Deaktor, S. v. Sutton, R. ( 2020 )

J-A24004-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SCOTT I. DEAKTOR AND MARSHA A. : IN THE SUPERIOR COURT OF
DEAKTOR, HUSBAND AND WIFE : PENNSYLVANIA
D/B/A SCOTT AND MARSHA :
DEAKTOR REAL ESTATE :
:
Appellants :
:
:
v. : No. 1548 WDA 2019
:
:
RAYMOND K. SUTTON A/K/A KEVIN :
SUTTON AND BETH F. YOUNG :
SUTTON, HUSBAND AND WIFE :
Appeal from the Judgment Entered July 30, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD 16-12764
SCOTT I. DEAKTOR AND MARSHA A. : IN THE SUPERIOR COURT OF
DEAKTOR, HUSBAND AND WIFE : PENNSYLVANIA
D/B/A SCOTT AND MARSHA :
DEAKTOR REAL ESTATE :
:
:
v. :
:
: No. 1565 WDA 2019
RAYMOND K. SUTTON A/K/A KEVIN :
SUTTON AND BETH F. YOUNG :
SUTTON, HUSBAND AND WIFE, :
:
Appellants :
Appeal from the Judgment Entered July 30, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD-16-12764
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 15, 2020
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Appellants, Scott I. Deaktor and Marsha A. Deaktor, husband and wife
d/b/a Scott and Marsha Deaktor Real Estate, appeal and Appellees, Raymond
K. Sutton a/k/a Kevin Sutton and Beth F. Young Sutton, husband and wife,
cross-appeal from the July 30, 2019 judgment entered by the trial court
following a non-jury trial. After careful review, we affirm.
The trial court summarized the factual and procedural background of
this case as follows:
In 2016, the Sutton family had to relocate from Washington, D.C.
to Pittsburgh because [Mr.] Sutton left his position as assistant
coach of the Georgetown University men[’s] basketball team for a
position as assistant coach of the University of Pittsburgh men[’s]
basketball team. Mr. Sutton’s wife, Beth, suffers from moderate
asthma, while their youngest daughter, then six years old, suffers
from severe asthma. Hence, during negotiations to rent a
townhouse located in Pittsburgh at 709 Copeland Street, the
Suttons informed [Ms.] Deaktor, who owned the property with her
husband, Scott, that [Ms. Sutton] and their two daughters
suffered from asthma triggered by poor air quality. While Ms.
Deaktor described 709 Copeland Street, which rented for $5,200
per month, as the “crown jewel” of their two hundred rental units,
its windows had been leaking water during rainfalls for a lengthy
period of time. The wood around the windows was rotting from
the moisture, but the Deaktors simply painted the rotting wood
without repairing the leaky windows. They knew, or should have
known, that these conditions produce mold and poor air quality.
Ms. Deaktor, however, told the Suttons the air quality was good
and did not disclose the condition to the Suttons before they
signed a lease agreement on April 25, 2016.
Mr. Sutton was able to move to 709 Copeland Street on April 29,
2016. Due to her employment as a teacher, Ms. Sutton could not
physically inspect the property before the lease signing and
remained in Washington, D.C.[,] with their youngest child until
June 10. Shortly after they moved in, Ms. Sutton and her
daughter began experiencing asthma symptoms. When her
daughter’s symptoms worsened, Ms. Sutton started the “action
plan” from her daughter’s physicians that included using a
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nebulizer every four hours followed by Flonase. The Suttons also
noticed water penetrating the home during a rainstorm and
suspected poor air quality due to it. On June 21[,] the Suttons
notified Ms. Deaktor that, due primarily to the[ir] illness from mold
in 709 Copeland Street, they could no longer stay there and
wanted to be released from the lease. After Ms. Deaktor refused
to have a mold test done, on June 24[,] Mr. and [Ms]. Sutton had
709 Copeland Street tested for mold, and on June 28[,] they
received the results. Stachybotrus, more commonly known as
toxic black mold, was present in the air samples from June 24.
Ms. Sutton was terrified, and after her daughter slept there that
night wearing a mask that filters out pollutants in the air, on June
29[,] the Suttons moved out. They stayed in Pittsburgh hotels
and traveled elsewhere until July 15, when they moved to another
home in the Pittsburgh area. Two days before that, Mr. and [Ms].
Deaktor filed the complaint in civil action that began this
proceeding.[1]
On March 27, March 28[,] and April 18, 2019, the dispute went
for resolution by way of a non-jury trial before me. I then issued
a verdict in favor of Mr. and [Ms]. Deaktor in the amount of
$61,860, with a counterclaim verdict in favor of Mr. and [Ms].
Sutton in the amount of $40,303.06.[2] Mr. and [Ms]. Deaktor, as
well as Mr. and [Ms]. Sutton, filed [timely] motions for post-trial
relief. I denied those motions and entered judgment on the
verdict. Mr. and [Ms]. Deaktor filed a timely appeal to the
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1 The Deaktors later amended their complaint, bringing causes of action for
breach of contract and breach of the implied duty of good faith and fair
dealing. The Suttons subsequently filed an Amended Answer, New Matter,
and Counterclaim, advancing claims for breach of contract (failure to repair),
breach of the implied warranty of habitability, violation of Pennsylvania’s
Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. §§
201-1 et seq., and violation of the Landlord and Tenant Act, 68 P.S. §§
250.101 et seq.
2 The Deaktors’ $61,860 verdict consisted of $5,200 for July rent, $15,900
(includes security deposit) for the Suttons’ early termination of the lease, $760
for electric, and $40,000 in attorneys’ fees. The Suttons’ $40,303.06 verdict
is comprised of $20,303.06 for UTPCPL losses (specifically, $10,151.53 in
losses that the trial court doubled), and $20,000 in attorneys’ fees. See Non-
Jury Verdict, 4/24/19, at 2 (unnumbered pages).
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Commonwealth Court of Pennsylvania, with Mr. and [Ms]. Sutton
thereafter also filing a timely appeal to the Commonwealth Court
of Pennsylvania.[3] However, the dispute is not within the
jurisdiction of the Commonwealth Court, and on September 30
and October 1, 2019[,] the Commonwealth Court ordered the
transfer of it to the Superior Court of Pennsylvania.
Trial Court Opinion (TCO), 10/28/19, at 1-3.
The Deaktors’ Appeal
We address the Deaktors’ appeal first. They raise the following issues
for our review:
1. Whether the [t]rial [c]ourt abused its discretion and erred as a
matter of law in giving [the Suttons] the benefits of the early
termination clause of the [l]ease where [the Suttons] did not
exercise their rights thereunder?
2. Whether the [t]rial [c]ourt abused its discretion and/or erred
as a matter of law in finding a violation of the [UTPCPL] where:
[the Suttons’] damages were not a result of such a violation; the
finding was based upon purported pre-lease, parol evidence; the
[t]rial [c]ourt found the [l]ease [p]remises suitable for persons of
ordinary sensibilities[;] and [the Deaktors] did not violate the
Landlord Tenant Act?
3. Whether the [t]rial [c]ourt’s conclusion that there was harmful
mold in the [l]ease [p]remises which affected a child of
hypersensitivities, but not persons of normal sensitivities, in the
absence of any expert or other competent evidence or testimony
was supported by substantiated evidence?
Deaktors’ Brief at 4.
At the outset, we observe:
Our appellate role in cases arising from nonjury trial verdicts
is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial
court committed error in any application of the law. The
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3After filing their notices of appeal, both parties timely complied with the trial
court’s instruction to file concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
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findings of fact of the trial judge must be given the same
weight and effect on appeal as the verdict of the jury. We
consider the evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its findings of
fact are not supported by competent evidence in the record
or if its findings are premised on an error of law. However,
[where] the issue … concerns a question of law, our scope
of review is plenary.
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court
because it is the appellate court’s duty to determine if the
trial court correctly applied the law to the facts of the case.
The trial court, as the finder of fact, is free to believe all, part or
none of the evidence presented. Issues of credibility and conflicts
in evidence are for the trial court to resolve; this Court is not
permitted to reexamine the weight and credibility determination
or substitute our judgment for that of the fact finder.
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks
omitted; brackets in original).
First Issue
In the Deaktors’ first issue, they argue that the trial court abused its
discretion and erred as a matter of law in giving the Suttons the benefits of
the early termination clause contained in the lease, when the Suttons failed
to exercise their rights under that clause. See Deaktors’ Brief at 38. The at-
issue early termination clause provides the following, which we produce
verbatim:
18. DEFAULT
***
E) If TENANT wishes to DEFAULT through an EARLY
TERMINATION of this Lease before the end of the specified
Lease Term, Tenant must:
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1. Give LANDLORD 30 (thirty) day written NOTICE
before TENANT’s actual move-out day. (Tenant is
responsible for the leased property during this full 30
day term which also includes maintaining service with
all applicable utilities providers and also being current
of all remittances for the monthly rent during this full
30 day period as specified in Paragraph 2 of this
Lease);
2. Written NOTICE will go into effect on the 1st of the
preceding month after NOTICE is received. (Example:
If NOTICE is received on June 15, 2018, NOTICE will
go into effect July 1, 2018);
3. Forfeit to LANDLORD your full security deposit;
4. Pay LANDLORD non-refundable settlement fee
equivalent to two (2) month’s rent (this will not be
returned to TENANT), payable by money order,
certified check, or cashier’s check, DUE on the 1st day
of the month that NOTICE takes effect. (Example: if
NOTICE is received on June 15, 2018, NOTICE will go
into effect July 1, 2018, and PENALTY FEE is also due
on July 1, 2018);
5. Be up to date on rent, utilities, and any other
applicable remittance as specified within this Lease;
6. Comply with an immediate property inspection
subject to the convenience of LANDLORD as soon as
NOTICE takes effect;
7. Pay LANDLORD if TENANT damaged the Leased Unit
for any loss if TENANT broke promise in this Lease.
TENANT must follow all vacating procedures and is
subject to the charges outlined within the “Vacating
Procedures” of this Lease;
8. Vacate the Leased property on or before the last
day of the month that NOTICE is in effect by 5PM
Eastern Standard Time. (Example: If NOTICE takes
effect on July 1, 2018, tenant must vacate property
on or before July 31, 2018 by 5PM EST).
9. In addition to the above 18E-1 through 18E-8;
TENANT agrees to reimburse LANDLORD in a separate
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check payable to SMDRE[4] equal to the amount of
$100.00 (one hundred U.S. Dollars) for City Ordinance
Registration Fee if Ordinance is approved and passed
by City of Pittsburgh at time of DEFAULT.
Deaktors’ Exhibit 6 at 4 (cited to hereinafter as the Lease).
Here, in limiting the Deaktors to damages of $15,900 under the early
termination clause, the trial court explained:
The Deaktors contend that I made an error by limiting their
damages claim to those available under the “early termination
clause” of the lease. At the trial, the Deaktors requested damages
for the rent and late charges due throughout the entire one year
term of the lease.[5] I rejected this request and, in fact, did limit
the Deaktors to damages of $15,900 under the early termination
clause. The Deaktors argue that the Suttons should not get the
benefit of the early termination clause because they did not timely
exercise it. I disagree.
The June 21, 2016 email from the Suttons to Ms. Deaktor
(admitted at trial as [Deaktors’ E]xhibit 21) states: “…[W]e are
respectfully requesting to be released from our lease…. [T]here
is mold in this house. That is a big health issue and we cannot
stay here. So[,] as a result[,] it is critical that we move to another
location as soon as possible. We request to be released from our
lease by July 31, 2016.” This fulfilled the requirement in the
clause of thirty days written notice before the actual move-out
date. Ms. Sutton credibly testified to Ms. Deaktor’s telephone call
on June 22, 2016[,] in response to the notice:
She called and was very animated and angry and for some
reason I think called back or Kevin put her on speaker so
we could both hear. She was mad and she was saying this
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4“SMDRE” stands for “Scott and Marsha Deaktor Real Estate.” See Deaktors’
Brief at 11 n.3.
5 The lease imposed a $25 per day late charge for any monthly rent payment
not paid in full on or before the applicable monthly due date. Lease at 2. In
the Deaktors’ post-trial motion, they asserted that the rent due from July 2016
through April 2017 amounts to $52,000, and the total late charges for each
late monthly rent payment comes to $35,200. See Deaktors’ Post-Trial
Motion, 5/3/19, at 16-17.
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is a top quality place. This is an amazing quality and this
and that. She was yelling, and she was very hot and
heated[,] basically said to us you’re not getting out of this.
It’s an ironclad lease and you’ll have to pay at least $25,000
if you want to get out.
[N.T. Trial, 3/27/19-3/28/19, at 396]. Then, on June 23, 2016,
Ms. Deaktor sent an email to the Suttons containing these cryptic
statements: “It is unfortunate to hear that you are considering the
option of Lease Default. For your reference[,] a copy of your
Lease Agreement is attached to this email. The [t]erms and
remedies for Default are outlined within this document…. If you
both opt to proceed with vacating early, your decision will
constitute default….” Deaktors[’] [E]xhibit 22. Had the Suttons
then examined the lease, it would have been difficult for them to
locate the early termination provision as Ms. Deaktor referenced
only “Default” and the Suttons’ intention was not to default.
Another difficulty the Suttons would have had is subparagraph 2
of the nine subparagraphs of the early termination provision
contains this erroneous and ambiguous statement: “Written
NOTICE will go into effect on the 1st of the preceding month after
NOTICE is received….”
The Suttons actually were prepared to pay the Deaktors $25,000
to be released from the lease. [See N.T. Trial, 3/27/19-3/28/19,
at 440-41]. However, Ms. Deaktor failed to act in good faith and
explain they would be released if they paid their July rent on time,
forfeited their security deposit, paid $10,400 by July 1[,] and
fulfilled the other conditions in the early termination provision.
The Suttons instead ended up hiring an attorney to decipher the
lease for them. The attorney sent the Deaktors a letter on July
11, 2016[,] reiterating that the property would be vacant by July
31. See Suttons[’] Exhibit 7.[6] Then, on August 5, the Suttons’
attorney made the Deaktors’ attorney an offer to immediately
make all payments and fulfill all other conditions of the early
termination provision. See Suttons[’] Exhibit 59. Under these
circumstances, the Suttons[’] not exercising the early termination
provision at an earlier point in time was primarily due to Ms.
Deaktor’s failure to act in good faith. The Deaktors also identify
no loss to them from the formal offer to fulfill the early termination
clause being thirty-five days late. Thus, the untimely exercise of
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6Ms. Sutton also testified that the Suttons’ attorney placed their July rent
payment in an escrow account. N.T. Trial, 3/27/19-3/28/19, at 395.
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the early termination provision was not a material breach that
excused its performance by the Deaktors. See International
Diamond Importers, Ltd. [v]. Singularity Clark, L.P., … 40
A.3d 1261 [(Pa. Super. 2012)]. Hence, I was justified in limiting
the Deaktors’ damages pursuant to the early termination
provision.
TCO at 3-6 (footnote and some internal citations omitted).
The Deaktors contend that the trial court “abused its discretion and
committed [an] error of law by effectively re-writing the [l]ease to insulate
[the Suttons] by giving [them] the full benefit of having exercised the early
termination clause … without having done so; and, thereby limiting [the
Deaktors’] damages to [the Suttons’] unpaid rent for the month of July in the
amount of $5,200 plus $15,900, which is equal to two months’ rent plus the
amount of the [s]ecurity [d]eposit.” Deaktors’ Brief at 40. The Deaktors claim
that the Suttons failed to perform all of the conditions of the early termination
provision, including providing the Deaktors with 30-day written notice of their
actual move-out date, forfeiting their security deposit, paying a settlement fee
of two months’ rent, and being up to date on rent and utilities, among other
things. See id. at 39. As a result, the Deaktors insist that the trial court
“insulated [the Suttons] from [the Deaktors’] remedies and damages under
Paragraph 19 of the [l]ease for not timely exercising their right of early
termination and resorting to self-help as follows: 1. accelerated rents; 2. late
fees; and, 3. damages to the [l]eased [p]remises.” Id. at 40-41 (citations
omitted).
No relief is due on this basis. Initially, we agree with the trial court that
Ms. Deaktor’s failure to act in good faith hindered the Suttons from complying
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with the early termination clause at an earlier point in time. The record
supports that Ms. Deaktor made things difficult for the Suttons following Ms.
Sutton’s June 21, 2016 email to her. In particular, Ms. Deaktor failed to
explain, let alone specifically mention, the early termination clause to the
Suttons, and told them it was an ‘ironclad’ lease and they were not getting
out of it. We see no reason for this conduct other than an interest in being
uncooperative.
Furthermore, the Deaktors claim that, under the lease, the untimely
exercise of the early termination clause constitutes an event of default and,
therefore, a violation, which permits them to use the remedies listed under
Paragraph 19 of the lease, including collecting all unpaid rent and late charges.
See Deaktors’ Brief at 44-45.7 We disagree.
This Court has previously explained:
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7The Deaktors say that they may use Paragraph 19’s remedies for defaults
and violations of the lease:
The express language of Paragraph 18 of the [l]ease provides as
follows: “Each one of the following is an event of DEFAULT under
this LEASE; an event of DEFAULT is also called a violation:…[.]”
Similarly, the [l]ease provides under subsequent Paragraph 19
“REMEDIES” as follows: On a violation of any provision of this
LEASE by TENANT, LANDLORD, without prior notice to quit, can….”
Deaktors’ Brief at 44 (internal citations omitted; capitalization and emphasis
in original); see also id. at 40 (“Paragraph 19 of the [l]ease affords [the
Deaktors] remedies against tenants who fail to or elect not to exercise the
early termination provision and who are otherwise in default or violation of
the [l]ease, including, inter alia, ‘abandonment of the LEASED PROPERTY
without LANDLORD’S written consent before the LEASE ends….’”) (citation
omitted).
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A lease is in the nature of a contract and is controlled by principles
of contract law. In construing a contract, the 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 of the parties, bearing in mind the
objects manifestly to be accomplished. Where the words of the
contract are clear and unambiguous, the intent of the parties must
be determined from the agreement itself. One part of a contract
cannot be so interpreted as to annul another part, but, rather,
writings which comprise an agreement must be interpreted as a
whole. Ambiguous language in a contract is to be interpreted
most strongly against the party who selected the language.
Finally, where an act or event mentioned in a contract is not
expressly made a condition precedent, it will not be so construed
unless such clearly appears to be the intention of the parties.
Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., Inc., 475
A.2d 117, 121 (Pa. Super. 1984) (internal citations omitted).
Here, the lease sets forth, in relevant part, the following, which we again
produce verbatim:
18. DEFAULT
Each one of the following is an event of DEFAULT under this
LEASE; an event of DEFAULT is also called a violation;
A.) TENANT’S failure to pay RENT & ADDITIONAL RENT
when due and which is not paid within 10 (ten) days after
LANDLORD gives TENANT written notice that this LEASE will
terminate in 10 (ten) days after the date of notice; or
B.) TENANT’S failure to do anything else that TENANT is
required to do in this LEASE and which is not remedied in
10 (ten) days after LANDLORD gives TENANT written notice
that this LEASE will terminate in 10 (ten) days after the date
of notice; or
C.) The giving of false information or false signatures by
TENANT to LANDLORD at any time; or
D.) TENANT’s abandonment of the LEASED PROPERTY
without LANDLORD’s written consent before the LEASE
ends.
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Sign: /s/ Raymond K. Sutton KEVIN Date: 4-25-16
Sign: /s/ Beth Y. Sutton Date: 4/24/16
E.) If TENANT wishes to DEFAULT through an EARLY
TERMINATION of this Lease before the end of the specified
Lease Term, Tenant must:
[See items 1-9, set forth supra on pages 5-7].
Sign: /s/ Raymond K. Sutton (KEVIN) Date: 4-25-16
Sign: /s/ Beth Y. Sutton Date: 4/24/16
19. REMEDIES
On a violation of any provision of this LEASE by TENANT,
LANDLORD, without prior notice to quit, can;
A.) Declare this LEASE terminated;
B.) Sue to evict TENANT, obtain possession of the LEASED
PROPERTY and recover the court costs and attorney fees
incurred;
C.) Declare the unpaid balance of the TOTAL RENT
immediately due and payable and collect the unpaid TOTAL
RENT, ADDITIONAL RENT, and LATE CHARGES;
D.) Collect any damages caused by TENANT’s failure to do
any of TENANT’s other obligations under this LEASE;
E.) Sue TENANT to collect the unpaid TOTAL RENT,
ADDITIONAL RENT, LATE CHARGES, damages, court costs
and attorney fees;
F.) LANDLORD shall be entitled to the payment of
reasonable attorney’s fees and costs in the event that
LANDLORD prevails in Court on any action arising out of the
LEASE;
G.) Any legal action arising out of the LEASE shall be
brought in the Court of Common Pleas of Allegheny County
and shall be governed by Pennsylvania law and local Court
rules applicable to LANDLORD-TENANT actions;
H.) In an attempt to collect unpaid debts, LANDLORD will
report TENANT to Credit Reporting Collection Agency.
Agency will attempt to collect debt by any means necessary.
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TENANT will be responsible to Landlord for all incurred
expenses associated with debt collection.
Sign: /s/ Raymond K. Sutton (KEVIN) Date: 4-25-16
Sign: /s/ Beth Y. Sutton Date: 4/24/16
Lease at 4.
Although the early termination provision appears in the lease under the
heading of “Default” and includes the term ‘default,’ the lease does not
explicitly identify invoking the early termination clause — or failing to comply
strictly with its requirements — as ‘an event of default’ and ‘violation.’ In fact,
the early termination clause is separated by signature lines from the list of
‘events of default’ and ‘violations’ set forth earlier in Paragraph 18, which
signifies to us that it is meant to be different. Further, as the trial court
suggested, to treat the early termination clause as a default or violation under
the lease would be nonsensical, given that the early termination provision is
intended to provide tenants with flexibility and prevent an event of default or
violation under the lease. TCO at 5, 7.8 Accordingly, the Deaktors do not
persuade us that the Suttons’ imperfect exercise of the early termination
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8 Indeed, at trial, Ms. Deaktor testified, “I don’t believe because someone has
a contract that they need to be bound by the rigid terms of a contract, per se,
but there needs to be leniency on both sides. And although it’s traditional in
my business for people in like businesses to take the full 12 months or
whatever the period that had not been paid, we give options. We give them
early termination.” N.T. Trial, 3/27/19-3/28/19, at 44-45.
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clause is an event of default and violation, entitling the Deaktors to use the
remedies listed under Paragraph 19 of the lease.9
Finally, the Deaktors complain that, “despite citing to [International
Diamond] in support of its [o]pinion, the [t]rial [c]ourt did not perform the
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9 We deem waived the Deaktors’ claim that the trial court overlooked other
violations of the lease, such as the Suttons’ abandoning the premises without
consent and withholding rent, which the Deaktors say would have also entitled
them to use the remedies in Paragraph 19. See Deaktors’ Brief at 45 (claiming
that the trial court “overlooked other instances of [the Suttons’] default under
the [l]ease for purposes of finding that [the Suttons’] untimely exercise of the
early termination clause was not a material breach, including the prior
abandonment of the [l]eased [p]remises with [the Deaktors’] written consent
under Paragraph 18(D) and [the Suttons’] withholding of rent, which are both
express forms of default under the [l]ease and, as such, material breaches”).
The Deaktors do not point us to where they advanced this argument below,
and our review of the record indicates that they did not specifically raise it in
their Rule 1925(b) statement or post-trial motion. See Pa.R.A.P. 2117(c)
(requiring, where an issue is not reviewable on appeal unless raised or
preserved below, a statement of place of raising or preservation of issues);
Pa.R.A.P. 2119(e) (“Where under the applicable law an issue is not reviewable
on appeal unless raised or preserved below, the argument must set forth, in
immediate connection therewith or in a footnote thereto, either a specific
cross-reference to the page or pages of the statement of the case which set
forth the information relating thereto as required by Pa.R.A.P. 2117(c), or
substantially the same information”); see also Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the [Rule 1925(b) s]tatement … are waived.”);
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 225 (Pa. Super. 2014) (“[I]n determining whether an appellant
has waived his issues on appeal based on non-compliance with [Rule] 1925,
it is the trial court’s order that triggers an appellant’s obligation[;] … therefore,
we look first to the language of that order.”) (citations omitted); Trial Court
Order, 8/15/19, at ¶ 3 (“Any issue not properly included in the Concise
Statement of the Errors Complained of on Appeal … shall be deemed
waived.”); L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55, 55 (Pa.
1998) (“If an issue has not been raised in a post-trial motion, it is waived for
appeal purposes.”) (citations omitted).
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requisite materiality analysis set forth therein and committed [an] error of law
in purportedly applying this framework solely to [the Deaktors,] even though
[the Suttons] were shown at [t]rial to be in default of the [l]ease on several
bases….” Deaktors’ Brief at 45.10 They say that the Suttons “unilaterally
vacated the [l]eased [p]remises, resulting in [the Deaktors’] unrefuted loss of
rents from July 2016 … [to] the remainder of [the Suttons’ l]ease’s [t]erm
through April 30, 2017.” Id. at 46. The Deaktors insist they “should be
entitled to the benefit of their bargain as the unpaid rents represent actual
losses.” Id.
This Court has explained that, “if the breach is an immaterial failure of
performance, and the contract was substantially performed, the contract
remains effective…. In other words, the non-breaching party does not have a
right to suspend performance if the breach is not material.” International
Diamond, 40 A.3d at 1271 (citations and internal quotation marks omitted).
Further,
[e]stablishing “materiality” requires a substantial showing. To
determine materiality, Pennsylvania courts refer to the
Restatement (Second) of Contracts § 241 (1981), which sets forth
the following factors to guide the inquiry:
____________________________________________
10The Deaktors do not specify in what other ways the Suttons were in default.
However, to the extent they are referring to the Suttons’ abandoning the
premises without consent and withholding rent, we reiterate that the Deaktors
have waived such claims. Again, the Deaktors do not point us to where they
raised this argument below, and our review of the record demonstrates that
they did not raise it in their Rule 1925(b) statement or post-trial motion. See
footnote 9, supra.
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a) the extent to which the injured party will be deprived of
the benefit which he reasonably expected;
b) the extent to which the injured party can be adequately
compensated for that part of the benefit of which he will be
deprived;
c) the extent to which the party failing to perform or to offer
to perform will suffer forfeiture;
d) the likelihood that the party failing to perform or offer to
perform will cure his failure, taking account of all the
circumstances including any reasonable assurances;
e) the extent to which the behavior of the party failing to
perform or offer to perform comports with standards of good
faith and fair dealing.
Id. (internal citations omitted). In addition, “we and other courts consistently
have treated inquiries into the materiality of a given breach as fact questions
rather than questions of law to be decided from the bench.” Id. at 1272
(citations omitted).
Though the trial court did not refer to the Section 241 factors, its
analysis nevertheless weighs many of them. With respect to the first and
second factors, the trial court recognized that the lease contained an early
termination provision that permitted the Suttons to end their lease early.
Given that provision, the Deaktors knew that the lease afforded some
flexibility to the Suttons and did not necessarily require them to stay through
the end of the lease’s term. Thus, it is unreasonable for the Deaktors to expect
to receive unpaid rent payments through the remainder of the lease term.
Further, although the Suttons did not formally offer to fulfill all of the
requirements of the early termination clause until August 5, 2016, the
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Deaktors do not point to any benefit they lost because the Suttons tried to
satisfy all of the requirements then, instead of in June. See TCO at 6 (“The
Deaktors … identify no loss to them from the formal offer to fulfill the early
termination clause being thirty-five days late.”).11 Regarding the third factor,
if we treat their untimely invocation of the early termination clause as a
material breach, the Suttons would forfeit tens of thousands of dollars for a
place they cannot safely live in because it makes their daughter sick.
Concerning the fourth factor, the trial court credited Ms. Sutton’s testimony
that they were prepared to pay the Deaktors $25,000 to be released from the
lease, and it observed that the Suttons’ counsel contacted the Deaktors about
terminating the lease and negotiating a settlement. Id. In addition, Ms.
Sutton testified that she had placed their July rent payment in an escrow
____________________________________________
11 Regarding the Suttons’ August 5, 2016 offer, Ms. Deaktor testified to the
following at trial:
[The Deaktors’ Counsel:] [D]o you understand that this [letter
from the Suttons’ attorney] is an attempt on August 5, 2016[,] to
now invoke the early termination provision of the lease?
[Ms. Deaktor:] I do.
[The Deaktors’ Counsel:] Okay. Were you willing to agree to allow
the Suttons to invoke the early termination provisions of the lease
on August 5th or thereafter?
[Ms. Deaktor:] Prior to August 5th, not August 5th or after.
N.T. Trial, 3/27/19-3/28/19, at 232. Ms. Deaktor proffered no specific
explanation as to why she would have agreed on or prior to August 4, 2016,
but would not agree on August 5, 2016 or thereafter. Based on our review of
the record, the date of August 5, 2016, bears no significance warranting Ms.
Deaktor’s refusal on or after that date.
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account. N.T. Trial, 3/27/19-3/28/19, at 395. As such, the evidence indicated
that the Suttons would cure their failure to fulfill all of the requirements of the
early termination provision. Finally, the trial court found that the Suttons’
intention was not to default, and that their 35-day delay in formally invoking
the early termination clause was not willful, but instead because they had to
hire an attorney to decipher the lease for them. TCO at 5-6. Thus, we
conclude that the record supports the trial court’s finding that the Suttons’
untimely and imperfect exercise of the early termination provision was not a
material breach. Accordingly, the Deaktors’ first issue warrants no relief.
Second Issue
In the Deaktors’ second issue, they advance that the trial court abused
its discretion and erred as a matter of law in finding violations of the UTPCPL.
See Deaktors’ Brief at 46. They raise multiple arguments challenging the trial
court’s findings.
Identifying and Proving UTPCPL Violations
To begin, the Deaktors declare that the Suttons did not identify or prove
a specific provision of the UTPCPL that the Deaktors violated. Id. at 46-47.
In addressing this claim, the trial court explained:
The Deaktors … contend the Suttons, in their Counterclaim, Bench
Memo and closing argument at trial, did not identify “a single one
of the 22 potential” [UTPCPL] violations. This is incorrect as
paragraph no. 111 of the Suttons’ March 13, 2017 Counterclaim
identifies three potential UTPCPL violations, including the “catch-
all” violation of “engaging in any other fraudulent or deceptive
conduct which creates a likelihood of confusion or of
misunderstanding.” 73 P.S. § 201-2(4)(xxi). Additionally, during
[the Suttons’] closing argument at trial, counsel implicitly
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referenced catch-all violations and even specifically used the
terms “fraudulent damages” and “fraud and … false
misrepresented damages.” [N.T. Trial, 4/18/19, at] 57-58.
The Deaktors also contend the Suttons did not prove there were
any violations of the UTPCPL. This too is incorrect as there was
proof of at least three violations of the UTPCPL. First, Ms. Sutton
credibly testified to informing the landlord about their asthma
issue before signing the lease ([N.T. Trial, 3/27/19-3/28/19, at]
373-[7]4)[,] and Ms. Deaktor saying the air quality is good ([N.T.
Trial, 4/18/19, at] 34-45). Ms. Sutton also credibly testified to a
statement by Dave Rodgers, the landlord’s truthful and “most
trusted foreman,” ([N.T. Trial, 3/27/19-3/28/19, at] 175[,] 348)
that “the windows have been leaking forever.” [Id. at] 387. The
wood around the windows was rotting from the moisture, but the
rotted wood had been painted over. [Id. at] 391. Not informing
the Suttons of the water infiltration problem and saying the air
quality is good, when Ms. Deaktor knew of the Suttons’ asthma,
is fraudulent and deceptive. Second, after receiving the Suttons’
email saying it was critical for them to move and requesting to be
released from the lease, Ms. Deaktor did not either outline the
terms of the early termination provision or at least reference a
page or paragraph number in the lease. In fact, her response
instead describes the Suttons’ proposal as “default,” which creates
the impression the Suttons will not be released before the
expiration of the lease term. Such conduct is deceptive. Third,
pursuant to 68 P.S. § 250.512 in the Pennsylvania Landlord and
Tenant Act, on August 15, 2016[,] the Deaktors sent the Suttons
a list of charges for sixteen items they falsely claimed to have
been damaged by the Suttons. See Deaktors’ [E]xhibit 5. I
determined the Deaktors[’] claims were false from the credible
testimony of Lisa Hobbs, the owner of Host Professional Cleaning
Service, and Beth Sutton. See [N.T. Trial, 3/27/19-3/28/19, at]
234-[]83 and 414-[]15. Thus, the Suttons proved at least three
instances of fraudulent or deceptive conduct that violated the
UTPCPL.
TCO at 6-8 (some internal citations omitted).
In crafting their argument, the Deaktors do not specifically address the
trial court’s observation that paragraph number 111 of the Suttons’
counterclaim identifies three potential UTPCPL violations, and the Deaktors do
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not explain why the Suttons’ references to “fraud” and “false misrepresented
damages” in their closing argument are insufficient as a means of identifying
the UTPCPL violations.12 The Deaktors also provide no legal authority
addressing the way in which parties must identify and pursue claims in
litigation, and how specific they must be in doing so. In re M.Z.T.M.W., 163
A.3d 462, 465 (Pa. Super. 2017) (“It is well-settled that this Court will not
review a claim unless it is developed in the argument section of an appellant’s
brief, and supported by citations to relevant authority.”) (citations omitted);
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (“The Rules
of Appellate Procedure state unequivocally that each question an appellant
raises is to be supported by discussion and analysis of pertinent authority. …
This Court will not act as counsel and will not develop arguments on behalf of
an appellant.”) (internal quotation marks and citations omitted). Accordingly,
without a developed argument, we cannot agree with the Deaktors that
____________________________________________
12 We add that the Suttons also asserted in their counterclaim that “[b]oth
before and after the execution of the [l]ease, and in specific response to the
Suttons[’] stated concerns regarding air quality due to the asthmatic
conditions of the children and M[s]. Sutton, the Deaktors represented to the
Suttons that the [l]eased [p]remises was in a safe and healthy condition and
contained good air quality.” Suttons’ Amended Answer, New Matter, and
Counterclaim, 3/13/17, at ¶ 115. The Suttons also alleged in their
counterclaim that “[t]he above-referenced representations were knowingly
false when made and were made by the Deaktors with the intent to defraud
the Suttons and induce them into executing the Lease and/or refrain from
vacating the Leased Premises[,]” and that “[t]he Deaktors[’] overall conduct
throughout the course of this relationship constituted fraudulent or deceptive
conduct which misled the Suttons, and intentionally caused confusion and
misunderstanding on the part of the Suttons.” Id. at ¶¶ 117, 124.
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“[n]othing of record indicates [the Suttons] specifically identified a single one
of the twenty-one (21) potential bases [of the UTPCPL], which [the Deaktors]
were alleged to have violated.” Deaktors’ Brief at 47.
We also deem meritless the Deaktors’ argument that the Suttons did
not prove that the Deaktors violated the UTPCPL. First, the Deaktors contest
the trial court’s finding that Ms. Deaktor did not inform the Suttons of the
water infiltration problem and said the air quality was good, when Ms. Deaktor
knew of the Suttons’ asthma. The Deaktors argue that Ms. Sutton “vaguely
testified that ‘[p]rior to signing the lease[,’] she or her husband informed ‘the
landlord about the asthma issue that [she] and [her] children experienced’
and that her husband ‘Kevin spoke to [Ms.] Deaktor.’” Id. at 48 (emphasis in
original; internal citations omitted; some brackets added). The Deaktors also
maintain that the air quality was good, given that “[n]one of the [Suttons]
with normal sensitivities had any respiratory problems and the [t]rial [c]ourt
declined to find the [l]eased [p]remises were uninhabitable.” Id. With respect
to the water infiltration problem, the Deaktors claim that they replaced
windows in the leased premises, and that the foreman who told Ms. Sutton
that the windows had been leaking forever made other representations that
Ms. Sutton was mistaken in believing. Id. at 48-49.
We reject the Deaktors’ argument. Viewing the evidence in the light
most favorable to the Suttons as the verdict winner, see Gamesa Energy
USA, LLC, 181 A.3d at 1191-92, the record supports that the Suttons told Ms.
Deaktor about their family’s asthma issues, N.T. Trial, 3/27/19-3/28/19, at
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373-74, the windows in the at-issue property had been leaking during rainfalls
for a long time, id. at 387-88, and the wood around the windows was rotting
but had been painted over, id. at 109, 391. The record also demonstrates
that the presence of rotting wood is clearly an indicator of the potential
presence of mold, id. at 109, mold grows when mold spores drop on places
where there is excessive moisture, such as leaking windows, id. at 91-92,
large mold infestations usually can be smelled and mildew smells typically
come from mold, id. at 92-93, 120-21, the property — according to
professional cleaner, Lisa Hobbs — had “a mold, mildewy smell[,]” id. at 243,
and having water dripping down a wall or window is obviously not a good idea
no matter what the situation is, let alone for individuals with asthma and
allergies. Id. at 167; see also id. at 79-81, 120 (the Deaktors’ mold expert
acknowledging that black mold was present in the June 24th air samples and
stating that the lab report indicates a “relatively low infestation” of mold); id.
at 90 (the Deaktors’ mold expert agreeing that asthma symptoms in people
with asthma have been linked to mold exposure); id. at 97 (the Deaktors’
mold expert agreeing that water infiltration in a home causes mold); see also
TCO at 2 (stating that the Deaktors knew, or should have known, that leaky
windows and rotting wood produce mold and poor air quality). Further, the
Suttons pointed out at trial that the Deaktors did not deny in their answer to
the Sutton’s counterclaim that, during the lease negotiation period, the
Suttons informed them that Ms. Sutton and her children suffered acute and
severe asthma, and were susceptible to deteriorating health conditions in
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areas of low air quality. N.T. Trial, 3/27/19-3/28/19, at 319-20; see also
Suttons’ Brief at 10; Deaktors’ Reply to New Matter and Counterclaim, 4/3/17,
at ¶ 64 (“By way of further response, [the Suttons] informed the [Deaktors]
of … Ms. Sutton’s and her children’s[] asthma.”).13, 14 Nevertheless, the
Deaktors concealed the water infiltration problem and led the Suttons to
believe that the property would be safe for their family. Accordingly, we
conclude that the record supports the trial court’s finding that the Deaktors
violated the UTPCPL in this regard.15
Second, relating to Ms. Deaktor’s response to the Suttons’ email
requesting to be released from the lease, the Deaktors argue that Ms.
Deaktor’s identifying the Suttons’ request to vacate as a default cannot be
deceptive because the early termination clause is “listed under Paragraph 18
as a defined and enumerated form of ‘default’ under the [l]ease; thus, the
representation cannot possibly create ‘a likelihood of confusion or of
misunderstanding.’ This is exactly what the [l]ease says.” Deaktors’ Brief at
____________________________________________
13 When Ms. Deaktor was asked at trial if Mr. Sutton had told her prior to
signing the lease that his family had asthma, Ms. Deaktor testified that she
did not recall. N.T. Trial, 3/27/19-3/28/19, at 319.
14All citations herein to the Suttons’ brief refer to their amended brief filed on
June 20, 2020.
15 To the extent the Deaktors ask us to re-weigh the evidence and make
credibility determinations, we reiterate that “[i]ssues of credibility and
conflicts in evidence are for the trial court to resolve; this Court is not
permitted to reexamine the weight and credibility determination or substitute
our judgment for that of the fact finder.” Gamesa Energy USA, LLC, 181
A.2d at 1192 (citation omitted).
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49. However, as the trial court observed, Ms. Deaktor did not mention the
terms of the early termination provision or reference the page or paragraph
number in the lease containing that provision. TCO at 7. Additionally, we
agree with the trial court that the term ‘default’ and the language in Ms.
Deaktor’s email give the impression that the Suttons would not be released
early from the lease. Id. We also add that Ms. Deaktor had told the Suttons
over the phone that it was an ‘ironclad’ lease, they were not getting out of it,
and they would have to pay at least $25,000 if they want to terminate it early,
which are all false and/or misleading statements. See id. at 5. Thus, we
conclude that the record supports the trial court’s finding that Ms. Deaktor’s
conduct in this regard violated the UTPCPL.
Third, the Suttons proved that the Deaktors sent the Suttons a list of
charges for sixteen items that they falsely claimed the Suttons damaged. At
trial, Lisa Hobbs — a professional cleaner hired by the Suttons to clean the
property after they moved out — testified that she cleaned various items that
the Deaktors alleged were dirty or damaged. See, e.g., N.T. Trial, 3/27/19-
3/28/19, at 247-48, 250, 254-55. Nevertheless, the Deaktors argue that
“[Ms.] Hobbs admitted that she did not follow the ‘Vacating Procedures’ in the
[l]ease, and [Ms.] Deaktor provided notes from a video walkthrough of the
[l]eased [p]remises following [Ms.] Hobbs’[s] cleaning and testified that the
itemized list of damages was accurate.” Deaktors’ Brief at 49. 16 The Deaktors’
____________________________________________
16 Ms. Deaktor, however, did not introduce this video at trial. See Suttons’
Brief at 16.
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argument urges us to reweigh the evidence, which we may not do. See
Gamesa Energy USA, LLC, 181 A.3d at 1191-92. Because the record
supports the trial court’s finding that the Deaktors violated the UTPCPL by
falsely claiming that the Suttons had damaged items, no relief is due on this
basis.
UTPCPL Damages
The Deaktors next insist that the trial court abused its discretion and
erred as a matter of law “in awarding damages to [the Suttons] because [the
Suttons’] private claim is not actionable under the UTPCPL as [the Suttons]
failed to prove the existence of any condition of the [l]eased [p]remises that
resulted in any loss as a result of a method, act or practice declared unlawful
by the UTPCPL.” Deaktors’ Brief at 50. They maintain that the Suttons “did
not prove that they suffered any harm ‘as a result’ of a violation of the
UTPCPL.” Id. at 51. More specifically, the Deaktors say that the Suttons “did
not present substantial or any evidence that the air quality of the [l]eased
[p]remises caused the [l]eased [p]remises to be uninhabitable or was
otherwise contrary to any representations by [the Deaktors].” Id. (emphasis
in original). They claim that they “proved that the air quality of the [l]eased
[p]remises was perfectly fine to persons of normal sensitivities who lived in
the [l]eased [p]remises,” id. at 52, and point out that none of the medical
records for the Suttons’ youngest daughter attribute her breathing issues to
the leased premises. Id. at 52-53. In addition, the Deaktors advance that
the Suttons “did not bother to even introduce the [l]aboratory [r]eport [from
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their mold test] as an exhibit in their case or present the author or any expert
to interpret the information contained therein because the report wholly
disproved [their] mistaken beliefs about the air quality of the [l]eased
[p]remises and undermined their entire case.” Id. at 53-54.
Here, in response to this claim, the trial court opined:
The Deaktors … contend that I made an error by awarding UTPCPL
damages to the Suttons when the Suttons suffered no losses as a
result of UTPCPL violations. A description of each component of
my $20,303.06 UTPCPL verdict in favor of the Suttons is necessary
for analysis of this contention. With the UTPCPL allowing for up
to three times the amount of the actual damages (see 73 P.S. §
201-9.2(a)), $20,303.06 is double the Suttons’ actual damages of
$10,151.53. The actual damages of $10,151.53 are comprised of
a $9,333.95 payment the Suttons made to move their furniture
and other personalty to a home they rented in Aspinwall, a
$467.58 payment the Suttons made for a hotel room in Pittsburgh
they occupied on June 29 and 30, 2016[,] and the $350 payment
they made to Host Professional Cleaning Service for the cleaning
of 709 Copeland Street after their furniture and other personalty
was moved out.
Contrary to the Deaktors’ contention, each of these expenditures
is an ascertainable loss of money “as a result of the use” by the
Deaktors of a practice prohibited under 73 P.S. § 201-2(4) of the
UTPCPL. Had the air quality been good, the [Suttons] would not
have needed to hire a mover to relocate all of their belongings.
Therefore, the $9,333.95 moving expense resulted from the
Deaktors’ fraudulent and deceptive representation about the
townhome’s air quality as well as concealment of the water
infiltration. Similarly, the hotel expense was incurred due to the
same UT[P]CPL violations by the Deaktors. Finally, because the
Deaktors falsely claimed the Suttons damaged sixteen items in
the townhome, including leaving an unclean stove top and oven,
unclean cabinet drawers and toilet cleaner rings, the $350
cleaning expense was of no value to the Suttons. Therefore, I
correctly determined the losses suffered by the Suttons resulted
from the Deaktors’ UTPCPL violations.
TCO at 9-10 (footnote and most internal citations omitted).
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We see no error of law or abuse of discretion in the trial court’s
reasoning. Viewing the evidence in the light most favorable to the Suttons as
the verdict winner, the record supports the trial court’s determination that the
Deaktors knew of the Sutton family’s asthma issues, and knew that the
windows had been leaking for a long time and that the wood around them was
rotting, yet they did not tell the Suttons about this and actively concealed the
water infiltration issues by painting over the rotted wood. Had the Deaktors
disclosed this issue, the Suttons could have decided whether to rent the
property given the water infiltration and their family’s breathing troubles.
Instead, the Deaktors misled them by concealing the water infiltration, which
caused the Suttons to have to stay at a hotel and move to another property
due to the air quality. Ms. Sutton testified that her and her youngest
daughter’s breathing difficulties subsided when they left the property. See
N.T. Trial, 3/27/19-3/28/19, at 378-80. Thus, given our standard of review,
the record supports the trial court’s damages award and no relief is due on
this basis.
Pre-Lease Representations
The Deaktors also claim that the trial court abused its discretion and
committed an error of law “in finding purported fraudulent pre-lease parol
evidence representations supported [the Suttons’] claims under the UTPCPL.”
Deaktors’ Brief at 56 (unnecessary capitalization and emphasis omitted).
They aver that any purported fraudulent or deceptive representations made
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by the Deaktors prior to the signing of the lease are barred by the lease’s
integration clause and the parol evidence rule. Id.
The trial court determined that the Deaktors had waived this claim,
stating, “I am unable to find that the Deaktors raised this issue in a pre-trial
proceeding or at trial. I cannot locate a pre-trial motion or any objection
during trial based on the parol[] evidence rule. This results in the argument
being waived.” TCO at 8 (citation omitted); see also Pa.R.C.P. 227.1(b)(1)
(“[P]ost-trial relief may not be granted unless the grounds therefor, (1) if then
available, were raised in pre-trial proceedings or by motion, objection, point
for charge, request for findings of fact or conclusions of law, offer of proof or
other appropriate method at trial….”); Suttons’ Brief at 25 (“At no point during
the trial did [the Deaktors] make a timely objection to the admissibility of the
testimony and evidence concerning [their] pre-[l]ease false representations
that induced the Suttons to sign the [l]ease.”). On appeal, the Deaktors aver
that, “[a]t [t]rial and in numerous filings, [the Deaktors] asserted the content
of Paragraph 26 [of the lease] as an integration clause, which necessarily
embraces the parol evidence rule relative to [the Suttons’] seeking to vary the
terms of the agreement and any attempt of [the Suttons] to admit parol
evidence to establish any purported fraud in the inducement on behalf of [the
Deaktors]. As such, the parol evidence doctrine was preserved.” Deaktors’
Brief at 57 (emphasis in original; footnote omitted).
We deem the Deaktors’ parol evidence claim waived. Though they insist
that they sufficiently preserved this claim at trial and in numerous filings by
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characterizing Paragraph 26 of the lease as an integration clause, they do not
indicate where they purportedly did so, which contravenes our Rules of
Appellate Procedure. See Pa.R.A.P. 2117(c) (requiring, where an issue is not
reviewable on appeal unless raised or preserved below, a statement of place
of raising or preservation of issues); Pa.R.A.P. 2119(e) (“Where under the
applicable law an issue is not reviewable on appeal unless raised or preserved
below, the argument must set forth, in immediate connection therewith or in
a footnote thereto, either a specific cross-reference to the page or pages of
the statement of the case which set forth the information relating thereto as
required by Pa.R.A.P. 2117(c), or substantially the same information”). “Our
appellate courts have long held that an [appellant] who does not follow
Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) waives the related issues due to the
defects in his brief.” Young v. S.B. Conrad, Inc., 216 A.3d 267, 274 (Pa.
Super. 2019). “[I]t is not the responsibility of this Court to scour the record
to prove that an appellant has raised an issue before the trial court, thereby
preserving it for appellate review.” Commonwealth v. Baker, 963 A.2d 495,
502 n.6 (Pa. Super. 2008) (citations omitted). Accordingly, we decline to
search the record for the Deaktors to find where they supposedly raised that
the lease contained an integration clause that barred the introduction of any
evidence of the Deaktors’ pre-lease representations relating to water
infiltration and air quality. Thus, this claim is waived, and no relief is
warranted.
Third Issue
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In the Deaktors’ third issue, they argue that the trial court abused its
discretion and committed an error of law “by finding in the absence of expert
or other competent evidence or testimony that there was mold in the [l]eased
[p]remises, which caused respiratory problems to a child of hypersensitivities
and was not supported by substantiated evidence.” Deaktors’ Brief at 36-37.
They say that the Suttons “failed to establish their burden of proof by a
preponderance of the evidence as they presented no substantial evidence that
supports a finding of mold in the [l]eased [p]remises.” Id. at 60 (citation
omitted).
The Deaktors have also waived this argument. They do not develop an
argument to support their claim that the Suttons had to produce an expert in
order to prove that the leased premises contained mold, and they do not
explain why the evidence of mold already contained in the record was
“incompetent” and should not be considered under relevant law. See
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.”); In re M.Z.T.M.W., 163 A.3d at 465 (“It is well-settled that this
Court will not review a claim unless it is developed in the argument section of
an appellant’s brief, and supported by citations to relevant authority.”)
(citations omitted). Thus, no relief is due on this basis.
The Suttons’ Cross-Appeal
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We now turn to the Suttons’ cross-appeal. They present the following
issues for our review:
1. Whether the [t]rial [c]ourt abused its discretion and/or erred
as [a] matter of law in awarding any damages to the [Deaktors,]
who the [t]rial [c]ourt found made knowingly false
misrepresentations about the condition of the [p]roperty, actively
concealed latent water infiltration, committed fraud during the
pendency and termination of the [l]ease, and violated the
[UTPCPL.]
2. Whether the [t]rial [c]ourt abused its discretion and erred as
[a] matter of law in failing to award the [Suttons] the repayment
of rent and security deposits paid by them under the [l]ease (and
failing to treble those damages as part of the UTPCPL award), and
otherwise failing to find in favor of the Suttons on Counts 1, 2[,]
and 4 of the [c]ounter[]claim.
3. Whether the [t]rial [c]ourt erred as [a] matter of law and
abused its discretion in awarding attorney[s’] fees to the
[Deaktors], or in the alternative, awarding an amount of
attorneys’ fees that was not “reasonable.”
4. Whether the [t]rial [c]ourt abused its discretion and erred as a
matter of law in failing to award the Suttons the full amount of
their reasonable attorney[s’] fees, costs[,] and expenses in
pursuing and prevailing upon their UTPCPL claims.
Suttons’ Brief at 4-5.17
At the outset, we observe that the Suttons raise four issues in their
statement of the questions involved. However, the Suttons do not divide the
argument section of their brief into four corresponding parts; instead, they
separate it into five, incongruous sections. We admonish the Suttons for their
lack of compliance with Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a), supra;
Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa. Super. 2016)
____________________________________________
17 We have re-ordered the Suttons’ issues for ease of disposition.
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(determining that the appellant failed to comply with Rule 2119(a) where the
appellant’s brief did not “present and develop eight arguments in support of
the eight questions raised”). Notwithstanding, the Suttons’ noncompliance
does not preclude our review of their issues.
First Issue
In the Suttons’ first issue, they argue that the trial court abused its
discretion and/or erred as a matter of law “in awarding any damages to the
[Deaktors,] who the [t]rial [c]ourt found made knowingly false
misrepresentations about the condition of the [p]roperty, actively concealed
latent water infiltration, committed fraud during the pendency and termination
of the [l]ease, and violated the [UTPCPL.]” Suttons’ Brief at 4. The Suttons
advance that the trial court’s “factual findings demonstrate that [they]
established the defense of fraud sufficient to preclude any liability for alleged
breach of the [l]ease.” Id. at 32-33. To support the proposition that fraud
constitutes a total defense to breach-of-contract claims, they provide the
following legal authority:
Fraud in the execution of the [l]ease serves as an absolute defense
to the [Deaktors’] breach of contract claims. See Germantown
Mfg. Co. v. Rawlinson, 491 A.2d 138, 141 (Pa. Super. … 1985)
(“The recipient of a misrepresentation may avoid the contract by
showing that the misrepresentation was either fraudulent or
material.”); [s]ee also Owens v. McCurdy, 450 A.2d 1028,
1029 n.1 ([Pa. Super. 1982) (referring to fraud in the inducement
as a meritorious defense).
Suttons’ Brief at 31.
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We deem this claim waived. While the Suttons proffer this authority to
establish that fraud precludes liability for breach-of-contract claims, their
argument lacks any meaningful discussion or analysis of it. Instead, the
Suttons’ references to these authorities are vague, and their reliance on them
unexplained. We will not examine and analyze these cases for them. See
Coulter, 94 A.3d at 1088 (“We need not reach the merits of this issue because
the argument section of [the a]ppellant’s brief merely consists of general
statements unsupported by any discussion and analysis of relevant legal
authority.”). Therefore, we award the Suttons no relief on their first claim.
Second Issue
In the Suttons’ second issue, they insist that the trial court abused its
discretion and erred “in failing to award the [Suttons] the repayment of rent
and security deposits paid by them under the [l]ease (and failing to treble
those damages as part of the UTPCPL award), and otherwise failing to find in
favor of the Suttons on Counts 1, 2[,] and 4 of the [c]ounter[]claim.” Suttons’
Brief at 5. First, with respect to trial court’s failure to award the Suttons the
total amount of rent they paid and their security deposit, they assert that they
are “entitled to all money damages incurred as a result of the [Deaktors’]
fraudulent conduct, which includes not only the moving, cleaning, and hotel
expenses, but also the reimbursement of rent and security deposits paid to
the [Deaktors’] under the lease.” Id. at 33 (citation omitted). The Suttons
claim that this sum amounts to $15,900. Id.
Here, in denying this claim, the trial court reasoned:
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The Suttons are entitled “to recover actual damages” that are the
“result of the use or employment by any person of a method, act
or practice” that violates the UTPCPL. 73 P.S. § 201-9.2(a). The
Suttons’ moving, hotel and cleaning expenses … were a result of
the Deaktors’ deceptive conduct. The security deposit and two
months[’] rent paid to the Deaktors were not losses that were a
result of the Deaktors’ deception. Instead, this was money spent
to occupy a townhome habitable by people of ordinary sensitivities
for three months. Had the Deaktors disclosed the water
infiltration problem, it is possible the Suttons may have taken a
“wait and see approach” and still rented the townhome. Had the
Deaktors disclosed the water infiltration problem and the Suttons
decided not to sign the lease, they would have then rented
elsewhere at a similar cost. Hence, the Suttons would have spent
the $15,900 whether there was, or was not, deceptive behavior.
Therefore, my decision not to award the Suttons the $15,900 they
paid to the Deaktors was correct.
TCO at 15-16. The Suttons have not persuaded us that the trial court erred
or abused its discretion in this regard, as they proffer a less-than-one-page
argument that includes no citations to, or discussion of, relevant legal
authority. They also do not specifically counter any of the points made in the
trial court’s analysis. Without any legal analysis detailing how the trial court
erred, we decline to disturb the trial court’s decision on this matter. See
Pa.R.A.P. 2119(a), supra.
Second, the Suttons argue that the trial court erred in failing to find the
Deaktors liable for breach of contract and breach of the implied warranty of
habitability. See Suttons’ Brief at 34.18 They claim that the trial court’s
findings concerning persistent latent water infiltration in the bedroom of the
____________________________________________
18 In the argument section of the Suttons’ brief, they do not challenge the trial
court’s findings regarding Count IV of their counterclaim concerning violations
of the Landlord Tenant Act. Given the lack of argument on Count IV, we do
not address it.
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leased premises and the presence of toxic black mold demonstrate that the
Deaktors breached the implied warranty of habitability and the lease. Id. at
37. As a result, they insist that the trial court should have awarded them the
$15,900.00 of rent and security deposits that they paid to the Deaktors. Id.
We disagree.
With respect to the implied warranty of habitability, our Supreme Court
has explained:
The implied warranty is designed to insure that a landlord will
provide facilities and services vital to the life, health, and safety
of the tenant and to the use of the premises for residential
purposes. This warranty is applicable both at the beginning of the
lease and throughout its duration.
In order to constitute a breach of the warranty[,] the defect must
be of a nature and kind which will prevent the use of the dwelling
for its intended purpose to provide premises fit for habitation by
its dwellers. At a minimum, this means the premises must be safe
and sanitary of course, there is no obligation on the part of the
landlord to supply a perfect or aesthetically pleasing dwelling.
Materiality of the breach is a question of fact to be decided
by the trier of fact on a case-by-case basis. Several factors
(not exclusive) are listed by the Superior Court as considerations
in determining materiality, including the existence of housing code
violations and the nature, seriousness and duration of the
defect.[19]
____________________________________________
19 Specifically, this Court stated that,
[a]mong those factors to be considered in determining whether a
breach is material are 1) whether the condition violates a housing
law, regulation or ordinance; 2) the nature and seriousness of the
defect; 3) the effect of the defect on safety and sanitation; 4) the
length of time for which the condition has persisted; and 5) the
age of the structure. This proposed list of factors is not designed
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We believe these standards fully capable of guiding the fact finder
in his determination of materiality of the breach. Further, these
standards are flexible enough to allow the gradual development
of the habitability doctrine in the best common law tradition. This
finds support in Elderkin v. Gaster, [288 A.2d 771 (Pa. 1972)],
wherein we declined to establish rigid standards for determining
habitability and its breach in the builder/vendor vendee context
and, instead, defined habitability in terms of “contemporary
community standards” and breach of the warranty as whether the
defect prevented the use of the dwelling for the purposes intended
habitation. [Id.] at 777. In that case, we held that lack of a
potable water supply to the home prevented its use as habitation
and, accordingly, found the implied warranty of habitability to
have been breached.
Additionally, we agree with the Superior Court that, to assert a
breach of the implied warranty of habitability, a tenant must prove
he or she gave notice to the landlord of the defect or condition,
that he (the landlord) had a reasonable opportunity to make the
necessary repairs, and that he failed to do so.
Pugh v. Holmes, 405 A.2d 897, 905-06 (Pa. 1979) (most internal citations
and quotation marks omitted; emphasis added). Further, we recognize that
“[t]he tenant may vacate the premises where the landlord materially breaches
the implied warranty of habitability…. Surrender of possession by the tenant
would terminate his obligation to pay rent under the lease.” Id. at 907
Here, the trial court discerned that “[t]he Suttons were required to
relocate because one of their daughters is extraordinarily sensitive to moisture
and/or mold in the air. Mr. Sutton reported no problems and Ms. Sutton did
not have any severe reaction. The Deaktors provided a townhome that was
habitable by persons of ordinary sensibilities….” TCO at 13. The trial court
____________________________________________
to be exclusive; the lower court, in its discretion, may consider
any other factors it deems appropriate.
Pugh v. Holmes, 384 A.2d 1234, 1240 (Pa. Super. 1978).
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went on to determine that “a breach of the warranty of habitability does not
arise from a condition that impacts only one resident who has extraordinary
sensitivities.” Id. Thus, the trial court found that the seriousness and effect
of the water infiltration did not make the premises unfit for habitation.
Given our standard of review and our Supreme Court’s pronouncement
in Pugh that the materiality of the breach is a question of fact to be decided
by the trier of fact on a case-by-case basis, we uphold the trial court’s
conclusion. See Gamesa Energy USA, LLC, 181 A.3d at 1191 (“The findings
of fact of the trial judge must be given the same weight and effect on appeal
as the verdict of the jury.”). The record supports the trial court’s finding that
persons with ordinary sensibilities had no problems in the townhome. N.T.
Trial, 3/27/19-3/28/19, at 446-47 (Ms. Sutton’s testifying that Mr. Sutton and
her older daughter had no respiratory issues and were perfectly fine while
living at the property); id. at 33 (Ms. Deaktor’s testifying that no tenant at
the property in the twelve years preceding the Suttons’ tenancy had brought
to her attention any water penetration issues). Further, to the extent that the
Suttons argue that this Court has ascertained that water infiltration breached
the implied warranty of habitability in other cases, we point out that in those
cases, this Court was affirming the fact-finder’s finding in that regard. See
Suttons’ Brief at 35 (citing to Krishnan v. Cutler Group, Inc., 171 A.3d 856(Pa. Super. 2017); Ecksel v. Orleans Const. Co., 519 A.2d 1021 (Pa. Super.
1987)). Therefore, based on the foregoing, the Suttons’ second issue fails.
Third Issue
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In the Suttons’ third issue, they assert that the trial court “erred as a
matter of law and abused its discretion in awarding attorney[s’] fees to the
[Deaktors], or in the alternative, awarding an amount of attorneys’ fees that
were not ‘reasonable.’” Suttons’ Brief at 5. Initially, the Suttons claim that,
pursuant to Paragraph 19(F) of the lease, the Deaktors are only entitled to
the payment of reasonable attorneys’ fees and costs in the event that the
Deaktors prevail in court. Id. at 37. However, the Suttons aver that the
Deaktors did not prevail on any of their claims against them and, therefore,
should not receive attorneys’ fees. Id.
We set forth, again, Paragraph 19 of the lease, which outlines the
Deaktors’ remedies. It provides, verbatim:
19. REMEDIES
On a violation of any provision of this LEASE by TENANT,
LANDLORD, without prior notice to quit, can;
A.) Declare this LEASE terminated;
B.) Sue to evict TENANT, obtain possession of the LEASED
PROPERTY and recover the court costs and attorney fees
incurred;
C.) Declare the unpaid balance of the TOTAL RENT
immediately due and payable and collect the unpaid TOTAL
RENT, ADDITIONAL RENT, and LATE CHARGES;
D.) Collect any damages caused by TENANT’s failure to do
any of TENANT’s other obligations under this LEASE;
E.) Sue TENANT to collect the unpaid TOTAL RENT,
ADDITIONAL RENT, LATE CHARGES, damages, court costs
and attorney fees;
F.) LANDLORD shall be entitled to the payment of
reasonable attorney’s fees and costs in the event that
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LANDLORD prevails in Court on any action arising out of the
LEASE;
G.) Any legal action arising out of the LEASE shall be
brought in the Court of Common Pleas of Allegheny County
and shall be governed by Pennsylvania law and local Court
rules applicable to LANDLORD-TENANT actions;
H.) In an attempt to collect unpaid debts, LANDLORD will
report TENANT to Credit Reporting Collection Agency.
Agency will attempt to collect debt by any means necessary.
TENANT will be responsible to Landlord for all incurred
expenses associated with debt collection.
Lease at 4.
In awarding attorneys’ fees to the Deaktors, the trial court explained:
The Suttons … contend that my award of attorney[s’] fees to the
Deaktors in the amount of $40,000 is erroneous. They argue that
Paragraph 19F of the lease entitles the Deaktors to attorney[s’]
fees only “in the event that Landlord prevails in Court,” which they
say did not occur. Discussing whether the [Deaktors] prevailed is
unnecessary because it is Paragraph 19E of the lease that is
applicable. It allows the [Deaktors] to “sue TENANT to collect the
unpaid TOTAL RENT... damages, court costs and attorney fees.”
Hence, the fact that the Deaktors sued the Suttons for unpaid rent
authorized me to award attorney[s’] fees to the Deaktors.
TCO at 14 (internal citations omitted).
The Suttons proffer no argument in response to the trial court’s
reasoning. They make no mention of Paragraph 19(E), or why the trial court
was incorrect to look to that provision instead of Paragraph 19(F) in awarding
attorneys’ fees to the Deaktors. Accord Deaktors’ Reply Brief at 22 (“The
[t]rial [c]ourt also identified an entirely different provision in the [l]ease that
clearly spells out [the Deaktors’] right to attorneys’ fees without any
contemplation of what the verb ‘prevail’ may or may not mean. [The Suttons]
simply do not address this aspect of the [t]rial [c]ourt’s reasoning….”) (citation
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omitted). The Suttons also do not argue that the remedies in Paragraph 19
should not apply at all because the Deaktors failed to establish an event of
default and violation under the lease that would entitle them to use them. We
will not develop these arguments and analyses for the Suttons. Coulter, 94
A.3d at 1088-89 (“This Court will not act as counsel and will not develop
arguments on behalf of an appellant.”) (citations omitted). Thus, we see no
error or abuse of discretion by the trial court in awarding attorneys’ fees to
the Deaktors.
The Suttons also claim that the trial court’s award of attorneys’ fees to
the Deaktors was unreasonable. They say that “the attorney[s’] fees provision
of Paragraph 19(F) … only permits the recovery of ‘reasonable’ attorney[s’]
fees.” Suttons’ Brief at 40 (emphasis in original). The Suttons insist that any
attorneys’ fees incurred by the Deaktors on or after the date of the Deaktors’
wrongful rejection of the Suttons’ exercise of the early termination option were
not reasonable and should not be awarded. Id. at 40-41. The Suttons
observe that “the results obtained and amount of money awarded to [the
Deaktors] in the case is exactly the amount that the Suttons tendered to them
on August 15, 2016.” Id. at 41. Therefore, they maintain that the trial court
erred and abused its discretion “in awarding any attorneys’ fees [to the
Deaktors] in excess of $3[,]091.00 — the amount incurred prior to August 15,
2016.” Id. (citation omitted).
Regarding the reasonableness of the attorneys’ fees, the trial court
opined:
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The Suttons … contend that my award of attorney[s’] fees to the
Deaktors is not reasonable because it includes attorney time spent
after August 15, 2016, “the date of the [Deaktors’] wrongful
rejection of the [Suttons’] exercise of the [e]arly [t]ermination
option….” In Skurnowicz v. Lucci, [798 A.2d 788 (Pa. Super.
2002) (superseded by statute on other grounds)], the Superior
Court of Pennsylvania found [that] a trial judge … abused his
discretion when the only reason stated for a large attorney fee[]
award was that [the] defendants’ lack of a response to [the]
plaintiffs’ settlement attempts forced [the plaintiffs] to file suit.
[Id.] at 796. Since the Superior Court found this basis for
increasing an award “punitive,” the same could then be said about
reducing an attorney fee[] award because a settlement offer was
made. While the Pennsylvania judiciary encourages the resolution
of disputes by out-of-court settlement, parties unable to do so
should be entitled to have their “day in court” without
repercussion. Also, I believe it simply is wrong to penalize an
attorney for not making a good guess on the amount of damages
the trier of fact will award in the future. Therefore, my decision
to award attorney[s’] fees for time spent after the Deaktors
rejected the Suttons’ exercise of the [e]arly termination option
was correct.
TCO at 14-15 (internal citation omitted).
The trial court’s explanation for why it rejected the Suttons’ theory is
rational, and the Suttons offer no argument in response to it. Further, the
trial court awarded the Deaktors attorneys’ fees pursuant to Paragraph 19(E)
of the lease, which does not explicitly require those fees to be ‘reasonable.’
In light of the foregoing, we affirm the trial court’s award of attorneys’ fees to
the Deaktors, as the Suttons have not convinced us that the trial court
committed an error of law or abuse of discretion.
Fourth Issue
Finally, in the Suttons’ fourth issue, they contend that the trial court
erred and abused its discretion in reducing their award of attorneys’ fees.
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Suttons’ Brief at 42. The Suttons state that their “billing records indicated [a]
total of $44,250.67 in attorney[s’] fees, plus $1,565.23 in costs and
expenses[,] incurred as a result of the [Deaktors’] wrongful conduct and
violations of the UTPCPL. However, the [t]rial [c]ourt only awarded the
Suttons $20,000 in legal fees, representing less than half of the total
attorney[s’] fees and none of the documented costs and expenses incurred by
them.” Id.“We examine such claims for an abuse of discretion.” Krishnan, 171
A.3d at 871 (citation omitted). The UTPCPL provides that “[t]he court may
award to the plaintiff … costs and reasonable attorney fees.” Id. (citing 73
P.S. § 201–9.2(a); other citation and emphasis omitted). When awarding
attorneys’ fees under the UTPCPL, this Court has directed that:
In a case involving a lawsuit which include[s] claims under the
UTPCPL … the following factors should be considered when
assessing the reasonableness of counsel fees:
(1) The time and labor required, the novelty and difficulty
of the questions involved and the skill requisite properly to
conduct the case; (2) The customary charges of the
members of the bar for similar services; (3) The amount
involved in the controversy and the benefits resulting to the
clients from the services; and (4) The contingency or
certainty of the compensation.
Further,
(1) there should be a sense of proportionality between an
award of damages [under the UTPCPL] and an award of
attorney[s’] fees, and (2) whether plaintiff has pursued
other theories of recovery in addition to a UTPCPL claim
should [be] given consideration in arriving at an appropriate
award of fees.
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We [do] not mandate a proportion that would be the limit of
acceptability, but instead only suggest[] that there be a sense of
proportionality between the two amounts. Nor would it have been
appropriate for this Court to fix a proportionate amount that would
define the limit of recoverable fees, since the General Assembly
specifically chose not to include such a factor in the statute.
Id. at 900-01 (internal citations and quotation marks omitted).
Moreover,
[w]e have stated that a court in awarding attorney[s’] fees under
the UTPCPL must … eliminate from the award of attorney[s’] fees
the efforts of counsel to recover on non-UTPCPL theories. Simply
put, there is no statutory authority for awarding attorney[s’] fees
for the time spent pursuing non-UTPCPL counts. Notwithstanding,
this Court has also recognized the difficulty in differentiating the
time spent pursuing UTPCPL claims from non-UTPCPL claims. For
instance, we have noted that where the plaintiffs are proceeding
on multiple theories of relief, including under the UTPCPL, it is
difficult to parse out the time between the UTPCPL claim and other
causes of action. In such scenarios, [m]uch of the time spent in
pre-trial litigation would relate to both UTPCPL and common law
causes of action.
Id. at 871 (internal citations and quotation marks omitted).
The Suttons advance that “[i]n this case[,] all of the underlying facts
and legal theories of the Suttons’ UTPCPL claims are directly and inextricably
intertwined with all of the other claims and defenses in the case.” Suttons’
Brief at 43 (emphasis in original). The Suttons also maintain that the Deaktors
“made no effort to establish or even argue any basis for segregating hours
and time spent on UTPCPL claims — nor could they.” Id. at 44 (citing to
Township of South White Hall v. Karoly, 891 A.2d 780, 786 (Pa. Cmwlth.
2006), and Okot v. Conicelli, 180 F.Supp.2d 238 (D. Maine 2002), for the
proposition that “once the prevailing party has established the relatedness of
the claims, it is the opposing party’s ‘burden to establish a basis for
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segregating the hours spent on the successful and unsuccessful claims’”).
Consequently, they say that “the [t]rial [c]ourt erred in failing to award [them]
the entirety of the attorneys[’] fees and costs as part of their UTPCPL award.”
Id.In addressing this contention, the trial court reasoned:
The Suttons … acknowledge that the attorney fee award must
exclude their counsel’s billings for non-UTPCPL work. In their
counterclaim, in addition to the UTPCPL violations, the Suttons
pled counts for breach of contract, breach of implied warranty of
habitability and violation of the Landlord and Tenant Act. Hence,
there can be no question that, within the Suttons[’] counsel[’s]
bills, work for non-UTPCPL claims are included. I also believe the
Suttons’ counsel devoted half of their efforts to defending against
the Deaktors’ claims, which also is non-UTPCPL work. By way of
example, on 1/9/2018[,] the Suttons’ counsel billed them $2,325
to “prepare for and conduct defense of Kevin and Beth Sutton
Depositions[,”] and on 3/27/2019[,] $3,187.50[,] and on
3/28/2019[,] another $3,187.50[,] for representation during trial
days in which the Deaktors[’] witnesses’ testimony consumes 285
of the 459 transcript pages. In assessing the reasonableness of
counsel fees, “the amount involved in the controversy and the
benefits resulting to the clients from the services” must also be
considered. The verdict on the counterclaim did not include
$15,900 paid to the Deaktors for the security deposit and rent,
and the UTPCPL damages were doubled, not tripled. The Suttons
unsuccessfully sought these damages, an indication that counsel
did not achieve the full benefits sought by their clients. This is
additional justification for my decision to award only $20,000 to
the Suttons’ counsel. Because more than half of counsel’s work
was for non-UTPCPL claims and the full benefits sought by their
clients were not achieved, my decision to award $20,000 to the
Suttons for UTPCPL counsel fees was correct.
The Suttons also argue their UTPCPL claims are inextricably
intertwined with their other claims and defenses, hence it is
difficult to differentiate time spent by counsel on UTPCPL claims
from non-UTPCPL claims and defenses. I agree with the Suttons
that this is difficult. However, such difficulty does not justify
awarding them an amount of counsel fees far greater than would
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be awarded if the dispute involved only the Suttons’ UTPCPL claim.
To award the Suttons all counsel fees and costs they incurred
would provide an undeserved windfall to them while unfairly
punishing the Deaktors.
The Suttons also argue the Deaktors had the burden to establish
a basis for segregating their attorney fees for non-UTPCPL claims
and the Deaktors have waived their ability to do so. However,
the[] two cases[ — Township of South Whitehall and Okot —
] cited [by the Suttons] to authorize placing the burden on the
Deaktors involved extensive testimony, affidavits and
declarations, with the disputes focused exclusively on the issue of
attorney fees. The Suttons’ attorney fee claim was more similar
to the attorney fee claim in Wallace v. Pastore…[, 742 A.2d
1090, 1094 (Pa. Super. 1999)], as the Suttons did nothing more
than submit their attorneys’ invoices at the conclusion of the trial.
The parties implicitly deferred factual determinations and the
applicable law to me. Under this scenario, the burden shifting
analysis or a finding of waiver are improper.
TCO at 10-12 (internal citation omitted).
The Suttons have not convinced us that the trial court abused its
discretion in discounting their attorney fee award. The trial court reasonably
weighed that the Suttons’ counsel was only partly successful in litigating their
UTPCPL claims and spent a lot of time defending the Suttons against the
Deaktors’ lawsuit. It also considered that it would be unfair to the Deaktors
for the Suttons to receive all of the attorneys’ fees and costs they incurred in
this case. In addition, the trial court distinguished the cases relied on by the
Suttons to support their claim that the Deaktors had to establish a basis for
separating time spent on UTPCPL claims, and the Suttons make no argument
responding to that distinction. Moreover, the cases that the Suttons cited in
support of their argument are not binding on us. See Beaston v. Ebersole,
986 A.2d 876, 881 (Pa. Super. 2009) (acknowledging that “decisions rendered
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by the Commonwealth Court are not binding on this Court”) (citation omitted);
Efford v. Jockey Club, 796 A.2d 370, 374 (Pa. Super. 2002) (noting that
decisions of the federal district courts are not binding on Pennsylvania courts)
(citation omitted). Last, the Deaktors aptly note that the Suttons “cite to no
evidence of record that established the threshold issue of the ‘relatedness’ of
all of their claims,” and “do nothing to refute their counsel’s time spent
defending [the Deaktors’] claims, and improperly place the onus on the [the
Deaktors] to assert a basis for separating [the Suttons’] legal counsel’s billings
for UTPCPL and non-UTPCPL claims.” Deakotors’ Reply Brief at 25, 26. We
agree with this observation. Accordingly, based on the foregoing, we discern
no abuse of discretion by the trial court in reducing the Suttons’ attorneys’
fees.
Judgment affirmed.
Judge Musmanno joins this memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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