Butler Twp. v. G.G. Aubrey & J.M. Aubrey v. R.C. ward ~ Appeal of: G.G. Aubrey & J.M. Aubrey ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Butler Township :
:
v. :
:
George G. Aubrey and John M. Aubrey :
:
v. :
:
Robert C. Ward, Deborah A. Ward, :
Jeffrey P. Miller and Megan M. Groh :
Miller :
:
Appeal of: George G. Aubrey and : No. 405 C.D. 2022
John M. Aubrey : Submitted: March 3, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 21, 2023
George G. Aubrey and John M. Aubrey (Aubreys) appeal from a
judgment entered in favor of Butler Township (Township) by the Court of Common
Pleas of Butler County (trial court) for the cost of replacing a storm water pipe and
the Township’s attorney and engineering fees associated with the litigation. The
trial court’s verdict also dismissed the additional defendants, Robert C. Ward and
Deborah A. Ward (Wards) and Jeffrey P. Miller and Megan M. Groh Miller (Millers)
from the action. Upon review, we affirm in part, reverse in part, and vacate and
remand in part.
I. Background
In 1988 and 1989, the Aubreys were in the process of planning a
residential development surrounding a golf course in the Township. The
development plan contemplated the placement and maintenance of a storm water
management system that included a retention pond and associated pipes and culverts
on neighboring property owned by the Wards. During the development planning
and approval process, several written agreements were drafted that are pertinent to
the dispute in this case.
On February 24, 1988, the Aubreys and the Wards signed a Contract of
Agreement and Related Covenants concerning road construction and the retention
pond (First Aubrey-Ward Agreement). Reproduced Record (RR) at 41a-47a. In
relevant part,1 the First Aubrey-Ward Agreement required the Wards to “retain and
maintain a ‘water retention pond’ as constructed by [the] Aubrey[s] on [the]
Ward[s’] property pursuant to Butler Township specifications.” Id. at 43a.
On April 1, 1988, the Aubreys and the Wards signed a second and
supplemental Contract of Agreement (Second Aubrey-Ward Agreement). RR at
21a-22a. The Second Aubrey-Ward Agreement referred to the First Aubrey-Ward
Agreement and added a provision in which the Aubreys “agree[d] to repair any and
all ‘pipes,’ except those damaged by [the] Ward[s] for[] a period of thirty (30) years . .
. .” Id. at 21a.
1
In addition, the Wards agreed to dedicate a strip of land at the northern edge of their
property for part of a planned road. RR at 41a-42a. The Wards, who were considering developing
their own property, also agreed to pay the Aubreys $6,000 for frontage and for engineering and
legal fees and to pay the Aubreys $38,000 toward the road construction costs in the event Wards
developed their own property in the future. Id. at 43a.
2
On May 5, 1988, the Wards signed a proposed Agreement with the
Township, which the Township never executed (Unexecuted Ward-Township
Agreement). RR at 38a-39a. Under the Unexecuted Ward-Township Agreement,
the Wards would have been “perpetually liable for the maintenance and upkeep of
the storm water retention pond including any culvert, swales, drainage pipes,
spillways, discharge channels, and/or other parts of the storm water retention pond.”
Id. at 38a. The Unexecuted Ward-Township Agreement would also have required
the Wards to note their perpetual maintenance obligation on the development plan
and record the agreement at their own expense. Id. at 38a-39a. However, the
Township and the Wards maintain that the Township never accepted the Unexecuted
Ward-Township Agreement. Id. at 62a & 186a. That agreement was never recorded.
Id. at 63a & 187a. The Aubreys, who were not parties to the Unexecuted Ward-
Township Agreement, are the only parties who assert that it was ever finalized.
On May 15, 1988, the Aubreys and the Township signed an
Indemnification Agreement. RR at 9a-10a. In the Indemnification Agreement, the
Aubreys, as the Developer, agreed to indemnify the Township and hold it harmless
“against all liability, claims, judgments, actions, causes of actions, suits or demands
for damages attributable to or arising in whole or part, from the . . . water retention
devices . . . .” Id. at 10a.
Finally, on April 27, 1989, the Aubreys and the Township signed an
Agreement relating to the development plan’s storm water management system
(Storm Water Management Agreement). RR at 12a-15a. In the Storm Water
Management Agreement, the Aubreys, again as the Developer, agreed to be
“perpetually responsible for the maintenance of the storm water control devices in
accordance with the approval plan and township ordinances [and] for the
3
maintenance and upkeep of the storm water management plan including any
retention devices, culverts, swales, drainage pipes, spillways, discharge channels,
and/or other parts of the plan . . . .” Id. at 15a.
In 2012, the Wards sold their property to the Millers. RR at 52a-55a.
The deed recited that the conveyance was subject to the First and Second Aubrey-
Ward Agreements. RR at 53a.
In August 2017, within the 30-year period covered by the Second
Aubrey-Ward Agreement, the Township obtained a written opinion from an
engineer stating that the pipe emptying into the retention pond had deteriorated and
needed repair. RR at 18a. The letter noted that the Storm Water Management
Agreement made the Aubreys responsible for the repairs. Id. Later that month, the
Township sent the Aubreys a certified letter enclosing the engineer’s written opinion
and demanding that the Aubreys repair or replace the pipe. Id. at 17a; see also RR
at 595a.
The Aubreys denied responsibility for repair or replacement. They
blamed the Township and the Wards for the pipe’s deterioration, asserting that the
Township’s alleged dumping of “excessive chlorides/salt [(on the roads, evidently
referring to winter road treatment)] played a major role for damage to the storm
water management system along with the construction by Ward/Miller that exposed
a section of pipe to air and sun.” RR at 629a. The Aubreys theorized that “[t]he
excessive salt applied by [the Township] for decades and the exposure of the pipe to
sun and air aged the pipe prematurely through oxidation. However, the integrity of
the sides and top of the pipe are sound.” Id.
Following the Aubreys’ continued refusal to repair or replace the pipe,
the Township filed a civil complaint, including a claim seeking declaratory relief
4
(Count I) and a breach of contract claim to enforce the Storm Water Management
Agreement (Count II). RR at 2a-7a. During the pendency of the action, the
Township obtained an updated engineering opinion based on a re-examination of the
pipe using a closed-circuit television camera (CCTV). In a March 2021 letter to the
Township, the engineer opined:
A review of the CCTV revealed that the pipe invert
(bottom of pipe) has deteriorated. The invert has rusted
away along large sections of the pipe which has in turn
caused the pipe bedding (stone) to be washed away. This
deterioration has reduced the structural strength of the
pipe, which has led to the development of a sink hole on
the property, and will likely lead to additional sink holes
and a total collapse of the pipe.
RR at 966a.
The Aubreys joined the Wards and the Millers as additional defendants.
Following discovery, the trial court issued an order granting summary judgment in
favor of the Township except as to Count II of the complaint, the breach of contract
claim against the Aubreys based on the Storm Water Management Agreement. See
RR at 944a-46a. The trial court’s order also granted summary judgment in favor of
the Wards and the Millers. Id. The Aubreys filed an improper interlocutory appeal
from the trial court’s order but later withdrew the appeal, stipulating that the order
was not appealable.2 See id. at 973a, 977a & 979a-81a.
The remainder of the case proceeded to a non-jury trial in November
2021. The trial court’s subsequent verdict provided, in pertinent part:
2
The Superior Court also issued an order dismissing the appeal because the Aubreys failed
to file a brief. RR at 955a.
5
AND NOW, this 15th day of December, 2021, after trial
without a jury on [Nov]ember 29th, 2021, the trial judge
finds as follows.
1. Verdict is for the Plaintiff BUTLER TOWNSHIP and
against the Defendants GEORGE G. AUBREY and JOHN
M. AUBREY in the sum of $64,350.00.
2. Additional Defendants ROBERT C. WARD and
DEBORAH A. WARD did not cause or in any way
contribute to the deterioration of the Pipe, and are
dismissed from the case.
3. Additional Defendants JEFFREY P. MILLER, and
MEGAN M. GROH MILLER did not cause or in any way
contribute to the deterioration of the Pipe, and are
dismissed from the case.
RR at 1098a-99a. On December 20, 2021, the trial court issued findings and
conclusions in support of its verdict. Id. at 1093a-97a. The trial court determined
that the Township satisfied its burden of proof, that the pipe required replacement,
and that the Township was entitled to recover the replacement cost of $64,350.00
from the Aubreys. Id. at 1097a. The trial court also reiterated that neither the Wards
nor the Millers “caused or in any way contributed to the deterioration of the Pipe.”
Id.
In addition, the trial court accepted post-trial briefs from the Township
and the Aubreys regarding the Township’s request for an award of attorney fees.
See RR at 1075a-91a. In a separate memorandum opinion, the trial court ordered
the Aubreys to pay attorney fees of $31,492.50 to the Township. RR at 1102a-
1112a. The trial court held that the Storm Water Management Agreement required
the Aubreys to pay the Township’s attorney and engineering fees. Id. at 1102a. In
the trial court’s opinion, “the contractual obligation was clear as it relates to the
Aubreys and Butler Township, and litigation was only made necessary by the
6
Aubreys refusal to perform under that obligation.” Id. at 1109a. The trial court also
found the fee amount was “fair and reasonable.” Id. at 1102a & 1109a.
However, the trial court did not base its fee award solely on its finding
of a contractual obligation. The trial court also concluded that “the conduct of the
Aubreys has been exceedingly dilatory, obdurate, and vexatious.” RR at 1111a. In
a detailed analysis, the trial court explained that
the Aubreys could have prevented many of these fees by
not filing numerous motions, which in[] turn required
preparation by opposing counsel, only to later withdraw
them shortly before trial, or if they were not withdrawn,
many allegation[s] within were entirely devoid of factual
support at the hearing. First, while acting pro[] se, the
Aubreys filed a Motion to Dismiss for Spoliation of
Evidence without any factual support, then withdrew the
Motion at the time scheduled for argument on the Motion.
Next, the Aubreys filed an Appeal only to later stipulate
that it was improperly filed and withdr[a]w it, which
delayed the case seven (7) months. Finally, the Aubreys
filed a Motion to Vacate Summary Judgment, in which
they allege[d] fraud, then withdrew the allegation a week
before the hearing. In the same Motion, the Aubreys
alleged that [the Wards’] actions damaged the Pipe[;]
however, they failed to provide a quantum of support at
trial for this allegation. In fact, experts for both [the
Township] and [the Aubreys] testified that [the Wards] did
not cause or in any way contribute to the deterioration of
the Pipe. Therefore, the Court finds the full [attorney fee]
amount requested by the [Township] fair and reasonable.
Id. at 1109a-10a. The trial court found further that the Aubreys’ “repeated pattern
of filing motions in which they allege arguments, only to later withdraw or have no
factual support for them, was intended to frustrate the legal process and intended to
annoy the Township.” Id. at 1111a.
Thus, the trial court based its decision to award attorney fees on both
the Aubreys’ contractual obligation and their dilatory, obdurate, and vexatious
7
conduct during the litigation. However, because the trial court concluded the
Aubreys were contractually obligated to pay the Township’s attorney fees in any
event, it posited that it did not need to determine specifically what portion of those
attorney fees were attributable to the Aubreys’ dilatory, obdurate, and vexatious
conduct. RR at 1111a.
Finally, regarding the Township’s engineering fees, the trial court
observed that the Storm Water Management Agreement obligated the Aubreys to
“pay all costs reasonably incurred by [the T]ownship for engineering and legal fees
for the review of the plan, inspection of the plan, approval of the plan and
improvements . . . .” RR at 15a. The trial court concluded that this provision
required the Aubreys to pay the Township’s engineering fees of $4,500.00 relating
to the engineer’s investigation and opinion concerning the deterioration of the pipe
more than two decades after the development plan’s approval. Id. at 1110a.
The Aubreys filed a motion for post-trial relief, which the trial court
denied in a memorandum opinion and order dated March 24, 2022. RR at 1117a-
98a. This appeal by the Aubreys followed.3
3
Our review of a trial court’s order granting summary judgment is de novo, and our scope
of review is plenary; this Court applies the same standard for summary judgment as the trial court.
Lancaster Cnty. Agric. Pres. Bd. v. Fryberger, 257 A.3d 192, 199 n.13 (Pa. Cmwlth. 2021).
Summary judgment is appropriate only where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Id.Our review of a non-jury trial verdict is limited to determining whether the findings of the
trial court are supported by substantial evidence and whether the trial court committed an error in
applying the law. Pottstown Sch. Dist. v. Montgomery Cnty. Bd., 289 A.3d 1142, 1145 n.3 (Pa.
Cmwlth. 2023). The trial judge’s findings of fact have the same weight and effect on appeal as
the verdict of a jury: we consider the evidence in the light most favorable to the verdict winner
and reverse the trial court only if its findings of fact are not supported by substantial evidence in
the record or are premised on an error of law. Id. Thus, our scope of review of a question of law
is plenary. Id.8
II. Issues on Appeal
The Aubreys raise a number of issues on appeal, which we combine
and reorder for convenience and clarity as follows.4
First, the Aubreys assert various errors in the trial court’s decision to
grant partial summary judgment against them. They insist the Storm Water
Management Agreement was actually entered in April 1988, not April 1989, and that
the date on the agreement was improperly changed later. According to the Aubreys,
this perceived date discrepancy is significant because it means that the Unexecuted
Ward-Township Agreement was entered later and, therefore, supplanted their repair
obligations under the Storm Water Maintenance Agreement. Thus, the Aubreys
maintain that the trial court erred by concluding that their pipe repair obligations
under the Storm Water Management Agreement were not abrogated by the Second
Aubrey-Ward Agreement or the Unexecuted Ward-Township Agreement. In a
related argument, the Aubreys claim that the trial court erred in determining that the
First and Second Aubrey-Ward Agreements limited the Wards’ maintenance and
repair obligations to the retention pond and did not include the pipe at issue. The
Aubreys also insist that the trial court erred in determining that the Unexecuted
Ward-Township Agreement was unenforceable. The Aubreys assert that
contemporaneous Township meeting minutes from May 1988 establish the
Township’s acceptance of the agreement even though it was never signed or
recorded. Finally, regarding the cause of the pipe’s deterioration, the Aubreys
contend the trial court should not have determined in its summary judgment decision
4
We note that our reorganization of the issues was necessitated in part by the fact that the
Aubreys’ arguments are not organized in correlation with the statement of questions presented.
See Pa.R.A.P. 2119(a) (directing that “[t]he argument shall be divided into as many parts as there
are questions to be argued . . .”).
9
that the Wards could not have damaged the pipe and that expert testimony was
required to prove any such alleged damage by them. Similarly, the Aubreys posit
that the trial court erred again after the trial, when it found as a fact that neither the
Wards nor the Millers caused or contributed to the deterioration of the pipe.
The Aubreys also argue that they did not have prior notice that the trial
would encompass the question of causation of the pipe’s deterioration. They
likewise contend they had no advance notice that the trial evidence would encompass
the cost of replacing the pipe. In a related argument, they assert that the trial court
erred by allowing the Township’s expert witness to testify about replacement cost.
Finally, the Aubreys allege error in the trial court’s award of
engineering and attorney fees against them. The Aubreys maintain that the Storm
Water Management Plan, on which the trial court relied, does not authorize the
imposition of such fees. Further, the Aubreys assert that the trial court did not have
sufficient evidence before it to support its finding that the fees were reasonable.
III. Discussion
A. Summary Judgment
The Aubreys’ primary argument is that the trial court should not have
entered summary judgment for various reasons. We address each in turn.
1. The Date of the Storm Water Management Agreement
The Aubreys allege that the Storm Water Management Agreement was
entered on April 27, 1988, not April 27, 1989. They point out that the “9” in “1989”
in the first paragraph of the agreement is in different type from the rest of the date,
and they suggest it was fraudulently altered. In a motion to vacate the trial court’s
10
summary judgment order, the Aubreys conceded that they did not timely or properly
assert fraud as an affirmative defense in their pleadings, but they blamed their failure
to plead the defense on their attorney’s health issues. RR at 974a. However, they
later withdrew that motion. Accordingly, the assertion of fraud was waived.
Moreover, review of the Storm Water Management Agreement shows
that it was a form agreement with blanks for the day and month, and with the year
stated as “198 ” leaving the specific year blank. See RR at 12a. All of the parts of
the date – the day, the month, and the final digit of the year – were added in italic
type slightly smaller than the type font of the form, as were the Aubreys’ names as
“Developers.” Id. There is nothing in that fact which suggests the year was altered.
In addition, the notarization at the end of the agreement also bore the date of April
27, 1989 as the date of the Aubreys’ signatures, again with their names and the date
typed in slightly smaller italic font on a preprinted form. Id. at 16a. Thus, the
Aubreys adduced no evidence whatsoever of any alteration of the date on the
agreement. Their bare averment was insufficient to raise a genuine issue of material
fact.
The Aubreys contend that the date of the Storm Water Management
Agreement is “critical to the determination of liability for the maintenance of the
pipe,” because if the Unexecuted Ward-Township Agreement was executed later, it
would have “superseded, or at a minimum, modified” the Aubreys’ obligations
under the Storm Water Management Agreement. Aubreys’ Br. at 15. We disagree
and conclude that the date of the Storm Water Management Agreement is ultimately
unimportant for two reasons. First, as discussed further below, the Unexecuted
Ward-Township Agreement was never finalized. Second, the enforceability of the
Storm Water Management Agreement does not depend on the date on which it was
11
executed. We agree with the trial court that the existence or nonexistence of an
enforceable agreement between the Township and the Wards has no bearing on the
Aubreys’ obligations under the Storm Water Management Agreement. There was
nothing in the terms of the Unexecuted Ward-Township Agreement that stated any
intent to abrogate the Aubreys’ responsibilities as Developer under the Storm Water
Management Agreement. Thus, the trial court correctly concluded that the Aubreys’
obligations to the Township under the Storm Water Management Agreement were
not affected by any alleged separate agreement between the Wards and the Township
to which the Aubreys were not parties. Therefore, whether the date of the Storm
Water Management Agreement was 1988 or 1989 was immaterial.
For these reasons, we reject the Aubreys’ challenge to the date of the
Storm Water Management Agreement.
2. Enforceability of the Unexecuted Ward-Township Agreement
The Aubreys claim there was evidence of the Township’s acceptance
of the Unexecuted Ward-Township Agreement in contemporary meeting minutes.
However, our review of the record indicates that such acceptance by the Township
is not a fair or reasonable inference from the cited minutes.
The Township Planning Commission’s meeting minutes of March 1,
1988 indicated that an unspecified Ward dedication document was reviewed. RR at
813a. The minutes did not make clear what document was referenced. More
importantly, there was no indication in the minutes that the Township was agreeing
to the document; to the contrary, the minutes stated that the Township’s solicitor
needed to check some of the document’s language. Id.12
The Planning Commission’s meeting minutes of April 5, 1988 stated,
in pertinent part: “Require copy of standard Improvements-Maintenance-Amenities
Agreement to Wards for signature. They will be bound by that agreement to
maintain the pond.” RR at 820a. It was not clear from the minutes whether the
referenced agreement was to be between the Wards and the Township or between
the Wards and the Aubreys. However, the minutes stated that the Aubreys, as
Developer, were also required to sign the agreement. Notably, there was no
signature space for the Aubreys on the Unexecuted Ward-Township Agreement,
which indicated it was not the anticipated agreement mentioned in the meeting
minutes. See id. at 809a.
The Township Commissioners’ meeting minutes of May 16, 1988
contained a notation that “[a] major detention pond is to be located on the Ward
property. Easements, rights-of-way and agreements with [the] Ward[s] have been
executed.” RR at 816a. Again, nothing in the minutes indicated that any of the
described agreements were between the Township and the Wards. In fact, the
minutes did not even suggest that the unspecified “agreements” related to
maintenance or repairs of any pipes leading to the retention pond.
Moreover, the Township, which was the party that would have
benefitted from the Unexecuted Ward-Township Agreement, specifically averred
that it had never entered into that agreement. RR at 62a-63a. The Wards concurred.
Id. at 186a. As both parties named in the purported contract agreed it was never
finalized, and in light of the vague nature of the meeting minutes produced as the
Aubreys’ only evidence of the Township’s supposed acceptance of the agreement,
we cannot say that the trial court erred in determining that the Aubreys failed to
13
adduce sufficient evidence to raise a genuine issue of material fact concerning the
enforceability of the Unexecuted Ward-Township Agreement.
In any event, as discussed in subsection 1 above, we agree with the trial
court that the existence or nonexistence of an enforceable agreement between the
Township and the Wards has no bearing on the Aubreys’ obligations under the Storm
Water Management Agreement. For all of these reasons, the trial court did not err
in determining that the Unexecuted Ward-Township Agreement did not affect the
Aubreys’ liability under the Storm Water Management Agreement.
3. Cause of the Pipe’s Deterioration
a. The Summary Judgment Ruling
The Aubreys contend that the trial court improperly entered summary
judgment on the issue of causation, finding that there was no evidence that the Wards
or the Millers contributed to the pipe’s deterioration. We disagree.
The argument section of the Aubreys’ brief includes a single paragraph
on this issue. That paragraph consists of a bare averment that the Wards caused
damage to the pipe and a bare averment that the trial court erred by granting
summary judgment on that issue. See Aubreys’ Br. at 27. This is insufficient to
allow this Court to conduct a meaningful review of the issue on appeal. See
Pa.R.A.P. 2119(a) (requiring that the argument on each issue include “such
discussion and citation of authorities as are deemed pertinent”); Pa.R.A.P. 2119(d)
(requiring that “[w]hen the finding of, or the refusal to find, a fact is argued, the
argument must contain a synopsis of all the evidence on the point, with a reference
to the place in the record where the evidence may be found”). Accordingly, the
argument is waived. See Commonwealth v. Bishop, 217 A.3d 833, 841 (Pa. 2019)
14
(quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (holding that “where
an appellate brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived”) (additional citation omitted)).
Even had the Aubreys not waived the argument, we would discern no
error in the trial court’s entry of summary judgment in favor of the Wards and the
Millers. In opposing a summary judgment motion, the nonmoving party may not
rest solely on the pleadings, but rather, must identify “one or more issues of fact
arising from evidence in the record controverting the evidence cited in support of
the motion or from a challenge to the credibility of one or more witnesses testifying
in support of the motion . . . .” Pa.R.Civ.P. 1035.3(a)(1). Here, the trial court
explained its reasoning in granting summary judgment as follows:
George Aubrey testified [in his deposition] that the re-
excavation occurred only at the retention pond and not
near the roadway. [RR at 844a]. Based on the evidence
of record, the [trial c]ourt concluded it was not possible for
the damage to have been caused by [the] Ward[s’] heavy
equipment because the pipe at issue was not in the area
where the excavation was performed. See [RR at 680a
(site plan drawing of development and retention pond)].
Further, the Aubrey[s’] allegation that the Ward[s’]
excavation work could have affected pipe in another area
is unsupported. There was no evidence or expert
testimony produced to indicate that the culvert pipe’s
deterioration is related in any manner to the re-excavation
work of the storm water pond. For these reasons, the Court
determined there was no genuine issue of fact in regard to
this issue.
RR at 945a-46a. Our review of the record reveals no error in the trial court’s
reasoning.
15
As between the Township and the Aubreys, the Storm Water
Management Agreement clearly imposed responsibility on the Aubreys to maintain
the pipe. As between the Aubreys and the Wards and Millers, the Second Aubrey-
Ward Agreement provided that the Aubreys must maintain the pipes, except for
damage caused by the Wards or their successors in title, for a period of 30 years from
April 1, 1988. The Township notified the Aubreys of the pipe’s deterioration and
demanded repair or replacement in August 2017, within the 30-year period covered
by the Second Aubrey-Ward Agreement. RR at 17a-18a; see also id. at 595a. As
there was no genuine issue of material fact concerning the lack of fault on the parts
of the Wards and the Millers regarding the deterioration of the pipe or the date the
Aubreys were notified of the pipe’s deterioration, it necessarily follows that the
Aubreys are liable for the cost of replacing the pipe.
b. Post-Trial Finding of Fact
The Aubreys further assert that the trial court erred by ruling on the
causation issue after trial because it had already decided that issue in granting
summary judgment. This issue likewise is not supported by sufficient analysis to
allow meaningful review on appeal, and it is therefore waived. See Bishop, 217 A.3d
at 841 (quoting Wirth, 95 A.3d at 837). Moreover, because we have already
determined that the trial court did not err by granting summary judgment on this
issue, any alleged error by the trial court in allowing the issue to be addressed again
at trial was harmless.
16
B. Notice of Replacement Cost as a Trial Issue
The Aubreys assert that the trial court erred by allowing the Township’s
expert witness to testify concerning the cost of replacing the pipe. The Aubreys
insist they had no notice that replacement cost would be an issue at trial because the
trial court’s scheduling order stated only that a non-jury trial would “determine
whether the condition of the pipe at issue necessitates repair or replacement.” RR at
956a. This argument lacks merit.
The trial court explained in its post-trial findings that it added that
language to its scheduling order in response to an objection by the Aubreys that the
trial should not be limited solely to the amount of damages, but should also include
the question of whether the Wards or the Millers had damaged the pipe. RR at
1093a. The clear implication of the trial court’s observation is that the Aubreys must
therefore have known that damages would be an issue at trial.
Moreover, in its opinion denying the Aubreys’ post-trial motion, the
trial court explained that the Township’s damage demand related to its breach of
contract claim, the only claim remaining for trial after the trial court granted partial
summary judgment. RR at 1185a. “Additionally, the price quotes for replacing the
pipe were included in the expert reports accompanying the Pre-Trial Statements, and
[the Aubreys] failed to file a motion in limine challenging the price quotes prior to
trial.” Id. (italics added). Further, the trial court observed that it had denied the
Township’s motion in limine to preclude the testimony of the Aubreys’ expert
witness, whose identity and proposed testimony they disclosed “only days before
trial[,5 such that the Aubreys] had the opportunity to question the [Township’s]
5
In its motion in limine, the Township averred that, although discovery had been closed
for more than a year, the Aubreys did not provide notice of their intent to call an expert witness
17
expert and their own regarding the price quotes for the replacement of the pipe.” Id.
(emphasis added).
Accordingly, we conclude that the trial court did not err by allowing
evidence of damages at trial.
C. The Awards of Attorney and Engineering Fees
As explained above, the Storm Water Management Agreement required
the Aubreys to “pay all costs reasonably incurred by [the T]ownship for engineering
and legal fees for the review of the plan, inspection of the plan, approval of the plan
and improvements . . . .” RR at 15a & 1110a. The trial court relied solely on this
provision in awarding engineering fees and relied on it in part in awarding attorney
fees.
The Aubreys contend that this provision does not apply to the
Township’s attorney fee claim. We agree. The plain language of the Storm Water
Management Agreement made its reimbursement requirement applicable to legal
and engineering expenses only insofar as the Township incurred those expenses
regarding the plan approval process.6 That process ended more than 30 years ago.
Therefore, we conclude that the trial court erred by awarding engineering fees, and
we reverse the trial court’s award of engineering fees to the Township.
until just before the close of business on the Wednesday before Thanksgiving, with the trial due to
start the following Monday. RR at 1066a-67a.
6
We note that the Indemnification Agreement separately requires the Aubreys to “save,
indemnify, defend and hold harmless the Township against all liability, claims, judgments, actions,
causes of actions, suits or demands for damages attributable to or arising in whole or part” from
the storm water management system’s water retention devices. RR at 10a. Neither the Township
nor the trial court addressed the attorney and engineering fee claims in relation to this provision,
and we do not consider it here.
18
The trial court similarly erred to the extent that it based its award of
attorney fees on obligations arising from the Storm Water Management Agreement.
However, that conclusion does not end our analysis regarding the trial court’s award
of attorney fees. The trial court also found that the Aubreys’ conduct throughout the
litigation process was “exceedingly dilatory, obdurate, and vexatious” based on their
“repeated pattern of filing motions in which they allege[d] arguments, only to later
withdraw or have no factual support for them, [which] was intended to frustrate the
legal process and intended to annoy the Township.” RR at 1111a.
Section 2503(7) of the Judicial Code7 provides that “[t]he following
participants shall be entitled to a reasonable counsel fee as part of the taxable costs
of the matter: . . . [a]ny participant who is awarded counsel fees as a sanction against
another participant for dilatory, obdurate or vexatious conduct during the pendency
of a matter.” 42 Pa.C.S. § 2503 (7). In addition, Rule 2744 of the Rules of Appellate
Procedure provides, in relevant part:
In addition to other costs allowable by general rule or Act
of Assembly, an appellate court may award as further costs
damages as may be just, including [] a reasonable counsel
fee . . . if it determines that an appeal is frivolous or taken
solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory, obdurate,
or vexatious.
Pa.R.A.P. 2744; see also Pa. Tpk. Comm’n v. Elec. Transaction Consultants Corp.,
230 A.3d 548, 562 (Pa. Cmwlth. 2020) (quoting Pa.R.A.P. 2744). Conduct is
“dilatory” if it is “[d]esigned or tending to cause delay.” Dilatory, Black’s Law
Dictionary (11th ed. 2019). Conduct is “obdurate” if it is “stubbornly resistant in
wrongdoing.” Obdurate, Webster’s Third New Int’l Dictionary 1555 (Gove, ed.
7
42 Pa.C.S. §§ 101-9913.
19
1986). Conduct is “vexatious” if it is “without reasonable or probable cause or
excuse[,] harassing[, or] annoying.” Vexatious, Black’s Law Dictionary (11th ed.
2019). See Transaction Consultants, 230 A.3d at 562 nn.11-13 (quoting dictionary
definitions of “dilatory,” “obdurate,” and “vexatious”).
An award of attorney fees will not be disturbed on appeal unless the
trial court “palpably abused its discretion” by awarding fees. Thurnberg v. Strause,
682 A.2d 295, 299 (Pa. 1996). Here, the trial court specifically found that the
Aubreys’ conduct was intended “to frustrate the legal process and . . . annoy the
Township.” RR at 1111a. Moreover, we conclude that the Aubreys’ pattern of filing
and then withdrawing meritless motions, along with the lack of any factual or legal
support for several other positions they asserted, further supported the trial court’s
decision to award attorney fees to the Township. Thus, we cannot say that the trial
court palpably abused its discretion in concluding that the Aubreys’ conduct justified
an award of attorney fees against them.
Nonetheless, the trial court erred in its determination of the amount of
its attorney fee award. Because it based the amount of its attorney fee award on the
terms of the Storm Water Management Agreement, the trial court did not reach the
question of how much the Township’s attorney fees were increased as a result of the
Aubreys’ dilatory, obdurate, and vexatious conduct in the course of the litigation.
Because that conduct, not a contractual obligation, provided the only support for an
attorney fee award, the trial court erred by failing to calculate the fee award on that
basis. Accordingly, we will vacate the trial court’s attorney fee award and remand
this matter to the trial court for a new determination of the amount of that award in
accordance with this opinion.
20
IV. Conclusion
For the foregoing reasons, we conclude that the trial court did not err in
its grant of partial summary judgment, its subsequent verdict in favor of the
Township and against the Aubreys regarding their responsibility to replace the pipe
at issue, its dismissal of the Wards and the Millers from the action, or its finding that
the Aubreys’ conduct during the litigation was dilatory, obdurate, and vexatious.
However, we conclude that the trial court erred as a matter of law in awarding
engineering fees to the Township, as well as in awarding the attorney fee amount
requested by the Township without determining what portion of the requested fee
was attributable to the Aubreys’ dilatory, obdurate, and vexatious conduct and
whether that fee amount was reasonable. Accordingly, we reverse the trial court’s
award of engineering fees. We vacate the attorney fee award and remand to the trial
court for a new determination of the appropriate fee amount. We affirm the trial
court’s orders in all other respects.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Butler Township :
:
v. :
:
George G. Aubrey and John M. Aubrey :
:
v. :
:
Robert C. Ward, Deborah A. Ward, :
Jeffrey P. Miller and Megan M. Groh :
Miller :
:
Appeal of: George G. Aubrey and : No. 405 C.D. 2022
John M. Aubrey :
ORDER
AND NOW, this 21st day of June, 2023, the judgment of the Court of
Common Pleas of Butler County (trial court) is REVERSED as to the award of
engineering fees of $4,500.00 to Butler Township (Township). The trial court’s
judgment is VACATED as to the award of attorney fees of $31,492.50 to Butler
Township, and this matter is REMANDED to the trial court for a determination of
the attorney fee award amount that is fair and reasonable to compensate the
Township for its attorney fees arising from delays and unnecessary legal work
caused by the conduct of George G. Aubrey and John M. Aubrey that the trial court
found was dilatory, obdurate, and vexatious. The trial court’s judgment is
AFFIRMED in all other respects.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge