The obligations of FedEx Ground and the service providers are set out in contractual agreements. In general, the contractual conditions for service providers include the following: you will receive a contractually agreed amount based on the volume of packages delivered and / or miles contracted, as well as other contractual conditions of the agreement. Third, of course, the defendant rightly points out that the court should not consider evidence extrinsic to the agreement if the agreement is unambiguous. See Duquesne Light Co.c. Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir. 1995) (“Only if the letter is ambiguous can the investigator examine all relevant extrinsic evidence to determine the mutual intent of the parties.”) (Pennsylvania Act Investigation). However, for the reasons set out below, the court finds a latent ambiguity in the agreement of the parties. Therefore, McMahon and Verstraete`s statements on the implementation of the agreement by the parties may be relevant to the dispute between the parties. See e.B.

Beta Spawn, Inc.c. FFE Transp. Servs., Inc., 250 F.3d 218, 227 (3d Cir. 2001) (“However, if a contractual provision is ambiguous, extrinsic evidence may be properly admitted to resolve the ambiguity.” (cited in Herr`s Estate, 161 A.2d 32, 34 (Pa. 1982)). In its statement, McMahon explained that contractors operating from more than one terminal station must have a separate operating agreement for each station. The defendant objects to this proposed fact because of the lack of merit, and the court agrees that McMahon does not adequately explain its basis for knowing the agreements of other contractors with FedEx Ground. James Wambach, Senior Madison Station Manager at FedEx Grounds, was also asked if he agreed to rockford`s Ecolab account management plan. Wambach replied: “My concern would be that BJ McMahon owns the Beloit zipper and is aware that this account is coming on board. I think we should run away from Erik Wrolstad to make sure we move properly.

I think BJ could drive the trailers to [Rockford]. (Id. on p.3.) On the same day, Richard Seelhoff, general manager of the Midway District, emailed Thomas Beeman: “Let me know if the Madison IC P&D [as far as Brooks Jay is concerned] has a tractor. since this is the first right of IC, . but I know Ecolab has a very close relationship with the [Rockford] entrepreneur. (Kramer Decl., Ex. O (dkt. #52-15).) While the applicant does not develop this framework for the review of extrinsic evidence, it does develop extensive extrinsic evidence to support the applicant`s reliance on the Madison station number in the agreement – the necessary “contractual hook” – to support the finding of latent ambiguity. In particular, the applicant notes that all of Brooks Jay`s services are related to Madison Station (at least since the 2015 Addendum), FedEx Ground`s practice of having a contractor enter into separate agreements with each station for which it wishes to provide services, and FedEx Ground`s internal emails relating to the Ecolab site, which appear to support the applicant`s interpretation that, according to the agreement, the location was related to Madison Station.

This course of action constitutes convincing evidence of the parties` intention to use Brooks Jay`s services for certain service areas associated with Madison Station. See resolution Tr. Corp.c. Urban Redevelopment Auth. of Pittsburgh, 638 A.2d 972, 976 (Pa. 1994) (“In the absence of an express provision to the contrary, custom or usage, once established, shall be deemed to form part of a contract and shall be binding on the parties, although not mentioned therein, provided that they are aware of it and have entered into a contract by reference.” (Emphasis added)). Based on this evidence, the court concluded that there is latent ambiguity in the contract as to whether Brooks Jays` care of FedEx Ground customers in its main service areas is related to Madison Station. There is no doubt that the parties have entered into a valid contract.

Instead, the parties dispute whether any of the terms of their agreement require service from FedEx Ground customers located in the plaintiff`s area via Madison Station. Despite the parties` efforts to prove otherwise, there is no explicit language in one way or another. In support of its argument that a customer may be transferred to another station in one of Brooks Jay`s major service areas, FedEx Ground refers the court to the general provisions of the agreement regarding: FedEx Ground`s obligation to “provide a fully competitive service standard”; Brooks Jay`s agreement to “conduct activities under the terms of this Agreement in order to achieve the results presented to shippers and receivers”; and FedEx Ground`s responsibility to set “business goals and outcomes.” (Def.`s Opening Br. (dkt. #37) 6-7 (cites Def.`s PFOFs, Ex.B (dkt. #38-2) § 1.15, 5.1).) As noted above, none of these provisions address the parties` fundamental dispute: are Brooks Jay`s services related to Madison Station under the Agreement. The plaintiff, for its part, refers the court to the conspicuous location of Madison Station number 00537, which appears at the bottom of each page of the contract, and Addendum 4, which describes Brooks Jay`s main supply areas – also the station number as 00537. Similarly, the applicant relies on Article 5 of the Agreement, which provides that the payments are at least partially related to whether the “contractor`s terminal meets its service objectives”. (Pl.`s Opp`n (dkt.

#47) 11 (cites the PFOFs of Def., Ex.B (dkt. #38-2) 30).) While the court finds this evidence convincing (or at least more compelling than that presented by the defendant), there is no explicit language that limits Brooks Jay`s contractual agreement with FedEx Ground at Madison Station or otherwise requires account service in Brooks Jay`s main service area outside of Madison Station. Even assuming that the language to which the plaintiff refers is “more precise” than the more general provisions invoked by the defendant, the conditions invoked by the plaintiff are not sufficiently precise or clear to establish that Brooks Jay`s service is limited to madison station under the terms of the agreement. See Marcinak v. Se. Greene Sch. Dist., 544 A.2d 1025, 1027 (Pa. Super. Ct.

1988) (“[I]n the specific provisions of a written contract are generally considered to be per cent in the sense of general terms in relation to a particular subject.”). Other contractual sections concern the use of subcontractors and orders. Section 3.1 of Addendum 16 was implemented on August 28, 2015 and relates to subcontracting. This section states: “The Contractor may subcontract its obligations to provide services under the Agreement to any Independent Contractor under an operating agreement with FedEx Ground or to an ISP (independent service provider operating under an ISP agreement with FedEx Ground (“Subcontractor”). (Id. at p. 203.) Addendum 16 further states: “The Contractor agrees that FedEx Ground may pay subcontractors for work performed in accordance with any agreement FedEx Ground has entered into with the Subcontractor. (Addendum 16, § 13.2, p.204.) Article 18 relates to the “Assignment” and states in a corresponding part: “If the Contractor is in good condition under this Contract, the Contractor has the right, with written notice from RPS 30 days in advance, to assign its rights and obligations under this Agreement to a replacement Contractor acceptable to RPS as qualified to provide the Contractor`s services under this Agreement. (Id. at § 18.) Plaintiff Brooks Jay Transportation, Inc. alleges that the defendant FedEx Ground Package System, Inc. transferred a customer account in Brooks Jay`s service area to another FedEx ground transportation provider in violation of the parties` operating agreement.

The court received the defendant`s application for summary judgment. (Dkt. #36.) For the following reasons, the court will dismiss this application and decide actual factual issues as to whether: (1) the operating agreement was limited to Brooks Jay`s Madison Station, Wisconsin; (2) FedEx Ground has breached the Agreement by transferring the operation of a Customer Account to another station; and (3) Brooks Jay suffered damage as a result of a violation. All of this is consistent with plaintiff Brooks Jay`s position that he has only one operating agreement with FedEx Ground because “all of its pickups go to Madison and all of its deliveries come from Madison” (Pl.`s Add`l PFOFs (dkt. #49) ¶ 69), and that each Van, Semi-Trailer or other FedEx vehicle is assigned to a specific terminal, which means that its payments or settlements are at least partially determined by the station served. .