J-A04038-15 

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

TECH MET, INC.; ALFRED POZZUTO; 

G MONEY, INC. D/B/A NORTH PARK 

CLUBHOUSE; MR. MAGIC CAR WASH 

INC.; AND JOHN TIANO, ON THEIR 

OWN BEHALF AND ON BEHALF OF ALL 

OTHERS SIMILARLY SITUATED, 

 Appellants 

v. 

STRATEGIC ENERGY, LLC, 

 Appellee 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 

 

 No. 1058 WDA 2014 

 

Appeal from the Order Entered June 4, 2014,

in the Court of Common Pleas of Allegheny County, 

Civil Division at No(s): GD-05-30407 

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 14, 2015 

 Tech Met, Inc., Alfred Pozzuto, G. Money, Inc. d/b/a North Park 

Clubhouse, Mr. Magic Car Wash, Inc., and John Tiano, on their behalf and on 

the behalf of others similarly situated (collectively Plaintiffs), appeal from an 

order which granted the motion for summary judgment filed by Strategic 

Energy, LLC (Strategic). We affirm. 

 The trial court aptly summarized the background underlying this 

matter as follows. 

This is a breach of contract class action brought against 

[Strategic] on behalf of all Pennsylvania commercial/business 

customers who entered into a Power Supply Coordination Service 

Agreement (“Service Agreement”) with Strategic. Plaintiffs 

contend that they have been overcharged. 
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Strategic is an electricity supplier. Strategic purchases 

electricity in large blocks from Duquesne Light or other sources 

which it resells to customers pursuant to the terms and 

conditions of its Service Agreement with the customer. With 

limited exceptions, through the Service Agreement, Strategic 

guarantees its customers that the price for electricity will not 

exceed a specified amount (the price set forth on its Pricing 

Attachment) for five years. 

Plaintiffs contend that Strategic has charged them 

amounts in excess of the amounts permitted by the Service 

Agreement. They seek to recover the difference between the 

amount paid for the electricity and the lesser amount permitted 

by the Service Agreement. 

Strategic contends that its prices have never exceeded the 

amounts permitted by the Service Agreement. [Strategic filed a 

motion for summary judgment,] seeking dismissal of [P]laintiffs’ 

Complaint on the ground that [P]laintiffs were never 

overcharged. 

*** 

The prices that Strategic may charge its customers are 

governed by the following provisions of the Service Agreement: 

4. PSC Services Fee: 

The PSC Services Fee is 0.3 cents per kilowatt-hour for 

each kilowatt-hour of Electricity provided under this 

Agreement. The PSC Services Fee is included in the price 

paid by the Buyer. 

7. Price: 

The Price to be paid by Buyer for the Electricity and PSC 

Services provided hereunder during the Term of this

Agreement shall not exceed that set forth on the Pricing 

Attachment below. All pricing terms are inclusive of 

applicable costs for Energy, Capacity, Transmission, 

Ancillary Services, Delivery Services, applicable taxes up to 

the Point of Delivery, overhead expenses as defined by 

Strategic Energy, and the PSC Services Fee. 
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STRATEGIC’S INTERPRETATION 

Strategic contends that under the Service Agreement [], 

the price it may charge shall not exceed the price set forth “on 

the Pricing Attachment[.]” Plaintiffs do not challenge the 

evidence showing that Strategic has never charged a price that 

exceeded that set forth on the Pricing Attachment. Thus, 

according to Strategic, summary judgment should be entered 

dismissing [P]laintiffs’ Complaint. 

PLAINTIFFS' INTERPRETATION 

According to [P]laintiffs, the price set forth in the Pricing 

Attachment is only a ceiling. The actual price, if it does not 

exceed the ceiling, consists of the sum of Duquesne Light’s costs 

for energy, capacity, transmission, ancillary services, delivery 

services, applicable taxes up to the point of delivery, overhead 

expenses as defined by Strategic Energy and PSC Services Fee. 

Under this interpretation of ¶ 7, the maximum price that 

Strategic may charge is the amount of Duquesne Light’s actual 

costs plus 0.3 cents per kilowatt-hour. 

Trial Court Opinion, 6/4/2014, at 1-3 (footnotes omitted). 

 The trial court granted Strategic’s motion for summary judgment. In 

so doing, the court determined that Strategic offered the only reasonable 

interpretation of the relevant contract provisions. The court offered, in part, 

the following rationale in support of its decision.

The first sentence of ¶ 7 permits Strategic to charge the 

amount set forth in the Pricing Attachment. The second 

sentence protects the buyer by explaining that the price set forth 

in the Pricing Attachment includes costs which Strategic incurs 

for energy, capacity, transmission, ancillary services, delivery 

services, applicable taxes up to the point of delivery, overhead 

expenses as defined by Strategic, and the PSC Services Fee. 

Paragraph 4 describes the PSC Services Fee and reiterates 

that it is included in the price paid by the buyer.
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Plaintiffs contend that the first sentence of ¶ 7 only 

establishes a maximum price that may be charged because ¶ 7 

states that the price “shall not exceed that set forth in the 

Pricing Attachment below.” (Emphasis added.) According to 

[P]laintiffs, a contract uses the phrase “shall not exceed” only 

when there is another method for calculating price that may be 

less than the price set forth in the Pricing Attachment. 

However, the Service Agreement cannot be read in the 

manner which [P]laintiffs propose unless the Service Agreement 

also provides for a lesser price under certain circumstances. In 

other words, it could not have been the intention of the parties 

for the first sentence of ¶ 7 to be construed as only setting a 

maximum price if the Agreement does not also include a lesser 

price that shall be charged under some circumstances. 

Plaintiffs apparently propose that the second sentence of 

¶ 7 be read as follows: “The price to be paid by the Buyer for 

the electricity and PSC services provided under the Service 

Agreement shall be the sum of the costs Strategic incurs for 

energy, capacity, transmission, ancillary services, delivery 

services, applicable taxes up to the point of delivery, overhead 

expenses as defined by Strategic Energy, and the PSC Services 

Fee.” 

However, this is not a reasonable construction of the 

second sentence of ¶ 7. There is nothing in the language of ¶ 7 

that in any way suggests that the price shall be based on 

Strategic’s costs. Thus, [the court is] left with a single method 

governing the price that may be charged. 

If ¶ 7 consisted of only the first sentence, the only 

reasonable construction of the Agreement would be that 

Strategic is permitted to charge the amount set forth in the 

Pricing Attachment. This is so because pricing is governed by 

¶ 7, and this is the only provision governing the price to be paid. 

Where a second sentence is added that does not refer to the 

price to be paid, there is no difference between the two-sentence 

paragraph and the one-sentence paragraph. 

A contract shall be construed to give meaning to each 

sentence in ¶ 7. This is accomplished only if the second 

sentence is construed as describing costs that are included in the 
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price to be paid by the buyer as set forth in the Pricing 

Attachment. The language of the second sentence does not 

support any other construction that gives meaning to both 

sentences. 

At least one of the Service Agreements between [P]laintiffs 

and Strategic, at ¶ 7, included a second paragraph which reads 

as follows: 

lf, during the term of this Agreement, regulatory changes 

create additional charges, not currently included in the 

Price, which Buyer would be subject to regardless of 

whether Buyer was receiving service from Strategic 

Energy, the Host Utility or any other provider of electric 

service (“Incremental Charge”), and Strategic Energy is 

unable to mitigate such [I]ncremental Charge, then 

Strategic Energy shall pass through such [I]ncremental 

Charge to be paid by Buyer above the Price. 

Plaintiffs contend that the inclusion of this second 

paragraph supports [their] position that the price to be paid 

consists of the sum of the costs. However, this additional 

paragraph is equally consistent with an interpretation that the 

price to be paid shall not exceed that set forth in the Pricing 

Attachment, but Strategic may pass on an incremental charge to 

be paid by the buyer “above the Price.” 

Trial Court Opinion, 6/4/2014, at 3-5 (emphasis in original). 

 Plaintiffs timely filed a notice of appeal. The trial court directed 

Plaintiffs to comply with Pa.R.A.P. 1925(b). Plaintiffs timely filed a Pa.R.A.P. 

1925(b) statement. The trial court complied with Pa.R.A.P. 1925(a). In 

their brief to this Court, Plaintiffs ask us to consider the following questions. 

1. Did the trial court err in failing to hold that the [Service 

Agreement] pricing provisions were ambiguous and that their 

interpretation was therefore a jury question? 

2. Did the trial court err in failing to hold that the contracts 

should be construed against [Strategic] as the drafting party? 
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Plaintiffs’ Brief at 3 (unnecessary capitalization and suggested answers 

omitted). 

We review orders granting summary judgment as follows. 

The standards which govern summary judgment are well 

settled. When a party seeks summary judgment, a court shall 

enter judgment whenever there is no genuine issue of any 

material fact as to a necessary element of the cause of action or 

defense that could be established by additional discovery. A 

motion for summary judgment is based on an evidentiary record 

that entitles the moving party to a judgment as a matter of law. 

In considering the merits of a motion for summary judgment, a 

court views 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. 

Finally, the court may grant summary judgment only when the 

right to such a judgment is clear and free from doubt. An 

appellate court may reverse the granting of a motion for 

summary judgment if there has been an error of law or an abuse 

of discretion.... 

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa. 

2005) (citations omitted). 

 To the extent that we must interpret the Service Agreement in order 

to resolve this matter, we note the following principles of law. 

When faced with questions of contractual interpretation, 

the applicable standard and scope of review is well settled. 

Because contract interpretation is a question of law, this 

Court is not bound by the trial court’s interpretation. Our 

standard of review over questions of law is de novo and to 

the extent necessary, the scope of our review is plenary as 

the appellate court may review the entire record in making 

its decision.... 

Moreover, we have stated: 
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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, ... where 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 parties intended by the 

ambiguous provision is for the trier of fact. 

Where the language of the contract is ambiguous, the provision 

is to be construed against the drafter. 

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

6-7 (Pa. Super. 2013) (citations and quotation marks omitted). 

The crux of Plaintiffs’ position on appeal is that the trial court erred by 

finding the pricing provisions of the Service Agreement to be unambiguous. 

In support of their position, Plaintiffs first argue that the Service Agreement 

is ambiguous because Plaintiffs and Strategic offered competing, reasonable 

interpretations of that document.1 Plaintiffs’ Brief at 23-37. More 

specifically, Plaintiffs contend that the Service Agreement can be interpreted 

 

1

 For purposes of this argument, Plaintiffs are willing to assume that 

Strategic’s interpretation of the Service Agreement is reasonable. Plaintiffs’ 

Brief at 24 n.2. We further note that “[t]he fact that the parties have 

different interpretations of a contract does not render the contract 

ambiguous.” Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super. 2000). 
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in such a way that Strategic only could charge Plaintiffs a price “equal to the 

sum of the items enumerated in the Price term, which include all of 

Strategic’s costs plus its compensation, the PSC Services Fee.” Plaintiffs’ 

Brief at 25. Plaintiffs highlight, inter alia, that, consistent with the Service 

Agreement’s definition of PSC Services, Strategic is required to “minimize 

cost in an effort to manage down the Price.” See Complaint, 11/21/2005, 

Exhibit A, at ¶ 5 (defining “PSC Services” as “the services provided by 

Strategic [] in selecting the optimum mix of Electricity supplies [] to match 

the Facility load and selling any excess Electricity in order to maximize 

reliability and minimize cost in an effort to manage down the Price”). 

According to Plaintiffs, this obligation to manage down the Price comports 

with its interpretation of the pricing provisions of the Service Agreement. 

In the alternative, Plaintiffs contend that the relevant contract 

provisions are ambiguous because they are obscure in meaning through 

indefiniteness of expression. Plaintiffs’ Brief at 37-40. Ultimately, Plaintiffs 

believe that the ambiguity in the Service Agreement requires that it be 

construed against Strategic as the drafter. 

Strategic argues that, “pursuant to the express language of the 

[Service Agreement], [Strategic] could charge for electricity anything up to, 

but could not exceed, the ceiling price identified by the pricing attachments 

to the contracts.” Strategic’s Brief at 19. We agree with the interpretation 
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of the Service Agreement put forth by Strategic and adopted by the trial 

court. 

Paragraph 7 of the Service Agreement is the only provision in that 

document which speaks directly to the price Strategic could charge Plaintiffs. 

That provision does not limit Strategic to charging Plaintiffs only its costs 

plus the PSC Services Fee. Instead, the first sentence of paragraph 7 clearly 

and unambiguously caps the price Strategic can charge Plaintiffs at the price 

listed in the Pricing Attachment. Complaint, 11/21/2005, Exhibit A, at ¶ 7 

(“The Price to be paid by Buyer for the Electricity and PSC Services provided 

hereunder during the Term of this Agreement shall not exceed that set forth 

on the Pricing Attachment below.”). The second sentence of that paragraph 

simply provides a list of items included in the Price. Id. (“All pricing terms 

are inclusive of applicable costs for Energy, Capacity, Transmission, Ancillary 

Services, Delivery Services, applicable taxes up to the Point of Delivery, 

overhead expenses as defined by Strategic Energy, and the PSC Services 

Fee.”). 

The Service Agreement certainly allows Strategic to charge its 

customers a price lower than that listed in the Pricing Attachment. However, 

the only pricing limitation the Service Agreement places upon Strategic is 

that Strategic cannot charge its customers a price in excess of the price set 

forth in the Pricing Attachment. As the trial court emphasized, Plaintiffs 

cannot point to any evidence which demonstrates that Strategic ever 
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charged a client a price that exceeded a price listed in a Pricing Attachment. 

Thus, Plaintiffs have failed to produce evidence to support their claim that 

Strategic has overcharged them. Consequently, we hold that the trial court 

properly granted Strategic’s motion for summary judgment. For these 

reasons, we affirm the trial court’s order. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/14/2015