J-A23008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMERICAN WINTER SERVICES, LLC 

Appellant

v.

LIMERICK VILLAGE, LP, LONGVIEW 

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

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 947 EDA 2017

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”),1to 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

- 2 -

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.”2In 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.
J-A23008-17

- 3 -

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.
J-A23008-17

- 4 -

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).
J-A23008-17

- 5 -

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 
J-A23008-17

- 6 -

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 

____________________________________________

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

member of AWS.
J-A23008-17

- 7 -

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 
J-A23008-17

- 8 -

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 
J-A23008-17

- 9 -

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