Ladrosky, P. v. Kalbaugh, K. ( 2018 )

J-S58010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL N. LADROSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH KALBAUGH AND CHRISTINA :
A. KALBAUGH, HIS WIFE :
: No. 59 WDA 2018
Appellants :
Appeal from the Order Entered December 11, 2017
In the Court of Common Pleas of Fayette County
Civil Division at No(s): 2467 OF 2016, G.D.
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2018
Appellants, Keith Kalbaugh and Christina A. Kalbaugh, appeal from the
December 11, 2017 order granting Paul N. Ladrosky’s (“Ladrosky’s”) request
for attorney’s fees in the amount of $975.00. We affirm.
On February 14, 2014, Ladrosky acquired agricultural land in Fayette
County. At that time, Appellants were leasing a house located on the property
adjacent to this agricultural land. Appellants had a fence and several animal
living quarters located on Ladrosky’s agricultural property. In October 2015,
Appellants purchased the tract of land that they were renting. Ladrosky asked
Appellants to remove the fence and animal living quarters; however, they
refused.
On December 14, 2016, Ladrosky filed a complaint in ejectment seeking
to eject Appellants from that portion of his land they were occupying.
J-S58010-18
Appellants failed to file preliminary objections and/or an answer. On February
24, 2017, default judgment was entered in favor of Ladrosky and against
Appellants. Ladrosky filed a motion for writ of possession. A hearing on the
motion was held and, on June 5, 2017, the trial court issued a writ of
possession. On October 17, 2017, Ladrosky filed a motion seeking attorney’s
fees and costs. On December 11, 2017, after a hearing, the trial court granted
Ladrosky’s motion for attorney’s fees and costs; however, it reduced the
amount of the fee award. This timely appeal followed.1
Appellants present one issue for our review:
Whether [the trial court erred in granting Ladrosky’s request for
attorney’s fees and costs]?
Appellants’ Brief at 3.2
“Pennsylvania generally adheres to the American Rule, under which a
litigant cannot recover counsel fees from an adverse party unless there is
express statutory authorization, a clear agreement of the parties, or some
other established exception.” Sutch v. Roxborough Mem. Hosp., 142 A.3d
____________________________________________
1 Appellants and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
2 Although the statement of questions involved asserts that the trial court
erred in awarding Ladrosky both attorney’s fees and costs, the argument
section of Appellants’ brief only argues that it was error to award attorney’s
fees. Thus, Appellants waived their argument regarding the propriety of the
award of costs. Commonwealth v. Ryan, 909 A.2d 839, 841 (Pa. Super.
2006) (failure to mention an issue or develop an argument in argument
section of brief results in waiver), appeal denied, 945 A.2d 768 (Pa. 2008).
-2-
J-S58010-18
38, 69 (Pa. Super. 2016), appeal denied, 163 A.3d 399 (Pa. 2016), quoting
Schnabel Assoc., Inc. v. Building and Constr. Trades Council of Phila.,
487 A.2d 1327, 1338 (Pa. Super. 1985). In this case, there is no clear
agreement between the parties that the victorious party is entitled to counsel
fees. Instead, the trial court awarded attorney’s fees to Ladrosky pursuant to
42 Pa. C.S.A. § 2503(7) which permits the award of attorney’s fees as a
sanction if it is shown that a party’s conduct during the pendency of a matter
was dilatory, obdurate, vexatious or done in bad faith. See Scalia v. Erie
Ins. Exchange, 878 A.2d 114, 116 (Pa. Super. 2005). “The trial court has
great latitude and discretion with respect to an award of attorneys’ fees
pursuant to statute.” Id. In reviewing a trial court’s award of counsel fees,
our standard is abuse of discretion. Id. So long as there is support in the
record for the trial court’s findings of fact that the conduct of the party was
obdurate, vexatious or done in bad faith, we will not disturb the trial court’s
decision. Id. We note, however, that “[s]ection 2503(7) applies to the
conduct of a party in commencing a proceeding or conduct during the
pendency of an action. Section 2503(7) … does not cover pre-litigation
conduct of the parties.” Sternlicht v. Sternlicht, 822 A.2d 732, 741 (Pa.
Super. 2003), affirmed, 876 A.2d 904 (Pa. 2005) (internal citations omitted).
In this case, the trial court found that Appellants acted with the intent
to cause delay; i.e. their actions were “`dilatory’ in nature.” Trial Court
Opinion, 2/27/18, at 2. Thus, the conduct of Appellants was obdurate.
-3-
J-S58010-18
Scalia, 878 A.2d at 116 (“Obdurate is defined, inter alia, as ‘unyielding;
stubborn.’”). We turn to the record to determine whether the evidence
supports the trial court’s finding of obdurate conduct.
At the hearing on Ladrosky’s motion for fees and costs, Ladrosky
testified that he obtained a survey of his agricultural property at which time
he learned that Appellants were encroaching upon his land. N.T., 12/8/17, at
3. Upon receipt of the survey, Ladrosky verbally told Appellants of the
encroachment at least four times.3 He also served them via certified mail with
a cease and desist letter. Id. at 4, 5. When Appellants failed to correct the
situation, Ladrosky obtained counsel who sent several letters to Appellants
and spoke by telephone with Appellant, Keith Kalbaugh. Id. at 6-7, 15. Still
nothing was done causing Ladrosky to file a complaint in ejectment. Id. at 7.
Appellants never filed a response to the complaint in ejectment resulting in a
default judgment. Id. at 10. Appellants still failed to remove their fence and
animal pens from Ladrosky’s property causing Ladrosky to file a motion for
writ of possession. Following a hearing and the granting of a writ of
possession, Appellants removed part of their structures from Ladrosky’s
property. Id. at 7. However, Ladrosky had to go once again to Appellants
and insist that they remove the fencing which Appellants had failed to remove.
____________________________________________
3 Ladrosky testified that he spoke with Appellants four times. N.T., 12/8/17
at 4. Appellant, Keith Kalbaugh, testified that Ladrosky spoke with him about
the situation more than four times. Id. at 14.
-4-
J-S58010-18
Id. Based upon these facts, the trial court found that Appellants acted in a
dilatory and obdurate manner. We do not believe that the trial court abused
its discretion in making this finding.
As previously noted, section 2503(7) permits an award of attorney’s
fees for obdurate conduct during the pendency of an action. Sternlicht,
supra. Pre-litigation conduct cannot serve as a basis for such an award. Id.In this case, the trial court considered, in part, the pre-litigation actions of
Appellants in making its determination. Specifically, the trial court noted the
numerous letters and verbal communications which Appellants ignored
thereby necessitating the filing of a complaint in ejectment. Trial Court
Opinion, 2/27/18, at 1-2. The trial court erred in considering this evidence.
However, other evidence of obdurate conduct during the pendency of the
matter once the complaint in ejectment was filed supported the trial court’s
decision. Specifically, Appellants failed to respond to the complaint in
ejectment, failed to remove all items from Ladrosky’s property once default
judgment was entered, and initially failed to remove all items following the
issuance of a writ of possession. Based upon the record before us, and given
our standard of review requiring great deference to the trial court, we conclude
that the trial court did not abuse its discretion in determining that Appellants
-5-
J-S58010-18
were dilatory and obdurate throughout the proceedings in this matter and in
awarding attorney’s fees to Ladrosky in the amount of $975.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2018
____________________________________________
4 The trial court expressly found that, although Appellants were dilatory, they
were not vexatious. N.T., 12/8/17, at 22. Thus, the trial court did not award
the total amount of attorney’s fees sought by Ladrosky ($1,950.00). Id.Instead, an award for one-half of the amount sought was entered. Trial Court
Opinion, 2/27/18, at 2.
-6-