was that OMW' s compensation was to be a j 

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evidence supporting OMW having a 25% interest in the promote and a specific declaration of the 

Krebs. Thus. the extrinsic evidence also showed OMW understood its compensation was never 

to be a 2So.4 interest in Howell itself. Therefore, rather than there being undisputed extrinsic 

Additionally. the extrinsic evidence also showed that as part of OMW's fee splitting 

agreement with Baird, OMW acknowledged it was "contracted by Atlass to receive a 25% 

position in the general partnership of the Company." (Pt's Bx. 30 at 13.) As relevant here, the. 

term "Company .. was defined in the OMW·Baird Agreement as Howell whose general partner is 

partnership with a general partner. (Id. at 21-22 fl S9-60.) 

partnership).) And it did not happen es Iron Poin._witbout any manipulation on the part of 

Atlass--decided the new entity would be a limited liability company as opposed to a limited 

investor might dictate the deal be structured as a limited liability company rather than a limited 

happen. (&e Id. at 21-22 ,159 .. 61 (noting it was reasonably foreseeable a private equity 

S9.) However, as this court concluded in its findings of fact and conclusions of law, by the plain 

and unequlvoeel terms of the Contract, OMW assumed the risk of whether or not this would 

the hospital in the first place. (Su Findings of Fact and Conclusions of Law, at 21 l 0, 21-22 ,1 

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interest in Krebs, but not a specific declaration that it is entitled to 25% of the "promote," 

Moreover. even if it is determined extrinsic evidence is relevant to the issue, the extrinsic 

evidence is not undisputed and this court's decision that Plaintiff is not entitled to a specific 

declaration that it is entitled to 25% of the promote should be affirmed on appeal. See generally 

K4ystone Dedicated, n A.3d at 6- 7 (stating that while an appellate court has de novo review 

over a lower court's interpretation of a contract, "resolution of conflicting parol evidence 

relevant to what the parties intended by [an] ambiguous provision is for the trier of fact 'j 

Next. Plaintiff complains this court "erred in ruling that the terms of [the} parties' 

agreement concerning [its] [lack of an] entitlement to $250,000 from the St. Agnes Transaction 

was clear and wambiguous[] where ..• the [c]ourt was required to borrow and insert clauses 

from other sections of the agreement to support its conclusion .•. Plaintiff' was not entitled to 

receive $250,000 from the St. Agnes Transaction." (Pl.'s 1925(b) Statement 'ti 2.) The court 

disagrees. 

As stated above, "[w]hen determining whether a contract is ambiguous, a court must 

view the contract as a whole and not in discrete units ••• and the intention of the parties must be 

ascertained from the entire instrument.11 Bethlehem Steelt 103 A.2d at 42 (quotations omitted). 

Here. there was one agreement that governed compensation for Transactions involving both 

hospitals-the Contract-and there was no error in looking at the entire instrument to ascertain 

the intentions of the parties regarding that compensation. 

Moreover, there was no error in determining that "debt" was relevant to whether GMW 

was entitled to the tier-two compensation for both Northeastern Hospital ("10% of any funds 

Atlass receives from aO NE Hospital Transaction") and St Agnes Hospital (" 10% of the amount 

At)ass would receive from a St Agnes Transaction"], (Cf Pl.'s l925(b) Statement 4V 3 (stating 

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1) 3% of the Transaction amount (irrespective of who identifies the 

source of capital; i.e. OMW or Atlass); 

2) 10% of the amount Atlass would receive from a St. Agnes Transaction 

(see above example) (to be paid only if a Transaction effects with a GMW 

prospective source ( or sources) of capital); and 

3) 25% of the OP in the entity that controls St. Agnes (to be granted only 

if a Transaction effects with a OMW prospective source ( or sources} of 

sr AGNES HOSPITAL 

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l} 3% of$20 million (i.e, $600,000.00); 

2) 10% of what Atlass receives (e.g. $20,000,000 less debt of$12 

million, less $2 million buyout of partners. less expenses); the net amount 

of$6 million would equal a $600.000 fee payable to OMW; and 

3) 25% of the OP of the entity controlling ..• NE Hospital. 

1) 3% of a NE Hospital Tnmsaction (izrespective of who idontifies the 

source of capital; Le, GMW or Atlass); 

2) 10% of any funds Atlass receives fromafl NE Hospital Transaction 

(net of debt and costs) (to be paid only if a Transaction effects with a 

OMW prospective source ( or sources) of capital, or if a Transaction 

effects by way of a new general partner of NE Hospital, and Atlass 

receives funds Jiom such Transaction); and 

3) 25% of the general partnership ("OP") of the entity controlling NE 

Hospital (to be granted only if a Transaction effects with a OMW 

prospective source (or somces) of capital DJ. 

By way of example, should GMW raise $20 million dollars in a joint venture 

("IV'') structure for NE Hospital Jrom a prospective source of capital, GMWs 

compensation will be as follows: 

COMPENSATION 

NE HOSPITAL 

like the provisions in the agreement relating to Northeastern Hospital did).) 

As relevant here. the Contract set forth identical compensation structures for both 

Northeastern Hospital and St. Agnes Hospital, specifically providing: 

Transaction did not contain a term allowing for 'debt' to reduce Plaintiff" s (oompemationJ ... ,, 

the St. Agnes Transaction because the provisions in the agreement relating to •.. the St. Agnes 

the coun erred in failing to award $250,000 ·because "all 'debt' considerations were irrelevant to 

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compensation where the amount Atlasa received was debt. This is the only reasonable 

of debt and costs and the Contract unambiguously provided OMW was not enti1led to the 10% 

22 

expenses," coupled with the fact that the nearly identical Northeastern Hospital provision for 

tier-two compensation specifically provided in parentheses the amount for purposes of the "10% 

of any funds Atlass receives" is "net of debt and cost," led this court to conclude the parties 

unambiguously intended the St. Agnes Hospi1al provision for tier-two compensation was also net 

express]y referenced provided the amount for purposes of the 10% was "less debt" and "less 

Hospital compensation structure and specifically provided the amount for purposes of the 10% 

was "l~ debt'• and "Jess expenses." The fact that the example the St. Agnes Hospital provision 

specifically referenced in parentheses the oxample above. which was for the Northeastern 

At issue here is whether OMW was entitled to any tier-two compensation where the 

amount Atlass received from the St Agnes Hospital Transaction was debt. While the St. Agnes 

Hospital provision did not specifically include net of debt and costs in parentheses like the 

Northeastern Hospital provision did, the St. Agnes Hospital provision for tier-two compensation 

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The second type of compensation. or tier-two compensation, was 10% of the amount or any 

funds Atlass would receive from a Northeastern Hospital or St. Agnes Hospital Transaction. 

And the third type of compensation, or tier-three compensation. was 25% of the OP of the entity 

that controUed Northeastern Hospital or St Agnes Hospital following a Transaction. 

tier-one compensation, was 3% of a Northeastern Hospital or St. Agnes Hospital Transaction. 

The Contract specifically enumerated the same three types of compensation for both a 

Northeastern Hospital and a St. Agnes Hospital Transaction. The first type of compensation. or 

capital). 

(Pl.'s Ex. I, p. 2.) 

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Even if the Superior Court concludes this provision is ambiguous (which it is not), this 

court also determined the extrinsic evidence presented at trial demonstrated the parties intended 

tier-two compensation for any St. Agnes Hospital Transaction was net of debt and costs. As 

such, this court's decision that Plaintiff is not entitled to receive tier-two compensation for the St. 

Agnes Hospital Transaction should still ultimately be affinned. 

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property ... at the time of the closing ofa (TJransaction.'' (Pl.'s Post-Trial Mot 142.) 

Regarding the second complaint, Plaintiff argued ''[i]n actual fact. the .•. $2.S million 

distribution to Howell was not truly a loant because the interest was to be (and was) paid for by 

the cash flow/distributions of and from St Agnes MOB, LLC and the money was only briefly 

'loaned,' and the loan was for tax reasons." (Id. at 144.) 

The problem with Plaintifrs first complain~ however, is that there was no evidence, 

either in the unambiguous Contract or in the record (assumina extrinsic evidence was relevant), 

that the "net of debt'' and "less debt" terms refe~ to funds used to pay off existing debt, rather 

than new debt provided ~s part of a Transaction. Th~ problem with Plamtifrs second complaint 

affirmed. See generally Bethlehem Steel1 703 A.2d at 42 (stating that in construing a contract 

"[t]he intention of the parties is paramo1U1t and the court will adopt an interpretation which under 

all circumstances ascribes the most reasonable, probable, and natural conduct [to] the parties, 

bearing in mind the objects manifestly to be accomplished. j. 

3 

Next, Plaintiff complains even if debt was relevant to determining whether it was entitled 

to tier-two compensation for the St. Agnes Hospital Transaction, (1) onJy "pre-existing debt" 

could be excluded and (2) "there was no genuine debt from the St. Agnes (Hospital] Transaction 

which could be used to reduce [its] $250,000 payment entitlement." (Pl. 's 1925(b) Statement, 

3.) Regarding the first complaint, Plaintiff argued in its post-trial motion that "[t]he example in 

the compensation agreement was used to capture only the existing debt that was tied to the 

construction of the Contract; is well supported by viewing the Contract as a whole; and should be 

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among the reasonable meanings of a promise or apeement or a term thereof, that meanini is 

; 

contract against the drafter. See. e.g., Sun Co. v. Pennsylwinla Tpk. Comm 'n, 708 A.2d 875, 

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878- 79 (Pa. Commw. Ct. 1998), citing Restatement (Second) of Contracts § 206 ("In choosing 

First, the doctrine of contra proferentem allows courts to constnie an ambiguity in a 

against Plaintiff contrary to the doctrine of contra proferentem such that it failed to award 

Plaintiff $250.000 pursuant to the St. Apies Transaction where the arircement was drafted by the 

Defendants with the assi~ of coW1SCl and Plaintiff had no counsel," (Pt's 192S(b) 

Statement 14 (emphasis altered).) The court disaarees for the following two reasons. 

contrary. 

Finallyt GMW complains "[this] [c]ourt med in construing the agreement of the parties 

support Plaintiff's contention that "the ... $2.S million distribution to Howell was not truly a loan 

.... " (Pl.'s Post-Trial Mot. ,i 44.) Rather, the $2.S million loan from Iron Point to Howell was a 

legitimate loan/debt and the fact that some or all of it was paid off through a St. Agnes MOB, 

LLC refmancing after the St Agnes Hospital Transaction does not somehow retroactively 

convert it into equity at the time of the Transaction, and Plaintiff pointed to no law to the 

flow/distributions of and from St. Agnes MOB, LLC and the money was only briefly 'loaned"' 

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that the interest on the $2.S million Joan "was to be (and was) paid for by the cash 

At trial, Weinberg claimed the $2.S million was structured as a loan on his 

recommendation to reduce Atlass' tax burden or, alternatively, by Atlass to avoid paying GMW 

100~. (&e, e.g., N. T., Vol. 1, 153-56.) This court as the fact finder, however, found neither 

argument to be credible and, rather, determined it was Iron Point that dictated the $2.5 million 

would be structured as a loan in order to provide itself with more protection. Nor does 1he fact 

is very similar. 

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doctrine of contra proferentem to an agreement between two large companies who both had been 

advised by competent counsel); Wiiiiston on Contracts§ 32:12 (stating "[a]pplicatlonofthe rule 

may be fwthcr limited by the degree of sophistication of the contracting parties or the degree to 

which the contract was negotlated,"), Hore, while Plaintiff chose to negotiate the Contract · 

without the aid of an attorney, Plaintiff and its principal was a self-described sophisticated party 

and the Contract was the result of substantial negotiations between Weinberg and Atlass, with 

Atlass providing the first draft and Weinberg making substantial revisions thereto. As such, even 

if the Contract were ambiguous, the doctrine of colfll'a proferentem was still inapplicable to the 

Co., 218 A2d 91, 92 (Pa. Super. Ct 1966) (stating there would little to no reason to apply the 

contractual ambiguity is to be construed against the drafter does not apply where, as here, the 

contract is the result of the joint efforts of negotiators."); EastcQOst Equip. Co. v. Maryland Cas. 

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Tulpehocken Area Sch. Dist. 791 A.2d 1169, J 175 n.8 (Pa. 2002) (stating "[t]he principle that a 

Second, even if the provision was ambiguous, courts are reluetan1 to apply the doctrine 

where the agreement is between sophisticated parties or has been negotiated. See, e.g., Kozura v. 

interpretation of the Contract and there was no error as Plaintiff claims. 

meaning."). Here, the Contract unambiguously provided that GMW was not entitled to any tiertwo compensation where the amount Atlass received from the St. Agnes Hospital Transaction 

was debt. As such, the doctrine of contra proftrentem was inapplicable to the court's 

provision "is clear and unambiauous. the court mU&'t give effect to its plain and ordinary 

generally preferred which operates against the party who supplies the. words or from whom a 

writing otherwise proceeds. n); Redevelopment Auth of CU,, of Phllfltlelphla v. Ins. Co. of N. Am., 

675 A.2d 1256, 1257 (Pa. Super. Ct. 1996) (providine that "[w]here a provision of a [contract] is 

ambiguous, it should be construed against the ... drafter of the docmnentLJ but whbre the 

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BY THE COURT: 

be affirmed on appeal. 

under the C.Ontract to additional compensation in the amount of $250,000 should, therefore. also 

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the amowit Atlass received from the St. Agnes Hospital Transaction was debl The $2.S million 

loan was a legitimate debt dictated by Iron Point, and not the result of any manipulation on the 

part of Atlass to avoid paying Plaintiff 10%. This court's decision that Plaintiff is not entitled 

and the evidence presented at trial, Plaintiff was not entitled to any tier-two compensation where 

court's interpretation of the Contract and there was no error as Plaintiff claims. 

While Plaintiff' may now ~aret negotiating and drafting the Contract on its own, Plaintiff 

is a sophisticated party and should be held to the plain and unambiguous terms of the Contract it 

negotiated and actually entered into. Under the plain and unambiguous turns of that Contract 

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