2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-2013

L.P.P.R., Inc v. Keller Crescent Corporation

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3573

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Recommended Citation

"L.P.P.R., Inc v. Keller Crescent Corporation" (2013). 2013 Decisions. Paper 504.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3573

_____________

L.P.P.R., INC; LEHIGH PRESS PHARMACEUTICAL

Products, INC.

v.

KELLER CRESCENT CORPORATION; 

CLONDALKIN GROUP, INC,

 Appellants 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 10-cv-2872)

District Judge: Hon. Michael M. Baylson 

_______________

Argued

May 31, 2013

Before: JORDAN and VANASKIE, Circuit Judges, and

RAKOFF*, Senior District Judge.

(Filed: July 24, 2013)

_______________

_______________

* The Honorable Jed S. Rakoff, United States Senior District Judge for the United 

States District Court for the Southern District of New York, sitting by designation.
2

Patrick R. Kingsley [ARGUED]

Karl S. Myers

Stradley, Ronon, Stevens & Young

2005 Market Street – Ste. 2600

Philadelphia, PA 19103

 Counsel for Appellants

Philip G. Kircher

Aaron Krauss [ARGUED]

Cozen O‟Connor

1900 Market Street

Philadelphia, PA 19103

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Defendants-Appellants Keller Crescent Corp. and Clondalkin Group, Inc. 

(collectively, “Keller”) appeal the denial by the United States District Court for the 

Eastern District of Pennsylvania of their post-trial motions for judgment as a matter of 

law and a new trial under Rules 50 and 59 of the Federal Rules of Civil Procedure. The 

jury had returned a split verdict partially favoring Keller and partially favoring PlaintiffsAppellees L.P.P.R, Inc. and Lehigh Press Pharmaceutical Products, Inc. (collectively, 

“Lehigh”). For the reasons that follow, we will reverse the District Court‟s denial of 

Keller‟s motion for judgment as a matter of law.

I. Background

At its discretion, Puerto Rico offers a tax credit to the purchaser of a distressed 

Puerto Rican business if the purchaser guarantees that it will continue operations in 
3

Puerto Rico for at least ten years. If the purchased company shuts down before that time, 

the purchaser must return a share of the credit proportional to the number of years under 

ten that it did not operate. The government will issue the credit only to a purchaser that 

guarantees its promise to remain in business by posting collateral, typically, but not 

necessarily, in the form of a bond. P.R. Laws Ann. tit. 13, § 10646(d). The purchaser 

may either use the tax credit itself, or it may sell it.

Through two Asset Purchase Agreements (the “Contract”1), Keller agreed to 

purchase Lehigh‟s distressed Puerto Rico-based printing businesses. The Contract

provided that Keller would sell the potential tax credits and that the parties would share 

the “net proceeds” from that sale – described in the Contract as the “net of costs incurred 

by Purchaser [Keller] in connection with collecting and selling such tax credits.” (App.

at 1844, 2043.) The parties never discussed what specifically would constitute a cost 

incurred in the “collecting and selling” of the tax credits. Under the Contract, ninety 

percent of the net proceeds of the sale of the tax credits were to be allocated to Lehigh 

and ten percent to Keller. 

To secure the tax credits, Keller posted a series of bonds whose premiums total

$317,917. Puerto Rico granted the credits in the amount of $2.1 million, which Keller 

then sold for $1,858,500 to a third-party purchaser. From that amount, Keller paid the 

tax credit broker it had hired a fee of $73,500. Before transferring to Lehigh its share of 

 

1

The two agreements, one with Lehigh Press and one with L.P.P.R., are largely 

the same, and the specific provisions at issue in this appeal are identical. For ease of 

reference, we thus refer to the “Contract” in the singular.
4

the remaining proceeds, Keller provided a spreadsheet listing additional amounts Keller 

planned to deduct for the “costs of securing and selling the tax credits.” (Id. at 2443, 

2445.) Those costs included the $317,917 cost of the bonds

2

and $207,542 in legal fees. 

Keller then deducted the cost of the bonds and legal fees and transferred ninety percent of 

the remaining $1,133,587 to Lehigh. 

Believing that those costs did not qualify as costs of “collecting and selling” the 

tax credits, Lehigh brought this diversity action against Keller in the District Court.3 

Lehigh asserted that Keller breached the parties‟ contract by deducting both the costs of 

the tax credit bonds and the Puerto Rico tax lawyer‟s professional fees, before 

distributing the proceeds of the sale of the credits. 

Following discovery, Keller moved for summary judgment, contending that, under 

the plain meaning of the Contract, it committed no breach because the word “collecting” 

in the Contract “unambiguously refers to securing or obtaining the tax credit from the 

Puerto Rican tax authorities.” (Id. at 666.) Keller therefore insisted that both the costs of 

the tax bonds and the attorneys‟ fees were among the costs of “collecting and selling” the 

 

2 Keller paid the premiums for the first three years of bond coverage. Although it 

had only made three, rather than ten, years of premium payments, Keller deducted all ten 

years of projected premium payments from the proceeds of the sale of the tax credits, 

discounted to their net present value. 

3 Although the Contract provided that it was to be “governed and construed in 

accordance with the laws of the State of Delaware,” it also specified that “all actions or 

proceedings arising in connection” with the Contract “shall be tried and litigated 

exclusively in the Federal court located in the Eastern District of Pennsylvania.” (App. at 

1857.) Lehigh originally pleaded numerous causes of action in the District Court, but the 

only claim at issue in this appeal, and the only one that went to the jury, is Lehigh‟s 

single count for breach of contract (Count I in Lehigh‟s amended complaint). That is the 

only claim we discuss.
5

tax credits. In opposition, Lehigh offered a competing interpretation of the Contract 

under which the word “collecting” would refer only to the “costs incurred in collecting 

the proceeds of selling the tax credits,” such as “bank transfer fees and the cost of 

pursuing payment if the buyer refused to pay in a timely fashion.” (Id.) In support of 

that interpretation, Lehigh maintained that “one cannot „collect‟ a tax credit,” but may 

only claim it. (Id.)

The District Court acknowledged that “the parties differ greatly in their 

interpretation of what the words of the contract mean” (id. at 671), but it nonetheless 

declined to decide which interpretation was correct or even to determine whether the 

contractual language is susceptible of more than one meaning and therefore is 

ambiguous. The Court explained that “[t]he briefs and appendices in this case are over 

four inches thick,” and that it could “prepare and preside over a jury trial, and reach a 

verdict in the same or less time than it would take to carefully review the filings and do 

the appropriate research.” (Id.) The Court specified that it was “not necessarily finding 

that these terms are ambiguous or are not ambiguous,” but was rather denying the motion 

for “prudential reasons.” (Id. 670-71.)

The District Court‟s decision to sidestep the interpretation question left the parties 

in an awkward position. Before trial, Keller filed a motion in limine asking the Court to 

hold that the terms of the Contract are unambiguous and to accordingly bar any testimony 

contradicting the terms of the written contract under the parol evidence rule. The Court 

granted the motion, stating that at trial it would not allow any parol evidence to 

“contradict[] the terms of the written contract.” (Id. at 1105.) Of that ruling, the Court 
6

stated that it did “not rul[e] that the[] terms [of the Contract] were ambiguous,” because 

“[t]he words ... collecting and selling ... are normal English words. There‟s nothing ... 

ambiguous about them.” (Id. at 1109-10.) Despite the parties‟ continued dispute over

how the words “collecting and selling” should be understood in the Contract, the Court 

did not explain at that time, or any time throughout this litigation, what those terms mean.

At trial, however, the Court did allow Lehigh‟s witnesses to testify, over Keller‟s 

repeated and strenuous objections, about their personal understanding of the Contract, 

which happened to coincide with Lehigh‟s pre-trial interpretation. For example, Pedro 

Notario, Lehigh‟s accountant and lawyer, was asked his “understanding” of the meaning 

of “net of costs incurred by purchaser in connection with collecting and selling such tax 

credits.” (Id. at 3011.) Keller‟s counsel objected to that question on the basis of the parol 

evidence rule, but the Court overruled the objection. Notario responded:

Okay. Well, there is no reference in the law or the 

regulations to collecting a tax credit. When you see the word 

collecting on this agreement, you can only – in the general 

usage, I understand that you can only collect something to 

which you are entitled to and you have a right. Since you 

cannot collect something that you do not have a right, 

collecting needs to happen after you have generated and own 

the tax credit.

Since there is no way to collect money from the 

government of Puerto Rico, in order to collect money with 

regards to a tax credit, you need to sell the credit to a third 

party and then collect the money from the third party, if he 

doesn‟t pay as agreed to in the sale agreement with the buyer 

of the credit.

(Id. at 3012-13.) Keller objected again, asking the Court to strike Notario‟s testimony. 

The Court refused, but instead instructed the jury that Notario‟s testimony constituted 
7

“his understanding of the terms, and [that it] may not consider that to be any 

contradiction of the words in the agreement because we‟re all bound by that selling – the 

cost of selling and collecting. ... [T]hose are English words ... .” (Id. at 3013.) At 

another point in his testimony, Notario testified, once again over Keller‟s objection, that 

the word “collect” either was mere susplusage or the phrase “collecting and selling” 

really meant “selling the credit” and thereafter “collecting the monies from the buyer of 

the credits.” (Id. at 3008-09 (“You need to sell the credit, and any monies that you‟re

going to collect, you need to collect from the buyer of the credits.”).)

Peter Schaefer, a consultant to Lehigh during Contract negotiations, was also 

asked, over Keller‟s objection, his “understanding of the words ... „net of costs incurred 

by purchaser in connection with collecting and selling such tax credits‟” at the time he 

“w[as] negotiating this asset purchase agreement.” (Id. at 2763.) He said that “brokerage 

fees, bank fees, maybe wiring charges, things of that nature,” could be considered “the 

selling cost.” (Id. at 2764.) As for the cost of collecting, he claimed that he “hadn‟t 

envisioned collection costs because you aren‟t collecting the credits.” (Id.) What he had

“envisioned that to mean,” rather, “would be in the unlikely event that the credits had 

been sold and the buyer of the credits did not live up to the agreement that they had 

made.” (Id.) In other words, “if they were to make subsequent payments and they did 

not make those payments, that would be the cost of going to collect the payments from 

that buyer.” (Id.)

And John DePaul, former chairman of Lehigh‟s board, testified regarding preContract discussions about the expected selling price of the tax credits. He said that the 
8

bonds could not have been a cost “incurred in collecting and selling the tax credit,” but 

rather were simply “a cost of buying the company,” to be shouldered by Keller alone. 

(Id. at 24.) He explained that, as chairman of the board, he would have refused to “post 

the collateral or share in the posting of the collateral,” because that would be akin to 

requiring Lehigh “to post collateral of a million dollars that [Keller] will keep the plant 

open for the next ten years.” (Id.) According to DePaul, that would constitute an unwise 

business decision because Lehigh would have no “control” over whether Keller “kept the 

plant open for ten years or not.” (Id.)

At the conclusion of the evidence, Keller filed a Rule 50 motion for judgment as a 

matter of law, which the Court denied, allowing the breach of contract claim to go to the 

jury. Specifically, the jury was asked, via separate verdict sheets, to decide whether 

Keller had breached the Contract by deducting the cost of the tax credit bonds and the 

cost of the Puerto Rico tax lawyer‟s fees. The Court explained that “the words in the 

contract are clear. „Cost,‟ „selling,‟ and „collecting‟ are not ambiguous terms” (id. at 10), 

and it instructed the jury that, because the Contract was unambiguous, “its plain meaning 

alone dictates the outcome” (id.; see also id. at 14 (instructing the jury that “cost, 

collecting, and selling” are “US English words, and each must be given their plain and 

ordinary meaning”)). The jury was therefore to “ascribe to the words of [the] contract 

their common or ordinary meaning, and interpret them as would an objectively, 

reasonable third-party observer.” (Id. at 14.) In a final jury instruction, the Court told the 

jury that it must not use trial testimony to contradict the written terms of the Contract:
9

[C]ontract law does not allow the parties to offer any 

evidence for the purpose of contradicting or changing the 

terms of an unambiguous agreement. The testimony you 

have heard in the case may not be used or considered by you 

to alter, change, or modify the terms of the agreement in 

determining whether Keller breached the agreement. 

However, you may use the testimony that you found credible 

to determine the background, the context, the intent of the 

parties, and their understanding of the terms of the agreement.

(Id.) The jury ultimately returned a split verdict, finding that the attorneys‟ fees were 

costs of “collecting and selling” the tax credits (and thus were appropriately deducted), 

but that the bonds were not.

Keller then filed another Rule 50 motion, and a Rule 59 motion for a new trial, 

insisting that the testimony described above constituted inadmissible parol evidence that 

tainted the outcome of the trial. The Court denied both motions. Saying that the 

testimony “enabled the jury to better understand the complex subject matter of this case 

and to complete effectively its job of finder of fact, including, whether, as a matter of 

fact, Keller breached the Contract,” (id. at 11) the Court declared that “the evidence in 

question was not admitted to alter the terms of the written agreement or to create a new 

term not present on the face of the Contract” (id. at 15). Instead, the Court said that, “in 

view of the fact that Puerto Rican tax credits ... are outside the scope of the jury‟s 

knowledge,” the testimony provided relevant “background to aid the jury in fulfilling its 

role as fact finder.” (Id.)

Ultimately, the Court concluded that the “jury competently carried out its job as 

fact-finder to determine whether Keller breached the contract by subtracting its attorneys‟ 
10

fees and bond premium,” and it denied Keller‟s Rule 50 and Rule 59 motions. (Id. at 25-

26.) This appeal followed. 

II. Discussion4

We engage in plenary review of a district court‟s denial of a motion for judgment 

as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. Trabal v. Wells 

Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001). A motion for a “Rule 50 

directed verdict ... may be granted only if, as a matter of law, viewing all the evidence 

which has been tendered and should have been admitted in the light most favorable to the 

party opposing the motion, no jury could decide in that party‟s favor.” Tigg Corp. v. 

Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Given that Keller‟s position 

hinges on a question of contract interpretation, to rule for Keller “we must conclude that 

the contract is so clear it can only be read one way,” Pennbarr Corp. v. Ins. Co. of N. 

Am., 976 F.2d 145, 149 (3d Cir. 1992) – namely, to mean that the costs of “collecting and 

selling” the tax credits unambiguously includes the costs associated with posting 

collateral, which are necessary to obtaining the credits. The “question of whether

contract terms are clear or ambiguous is one of law.” Id. We conclude that the terms are 

unambiguous and that the District Court erred in denying Keller‟s Rule 50 motions for 

judgment as a matter of law.5

 

4

The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have 

jurisdiction under 28 U.S.C. § 1291.

5 Given our view that Keller merits judgment as a matter of law, see infra, we need 

not address the District Court‟s denial of Keller‟s Rule 59 motion for a new trial.
11

The court and jury occupy distinct roles in contract interpretation. “It is the 

function of the court to make the preliminary determination, out of hearing of the 

factfinder, as to whether an ambiguity may exist.” Tigg, 822 F.2d at 362-63. “Whether a 

contract is ambiguous is a question of law.” Id. at 362. In making that initial 

determination, courts applying Delaware law are “guided by the „elementary canon of 

contract construction that the intent of the parties must be ascertained from the language 

of the contract.‟” In re IAC/InterActive Corp., 948 A.2d 471, 494 (Del. Ch. 2008) 

(quoting Citadel Holding Corp. v. Roven, 603 A.2d 818, 822 (Del. 1992)). “[C]ontract 

terms are not ambiguous merely because the parties to the contract disagree; rather, the 

court stands in the shoes of an objectively reasonable third-party observer, and ascertains 

whether the contract language is unmistakably clear.” Id. (alterations and internal 

quotation marks omitted). “The true test is not what the parties to the contract intended it 

to mean, but what a reasonable person in the position of the parties would have thought it 

meant.” Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 

1196 (Del. 1992); see also U.S. West, Inc. v. Time Warner, Inc., Civ. A. No. 14555, 1996 

WL 307445, at *9 (Del. Ch., June 6, 1996) (“The primary rule of construction is this: 

where the parties have created an unambiguous integrated written statement of their 

contract, the language of that contract (not as subjectively understood by either party but) 

as understood by a hypothetical reasonable third party will control.”). “Absent some 

ambiguity, Delaware courts will not destroy or twist ... [contract] language under the 

guise of construing it.” Rhone-Poulenc, 616 A.2d at 1195. 
12

In addition, “Delaware courts have consistently held that an interpretation that 

gives effect to each term of an agreement is preferable to any interpretation that would 

result in a conclusion that some terms are uselessly repetitive,” and “[c]ontracts are to be 

interpreted in a way that does not render any provisions illusory or meaningless.” 

O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 287 (Del. 2001) (internal quotation 

marks omitted); see also In re IAC/Interactive Corp., 948 A.2d at 497 (“Delaware courts 

do prefer to interpret contracts to give effect to each term rather than to construe them in 

a way that renders some terms repetitive or mere surplusage.” (internal quotation marks 

omitted)). If the court determines that the contract is unambiguous, “the writing itself is

the sole source for gaining an understanding of intent.” City Investing Co. Liquidating

Trust v. Cont’l Cas. Co., 624 A.2d 1191, 1198 (Del. 1993); see also Cohen v. Formula 

Plus, Inc., 750 F. Supp. 2d 495, 503 (D. Del. 2010) (“Upon concluding that the contract 

clearly and unambiguously reflects the parties‟ intent, the court‟s interpretation of the 

contract must be confined to the four corners of the document.” (internal quotation marks 

omitted)).

The factfinder plays a role in contract interpretation under Delaware law only 

when the court, without looking to any “evidence from outside the contract‟s four 

corners,” determines that the words of the contract are ambiguous, meaning that 

“reasonable minds could differ as to the contract‟s meaning.” GMG Capital Invs., LLC v. 

Athenian Venture Partners I, L.P., 36 A.3d 776, 783 (Del. 2012). Only then does “a 

factual dispute result[]” regarding the intended meaning of the ambiguous terms, and the 

factfinder may then “consider admissible extrinsic evidence” to resolve that dispute. Id.; 
13

see also Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 

1997) (holding that a contract provision was ambiguous, reversing summary judgment, 

and remanding for a consideration of extrinsic evidence by the Court of Chancery as 

factfinder).

Thus, although the jury has a role in determining, through a factual inquiry, the 

parties‟ intentions regarding an ambiguous contract provision, there is no role for the jury 

to play in contract interpretation when there is no ambiguity. That is a matter of settled 

law. See Pennbarr, 976 F.2d 145 (reversing district court and overturning jury verdict

where contract was unambiguous and therefore summary judgment should have been 

entered); Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 334 & n.11 

(Del. 2012) (court has “long upheld awards of summary judgment in contract disputes 

where the language at issue is clear and unambiguous” (internal quotation marks 

omitted)); United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 830 (Del. Ch. 2007) 

(“[T]he threshold inquiry when presented with a contract dispute on a motion for 

summary judgment is whether the contract is ambiguous. Ambiguity does not exist 

simply because the parties disagree about what the contract means. Moreover, extrinsic, 

parol evidence cannot be used to manufacture an ambiguity in a contract that facially has 

only one reasonable meaning.”).

Yet the District Court, although it repeatedly said that the disputed terms are not 

ambiguous, never stated what they unambiguously mean. In other words, it never chose 

which of the parties‟ divergent interpretations was correct – Keller‟s interpretation that 

“collecting ... tax credits” included the costs associated with obtaining the credits, or 
14

Lehigh‟s interpretation that “collecting ... tax credits” referred only to the costs of 

collecting payment from the third-party purchaser of the tax credits, something that 

would occur only after the purchaser underwent the expense of posting a bond to obtain 

the credits.6

The result of the District Court‟s decision not to opine on the meaning of the 

disputed words was a series of objections and related problems at trial, as the jury‟s 

factfinding role morphed into a duty to rule on the meaning of disputed terms that the 

Court had already decided were not fairly susceptible of more than one interpretation. 

The Court instructed the jury to “interpret [the Contract] as would an objectively, 

reasonable third-party observer” (App. at 14), but that is a role that should have been 

played by the Court itself, not the jury. See In re IAC/InterActive Corp., 948 A.2d at 494 

(explaining that it is “the court [that] stands in the shoes of an objectively reasonable 

third-party observer” to interpret a contract (emphasis added) (alterations and internal 

quotation marks omitted)). Adding to the difficulties, the Court repeatedly allowed the 

jury to receive evidence of the Contract‟s meaning from outside the four corners of the 

Contract, something that should not occur with regard to unambiguous contract 

provisions. See City Investing, 624 A.2d at 1198 (“If a writing is plain and clear on its 

face, i.e., its language conveys an unmistakable meaning, the writing itself is the sole 

 

6

The District Court acknowledged that the posting of collateral was a prerequisite 

of acquiring the tax credit, stating that Lehigh “did not dispute ... that before Keller could 

complete the process of collecting and selling, Keller had to acquire a bond.” (App. at 23 

(internal quotation marks omitted).) In a similar vein, Lehigh admitted in its brief that “a 

bond is and was the most common form of security posted to secure tax credits.” 

(Appellees‟ Br. at 7.)
15

source for gaining an understanding of intent.”). The jury therefore was not, as the 

District Court said, “competently carr[ying] out its job as fact-finder,” but rather, at the 

Court‟s insistence, was filling the judicial role of contract interpreter, and it did so subject 

to the improper testimony of Lehigh‟s witnesses regarding their personal understanding 

of the Contract terms.

We agree with the District Court that the disputed words of the Contract are 

unambiguous. They can reasonably bear Keller‟s interpretation of them but not Lehigh‟s, 

and no other interpretation has been suggested. In other words, the Contract is not 

“reasonably susceptible” of any suggested meaning but the one Keller ascribes to it, and 

it therefore cannot be said to be ambiguous. Twin City Fire Ins. Co. v. Del. Racing Ass’n, 

840 A.2d 624, 628 (Del. 2003) (“Contract language is ambiguous if it is reasonably 

susceptible of two or more interpretations or may have two or more different meanings.” 

(internal quotation marks omitted)).

A hypothetical reasonable third party would, we believe, understand the costs 

associated with “collecting and selling” the tax credits to include the costs of securing 

those credits in the first place. To collect is “to receive, gather, or exact from a ... 

source[],” Webster‟s Third New Int‟l Dictionary 444 (1971), “to claim as due and receive 

payment for,” Merriam-Webster‟s Collegiate Dictionary 243 (11th ed. 2005). In that 

sense, it would certainly be reasonable for a third party to understand the Contract to 

mean that the costs associated with claiming and securing the tax credits – e.g., the 

necessary costs of posting collateral to obtain the credits in the first place – constitute 

costs of collecting them.
16

Lehigh points out that the Puerto Rican statute that provides for the granting of tax 

credits to purchasers of distressed businesses speaks, as the District Court said in denying 

Keller‟s motion for judgment as a matter of law, in terms of “claiming” the credits. (See 

App. at 24 (“The word „collect‟ is not included in the law or regulations relating to the 

tax credit. The statute instead describes the process as „claiming the credits.‟”).) But that 

semantic variance does not render Keller‟s interpretation unreasonable. At the least, it is 

reasonable to conclude that to claim a tax credit is functionally the same as to collect one. 

Collecting a tax credit is the corollary of paying taxes. In the case of tax payment, an 

entity pays taxes and the government collects them. With tax credits, the situation is 

reversed; the government issues the credits, which are claimed or collected by the 

taxpayer. The tax credit, once collected by the taxpayer, can then either be applied 

against profit or sold to some other entity that can apply them against profit. That is not 

an unreasonable understanding of the term collecting, which, after all, must be given 

some effect, lest it be rendered “illusory or meaningless.” O’Brien, 785 A.2d at 287 

(internal quotation marks omitted).7

In contrast, Lehigh‟s view is unreasonable because it would run afoul of ordinary 

rules of contract construction. The Contract plainly provides for the deduction of two 

things from the proceeds of the sale of the tax credits: (1) costs incurred in collecting the 

tax credits, and (2) costs incurred in selling the tax credits. (See App. at 1844, 2043 

(providing for deduction of the costs of “collecting and selling such tax credits”).) Yet 

 

7

That Keller in its correspondence with Lehigh spoke of “securing” the credits 

does not undermine this analysis.
17

Lehigh advocates a reading of the Contract that would expel collecting from its natural 

place at the head of the phrase antecedent to tax credits, and force upon it the unnatural 

role of modifying and applying, after the fact, to the costs of collecting the proceeds of 

the sale of the tax credits to a third party. That appears to be nothing but wishful thinking

that “twist[s]” the language of the Contract “under the guise of construing it.” RhonePoulenc, 616 A.2d at 1195. No hypothetical reasonable third party would read that 

meaning into the Contract without the benefit of extrinsic evidence of intent, and even 

then the interpretation is tortured. Because Lehigh‟s interpretation of the Contract would 

do substantial violence to the text of the Contract, and as such would likely not ring true 

to the ears of an objective reasonable third party, the Contract is not reasonably 

susceptible of Lehigh‟s interpretation. We are left with one reasonable interpretation, 

Keller‟s, and judgment for Keller is thus warranted as a matter of law.

IV. Conclusion

For the foregoing reasons, we will reverse the District Court‟s denial of Keller‟s 

Rule 50 motion for judgment as a matter of law and remand with directions that judgment 

be entered for Keller on the Contract claim.