author: MOTTO, P.J.,

text:
    Warrior Whitetails LLC v. Drotleff

      C.P. of Lawrence County,
    No. 10801 of 2013, CA

      Larry J. Puntureri, for plaintiff.

      Kathleen S. McAllister, for defendant.
    April 13, 2015
   MOTTO, P.J.,

Before the court for disposition is the defendant’s motion for summary j udgment. The plaintiff, engaged in the business of breeding and selling deer, seeks recovery from the defendant for allowing her dog to trespass upon the property of the plaintiff, thereby causing a fawn of plaintiff to run into the fencing and break her neck and die. Defendant’s motion for summary judgment raises the following issues: 1) Should defendant be granted summary judgment because no evidence exists that any conduct of defendant or her dog was the cause of death to plaintiff’s fawn; and 2) Alternatively, should defendant be granted summary judgment under the doctrine of spoilation of evidence, where plaintiff’s agent failed to preserve the remains of the fawn for examination by defendant or an expert on behalf of defendant to determine cause of death.

In its complaint, plaintiff alleges that it conducts the business of breeding and selling deer; that it owned a doe known as “Stryker” alleged to be the deepest DNA deer in whitetail history; that Stiyker and other deer were kept in a self-enclosed area on the business premises of plaintiff; that on or about November 3,2012, Stryker broke her neck from running into the fence which surrounds portions of the business property; that Stryker ran into the fence as the direct and approximate result of an encounter with defendant’s dog, which was trespassing upon plaintiff’s property; that this trespass occurred after defendant was specifically advised by agents of plaintiff that her dog could “spook” the deer owned by plaintiff which could result in death or serious injury to plaintiff’s deer; that “no trespassing” signs had been posted on plaintiff’s property prior to the incident; that defendant admitted to trespassing on plaintiff’s property with her unleashed dog running at large in violation of the Pennsylvania Dog Law; and that as a direct and approximate result of Stryker’s death, plaintiff lost the fair market value of Stryker, appraised at $25,000.00 and that plaintiff has also incurred loss of income in anticipatory breeding fees totaling $75,000.00.

The parties have engaged in discovery, which has included the taking of the depositions of Jason McDowell, the sole shareholder and owner of plaintiff; the defendant, and one Steven Reno, who was present at the time the dog was alleging running along the fence enclosing the deer.

In his deposition, McDowell testified that on the date of the incident he was working at the facility near the deer pens, when he heard the dog barking. (McDowell deposition, p. 35.) All of the deer in the various pens began running around. McDowell’s first fear was that his buck, Axle, may be harmed since that animal is worth in excess of $150,000.00. McDowell saw Axle running up and down the fence, “going crazy,” and also saw plaintiff’s dog running up and down the fence line. (McDowell deposition, p. 37). Defendant was yelling at the dog, which would not listen to her. McDowell kept trying to calm Axle down. The whole pen of deer had erupted but at the time McDowell was worried about Axle because of his value (McDowell deposition, p. 38). After a period of time, the dog returned to the defendant and the deer calmed down. After the dog returned to the defendant, McDowell found Stryker dead in the comer of the pen (McDowell deposition, p. 40). McDowell cut the ear tags off the fawn and dumped the carcass in a dumpster the next day. When McDowell observed the dead deer, blood was coming out of its nose (McDowell deposition, p. 51).

McDowell went to defendant’s residence one half hour to forty-five minutes after the incident to advise defendant that her dog had caused the death of his deer. The remains were disposed of the day after the incident. (McDowell deposition, p. 45).

Steven Reno had come to plaintiff’s property at the time of the incident and observed the dog running along the fence; heard a woman hollering and yelling at the dog, with the running dog and woman screaming lasting for minutes (Reno deposition, p. 19-27). Reno testified that he left because of the “chaos,” but returned the next day and observed the dead deer himself and was told by McDowell that the deer had died at the time of the incident. (Reno deposition, p. 22, 23).

In her deposition, Drotleff testified that she did not use shock collars for her dogs; that she did on occasion permit them to run loose without a leash or a chain; that the dog in question barked a lot, was ‘yappy’ and barked at anything that was different; that she was yelling at the dog running up to plaintiff’s property and that she herself has a very high squeaky voice (Drotleff deposition, p. 8-18, 41). Defendant further admitted that she was aware of at least one prior incident where plaintiff had a deer die as the result of a barking dog and knew that deer get spooked very easily (Drotleff deposition, p. 32-34). Defendant denied that the dog was ever off the property in which she resides, and the dog was not running up and down along the fence barking at the deer (Drotleff deposition, p. 44).

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999). A material fact, for summary judgment purposes, is one that directly effects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense, which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339 (2000); Dean v. The Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H & R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corp. v. First State Ins. Co., 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile, Supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. U.S.X. Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its enquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa.Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa.Cmwlth. 494, 579 A.2d 1358 (1990).

Defendant first argues that insufficient evidence exists that the actions of defendant in allowing her dog to trespass upon plaintiff’s property caused the death of the fawn Stryker, because all that plaintiff can show is that it found Stryker dead, and no procedure was employed to determine the exact cause of death or to support the contention that Stryker broke its neck on the fence as the result of the disturbance caused by the dog running loose. However, the court here finds that there exists at least circumstantial evidence that Stryker died as the result of the chaos caused by defendant allowing her dog to run along the fence line of the deer pens. There is direct evidence from McDowell and Reno as to defendant’s dog running along the fence line and the deer in the pen reacting to the presence of the dog. McDowell himself was on the property in the vicinity of the pens at the time of the disturbance and saw the deer react, and in his words, “going crazy.” There is also evidence that deer get “spooked” very easily and can easily harm themselves if this situation occurs, and that this was a known danger to both plaintiff’s agent, McDowell, and to defendant herself. McDowell had firsthand knowledge that Stryker was a healthy fawn on the day of the incident with no medical issues, and that immediately after the disturbance the fawn was found dead in the comer of the pen with blood running from its nose. It is therefore inferable that Stryker died as the result of reacting to the presence of the dog, becoming spooked, and striking the fence.

Defendant next argues that plaintiff spoliated all relevant evidence warranting dismissal of the complaint as an appropriate sanction. The factual basis for this claim is that McDowell disposed of Stryker’s carcass by placing it in a dumpster the day after the incident in question, thus depriving defendant of an opportunity to have the carcass examined to determine whether its neck had actually been broken.

The doctrine of spoliation of evidence attempts to compensate those whose legal rights have been impaired by the destruction of evidence by allowing for sanctions against the party responsible for the destmction of the evidence. Mt. Olivet Tabernacle church v. Edwin L. Weigand Div., 781 A.2d 1263 (Pa. Super. 2001, affirmed 571 Pa. 60, 811 A.2d 565 (2002). Although the doctrine is commonly utilized in product liability cases, application of the doctrine is not restricted to product liability, in general, a plaintiff has a duty to preserve relevant evidence wherein: (1) the plaintiff knows that litigation against the defendant is pending or likely; and (2) it is foreseeable that discarding the evidence would be prejudicial to the defendant. Mt. Olivet Tabernacle church v. Edwin L. Weigand Div., Supra. A plaintiff’s power to control an accident scene and to exercise authority over the preservation or destmction of evidence is a relevant factor in determining responsibility for spoliation of evidence. Id. Although the court has discretion in determining the proper sanction, including jury instructions or dismissal of the action, it is held that courts should select the least onerous sanction commensurate with the spoliator’s fault and the other parties’ prejudice. Id. Where fault and prejudice are not severe, dismissal is inappropriate as a sanction for spoliation of evidence. Id.

In Schmidt v. Milwaukee Elec. Tool Corp., 13 F.3rd 76, 79 (1994), the third circuit court of appeals held that the trial court’s sanction of striking the testimony of plaintiff’s expert witness in its entirety on the grounds that the expert altered the allegedly defective product during the course of his examination by disassembling it was excessive. The Schmidt case noted that since the early 17th Century, courts have admitted evidence tending to show that a party destroyed evidence relevant to the dispute being litigated. Schmidt further noted that historically, such evidence permitted an inference known as the “spoliation inference,” that the destroyed evidence would have been unfavorable to the position of the offending party, citing Judge Breyer in Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cor. 1982), who wrote, “The evidentiary rationale [for the spoliation inference] is nothing more than the common sense observation that a party who has noticed that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to have been threatened by [that evidence] than is a party in same position who does not destroy the [evidence].” In Schmidt, the federal appeals court noted that the district court invoked a sanction far more serious than the spoliation inference. It barred all evidence emanating from the expert’s observations and thereby deprived plaintiff of any opportunity to prove his case. Although the federal circuit court reaffirmed the inherent authority of the trial court to impose such a drastic sanction in an appropriate case, the appellate court concluded that the sanction was an abuse of discretion in the case before it. The Schmidt court held as follows:

We believe the key considerations in determining whether such a sanction [dismissal] is appropriate should be: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. See E. G. Dillon v. Nissan Motor Co. Ltd., 986 F.2d 263 (8th Cir. 1993); S.D.I. Operating Partnership L.P. v. Neuwirth, 973 F.2d 652 (8th Cir. 1992); Gorelick, et al., Supra, Section 3.16, P. 117 (“To fulfill the purposes of discovery sanctions...-that is, to restore the accuracy of the trial, compensate innocent victims and punish guilty spoliators-courts select the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.”)

Schmidt v. Milwaukee Elec. Tool Corp., 13 F.3d at 79.

Here, there is no disagreement that plaintiff’s agent, McDowell, disposed of the carcass of the fawn. Thus, the destruction of the evidence was the fault of plaintiff. The court also finds that there is a degree of prejudice to the defendant since the opportunity is lost for the plaintiff to have the deer examined to determine if there was some other cause of the death of the deer from that alleged by the plaintiff. However, this prejudice is ameliorated by the fact that the plaintiff still bears the burden of proof on causation, and the plaintiff itself has not obtained any expert testimony as to the cause of death that is based upon any examination of the carcass. Thus, the defendant has the benefit of the spoliation inference and an appropriate instruction at trial to offset any prejudice caused by the destruction of the carcass. Thus, the court finds that there is a lesser sanction that will avoid substantial unfairness to defendant. To the extent that punishment of the offending party is a consideration as to deter such conduct by others in the future, the court further finds that such factor has little application here, where it appears to the court that McDowell’s motive in destroying the carcass was not geared towards disposing of evidence, but as the result of being emotional about the loss of his fawn and not being mindful of the time of the evidentiary value of the carcass, even to his own prejudice, as an examination of the carcass could very well have supported his theory of the case. There is no indication in the record that McDowell intended to impair the ability of the defendant to defend herself by disposing of the carcass.

In Schroeder v. DOT, 551 Pa. 243, 710 A.2d 23 (1998), the Pennsylvania Supreme Court adopted the spoliation of evidence standards set forth by a third circuit court of appeals in Schmidt v. Milwaukee Elec. Tool Corp., Supra. in Mt. Olivet, Supra, the Superior Court acknowledged that the Schmidt factors had been adopted by the Pennsylvania Superior Court and engaged in an analysis of the factors. Relative to the analysis of fault, Mt. Olivet noted that fault has two components: responsibility and the presence or the absence of bad faith citing Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998). As to this first component, Mt. Olivet stated that a plaintiff has a general duty to preserve relevant evidence where: (1) the plaintiff knows that litigation against the defendant is pending or likely and it is foreseeable that discarding the evidence would be prejudicial to the defendant. Thus, under the Mt. Olivet analysis, McDowell could have afforded the defendant the opportunity to inspect the carcass and McDowell, as the plaintiff in Mt. Olivet, is not blameless for failure to do so. However, as to the second component of fault, which is the presence or absence of good faith, the court does find that McDowell did not act in bad faith but was simply acting out of emotion and a lack of understanding of the evidentiary value of the carcass.

Thus, in light of this court’s determinations of fault and prejudice, the court here finds that a proper exercise of discretion requires the court to refrain from issuing a sanction that would have the effect of dismissing Plaintiff’s case in its entirety. The court here finds that the least onerous sanction commensurate with the spoliator’s fault and defendant’s prejudice is a spoliation instruction to the jury, the specific instruction to be determined at trial.

For the foregoing reasons, the court will issue a separate order which will deny the defendant’s motion for summary judgment.

ORDER OF COURT

And now, this 13th day of April, 2015, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s motion for summary judgment is denied.


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    Hamilton v. Redevelopment Authority of Lawrence County

      C.P. of Lawrence County,
    No. 70082 of 2014, M.D.

      Michael K. Parrish, for plaintiff.

      Samuel Kamin, Thomas Leslie and Scott A. Bradley, for defendants.
    April 20, 2015
   PICCIONE, J.,

Before the court for disposition are the preliminary objections of each of the defendants to the complaint for writ of mandamus filed on behalf of the plaintiff, Edna J. Hamilton, Executrix for the Estate of David C. Hamilton (hereinafter, the “plaintiff’). The instant complaint for writ of mandamus (hereinafter, the “complaint”) seeks to compel the defendants to pay a previously entered final judgment of an award of attorneys’ fees and costs in the amount of $54,591.95 to the plaintiff.

The plaintiff-decedent was property owners within Lawrence County, Pennsylvania. The Redevelopment Authority of Lawrence County (hereinafter, “RALC”) attempted to condemn the plaintiff’s property for redevelopment under the Urban Redevelopment Law, 35 P.S. § 1701, et seq., and the plaintiff challenged the taking. A final judgment was entered by the Commonwealth Court of Pennsylvania, which denied RALC’s attempt to exercise its power of eminent domain because the plaintiff’s property was not considered to be an “urban blight.” Thereafter, the plaintiff filed a motion for fees and costs to seek reimbursement pursuant to the Eminent Domain Code. This court granted the motion and awarded $54,591.95 in fees and costs to the plaintiff. RALC appealed this court’s order and the Commonwealth Court affirmed this court and the Supreme Court of Pennsylvania affirmed the Commonwealth Court’s determination. The plaintiff now has a final judgment of $54,591.95 against RALC, and the judgment has not been satisfied.

In the instant case, the complaint contains three counts of mandamus against certain groups of defendants. In Count I of the complaint, the plaintiff asserts a writ of mandamus against defendants RALC, Jon Natale, Vince Fuleno, W. Ryan Kegal, Frank Telesz, Dennis Alduk, James Gaglione Jr., Amy B. McKinney, Allen J. Miller, Doniele Russel, and Jason C. Shallcross (hereinafter, collectively, the “RALC defendants”). The individuals listed as the RALC defendants are the members of RALC who were appointed pursuant to the Urban Redevelopment Law, 35 P.S. § 1705, except defendant James Gaglione Jr., who is the executive director of RALC. The plaintiff avers that they are entitled to an award for damages in the amount of $54,591.95. RALC has not paid the damages, and the plaintiff is attempting to enforce the judgment through mandamus against RALC and compel the RALC defendants to utilize all available means to secure payment of the judgment.

In Count II of the complaint, the plaintiff asserts a writ of mandamus against defendants Lawrence County and its Commissioners, Dan Vogler, Steve Craig, and Robert Del Signore (hereinafter, collectively, the “Lawrence County defendants”). The plaintiff argues that the Lawrence County defendants established RALC solely for the purpose of condemning the properties owned by the plaintiff. On October 18, 2005, defendant Lawrence County entered into an agreement with RALC and the Lawrence County Economic Development Corporation (hereinafter, “LCEDC”) guaranteeing through its taxing power, payment in connection with the condemnation of the plaintiff’s property. The purpose of this agreement was to guaranty payment to the plaintiff as just compensation for the condemnation proceedings RALC was instituting against the plaintiff at that time. Defendant Lawrence County failed to provide such funding to RALC; and, consequently, defendant Lawrence County failed adequately to fund RALC. The plaintiff seeks to compel the Lawrence County defendants to fund RALC to enable RALC to fulfill the judgment against it.

The Commonwealth Department of Community and Economic Development awarded a grant to defendant Lawrence County for the development of the Millennium Park project, which included the plaintiff’s property. The grant would be used, in part, for the expenses relating to the condemnation proceedings; however defendant Lawrence County and its commissioners failed to disburse the necessary funds to RALC. The plaintiff alleges that the Lawrence County defendants were complicit in the actions of RALC because it was created with their full knowledge that RALC was underfunded. As set forth in Count I, the plaintiff alleges that RALC is responsible for paying the judgment in the plaintiffs favor, and, in Count II, the plaintiff argues that pursuant to the guarantee agreement, the Lawrence County defendants are legally obligated to provide such aid to RALC to enable it to fulfill its public purpose. The plaintiff requests the court to compel the Lawrence County defendants to provide RALC with the funding necessary to satisfy the judgment in favor of the plaintiff.

In Count III of the complaint, the plaintiff seeks a writ of mandamus against defendants the Commonwealth of Pennsylvania and the Governor, Thomas Corbett (hereinafter, collectively, the “Commonwealth defendants”). The plaintiff alleges that at all relevant times, RALC was acting as an agent of the Commonwealth of Pennsylvania with the knowledge and consent of the governor. The complaint states that RALC filed annual statements with the Commonwealth of Pennsylvania Department of Community and Economic Development (hereinafter, the “DCED”) and the Governor’s Center. The annual statements revealed that RALC was not funded nor did it have any assets.

Defendant Lawrence County and LCEDC filed an application for the development of the Millennium Project for a grant which included the condemnation of private property by RALC. The DCED awarded the grant to defendant Lawrence County with the intent that the funds would be used, at least in part, for the expenses related to the condemnation proceedings. The plaintiff alleges that defendant Commonwealth of Pennsylvania was aware that RALC was unfunded but was engaging in operations, which caused it to incur liabilities for which RALC did not have the assets to balance. Because of this, the plaintiff alleges that the Commonwealth defendants were complicit in the actions of RALC. Since RALC is responsible for paying the judgment awarded to the plaintiff, RALC must utilize all available means, including seeking aid from the defendant Commonwealth of Pennsylvania, to satisfy the judgment. The plaintiff further alleges that RALC was acting as an agent of the Commonwealth; and, therefore, the Commonwealth is legally obligated to provide such and RALC to fulfill its public purpose. The plaintiff requests the court to compel the Commonwealth defendants to provide funding to RALC in the amount of the judgment to enable RALC to satisfy the judgment against it and in favor of the plaintiff.

On September 10, 2014, and September 15, 2014, the RALC defendants and the Lawrence County defendants, respectfully, each filed preliminary objections to the complaint for writ of mandamus (hereinafter, each, the “preliminary objections”). The RALC defendants and the Lawrence County defendants each argue that the complaint is legally insufficient pursuant to Pa.R.C.P. 1028(a)(4) and factually insufficient pursuant to Pa.R.C.P. 1028(a)(3). On September 12, 2014, the Commonwealth defendants filed the preliminary objections of the Commonwealth of Pennsylvania and Thomas Corbett to plaintiff’s complaint for writ of mandamus (hereinafter, “preliminary objections”). The Commonwealth defendants object to the complaint for lack of jurisdiction pursuant to Pa.R.C.P. 1028(a)(1), improper service pursuant to Pa.R.C.P. 1028(a)(1), absolute immunity pursuant to Pa.R.C.P. 1028(a)(4), failure to establish a right to relief pursuant to Pa.R.C.P. 1028(a)(4); and insufficient specificity pursuant to Pa.R.C.P. 1028(a)(3). Each party filed briefs in support of its respective position, and on January 26, 2015, this court held oral argument on each of the defendants’ preliminary objections. The court will analyze each group of defendants’ preliminary objections seriatim.

The RALC defendants’ first preliminary objection is in the nature of a demurrer. The standard of review for a preliminary objection in the nature of a demurrer is as follows:

A preliminary objection in the nature of a demurrer admits as true all well-pled material, relevant facts and every inference fairly deducible from those facts. The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim upon which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.

Baker v. Central Cambria School Dist., 24 A.3d 488, 492 n.6 (Pa. Cmwlth. 2011) (citing Palmer v. Bartosh, 959 A.2d 508, 512 n.2 (Pa. Cmwlth. 2008) (internal citations omitted)). The RALC defendants argue that the plaintiff failed to meet the criteria necessary to establish a clear right to mandamus relief/4 [M] andamus is an extraordinary writ which lies to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” South Whitehall Tp. v. Com., Dept. of Transp., 316 A.2d 104, 105 (Pa. Cmwlth. 1974). “Mandamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based upon a mistaken view of the law.” Valley Forge Racing Ass ’n, Inc. v. State Horce Racing Commission, 297 A.2d 823, 825 (Pa. 1972). “It is a fundamental principle that mandamus will not issue, as a rule, where it is apparent that the writ will be futile or ineffectual by reason of the inability of the respondent to comply therewith.” Com. ex rel. McLaughlin v. Erie County, 100 A.2d 601, 604 (Pa. 1953).

In the complaint, the plaintiff has sufficiently pleaded a right to mandamus relief. The plaintiff has established it has a right to receive a valid final judgment from RALC in the amount of $54,591.95. RALC does not dispute that it has a duty to pay the award of damages to the plaintiff. The plaintiff, as property owner who was awarded damages in a condemnation proceeding, may seek a writ of mandamus to compel payment on the judgment. Alberts v. Urban Redevelopment Authority of Pittsburgh, 277 A.2d 361, 362 (Pa. Cmwlth. 1971). Lastly, the plaintiff has no other appropriate remedy at law to compel the performance of the RALC defendants to pay the award of damages. Therefore, the plaintiff can satisfy each prerequisite to a claim for mandamus relief.

Notwithstanding the above, the RALC defendants argue that issuing a writ of mandamus would be futile because RALC has no funds or assets from which it could derive the funds to pay the judgment against it. The RALC defendants also argue that the complaint fails to aver any means by which RALC could undertake to obtain a loan without such assets, which would render a writ of mandamus to be ineffectual. However, as the Supreme Court of Pennsylvania stated in McLaughlin, “Although want of funds may not be conclusive ground against issuing the writ, and may not always prevent such issuance, the court in its discretion may refuse the remedy if it is satisfied that the respondent has not the necessary money or the means of procuring it to comply with the mandate.” 100 A.2d at 604. Therefore, the inability of RALC to pay the judgment is a factor, rather than a conclusive ground, for the court to consider when deciding whether to issue the writ of mandamus.

Further, the court notes that the RALC defendants’ assertions appear in preliminary objections, which are devoid of a notice to plead therein. As stated above, the ability to obtain financing is for the court to consider when deciding whether to issue a writ of mandamus, and the RALC defendants have not properly established this fact. The court cannot rely on an allegation contained in preliminary objections that it would be futile for the RALC defendants to obtain the appropriate financing when the RALC defendants have not set forth what attempts they have made to obtain financing. See Com. ex rel. Alessandroni v. Borough of Confluence, 234 A.2d 852, 853 (Pa. 1967) (“There is no indication in the pleadings that appellants have exhausted every possible avenue in an effort to find some way of financing this...construction”). As a result, the RALC defendants’ preliminary objection in the nature of a demurrer is overruled.

In the second preliminary objection, the RALC defendants argue that pursuant to Pa.RC.P. 1019(a), the complaint lacks sufficient specificity in that it fails to identify which acts the RALC defendants must undertake to provide the requested relief. Specifically, the RALC defendants argue that the plaintiff failed to aver an available source of funding, loan, grant, or other financial assistance RALC could receive which would enable it to pay the judgment against it. Rule 1019 provides the necessary contents of a pleading in a civil action. Rule 1019(a) provides, “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). It is not the plaintiff’s burden to establish how it is to be paid. Pragmatically, the plaintiff would not have the necessary information to aver those facts. The plaintiff can obtain information on the accounting statements of RALC and additional information regarding past avenues RALC undertook to obtain funds through the discovery process. The complaint sets forth sufficient facts to enable the RALC defendants to prepare a defense as required under Rule 1019. As a result, the plaintiff has sufficiently pleaded the facts necessary to seek mandamus relief.

Additionally, the RALC defendants argue that the plaintiff has failed to establish that they have refused to perform their duty. The Commonwealth Court of Pennsylvania has explained that prior to filing an action in mandamus, a plaintiff must “discharge all prerequisites!)]” Bruhin v. Kassab, 317 A.2d 58, 60 (Pa. Cmwlth. 1974). Namely, a plaintiff must aver that it made a demand and the defendant has refused to perform the act required of him. Here, the RALC defendants argue that they have not refused to perform the duty, but are merely incapable of performing it. The RALC defendants argue that the plaintiff must first identify a source of funds available to RALC, and then the plaintiff must make a demand upon RALC to pay the judgment. The court disagrees. Under the same reasoning as stated above, this is not the plaintiff’s burden. Such evidentiary matters may be obtained through discovery. The plaintiff has averred in the complaint that the plaintiff has made a demand upon RALC and RALC has refused payment. See complaint ¶ 24. This is sufficient for the instant purposes. As party need only plead facts, which are sufficient to enable the other party to prepare a defense, the RALC defendants have sufficiently been placed on notice. See Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974). The RALC defendants’ preliminary objections are, therefore, overruled.

Next, the Lawrence County defendants also filed preliminary objections to the complaint in the nature of a demurrer. The Lawrence County defendants argue that the plaintiff cannot satisfy the prerequisites of a claim for mandamus relief because the plaintiff has an adequate remedy at law. As stated above, before being granted a writ of mandamus, a plaintiff must prove that there exists no other adequate remedy at law. See, e.g, Maute v. Frank, 670 A.2d 737, 739 (Pa. Cmwlth. 1996). Here, the plaintiff’s claim against the Lawrence County defendants derives, inter alia, from a duty established in the guaranty agreement between the defendant Lawrence County, LCEDC, and RALC. According to the guaranty agreement, LCEDC guaranteed, through its taxing power, to secure a bond for the appeal in connection with the condemnation of the plaintiffs’ property. The plaintiffs argue that RALC is entitled to receive funds from the payment guaranteed by LCEDC, which then would be used to pay the judgment in favor of the plaintiff. This claim sounds in contract. The plaintiff is attempting to enforce the guaranty agreement as a third party beneficiary to the agreement. As the plaintiff has an adequate legal remedy against the Lawrence County defendants, and in fact, the plaintiff has initiated a civil action against the Lawrence County defendants, a writ of mandamus cannot lie. Therefore, the Lawrence County defendants’ preliminary objection in the nature of a demurrer is sustained.

Lastly, the Commonwealth defendants filed a number of preliminary objections to the complaint. First, the Commonwealth defendants argue that this court does not have jurisdiction in the instant case because the Commonwealth Court of Pennsylvania has exclusive and original jurisdiction in cases against the Commonwealth that seek equitable relief therefrom. Generally, all cases against the Commonwealth shall be brought in the Commonwealth Court of Pennsylvania. 42 Pa.C.S.A. § 761(a)(1). There are five exceptions to this general rule, one of which is eminent domain proceedings. 42 Pa.C.S.A. § 761(a)(1)(h). The instant case derives from actions pursuant to the eminent domain code. As a result, this court has original jurisdiction. The Commonwealth defendants’ preliminary objection to the jurisdiction of this court is overruled.

The Commonwealth defendants’ next preliminary objection is in the nature of a demurrer, which argues that the plaintiff cannot maintain an action against the Commonwealth defendants because they enjoy absolute immunity. In Count III of the complaint, the plaintiff demands mandamus relief against the Commonwealth defendants because the plaintiff argues that RALC at all times was acting as an agent of the Commonwealth. Because of this, the plaintiff argues that the Commonwealth defendants are obligated, and the plaintiff seeks to compel the Commonwealth to, provide RALC with the necessary aid to satisfy the judgment against it. The court disagrees.

Pursuant to the Urban Redevelopment Law, 35 P.S. § 1701 et seq., the redevelopment authorities shall “operate for the public purposes of the elimination of blighted areas through economically and socially sound redevelopment of such areas[.]” The redevelopment authorities were given various powers to fulfill this policy, including, inter alia, “[t]o acquire by eminent domain any real property[.]” 35 P.S. § 1709(i). Although being granted such powers to act within the city or county, the redevelopment authorities “shall in no way be deemed to be an instrumentality of such city or county, or engaged in the performance of a municipal function.” 35 P.S. § 1704(a). Instead, “[a]n authority under the Urban Redevelopment Law is an agent of the Commonwealth and not of the local government body.” Herriman v. Carducci, 380 A.2d 761, 763 (Pa. 1977).

Generally, the Commonwealth and its officials enjoy the protection of sovereign immunity, unless immunity is explicitly waived by statute, if the officials are acting within the scope of their duties. 1 Pa.C.S.A. § 2310. The Sovereign Immunity Act provides for nine exceptions to the Commonwealth’s sovereign immunity. 42 Pa.C.S.A § 8522. Under the instant circumstances, immunity has not been waived by the general assembly. However, the plaintiff argues that the Commonwealth defendants must provide funding to RALC based upon a mandatory duty derived from 35 P.S. §1718. This section provides as follows:

In addition to the powers conferred upon an Authority by other provisions of this act, an Authority is empowered to borrow money or accept grants or other financial assistance from the government, for or in aid of any of its operations. It is the purpose and intent of this act to authorize every Authority to do any and all things necessary or desirable to secure the financial aid or cooperation of the government in any of its operations.

35P.S.§1718. Based upon its plain language, this section empowers a redevelopment authority to act to obtain appropriate financing in order for the authority to perform in furtherance of its purpose. This section does not order the Commonwealth to fund a redevelopment authority to a certain extent. As a result, there is no mandatory duty upon the Commonwealth to fund RALC based upon this Section.

A Commonwealth party may be subject to an action seeking mandamus relief; however, an action in mandamus against a Commonwealth party cannot lie when a party seeks to compel the Commonwealth party to act or obtain money damages from the Commonwealth. Sears v. Corbett, 49 A.3d 463, 471 (Pa. Cmwlth. 2012). Under those circumstances, sovereign immunity applies. Here, the plaintiff states in the complaint that the Commonwealth defendants must “provide funding to the RALC in the amount of $54,591.95 plus interest accrued on the unpaid award and attorneys’ fees and costs to satisfy the liabilities owed to plaintiffs incurred by the RALC[.]” Complaint, ¶13. Clearly, the plaintiff is seeking to compel the Commonwealth defendants to allocate money to RALC in order to enable RALC to satisfy the judgment against it. Sovereign immunity protects the Commonwealth defendants against the issuance of this writ. The Commonwealth Court in Sears “indicated that the amount of funds appropriate by the general assembly and the purposes for which those funds are dedicated are matters of legislative discretion.” 49 A.3d at 472. As a result, the Commonwealth defendants cannot be parties to this action. The Commonwealth defendants’ preliminary objection in the nature of a demurrer is sustained.

ORDER OF COURT

And now, this 20th day of April, 2015, this case being before the court for oral argument on January 26, 2015, regarding preliminary objections to the complaint filed on behalf of the defendants, with Michael K. Parrish, Esquire, appearing and representing the plaintiffs, and Samuel Kamin, Esquire, appearing and representing defendants Redevelopment Authority of Lawrence County, Jon Natale, Vince Fuleno, W. Ryan Kegal, Frank Telesz, Dennis Alduk, and James Gaglione, Jr., Thomas Leslie, Esquire, appearing and representing defendants Lawrence County, Dan Vogler, Steve Craig, and Robert Del Signore, and Scott A. Bradley, Esquire, appearing and representing defendants the Commonwealth of Pennsylvania and Thomas Corbett, and upon consideration of the applicable record, the court hereby orders and decrees as follows:

1. The preliminary objections filed on behalf of defendants Redevelopment Authority of Lawrence County, Jon Natale, Vince Fuleno, W. Ryan Kegal, Frank Telesz, Dennis Alduk, James Gaglione Jr., are hereby overruled pursuant to the attached opinion.

2. Defendants Redevelopment Authority of Lawrence County, Jon Natale, Vince Fuleno, W. Ryan Kegal, Frank Telesz, Dennis Alduk, James Gaglione Jr., are hereby ordered to file a responsive pleading to the complaint within twenty (20) days this order of court is filed.

3. The preliminary objection filed on behalf of defendants Lawrence County, Dan Vogler, Steve Craig, and Robert Del Signore in the nature of a demurrer is hereby sustained pursuant to the attached opinion.

4. Count II of the complaint is hereby stricken and defendants Lawrence County, Dan Vogler, Steve Craig, and Robert Del Signore are hereby dismissed as defendants from this action.

5. The preliminary objection in the nature of a demurrer filed on behalf of the Commonwealth of Pennsylvania and Thomas Corbett is hereby sustained pursuant to the attached opinion.

6. Count III of the complaint is hereby stricken and defendants the Commonwealth of Pennsylvania and Thomas Corbett are hereby dismissed as defendants from the action.

7. The prothonotary shall provide a copy of the order of court to counsel of record in accordance with the provisions of Pa.R.C.P. 236 and Rule L236.

      . The Commonwealth defendants note that plaintiffs in general are barred from requesting equitable relief in the nature of declaratory judgment and injunctive relief against the Commonwealth and its Commonwealth agencies and officers. The court agrees with this argument; however, it is irrelevant to the instant case. The plaintiffs’ claim against the Commonwealth defendants is for a writ of mandamus, which mainly involves a remedy in law.

      . Because the court sustained the preliminary objection against both Commonwealth defendants, the claim against the Commonwealth defendants must be dismissed, and this court will not address the remaining contentions.


author: MCINERNEY, J.,

text:
    GMW Org. LLC v. Atlass

      April 21, 2015
   MCINERNEY, J.,

Judgment having been entered, this is an appeal from the order denying the plaintiff’s motion for post-trial relief.

I. BACKGROUND

On August 16, 2012, GMW Organization, LLC (“GMW” or “plaintiff’) commenced the instant action by way of a complaint against Steven B. Atlass (“Atlass”), Pennsylvania Bancshares, Inc. (“Bancshares”), Howell AcquisitionPartners, L.P. (“Howell”), andHowell’s general partner Krebs Partners, LLC (“Krebs”) (collectively, “defendants”); businesses which were all alleged to be affiliated with Atlass. (Pl.’s Compl. ¶¶ 2-5.) The complaint asserted a 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 April 2011 regarding GMW finding funding for two hospital projects Atlass was involved in. (See id. at ¶¶ 9-11,33,46-73.)

On July 16,2014, plaintiff’s causes of action for breach of contract and declaratory relief proceeded to bench trial before this court. 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 contract 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. (See Pl.’s Ex. 1; 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 buildings. (See N.T., Vol. 1,53-54, 204-10; 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 III, L.P. (collectively “Haskell”). (See N.T., Vol. 1, 206-07; Defs. Exs. 51-52.) On or about My 29, 2011, Saint Agnes Hospital was purchased by Howell. (N.T., Vol. 1, 146, 208.) Atlass formed Howell to purchase Saint Agnes Hospital. (See id. at 205, 208.) 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. (Id. at 128-32; Pl.’s Ex. 15.) Haskell, Howell, and Krebs are all Atlass “affiliates” within the meaning of the contract. (N.T., Vol. 1, 129, 208-09; N.T., Vol. 2, 84, 133.)

The contract provided:

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 before 21 days from the effective date;
3) Initiate contact with prospective investors and arrange introductions 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.

(Pl.’s Ex. 1, at p. 1.) The contract then set forth nearly identical compensation structures for GMW for both Northeastern Hospital and St. Agnes Hospital, specifically providing:

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 a[] 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 a 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 million would equal a $600,000 fee payable to GMW; and
3) 25% of the GP of the entity controlling...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).

(Id. at p. 2.) Regarding sources of capital, the contract provided “[a]ll 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.” (Id. at p. 1.)

On June 30, 2011, Atlass prepared the first draft of the contract and sent it to Weinberg. (PL’s Ex. 11.) Weinberg then made “somewhat substantial” edits to the first draft and provided Atlass with several subsequent drafts. (N.T., Vol. 1,98; Defs.’Exs. 6-9.)

Before entering into the contract, Weinberg sought to bring in a co-investment banker (N.T., Vol. 1,103-04,169-72,219-20.) To that end, on or about April 2011, Weinberg introduced Atlass to Steve Goldberg (“Goldberg”) who was working at Friedman, Billings and Ramsey (“FBR”). (Id. at 169-70, 219.) However, on or about May 2011, Goldberg notified Weinberg that he was resigning from FBR and moving to a new firm, Robert W. Baird & Co. (“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/GMW until his industry-required “garden leave” expired in August. {Id. at 169.) A “garden leave” is a set period of time where an investment banker may not work between transitioning from one firm to another. {See id. 169.)

Knowing that resigning from FBR would cause an inconvenience, Goldberg recommended Weinberg speak with Jim O’Brien (“O’Brien”) at FBR regarding pursuing a JV opportunity. {Id. at 32-33,49-50; N.T., Vol. 2, p. 12.) To that end, Goldberg offered that 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, 46-47; 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. (/S'eeN.T., Vol. 1,50;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 Point Partners, LLC (“Iron Point”), a private equity company. (N.T., Vol. 2, 46-47; Pl.’s Ex. 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-September 2011. {See N.T., Vol. 2, 6, 49-54; Pl.’s Ex. 37.)

After entering into the contract, Weinberg began preparing teaser/executive summary materials and financial projections. {See N.T., Vol. 1, 55-58; Pl.’s Exs. 22, 25.) During the period of time following execution of the contract, Weinberg also contacted numerous investors regarding the JV opportunities with Atlass. (N.T., Vol. 1, 35-36.) And during the months of September, October, and November of 2011, Weinberg worked diligently with Goldberg and O’Brien, after their respective “garden leave” periods expired, and other representatives of Baird whereby Weinberg created and provided due diligence information (e.g., an organizational chart, financials, etc.) and answered detailed due diligence questions to enable Baird to assess the viability of a joint venture. This work culminated with Atlass entering into a separate investment banking services agreement with Baird on November 14, 2011 (the “Howell-Baird agreement”). (See, e.g., N.T., Vol. 1, 63-67 Pl.’s Exs, 27, 37; Defs.’ Ex. 13.)

From October through November 2011, Weinberg was involved in negotiating the Howell-Baird agreement. (N.T., Vol. 1, 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 Baird’s obligations “in connection with the possible ... investment in or commitment of capital to [Howell] or the St. Agnes Continuing Care Center owned by [Howell].” (Defs.’ Ex. 13, at p. 1.) One way, however, that the Howell-Baird agreement differs from the contract is that it specifies “[f]or the avoidance of doubt, an investment or commitment of capital in the JV, the company or any project, property or business affiliated with the company may include equity, equity-linked or senior, mezzanine, subordinated or convertible debt financing.” (Id.)

On November 15,2011, Weinberg and Atlass amended the contract to include the following as GMW prospective sources of capital: “(i) Any and all persons or entities identified by Robert W. Baird & Co. Incorporated (‘Baird’) during the term of the agreement between 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 during the term of the agreement between Baird and Haskell Acquisition Partners, LP and its affiliates (‘Haskell agreement’ — to be executed as soon as practicable); ...” (Pl.’s Ex. 3.) Stated another way, the parties agreed that GMW would be credited with any source of capital identified by Baird so long as Baird identified that source between November 14, 2011 and some future date. {See id.)

Certain aspects of the contract required GMW to find the source or sources of capital if it was to be compensated for finding that capital. {See Pl.’s Ex. 1.) As used in the contract, Atlass believed the term “capital” includes equity, but not debt. (N.T., Vol. 1, 217.) Weinberg, on the other hand, argued the term “capital” as used in the contract included equity and debt. {Id. at 99-100.)

Upon receiving the Howell-Baird agreement, which specified “for the avoidance of doubt” capital includes equity and debt with respect to the services to be provided by Baird, Weinberg did not clarify with Atlass that the word “capital” as used in the contract also included debt. {Id. at 113-15.) In negotiating the Howell-Baird agreement, Weinberg marked up the drafts proposed by Baird. In doing so, Weinberg at one point proposed to rewrite the terms of the agreement such that it would have read “for the avoidance of doubt, an investment or commitment of capital in the JV, [Howell] or the St. Agnes Continuing Care Center owned [Howell] must be an equity investment, not debt.” (Defs.’ Ex. 83.) Thus, Weinberg understood prior to trial that the word “capital” could include only equity, and even asserted this position in his dealings with Baird.

After it was formally engaged by Howell, Baird engaged in due diligence, prepared pre-marketing materials such as “teasers,” contacted prospective investors, responded to due diligence requests from investors, and negotiated letters of intent. (N.T., Vol. 2, 14-16.) 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 Atlass the 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 Atlass and the Atlass affiliates during the term of the contract and during the term of the Howell-Baird agreement.

During January, February, and March of 2012, Weinberg participated in conference calls and/or in-person meetings/ tours with Iron Point, among others. Weinberg also provided, among other things, a summary outline to Atlass in preparation for an Iron Point call and recommended and participated in conference calls to prepare for the Iron Point call. (N.T., Vol. 1,77-82; N.T., Vol. 2,227; Pl.’s Exs. 40-43.) Weinberg also provided comments on multiple iterations 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 March 6, 2012. (N.T., Vol. 1, 80-81; Pl.’s Ex. 43; Defs.’ Ex. 25.)

Weinberg received a copy of the first term sheet. (N.T., Vol. 1, 125.) The first term sheet proposed forming a new limited liability company or companies to own the hospitals and real property at both St. Agnes Hospital and Northeastern Hospital. (Defs.’ Ex. 25, 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, 127.)

On March 19, 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 liability company or companies. (N.T., Vol. 1,127.) Weinberg also understood a limited liability company does not have a general partner. (N.T., Vol. 1, 127-28.) The revised term sheet valued Northeastern Hospital at $12,350,000 and St. Agnes Hospital at $5,086,500 and proposed providing Atlass with a $2,500,000 “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. 25-26.) There were only limited negotiations between Atlass and Iron Point. (N.T., Vol. 1, 126-27,225-26.) And for those limited negotiations, Baird took the lead in negotiating on Atlass’ behalf. {Id. at 88, 226-27; N.T., Vol.2,14,22.) Weinberg had no involvement with these negotiations with Iron Point. (N.T., Vol. 2,27-28.)

At some point in the negotiations, Iron Point decided against pursuing a j oint venture with Northeastern Hospital and focused solely on St. Agnes Hospital. (N.T., Vol. 1,230.) As a result, instead of pursuing a deal for the two hospitals in the $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 $2,500,000 distribution was changed to a proposed $2.5 million loan. (Id. at 230-34; N.T., Vol. 2, 30.)

On June 1, 2012, Iron Point and Howell closed a transaction whereby they formed St. Agnes MOB, LLC, a limited liability company that would own and operate the St. Agnes Hospital business and real property formerly owned and operated by Howell. (N.T., Vol. 1, 229-31; Pl.’s Ex. 15.) Pursuant to the terms of the transaction, Iron Point contributed $6,027,579 of 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. 1, 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 Howell took a 10% ownership interest. (See id.)

Iron Point is a GMW prospective source of capital in accordance with the contract and the email amendment dated November 15, 2011. (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. Agnes MOB JV Transaction. (N.T., Vol. 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. (PI. ’s Ex. 15, at §§5.01, 5.02(a).) Howell, however, was designated as the initial managing member. (Id. at §5.05(a).) While Howell was to “report to, and be subject to the direction and control of, the board of managers,” Howell was “responsible for the implementation of the decisions of the board of managers and for conducting the day-to-day-business and affairs of the company in accordance with the annual plan and budget.” (Id. at §5.05(a).) Howell currently remains the managing member of St. Agnes MOB, LLC and receives $15,000 per-month to manage St. Agnes MOB. (See, e.g., N.T., Vol. 2, 126-27.)

In accordance with the term of the contract that GMW would receive “25% of the GP in the entity that controls St. Agnes” if a transaction effected “with a GMW prospective source...capital[,]” GMW sought a 25% interest in Howell. (N.T., Vol. 1, 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 his affiliates further argued even if it was assumed that Howell controls St. Anges MOB, LLC, the contract provided GMW would only be entitled to a 25% interest in the general partner of Howell, which is Krebs. (N.T., Vol.2, 141, 198.)

In accordance with the term of the contract that GMW would receive “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...of capital)[,]” GMW also sought 10% of the $2,500,000 that was loaned to Howell, or $250,000. (See, e.g., N.T., Vol. 2, 158-60.) GMW argued it 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 dealer where Weinberg is a registered representative) testified that debt is always considered a form of capital.” (Pl.’s proposed findings of fact and conclusions of law ¶58 (citations to the record omitted).) Atlass and his affiliates, on the other hand, argued GMW was “not entitled to any monetary compensation in connection with the $2,500,000 loan because the loan was not a capital-raising event.” (Defs.’ proposed findings of fact and conclusions of law ¶149.) Moreover, Atlass and his affiliates argued GMW was not entitled to any monetary compensation in connection with the $2,500,000 loan because “[t]he $2,500,000 loan from Iron Point to Howell was debt”; Atlass did not believe capital included debt under the contract; and Weinberg’s testimony on the issue was not credible. (Id. at ¶¶ 131-40, 148-49.)

While Baird had been formally engaged by Howell on November 14, 2011, 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. at p.2 ¶ 3.) The GMW-Baird agreement further included certain acknowledgments regarding the fact that GMW had already entered into a separate compensation agreement with Atlass. Specifically, it was acknowledged that GMW was contracted to receive additional compensation, “(i.e., GMW shall be paid by Mr. Steven Atlass and his Affiliates (‘Atlass’) 10% 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 general partnership of [Howell and/or Haskell].” (Id. at pp. 1-2.)

Prior to the spring of 2012, Weinberg did not tell Baird that GMW was already contracted to receive compensation directly from Atlass in connection with a Northeastern Hospital and/or St. Agnes Hospital transaction. (N.T., Vol. 1, 180-82; N.T., Vol. 2, 64-65.) Before Baird learned from Atlass that GMW was already contracted to receive compensation directly from Atlass, Baird had agreed to split the fees so that GMW would get 50% of the net revenues Baird received from any transaction. (N.T., Vol. 1,91-92, 180-82.)

Upon learning Weinberg had not disclosed GMW’s pre-existing compensation agreement with Atlass, Baird reduced the fee splitting agreement so that GMW would only get 25% of the net revenues Baird received from 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 “inappropriate form of business dealings....” (N.T., Vol. 1, 182.)

Prior to the bench trial and the filing of its complaint, GMW had already received $108,000 in compensation under the contract and the GMW-Baird agreement in connection with the St. Agnes Hospital transaction. Following the conclusion of the bench trial, this court issued findings of fact and conclusions of law regarding any additional compensation GMW may have been due under the contract.

Regarding whether GMW was entitled to 10% of the $2.5 million Iron Point loaned to Howell, this court concluded GMW was not entitled to such additional compensation because the $2.5 million Iron Point loaned to Howell was debt. In reaching that conclusion, we noted: (1) the contract provides GMW would be entitled to “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)...”; (2) the example the contract references, however, then provides the amount for purposes of the 10% is “less debt”; and (3) the identical compensation structure for Northeastern Hospital also specifically provides the amount for purposes of the “10% of any funds Atlass receives” is “net of debt.” Thus, while having determined Iron Point was a GMW prospective source of capital, this court concluded pursuant to the unambiguous terms of the contract, GMW was not entitled to the additional $250,000 in compensation as the funding Howell/Atlass received from Iron Point was debt in the form of a loan.

This court, however, did conclude GMW was entitled to a 25% interest in Krebs, because: (1) the contract provided GMW would be entitled to “25% of the GP in the entity that controls St. Agnes ... if a transaction effects with a GMW prospective source... of capital []”; (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 within the meaning of the contract 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. As such, this court concluded GMW was entitled to a 25% interest in the general 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, GMW filed a timely motion for post-trial relief. In its motion, GMW argued “[t]his [c]ourt should clarify its decision under Rule 227.1 to award ... 25% of the promote [or carried interest in the project] to plaintiff as part of its interest in Krebs.” (Pl.’s post-trial mot. ¶2.) GMW also argued this court “imported a term from the NE Hospital compensation agreement (‘net of debt and costs’) into the St. Agnes Hospital transaction, where plaintiff’s compensation on the St. Agnes Hospital transaction never included the ‘net of debt’ term.” (Id. ¶31 (emphasis removed).) As such, GWM argued this court erred in not awarding it a “10% fee on [the] $2,500,000 transaction....” (Id. at ¶ 5.)

On November 7, 2014, defendants filed a response in opposition to plaintiffs motion for post-trial relief. Therein, defendants argued “[]this [c]ourt need not ‘clarify’ its decision, which clearly states both [plaintiff’s entitlement to only a 25% beneficial interest in Krebs and the basis for that determination — the unambiguous terms of the [contract].” (Defs.’ Resp. ¶2.) Citing Jarl Investment, L.P. v. Fleck, 937 A.2d 1113 (Pa. Super. Ct. 2007), among others, defendants also argued “[a] court should not look at a single sentence or even provision of agreement in isolation to determine if an ambiguity exists, but should look to the entire agreement.” (Defs.’ resp. ¶ 4.) 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 provision to the example above, which was for the North East Hospital compensation structure, included a deduction for debt and costs, demonstrating the parties’ intent that the St. Agnes Hospital compensation provision also include a deduction for debt and costs.” (Id. at ¶¶ 4,31,34.)

On December 18, 2014, this court entered an order denying GMW’s motion for post-trial relief. Thereafter, GMW filed a timely notice of appeal and this court ordered it file a Pa. R. App. P. 1925(b) statement. In its 1925(b) statement, plaintiff set forth the following four complaints of error:

1. The trial court erred in failing to enter a specific declaration concerning plaintiff’s rights and interest in the “promote” with respect to the St. Agnes transaction, 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... 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 defendants] avoid[] having to pay plaintiff his 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 from 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.
3. The trial court erred in failing to award plaintiff $250,000 based on the “amount” received by defendants in the St. Agnes transaction, where: (a) all “debt” considerations were irrelevant to the St. Agnes transaction because the provisions in the agreement 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 took place; (b) even the inapplicable “debt” terms which the court borrowed from other provisions in the agreement not relating to the St. Agnes transaction called for using pre-existing debt of which the St. Agnes transaction had none; and (c) there was no genuine debt from the St. Agnes transaction which could be used to reduce plaintiff’s $250,000 payment entitlement.
4. The trial court erred in construing the agreement of the parties against plaintiff contrary to the doctrine of contra proferentem such that it failed to award plaintiff $250,000 pursuant to the St. Agnes transaction where the agreement was drafted by ... defendants with the assistance of counsel and plaintiff had no counsel.

(Pl.’s 1925(b) Statement^ 1-4 (emphasis altered).)

II. DISCUSSION

All of GMW’s complaints of error relate to this court’s interpretation of the contract. “When interpreting a contract, the court’s paramount goal is to ascertain and give effect to the intent of the parties....” Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super. Ct. 1997) (quotations omitted). In interpreting a written contract, “the intent of the parties is the writing itself.” Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004). In interpreting such a contract, “each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” Bethlehem Steel, 703 A.2d at 42 (quotations omitted).

“If left undefined, the words of a contract are to be given their ordinary meaning.” Kripp, 849 A.2d at 1163 3. “When the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself.” Id. “The intent of the parties ... is deemed to be embodied in ‘what the agreement manifestly expressed, not what the parties may have silently intended.”’ Greater Nanticoke Area Sch. Dist. v. Greater Nanticoke Area Educ. Ass ’n, 760 A.2d 1214, 1219 (Pa. Commw. Ct. 2000), quoting Delaware County v. Delaware County Prison Employees Indep. Union, 713 A.2d 1135, 1138 (Pa. 1998).

When, however, “the words used in a contract are ambiguous, a court may examine the surrounding circumstances to ascertain the intent of the parties.” Bethlehem Steel, 703 A.2d at 42, quoting Halpin v. Lasalle Univ., 639 A.2d 37, 39 (Pa. Super. Ct. 1994). “When determining whether a contract is ambiguous, a court must view the contract as a whole and not in discrete units.” Bethlehem Steel, 703 A.2d at 42, quoting Halpin, 639 A.2d 37 at 39. “A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Kripp, 849 A.2d at 1163. “When ... an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is patent, created by the language of the instrument, or latent, created by extrinsic or collateral circumstances.” Id.

First, GMW complains this court:

erred in failing to enter a specific declaration concerning plaintiff’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 plaintiff’s interest in the “promote;” and (c) the [c]ourt only awarded plaintiff an interest in 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 defendants] avoid[] having to pay plaintiff his share of the “promote” money.

(Pl.’s 1925(b) Statement ¶ l.)As explained by Weinberg at trial, “[generally 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 share in the upside as the property or the entity becomes successful” and the limited partners have been paid back with interest. (N.T., Vol. 1, 68-69.)

As a preliminary matter, this court did not err in failing to enter a specific declaration concerning plaintiff’s rights and interest in the promote because plaintiff did not ask for such a 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 because it was seeking a 25% beneficial interest in Howell itself, in part because it argued Atlass controls whether Krebs would receive any of the promote. (See, e.g., Pl.’s proposed findings of fact and conclusions of law ¶¶ 75,94.) The contract, however, only provided GMW was entitled to “25% of the GP in the entity that controls St. Agnes [Hospital]” and made no mention of the “promote.” As such, this court correctly concluded GMW was only entitled to a 25% beneficial interest in Krebs pursuant to the unambiguous terms of the contract and as a primary matter made no error in failing to enter a specific declaration concerning plaintiff’s rights and interest in the “promote.”

As this was a breach of contract case, this court was focused on the language of the parties’ written agreement. That agreement provided GMW would be entitled to “25% of the GP in the entity that controls St. Agnes [Hospital]” and made no mention of a “promote.” While 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” St. Agnes, and the board does not have a general partner, this 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 ¶¶ 55-56, citing Black’s Law Dictionary (9th ed. 2009) (defining control as “exercising] power or influence over ...”).) As such, this court concluded Howell controls St. Agnes Hospital within the meaning of the contract, and the contract provided GMW was entitled to a 25% interest in the general partner of Howell, which is Krebs.

In reaching this conclusion, this court was fully aware of plaintiff’s argument that it was entitled to 25% of Howell itself because Atlass controls whether Krebs would receive any of the promote. However, as the terms of the contract were clear and unequivocal that plaintiff is only entitled to 25% of the GP in the entity that controls St. Agnes [Hospital]” and made no mention of a promote, this court was not examining the surrounding circumstances to ascertain the intent of the parties regarding the promote, see, e.g., Bethlehem Steel, 703 A.2d at 42 (stating, “[w]hen the words used in a contract are ambiguous, a court may examine the surrounding circumstances to ascertain the intent of the parties”), nor “recognize [ing] the importance of the ‘promote’ to the parties...” as asserted by plaintiff, (PL’s 1925(b) Statement ¶ 1). Rather, in reaching its conclusion that plaintiff was only entitled to a 25% interest in Krebs, it was enforcing the clear and unequivocal terms of the contract the parties actually entered into.

Moreover, even if the provision was ambiguous and required the use of extrinsic evidence, see, e.g., Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 6 (Pa. Super. Ct. 2013) (stating before the court admits parol evidence “to explain or clarify or resolve” an ambiguity, the court “first analyze[s] the contract to determine whether an ambiguity exists requiring the use of extrinsic evidence”), it is not true undisputed extrinsic evidence existed to support plaintiff’s interest in the promote. Rather, what the extrinsic evidence showed in this regard was that the parties intended for GMW to receive a 25% interest in a newly formed general partnership that would control St. Agnes Hospital after a transaction was affected, not a 25% interest in the existing Howell Acquisition Partners, L.P., which Atlass formed to purchase the hospital in the first place. (See findings of fact and conclusions of law, at 2 ¶ 10, 21-22 ¶¶59.) However, as this court concluded in its findings of fact and conclusions of law, by the plain and unequivocal terms of the contract, GMW assumed the risk of whether or not this would happen. (See id. at 21-22 ¶¶ 59-61 (noting it was reasonably foreseeable a private equity investor might dictate the deal be structured as a limited liability company rather than a limited partnership).) And it did not happen as Iron Point-without any manipulation on the part of Atlass—decided the new entity would be a limited liability company as opposed to a limited partnership with a general partner. (Id. at 21-22 ¶¶59-60.)

Additionally, the extrinsic evidence also showed that as part of GMW’s fee splitting agreement with Baird, GMW acknowledged it was “contracted by Atlass to receive a 25% position in the general partnership of the company.” (Pl.’s Ex. 30 at ¶ 3.) As relevant here, the term “company” was defined in the GMW-Baird agreement as Howell whose general partner is Krebs. Thus, the extrinsic evidence also showed GMW understood its compensation was never to be a 25% interest in Howell itself. Therefore, rather than there being undisputed extrinsic evidence supporting GMW having a 25% interest in the promote and a specific declaration of the same, what the extrinsic evidence actually showed was that GMW’s compensation was to be a 25% interest in either Krebs or a newly formed “Howell GP,” regardless of whom may receive or control the promote, and Weinberg’s testimony to the contrary was self-serving and lacked credibility, (see, e.g., N.T., Yol. 1., 68 (discussing a July 11,2011 letter to an investor, which provided “Howell becomes the GP (Howell GP) of the JV with the following approximate promotes/carried interests... [,]” and stating that was generally the structure that was ultimately used to close the deal with Iron Point)).

In sum, the unambiguous terms of the contact entitled plaintiff to a 25% beneficial 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 Keystone Dedicated, 77 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.”)

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 unambiguous[] 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 ¶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.” Bethlehem Steel, 703 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 N ortheastem Hospital (“10% of any funds Atlass receives from a[] NE Hospital transaction”) and St. Agnes Hospital (“10% of the amount Atlass would receive from a St. Agnes transaction”). (Cf Pl.’s 1925(b) Statement ¶ 3 (stating the court erred in failing to award $250,000 because “all ‘debt’ considerations were irrelevant to the St. Agnes transaction because the provisions in the agreement relating to...the St. Agnes transaction did not contain a term allowing for ‘debt’ to reduce plaintiffs [compensation]...” 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:

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 a[] 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 a 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 million would equal a $600,000 fee payable to GMW; and
3) 25% of the GP of the entity controlling ... NE Hospital.

ST AGNES HOSPITAL

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).

(Pl.’sEx. l,p. 2.)

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 tier-one compensation, was 3% of a Northeastern Hospital or St. Agnes Hospital transaction. 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 GP of the entity that controlled Northeastern Hospital or St. Agnes Hospital following a transaction.

At issue here is whether GMW 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 specifically referenced in parentheses the example above, which was for the Northeastern Hospital compensation structure and specifically provided the amount for purposes of the 10% was “less debt” and “less expenses.” The fact that the example the St. Agnes Hospital provision expressly referenced provided the amount for purposes of the 10% was “less debt” and “less 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 Hospital provision for tier-two compensation was also net of debt and costs and the contract unambiguously provided GMW was not entitled to the 10% compensation where the amount Atlass received was debt. This is the only reasonable construction of the contract;, is well supported by viewing the contract as a whole; and should be affirmed. See generally Bethlehem Steel, 703 A.2d at 42 (stating that in construing a contract, “[t]he 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 [to] the parties, bearing in mind the objects manifestly to be accomplished.”).

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) only “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 property...at the time of the closing of a [transaction.” (Pl.’s post-trial mot. ¶42.) Regarding the second complaint, plaintiff argued “[i]n actual fact, the ... $2.5 million distribution to Howell was not truly a loan, 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 ¶ 44.)

The problem with plaintiff’s first complaint, however, is that there was no evidence, either in the unambiguous contract or in the record (assuming extrinsic evidence was relevant), that the “net of debt” and “less debt” terms referred to funds used to pay off existing debt, rather than new debt provided as part of a transaction. The problem with plaintiff’s second complaint is very similar.

At trial, Weinberg claimed the $2.5 million was structured as a loan on his recommendation to reduce Atlass’ tax burden or, alternatively, by Atlass to avoid paying GMW 10%. (See, 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 the fact that the interest on the $2.5 million loan “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’” support plaintiffs contention that “the ... $2.5 million distribution to Howell was not truly a loan ...’’(Pl.’s post-trial mot. ¶ 44.) Rather, the $2.5 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 refinancing 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 contrary.

Finally, GMW complains “[this] [c]ourt erred in construing the agreement of the parties against plaintiff contrary to the doctrine of contra proferentem such that it failed to award plaintiff $250,000 pursuant to the St. Agnes transaction where the agreement was drafted by the defendants with the assistance of counsel and plaintiff had no counsel.” (Pl.’s 1925(b) Statement ¶ 4 (emphasis altered).) The court disagrees for the following two reasons.

First, the doctrine of contra proferentem allows courts to construe an ambiguity in a contract against the drafter. See, e.g., Sun Co. v. Pennsylvania Tpk. Comm’n, 708 A.2d 875, 878-79 (Pa. Commw. Ct. 1998), citing Restatement (Second) of Contracts § 206 (“In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.”); Redevelopment Auth. of City of Philadelphia v. Ins. Co. of N. Am., 675 A.2d 1256, 1257 (Pa. Super. Ct. 1996) (providing that “[w]here a provision of a [contract] is ambiguous, it should be construed against the...drafter of the document[,] but where the provision “is clear and unambiguous, the court must give effect to its plain and ordinary meaning”). Here, the contract unambiguously provided that GMW was not entitled to any tier-two compensation where the amount Atlass received from the St. Agnes Hospital transaction was debt. As such, the doctrine of contra proferentem was inapplicable to the court’s interpretation of the contract and there was no error as plaintiff claims.

Second, even if the provision was ambiguous, courts are reluctant to apply the doctrine where the agreement is between sophisticated parties or has been negotiated. See, e.g., Kozura v. Tulpehocken Area Sch. Dist., 791 A.2d 1169, 1175 n.8 (Pa. 2002) (stating “[t]he principle that a 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.”); Eastcoast Equip. Co. v. Maryland Cas. Co., 218 A.2d 91, 92 (Pa. Super. Ct. 1966) (stating there would little to no reason to apply the doctrine of contra proferentem to an agreement between two large companies who both had been advised by competent counsel); Williston on Contracts § 32:12 (stating “[application of the rule may be further limited by the degree of sophistication of the contracting parties or the degree to which the contract was negotiated”). Here, 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 contra proferentem was still inapplicable to the court’s interpretation of the contract and there was no error as plaintiff claims.

While plaintiff may now regret 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 terms of that contract and the evidence presented at trial, plaintiff was not entitled to any tier-two compensation where the amount Atlass received from the St. Agnes Hospital transaction was debt. The $2.5 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 under the contract to additional compensation in the amount of $250,000 should, therefore, also be affirmed on appeal.

      . Plaintiff’s cause of action for unjust enrichment, which was asserted in the alternative, also proceeded to trial.

      . This compensation was paid either directly to GMW or to its broker-dealer, Grant Williams.

      . 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 affirmed.