1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1332

___________ PARAGON TAX GROUP, LLC

v. BROADVIEW NETWORKS HOLDINGS, INC.; INFOHIGHWAYS COMMUNICATION CORP; ATX COMMUNICATIONS, INC.; CORECOMM ATX, INC.,
A ppellants

___________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 11

- cv - 01699 ) District Judge: Honorable Robert F. Kelly

___________ Subm itted Pursuant to Third Circuit LAR 34.1(a) October 31, 2012 Before: SLOVITER, AMBRO and BARRY Circuit Judges (Filed : November 1, 2012 )

_________ OPINION

_________

SLOVITER, Circuit Judge2 Broadview Networks Holdings , Inc. (“Broadview”) , on behalf of itself and its subsidiaries, appeals from the District Court’s grant of summary judgment in favor of Paragon Tax Group, LLC (“Paragon”) . We will affirm. 1 Paragon and Broadview entered into a contract (“Contract”) in which Paragon agreed to provide tax

- related services to Broadview and some of its subsidiaries on a contingency basis

. In September 2009 , Paragon filed an initial gross r eceip ts t ax appeal which obtained a r efund for Broadview of $22,395.00. Paragon billed Broadview according t o the 30% contingency fee in its C ontract, and Broadview paid this invoice. While i nquiring on the status of the r efund with the Pennsylvania Department of Revenue, Paragon discovered that Broadview owed $ 1,198,018.00 in gross receipts t ax obligations fro m 2006

. After receiving permission from Broadview, Paragon filed an appeal of the a ssessment with the Revenue Department. During the appeal , Para gon discovered a math error committed by the Rev enue Department. Although the
D epartment init ially wanted mo re documentation to make a determination, Paragon appealed to t he auditors of t he Board of Finance and Revenue. The Board agreed with Paragon that the a ssessment s were incorrect and that the Department could not dema nd more documentation. The Board ther efore reduced the a ssessment to zero. T he reduction secured , Paragon billed Broadview for $359,40 5.40, which was 30% of the

1 The District Court had diversity jurisd iction under 28 U.S.C. § 1332, and w e have jurisdiction pu rsuant to 28 U.S.C. § 1291. W e exercise plenary review of the District Co urt's grant of summary judgment and apply the same standard applicable in the District Court found in Fed.R.Civ.P. 56. See Doe v. C.A.R.S. Prot. Plus, Inc. , 5 27 F.3d 358, 362 (3d Cir. 2008).3 $1,198,018.00 reduction

. Broadview objected to the contingency fee, instead offering to pay $40,000.00 as comp ensation for Paragon ’s services. Paragon brought suit for breach of contract , quantum meruit, unjust enrichment, and for declar atory judgment for a related matter . The District Court granted summary judgment for Paragon for breach of contract, declared the quantum meruit a nd unjust enrichment claims moot , and found the dec laratory judgment claim unripe. Broadview appeals from the grant of summary judgment and moves for summary judgment against Paragon on the breach of contract claim. The parties agree that Pennsylvania l aw governs the interpretation and construction of the C ontrac t. Under Pennsylvania law, w e look to the terms of the
C ontract to dete rmine the intent of the parties, 401 Fourth St., Inc. v. Investors Ins. Grp , 879 A.2d 166, 171 ( Pa. 2005), and we construe these terms together so that “each will be given effect

. ” LJL Transp., Inc. v. Pilot Air Freight Corp. , 96 2 A.2d 639, 647 (Pa. 2009). The Contract defines the term “Refund” to include “refund(s) and/or reductions of . . . gross receipts tax . . . which hav e been either paid and/or been given notice of liability by a taxing au thority as a result of an audit. . . . ” App. at 46. Broadview argues that only the capitalized version of “Refund” should be given the defined meaning, and that the lower case version of “refund” should be given its ordinary meaning as “the actual recovery of monies.” Appellant’s B r. at 22

. If the C ontract were i nterpreted in this way, Paragon would not receive a contingency fee for its work on Broad view’s g ross receipts
tax a ppeal because Paragon’s appeal convinced the Pennsylvania Board of Finance and
Revenue to reduce an assessment , rather than to return money directly to Broadview

. See4 App . a t 47 (showing 30% contingency fee for “Gross Receipts Tax Refu nd R eview / Audit Defense” of “[a] ll refunds recovered”). This interpretation, however, fails to give effect to all of the provi sions of the C ontract

. 2
The C ontract’s “Scope of Services” section clearly shows that Paragon’s appeal of Broadview’s gross receipts tax assessment fal ls within the scope of the C ontract. This Section calls for Paragon to “ examine Client records relating t o . . . gross receipts . . . and, where applicable, apply for Refund(s) for the Client.” App. at 46. It also says that , “[i]n connection with these services,” Paragon will “ [r e ] view the pertinent Client records for overpayment” and “[p] repare, file and process the petition for Refund or Reductions of Assessment.” App. at 46. The “F ee ” section is equally clear. It calls for Paragon to “receive a Contingent Fee based solely on recovered amounts or reductions of assessments. ” App. at 46. The Contract’s “Fee Schedule” provides for a 30% contingency fee for all services rendered. App. at 47. Although the fee schedule is inconsistent in that it onl y lists “All refunds recovered” for “Gross Receipts Tax Refund Review / Audit Defense ” whereas it lists “All refunds and/or reductions of assessment ” for “Sales & Use Tax Audit Defense,” this inconsistency only creates confusion if the fee schedule is inte rpreted in isolation

.

2 Broadview argues that its interpretation is demanded by the “basic tenet of contract interpretation that when a term is defined in a contract, it is to be afforded its contractual definition when capitalized and given its plain, ordinary and popular meaning when presented in its lower

- case form.” Appellant’s Br. at 21. Pennsylvania law, however, requires us to rely not on strict rules of interpretation, but on the contextual reading of contractual terms. See Murphy v. Duquesne Univ. of the Holy Ghost , 777 A.2d 418, 429 (Pa. 2001) (“The whole instrument must be taken tog ether in arriving at contractual intent.”).5 When read in the context of the Contract, it is clear that P aragon’s 30% fee applies to all contractual services. Paragon’s fee for reducing Broadview’s gross r eceipts assessment is therefore appropriate. 3
Broadview claim s that th is reading of the C ontract creates a dispute of material
fact and therefore summar y judgment is inappropriate. When read in the context of the Contract, however, the supposedly ambi g uous terms “refund claim process” and “audit” clearly describe the work P aragon undertook for Broadview. See Mellon Bank, N.A. v.
Aetna Bus. Credit, Inc. , 619 F.2d 1001, 1011 n. 10 (3d Cir. 1 980) ( “ Under Pennsylvania law

. . . unambiguous writings are interpreted by the court as a question of law. ”)

. For the reasons set fort h, we will affirm the judgment of the District Court.

3 Because the Contract is clear we need not construe it against Paragon, as Broadview claims

. See Pines Plaza Bowling, Inc. v. Rossview, Inc

. , 145 A.2d 672, 676 (Pa. 1958) (only ambiguous contracts are interp reted against drafter). 1