J-A31014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CURT V. HOYAK AND JOYCE E.                        IN THE SUPERIOR COURT OF
WATERSTREET-HOYAK,                                      PENNSYLVANIA

                            Appellants

                       v.

ANTHONY D. DIPPOLITO,

                            Appellee                  No. 1383 EDA 2016


                  Appeal from the Order Entered April 7, 2016
             In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): C-48-CV-2014-6471


CURT V. HOYAK AND JOYCE E.                        IN THE SUPERIOR COURT OF
WATERSTREET-HOYAK, H/W                                  PENNSYLVANIA

                            Appellees

                       v.

ANTHONY D. DIPPOLITO,

                            Appellant                 No. 1440 EDA 2016


                  Appeal from the Order Entered April 7, 2016
             In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): C-48-CV-2014-6471


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 13, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A31014-16



        Curt V. Hoyak and Joyce E. Waterstreet-Hoyak (“the Hoyaks”), appeal

from the April 7, 2016 order, which granted in part and denied in part their

motion for post-trial relief. The day after the Hoyaks filed their notice of

appeal, Anthony D. Dippolito (“Mr. Dippolito”) also filed an appeal from the

April 7, 2016 order. Mr. Dippolito failed to identify his notice of appeal as a

cross appeal in accordance with Pa.R.A.P. 903(b).1          Thus, his appeal was

assigned a separate docket number.               The cases were subsequently

consolidated by this Court.2 After careful review, we affirm.

        This matter stems from an underlying breach of contract and

ejectment action brought by the Hoyaks against Mr. Dippolito on August 4,

2014.     Testimony was heard at a non-jury trial on September 15, 2015,

after which the trial court issued the following relevant Findings of Facts:

____________________________________________


1
    Pennsylvania Rule of Appellate Procedure 903 provides, in relevant part:

        (b) Cross appeals.           Except as otherwise prescribed in
        subdivision (c) of this rule, if a timely notice of appeal is filed by
        a party, any other party may file a notice of appeal within 14
        days of the date on which the first notice of appeal was served,
        or within the time otherwise prescribed by this rule, whichever
        period last expires.

Pa.R.A.P. 903(b). See also Pa.R.A.P. 903 note (providing that “[a] party
filing a cross appeal pursuant to subdivision (b) should identify it as a cross
appeal in the notice of appeal to assure that the prothonotary will process
the cross appeal with the initial appeal.”).
2
  By per curiam order entered on July 11, 2016, this Court granted the
parties’ joint application for consolidation of appeals at Nos. 1383 EDA 2016
and 1440 EDA 2016.



                                           -2-
J-A31014-16


     1. [The Hoyaks] are the owners of real property located at 118
        East Greenwich Street, Bethlehem, Northampton County,
        Pennsylvania (“Property”).

     2. [The Hoyaks] reside at the Property.

     3. The Property contains a parking lot (“Lot”) with dimensions of
        fifty-five feet by sixty-five feet.

     4. Since [the Hoyaks] purchased the Property in 1986, the Lot
        has been subject to a ninety-nine-year lease (“Lease”), with
        [the Hoyaks] being the landlord.

     5. The original tenant under the Lease was C & M Zumas
        Company.

     6. In May 1990, C & M Zumas Company assigned its interest in
        the Lease to Demetri and Paula Herron.

     7. In September 1996, the Herrons assigned their interest in the
        Lease to [Mr. Dippolito].

     8. The Lease provides:      “[Mr. Dippolito] hereby agrees to
        commit no waste; and at the end of said term the leased
        premises shall be delivered up in as good a condition as at
        the commencement thereof[,] ordinary wear and tear
        excepted.”

     9. Under the terms of the Lease, “any maintenance required to
        be done to the leased premises in order to keep the same in a
        neat, safe and sightly manner acceptable to [the Hoyaks]
        shall be the sole responsibility of [Mr. Dippolito].”

     10. Under the Lease terms, [Mr. Dippolito] agreed “to carry
        public liability and property damage insurance with combined
        limits of coverage of at least $1,000,000.00 and to name [the
        Hoyaks] as … additional insureds on said policy or policies.”

     11. The Lease also provides: “[Mr. Dippolito] shall, upon
        notice by [the Hoyaks], pay within nineteen (19) days of said
        notice … thirty-seven percent (37%) of the real estate taxes
        that are presently charged against the land, exclusive of the
        building on the Property.”

     12. Under the Lease terms, [Mr. Dippolito] agreed “not to
        place or erect or allow to be placed or erected any sign,
        fence, or other structure upon the demised premises without


                                   -3-
J-A31014-16


        the prior written approval of [the Hoyaks], whose decision on
        the matter shall be final … but whose approval shall not be
        unreasonably withheld.”

     13. The Lease prohibits the use of the Lot “as a repository for
        any motor vehicles, debris, equipment or other personalty.”

     14. The Lease provides that “no subsequent alteration,
        amendment, change or addition to the Lease shall be binding
        upon [the Hoyaks] or [Mr. Dippolito] unless reduced to
        writing and signed by them.”

     15. Pursuant to the Lease, a default occurs if [Mr. Dippolito]
        “violates or fails to perform or otherwise breaks any covenant
        or agreement … contained” in the Lease and fails to cure any
        such violation within fifteen days of receiving notice thereof.

     16. If a default occurs, the         Lease   becomes   subject to
        termination.

     17. Since [Mr. Dippolito] became the tenant under the Lease,
        there were at least three occasions when [the Hoyaks]
        verbally requested that [Mr. Dippolito] provide them with a
        certificate of insurance, and [he] failed to do so.

     18. On November 11, 2013, [the Hoyaks] sent [Mr. Dippolito]
        a letter (“Notice of Default”) informing him that he was in
        default of the Lease for failing to provide them with proof of
        insurance, failing to pay his share of the real estate taxes for
        the Property, and failing to obtain [the Hoyaks’] permission
        before accepting assignment of the Lease, the last of which is
        not relevant to this action.

     19. The Notice of Default represented the first time that [the
        Hoyaks] made a written demand to [Mr. Dippolito] for proof
        of insurance.

     20. Accompanying the Notice of Default was a Property Tax
        Worksheet representing [the Hoyaks’] computation of the
        total amount of real estate taxes [Mr. Dippolito] was
        responsible for and had not paid since 2000, broken down
        year-by-year and totaling $6,098.29.

     21. The Notice of Default and accompanying Property Tax
        Worksheet represented the first demand by [the Hoyaks], of
        any kind, for [Mr. Dippolito] to pay his portion of the
        Property’s real estate taxes.

                                    -4-
J-A31014-16


     22. Upon receiving the Notice of Default, [Mr. Dippolito]
        contacted his insurance agent to ensure that the Lot was
        properly covered by insurance.

     23. On November 18, 2013, [Mr. Dippolito] responded to the
        Notice of Default by letter, attaching thereto the declaration
        page of an Ohio Casualty Insurance policy, number
        BOP1538654, with an effective date of September 30, 2013,
        covering [Mr. Dippolito] and 1330 Center Street, Bethlehem,
        Northampton County, Pennsylvania, an office building owned
        by [Mr. Dippolito] that is adjacent to the Lot.

     24. This documentation was not satisfactory to [the Hoyaks],
        prompting [Mr. Dippolito] to contact his insurance agent
        again.

     25. [Mr. Dippolito] then provided [the Hoyaks] with the
        declaration page to a Liberty Mutual Insurance policy,
        numbered BOP9879201, with an effective date of December
        27, 2013, also covering [Mr. Dippolito] and his office building
        and, diverging from the Ohio Casualty declaration page,
        adding property insurance coverage for the Lot, which was
        inadvertently and incorrectly identified as 135 Hottle Avenue,
        Bethlehem, Northampton County, Pennsylvania.

     26. When this documentation was also not satisfactory to [the
        Hoyaks], [Mr. Dippolito] again contacted his insurance agent
        and provided [the Hoyaks] with more documentation, dated
        February 14, 2014, this time in the form of an endorsement
        to the Liberty Mutual policy that enacted two amendments to
        it, effective December 27, 2013:       1) changing the Lot’s
        address to 118 E. Greenwich Street, Bethlehem, Northampton
        County, Pennsylvnia; and 2) adding [the Hoyaks] to the
        policy as additional insureds.

     27. On multiple occasions, [Mr. Dippolito] has, in response to
        [the Hoyaks’] requests, refused to perform winter
        maintenance and/or plowing to the Lot following winter
        weather events, which rendered the Lot, in [the Hoyaks’]
        opinion, unsafe and required [them], on some of those
        occasions, to secure winter maintenance to the Lot through
        alternative means.

     28. For periods of time between 2007 and 2014, [Mr.
        Dippolito] permitted his stepson to park a utility trailer on the
        Lot.

                                    -5-
J-A31014-16


     29. When notified by phone of [the Hoyaks’] objection to the
        trailer’s presence on the Lot, [Mr. Dippolito] took no action.

     30. The first written notice from [the Hoyaks] to [Mr.
        Dippolito] that his failure to remove the utility trailer was a
        default under the Lease was the complaint filed by [the
        Hoyaks] in a magisterial district court.

     31. The utility trailer was removed from the Lot approximately
        in the spring of 2014 and is no longer present on the Lot.

                                     …

     37. On January 8, 2014, [the Hoyaks] provided [Mr. Dippolito]
        with a Notice to Quit, instructing him to vacate the Lot by
        January 27, 2014.

Trial Court Decision (“Decision”), 12/16/15, at 1-7 (citations to the record

and brackets added by the trial court omitted).

     Accompanying the above Findings of Fact, the trial court entered an

order dated December 16, 2015, denying the Hoyaks’ ejectment claim, but

awarding the Hoyaks damages in the amount of $4.00, plus costs for their

breach of contract claim. On December 23, 2015, the Hoyaks filed a motion

for post-trial relief, requesting the entry of a judgment notwithstanding the

verdict (JNOV) or, in the alternative, a new trial. Additionally, on December

28, 2015, the Hoyaks filed a motion for attorney’s fees.           After the

submission of briefs and hearing oral argument on the issues raised in the

Hoyaks’ motions, the trial court issued an Opinion and Order dated April 7,

2016, by which their motion for post-trial relief was granted in part and

denied in part. More specifically, the court awarded the Hoyaks’ attorney’s

fees in the amount of $6,200.00, plus $4.00 in nominal damages, in

connection with their breach of contract claim.   Judgment was entered in


                                    -6-
J-A31014-16



favor of Mr. Dippolito and against the Hoyaks on their ejectment claim, and

the Hoyaks’ motion for attorney’s fees was denied as moot. See Trial Court

Order, 4/7/16, at 1-2.

     On May 5, 2016, the Hoyaks filed a timely notice of appeal, which was

immediately followed by Mr. Dippolito’s notice of cross appeal.     As stated

supra, the two appeals were consolidated by order of this Court on July 11,

2016. Both parties filed timely, court-ordered concise statements of errors

complained of on appeal. Herein, the Hoyaks raise the following issues for

our review:

     1. Whether the trial court erred in denying [the Hoyaks’] motion
        for judgment notwithstanding the verdict or a new trial by
        concluding that [Mr. Dippolito] did not default under the lease
        agreement by permitting a trailer to be parked thereon and
        that [the Hoyaks] are therefore not entitled to relief in the
        nature of ejectment?

     2. Whether the trial court erred in denying [the Hoyaks’] motion
        for judgment notwithstanding the verdict or a new trial by
        concluding that [Mr. Dippolito] did not default under the lease
        agreement by failing to plow the parking lot following
        snowstorms, despite [the Hoyaks’] demand, and that [the
        Hoyaks] are[,] therefore[,] not entitled to relief in the nature
        of ejectment?

     3. Whether the trial court erred in denying [the Hoyaks’] motion
        for judgment notwithstanding the verdict or a new trial by
        concluding that [Mr. Dippolito] did not default under the lease
        agreement by failing to have insurance on the parking lot and
        failing to provide [the Hoyaks] with proof of same, despite []
        [their] verbal and written demands, and that [the Hoyaks]
        are therefore not entitled to relief in the nature of ejectment?

     4. Whether the trial court erred in denying [the Hoyaks’] motion
        to modify the court’s decision or for a new trial by concluding
        that [Mr. Dippolito] did not breach the lease agreement and
        did not default under the lease agreement due to his failure to

                                    -7-
J-A31014-16


          pay his share of the real estate taxes following demand by
          [the Hoyaks]?

Hoyaks’ Brief at 7-8.3

       Additionally, Mr. Dippolito raises the following issues for our review:

       1. Did the lower [c]ourt err in finding that the language of the
          lease as to damages included counsel fees?

       2. Did the lower [c]ourt err in failing to consider and compare
          the amount of damages claimed in [the] Hoyaks’ Complaint
          and the amount actually awarded?

       3. Did the lower [c]ourt err in assuming that it was required to
          award attorney fees to [the] Hoyaks since [the] Hoyaks
          received a de minimis award?

       4. Did the lower [c]ourt err in failing to find that [the] Hoyaks’
          claim was to uphold a significant public purpose before it
          awarded attorney fees in connection with a nominal award?

       5. Is the lower [c]ourt’s order for the payment of counsel fees
          excessive in relation to [the] Hoyaks’ award and should it
          shock the conscience of this Court?

       6. Should the [c]ourt’s finding that [the] Hoyaks’ motivation in
          filing suit was for the purpose of voiding an onerous lease
          preclude [the] Hoyaks’ recovery of counsel fees?

Mr. Dippolito’s Brief at 7.

       We first address the Hoyaks’ claims that the trial court erred in

denying their motion for a JNOV or new trial by concluding that Mr. Dippolito

did not default under the terms of the Lease.

             When considering a challenge to the trial court’s ruling
       denying a motion [for] new trial or JNOV, we are guided by the
       following standards of review.
____________________________________________


3
  Hereinafter, “Hoyaks’ Brief” refers to the brief filed on July 29, 2016, by
the Hoyaks, as Appellants.



                                           -8-
J-A31014-16


       We will reverse a trial court’s decision to deny a motion for
       a new trial only if the trial court abused its discretion. We
       must review the court’s alleged mistake and determine
       whether the court erred and, if so, whether the error
       resulted in prejudice necessitating a new trial. If the
       alleged mistake concerned an error of law, we will
       scrutinize for legal error. Once we determine whether an
       error occurred, we must then determine whether the trial
       court abused its discretion in ruling on the request for a
       new trial. An abuse of discretion exists when the trial
       court has rendered a judgment that is manifestly
       unreasonable, arbitrary, or capricious, has failed to apply
       the law, or was motivated by partiality, prejudice, bias, or
       ill will.

     Gbur v. Golio, 932 A.2d 203, 206-207 (Pa. Super. 2007)
     (citations and quotations omitted), quoting Stalsitz v.
     Allentown Hosp., 814 A.2d 766, 771 (Pa. Super. 2002), appeal
     denied, 578 Pa. 717, 854 A.2d 968 (2004).

          When considering a challenge to denial of JNOV,

       the standard of review for an order granting or denying
       judgment notwithstanding the verdict is whether there was
       sufficient competent evidence to sustain the verdict. We
       must view the evidence in the light most favorable to the
       verdict winner and give him or her the benefit of every
       reasonable inference arising therefrom while rejecting all
       unfavorable testimony and inferences.          Furthermore,
       judgment nov should be entered only in a clear case,
       where the evidence is such that no reasonable minds could
       disagree that the moving party is entitled to relief. Review
       of the denial of judgment nov has two parts, one factual
       and one legal.

          Concerning any questions of law, our scope of review
          is plenary. Concerning questions of credibility and
          weight accorded evidence…, we will not substitute
          our judgment for that of the finder of fact.

     Northeast Fence & Iron Works, Inc.[ v. Murphy Quigley
     Co., Inc., 933 A.2d 664, ]668 [(Pa. Super. 2007)] (citations
     omitted).




                                   -9-
J-A31014-16



Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.

Super. 2008).

      In their first three claims, the Hoyaks aver that the trial court erred in

finding Mr. Dippolito was not in default under the Lease for: (1) permitting a

utility trailer to be parked in the Lot; (2) failing to plow the Lot; and (3)

failing to maintain proper insurance on the Lot and to provide the Hoyaks

with proof thereof. The Hoyaks suggest that the trial court’s findings conflict

with the plain language of the Lease, which provides, in relevant part, as

follows:

      9.00 Remedies of Lessor

      If the Lessee:

      (a)   Does not pay in full when due any and all installments of
            rent and/or any other charge or payment herein reserved,
            included or agreed to be treated or collected as rent and/or
            any other charges, expenses, or costs herein agree to be
            paid by the Lessee; or

      (b)   Violates or fails to perform or otherwise breaks any
            covenant or agreement herein contained; or

      (c)   Becomes embarrassed [sic] or involvent [sic], or makes an
            assignment for the benefit of creditors … or if for any other
            reason Lessor shall, in good faith, believe the Lessee’s
            ability to comply with the covenants of this lease, including
            the prompt payment of rent hereunder, is or may become
            impaired, thereupon this lease and the terms hereby
            created shall determine and become absolutely void
            without any right on the part of Lessee to reinstate this
            lease by payment of any sum due or by other performance
            of any condition, terms, or covenant broken. However,
            Lessee shall have fifteen (15) days to cure any default
            from the day that the default occurs.

Lease, 8/6/86, at 4-5 (attached as Exhibit “A” to the Hoyaks’ Complaint).


                                    - 10 -
J-A31014-16



      As the trial court noted in its Decision:

      “Contract law and general contract principles govern lease
      agreements.”  Newman Dev. Grp. of Pottstown, LLC v.
      Genuardi’s Family Mkt., Inc., 98 A.3d 645, 653 n.4 (Pa.
      Super. 2014).

         One such principle of contract law applicable to this case is
         sometimes called the doctrine of necessary implication,
         which has been described as follows:

            In the absence of an express provision, the law will
            imply an agreement by the parties to a contract to
            do and perform those things that according to reason
            and justice they should do in order to carry out the
            purpose for which the contract was made and to
            refrain from doing anything that would destroy or
            injure the other party’s right to receive the fruits of
            the contract.

         … Thus, where it is clear that an obligation is within the
         contemplation of the parties at the time of contracting or is
         necessary to carry out their intentions, the court will imply
         it. This is true even where the contract itself is not
         ambiguous.

      Slater v. Pearle Vision Ctr., Inc., 546 A.2d 676, 679 (Pa.
      Super. 1988) (citation omitted).

Decision at 9-10 (internal citations omitted).

      The trial court applied the doctrine of necessary implication to the

Lease in the present case as follows:

      Here, in order for the parties to effectuate the provision in
      paragraph 9.00(c) of the Lease that gives [Mr. Dippolito] fifteen
      days to cure a default, [the Hoyaks] were necessarily required to
      provide [Mr. Dippolito] with formal notice that he was in default,
      including the specific reasons why, so that [Mr. Dippolito] could
      become aware of when the fifteen-day clock began ticking and
      exactly what measures were required to be taken to avoid
      forfeiture.1 [The Hoyaks’] own actions substantiate the [c]ourt’s
      finding that such formal notice was required. (See Ex. P-3
      (“Please accept this letter as written notice to you under Section

                                     - 11 -
J-A31014-16


      9.00, et al. that you are in default of the Lease.”)). Accordingly,
      the [c]ourt implies such a requirement in paragraph 9.00(c) and
      determines that [the Hoyaks] complied with the requirement by
      sending [Mr. Dippolito] the Notice of Default. As a byproduct,
      the [c]ourt also finds that [Mr. Dippolito] had fifteen days from
      November 11, 2013, to cure only the specific defaults identified
      in the Notice of Default and that any other violations of the
      Lease that were alleged in [the Hoyaks’] Complaint but that were
      not included in the Notice of Default are irrelevant to the issue of
      forfeiture.
         1
           This does not mean that the [c]ourt agrees with [Mr.
         Dippolito’s] argument that formal notice of default had to
         be given in writing. To the contrary, [the Hoyaks] could
         have verbally notified [Mr. Dippolito] that he was in default
         and had fifteen days to cure. It does mean, however, that
         formal notice of default was required before a default could
         actually occur.

Decision at 10-11. With this framework in place, the trial court examined

the violations of the Lease which the Hoyaks allege entitle them to

possession of the Lot.

      First, Mr. Dippolito admitted at trial that he allowed his stepson to

temporarily park a utility trailer on the Lot, thereby violating paragraph 3.00

of the Lease. However, the court concluded that the parking of the trailer on

the Lot did not warrant forfeiture of the Lease, because the Hoyaks did not

include this violation in their Notice of Default. See id. at 11. To the extent

that the Hoyaks argue the court erred in limiting “formal notice” under the

Lease solely to the written Notice of Default, the trial court responded:

      The [c]ourt did not limit the notice required under the Lease as
      alleged. Rather, the [c]ourt found that the aforementioned
      Notice of Default constituted the only formal notice given in this
      case, and that, as a result, [the Hoyaks] waived any defaults not
      listed therein. Though perhaps not sufficiently explaining the
      reasons for this finding in its Decision, the [c]ourt essentially


                                     - 12 -
J-A31014-16


       “held” [the Hoyaks] to this written notice based on principles of
       estoppel, an affirmative defense properly pleaded by [Mr.
       Dippolito] in his New Matter and argued by him at trial.

          It is fundamental that equitable estoppel applies to prevent
          a party from assuming a position or asserting a right to
          another’s disadvantage inconsistent with a position
          previously taken. In short, equitable estoppel, reduced to
          its essence, is a doctrine of fundamental fairness designed
          to preclude a party from depriving another of a reasonable
          expectation when the party inducing the expectation albeit
          gratuitously knew or should have known that the other
          would rely upon that conduct to his or her detriment.

       Commonwealth ex. rel. Gonzalez v. Andreas, 369 A.2d 416,
       418 (Pa. Super. 1976). In light of these principles, the [c]ourt
       found that once [the Hoyaks] sent [Mr. Dippolito] the Notice of
       Default on November 11, 2013, they were thereafter estopped
       from arguing that their prior verbal communications constituted
       proper notice of default under the Lease.

Trial Court Opinion (“TCO I”), 4/7/16, at 22-23. We conclude that the trial

court properly applied the law to this matter and that its decision is

adequately supported by the record.

       With regard to the second alleged violation of the Lease, the trial court

stated that the Hoyaks,

       did establish that they asked Mr. Dippolito to plow the Lot
       following certain snowfalls, that [he] refused, and that his failure
       to comply rendered the Lot, in [the Hoyaks’] opinion, unsafe.
       Nevertheless, the evidence did not establish that the Lot
       remained in this condition unremedied by [Mr. Dippolito] for a
       period of more than fifteen days.[4] Therefore, even if this issue
       had been included in the Notice of Default, [the Hoyaks] would
____________________________________________


4
  In fact, the Hoyaks acknowledge that “in all likelihood, on the occasions on
which [Mr.] Dippolito refused to clear the … Lot, any snow or ice would have
dissipated from the … Lot within fifteen (15) days, whether naturally or by
the actions of a third party in the neighborhood.” Hoyaks’ Brief at 34, n. 3.



                                          - 13 -
J-A31014-16


      not have proven that the condition of the Lot caused an uncured
      default warranting forfeiture of the Lease.

Decision at 13.    Based on the foregoing, we deem the Hoyaks’ continued

allegations regarding Mr. Dippolito’s failure to timely comply with their

requests to plow the Lot to be fruitless.

      In response to the third alleged violation of the Lease regarding Mr.

Dippolito’s failure to obtain proper insurance and/or provide proof thereof,

the trial court stated:

            In the Notice of Default, [the Hoyaks] put [Mr. Dippolito]
      on proper notice that he was in default of paragraph 10.03 of the
      Lease for failing to provide them with a certificate of insurance
      confirming that the Lot was covered by liability and property
      insurance that included them as additional insureds. While [the
      Hoyaks] did establish that they also previously made a verbal
      request for a certificate of insurance from [Mr. Dippolito] and
      that [he] did not comply, the Notice of Default represented the
      beginning of the fifteen-day window in which [Mr. Dippolito]
      could cure the insurance-related default….

Decision at 13-14.

      As indicated in the trial court’s Findings of Facts, after receiving the

Notice of Default, Mr. Dippolito made numerous attempts to obtain the

proper insurance and to provide the Hoyaks with proof thereof. When his

initial attempts were proven to be unsuccessful,

            [Mr. Dippolito] continued to contact his insurance agent in
      an effort to provide [the Hoyaks] with satisfactory proof of
      insurance. The last step in that process came on February 14,
      2014, when [Mr. Dippolito’s] insurance agent sent him a letter
      confirming that [the Hoyaks] had been added to the Liberty
      Mutual policy as additional insureds and that the Lot’s address
      had been corrected to 118 E. Greenwich Street, Bethlehem,
      Pennsylvania, its true address, with both amendments being
      retroactive to December 27, 2013.         This information was


                                     - 14 -
J-A31014-16


     subsequently provided to [the Hoyaks]. [The Hoyaks] do not
     argue that this last proof of insurance is unsatisfactory.

            Taking the above-described sequence of events and the
     surrounding circumstances as a whole, although [the Hoyaks]
     did not effectively become additional insureds under [Mr.
     Dippolito’s] policy until December 27, 2013, which is more than
     fifteen days after the initial Notice of Default, [Mr. Dippolito’s]
     efforts to clarify that the Lot was in fact covered under his
     insurance policy and to add [the Hoyaks] as additional insureds,
     though perhaps not sufficient to avoid a technical default,
     convince the [c]ourt that forfeiture is not warranted.           [Mr.
     Dippolito] promptly initiated the process of attempting to cure
     the default well within the fifteen-day cure period. The fact that
     the process of securing a series of changes to and clarifications
     of an insurance policy took longer than fifteen days from its
     inception appears to be attributable more to “oversight or
     uncontrollable circumstances” than to any willful conduct by [Mr.
     Dippolito]. Barraclough [v. Atlantic Refining Company], 326
     A.2d [477, ]479[ Pa. Super. 1974)].              What is important,
     especially in this equitable proceeding, is that within fifteen days
     of receiving the Notice of Default, [Mr. Dippolito] set into motion
     the process of curing the default, with a full cure eventually
     being reached, albeit thirty days late. It is this course of good-
     faith conduct by [Mr. Dippolito] that distinguishes this case from
     Cambria-Stoltz Enterprises[ v. TNT Investments, 747 A.2d
     947 (Pa. Super. 2000)], which [the Hoyaks] argue controls the
     outcome here. See Cambria-Stoltz Enterps., 747 A.2d at
     949-951 (holding forfeiture of commercial lease was appropriate
     when defendant-lessee willfully failed to respond to plaintiff-
     lessor’s request for certificate of insurance and to be named as
     additional insured within time period allowed by lease). Rather,
     the [c]ourt finds [the Hoyaks’] attempt to enforce the forfeiture
     provision of a ninety-nine-year lease because of [Mr. Dippolito’s]
     “failure to fulfill certain technical obligations, causing no serious
     detriment,” violative of the equitable principles at play here.
     Barraclough, 326 A.2d at 480 (refusing, due to de minimus
     nature of breach at issue, to enforce clause in lease granting
     plaintiff-landlords unqualified right to declare lease terminated
     upon breach by defendant-tenant).

           For all of these reasons, although the issue pertaining to
     insurance produced a technical default, forfeiture of the Lease is
     not warranted.


                                    - 15 -
J-A31014-16



Decision at 13-16 (citations to record omitted) (emphasis in original).

      The Hoyaks contend that the trial court erred in finding Mr. Dippolito

made good faith efforts to provide them with proper proof of insurance and

in characterizing his failure to provide proof of insurance as “de minimus.”

The Hoyaks state that to the contrary, “the evidence at [t]rial proved that,

for years, [Mr. Dippolito] intentionally failed to comply with his obligations

under the Lease related to insurance coverage for the … Lot.” Hoyaks’ Brief

at 19-20. However, “on issues of credibility and weight of the evidence, an

appellate court defers to the findings of the trial judge, who has had the

opportunity to observe the proceedings and demeanor of the witnesses.”

Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002)

(citations omitted).   Moreover, to the extent that the Hoyaks’ argument is

based on prior verbal requests for proof of insurance, their contention is

irrelevant, because the written Notice of Default served as the formal notice

of default triggering the cure period under the Lease.

      In their final claim on appeal, the Hoyaks argue that the trial court

erred in denying their motion for a new trial by concluding that Mr.

Dippolito’s failure to pay his share of the real estate taxes on the Lot did not

constitute a breach of contract or default under the Lease.        The Hoyaks

allege that this holding was based on the court’s erroneous determination

that the Hoyaks failed to provide Mr. Dippolito with proper notice that his

share of the real estate taxes were due and owing.        Hoyaks’ Brief at 20.

However, we deem the Hoyaks’ claim to be wholly without merit.

                                     - 16 -
J-A31014-16



      In its December 16, 2015 Decision, the trial court provided a thorough

analysis of the failure to pay real estate taxes and the implications thereof:

             In the Notice of Default, [the Hoyaks] advised [Mr.
      Dippolito] that he was in default for failing to pay real estate
      taxes for the Lot, as required by the Lease, from 2000 to the
      present. The evidence made clear that the Notice of Default was
      the first time [the Hoyaks] requested that [Mr. Dippolito] pay
      any real estate taxes from the time he took possession of the
      Lot. [The Hoyaks] included with the Notice of Default a Property
      Tax Worksheet, representing their computation of the total
      amount of real estate taxes [Mr. Dippolito] was responsible for
      since 2000, broken down by year. However, the Lease only
      required [Mr. Dippolito], upon notice from [the Hoyaks], to pay
      thirty-seven percent of the real estate taxes “presently charged
      against the land.” The Court takes judicial notice of the fact that
      real estate taxes are assessed against land on an annual basis
      and are discharged once they are remitted. Thus, the notice
      that [the Hoyaks] were required to give [Mr. Dippolito] under the
      Lease, in order to trigger his responsibility to pay real estate
      taxes, necessarily must have been provided him after real estate
      taxes were assessed against the Property and before they were
      remitted. This is the only type of notice that complies with the
      Lease terms and triggers [Mr. Dippolito’s] responsibility to pay,
      given the maxim in the law that improper notice “amount[s] to
      no notice at all.” March v. Banus, 151 A.2d 612, 615 (Pa.
      1959). As the Notice of Default purported to collect from [Mr.
      Dippolito] over a decade’s worth of real estate taxes that had
      already been assessed to and discharged from the land, the
      Notice of Default did not satisfy the notice requirement in
      paragraph 10.06 and, as a result, did not trigger [Mr.
      Dippolito’s] responsibility to pay those taxes. Proper notice not
      having been given, [Mr. Dippolito’s] failure to pay real estate
      taxes was not a default under the Lease, much less one that
      warrants its forfeiture.

Decision at 16-18 (footnote omitted).

      The Hoyaks argue in the alternative that, even if the Lease requires

them to make an annual demand to Mr. Dippolito for payment of his share of

the real estate taxes, then the court erred in failing to find that Mr. Dippolito

                                     - 17 -
J-A31014-16



was responsible for payment of at least the real estate taxes for the year

2013 in the amount of $538.60. This argument was thoroughly addressed

by the trial court in its April 7, 2016 Opinion:

      [The Hoyaks’] final argument is that [Mr. Dippolito] was provided
      with proper notice of the real estate taxes that he owed for
      2013, the year in which the Notice of Default was sent.
      Essentially, [the Hoyaks’] argument is that [Mr. Dippolito], upon
      receiving the Notice of Default, which the Court found to be
      clearly defective with regard to past due real estate taxes,
      should have singled out and paid the taxes for 2013, ignoring
      the fact that [the Hoyaks] improperly purported to be
      demanding over a decade’s worth of taxes. To expect [Mr.
      Dippolito] to have done so is unreasonable, especially in light of
      the fact that [he] also did not have the benefit of the [c]ourt’s
      interpretation of the Lease at that relevant time. Rather, the
      [c]ourt repeats its earlier conclusion that the defective notice
      deployed by [the Hoyaks] did not trigger [Mr. Dippolito’s]
      responsibility to pay real estate taxes pursuant to paragraphs
      10.05 and 10.06 of the Lease. As a result, [Mr. Dippolito] did
      not breach the Lease, much less forfeit it, by failing to pay real
      estate taxes for 2013, and the [c]ourt will not enter JNOV, grant
      a new trial, or modify its Decision on the basis that he did
      commit such a breach.

TCO I at 25-26.    After careful review, we discern no error of law or abuse of

discretion by the trial court, and find the Hoyaks’ argument without merit.

      We now turn to the issues raised by Mr. Dippolito herein, all of which

concern whether the terms of the Lease provided for an award of attorney’s

fees and/or question the amount of attorney’s fees awarded. “We note that

the interpretation of the terms of a contract is a question of law for which

our standard of review is de novo, and our scope of review is plenary.”

McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009). “Our standard of review

of an award of attorney[’s] fees is well[-]settled: we will not disturb a trial


                                      - 18 -
J-A31014-16



court’s determinations absent an abuse of discretion.         A trial court has

abused its discretion if it failed to follow proper legal procedures or

misapplied the law.” Miller v. Miller, 983 A.2d 736, 743 (Pa. Super. 2009)

(internal citations omitted).

        In his first claim, Mr. Dippolito avers that the trial court erred in

determining that the language of the Lease as to damages included counsel

fees.     After careful review, we conclude that the trial court properly

interpreted the Lease to provide for the recovery of attorney’s fees and,

thus, Mr. Dippolito’s claim is wholly without merit.

        “The general rule in this Commonwealth is that there is no recovery of

attorney’s fees from an adverse party in the absence of an express statutory

authorization, clear agreement between the parties, or the application of a

clear exception.” Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009).5

Whether the Hoyaks are entitled to attorney’s fees in the present case

hinges on the following provision in the Lease:

        7.00 Additional Rent.

               [Mr. Dippolito] agrees to pay as additional rent any and all
        sums which may become due by reason of the failure of [Mr.
        Dippolito] to comply with any of the covenants of this lease and
        any and all damages, costs and expenses which [the Hoyaks]
        may suffer or incur by reason of any default of [Mr. Dippolito] or
        failure on his part to comply with the covenants of this issue,
        and also any and all damages to the demised premises caused
____________________________________________


5
  This general rule is commonly known as the “American Rule.” See
Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 482-483 (Pa. 2009).



                                          - 19 -
J-A31014-16


       by any act or neglect of [Mr. Dippolito], his guests, agents,
       employees or other occupants of the demised premises.

Lease at 3.

       In response to the Hoyaks’ post-trial motion for relief and motion for

attorney’s fees, the trial court conducted an in-depth analysis of whether the

language contained in paragraph 7.00 of the Lease constitutes an exception

to the American Rule. More specifically, the court examined,

       whether the parties clearly agreed that the attorney’s fees
       voluntarily incurred by [the Hoyaks] as a result of their lawsuit
       for ejectment and breach of contract constitute “damages, costs,
       and expenses which [the Hoyaks] may suffer or incur by reason
       of any default of [Mr. Dippolito] or failure on his part to comply
       with the covenants of” the Lease.

TCO I at 6-7.6

       For the following reasons, the trial court found that attorney’s fees are

collectable as “additional rent” pursuant to the language contained in

paragraph 7.00 of the Lease:

             First, the Lease states that “[a]ny headings preceding the
       text of the several paragraphs and subparagraphs hereof are
       inserted solely for convenience of reference and shall not
       constitute a part of this [L]ease, nor shall they affect its
       meaning, construction, or effect.” Consequently, the fact that
       paragraph 7.00 is titled “Additional Rent” has no bearing on the
       [c]ourt’s interpretation of the Lease. Although paragraph 7.00
____________________________________________


6
  The trial court stated that it is not aware of any Pennsylvania authority
directly on point; however, it cited several decisions outside of this
jurisdiction holding that attorney’s fees may be collected as “additional rent.”
See TCO I at 8 (citing LJC Corp. v. Boyle, 768 F.2d 1489, 1494 (D.C. Cir.
1985); Helmsley v. Anderson Clayton & Co., 400 N.Y.S.2d 544, 545
(N.Y. App. Div. 1978); Barrow Realty Corp. v. Vill. Brewery Rest., 70
N.Y.S.2d 545, 546-47 (N.Y. App. Div. 1947)).



                                          - 20 -
J-A31014-16


      itself also uses the term “additional rent” in defining the sums to
      which [the Hoyaks] are entitled, the use of the term appears to
      flow directly from the heading of paragraph 7.00 and, thus,
      should similarly be ascribed little interpretational weight.

            Another problem with [Mr. Dippolito’s] argument that the
      term additional rent is typically used in connection with charges
      imposed upon a tenant incidental to the use and occupancy of
      the leased premises, such as insurance premiums, water and
      sewer rents, real estate taxes, and costs of repairs, is that most
      of these “charges” are already imposed on [Mr. Dippolito] in
      other provisions of the Lease. As a result, it appears that the
      imposition of “additional rent” in paragraph 7.00 was intended to
      go beyond the types of charges that [Mr. Dippolito] argues are
      typically associated with the term…. For all of these reasons, the
      [c]ourt finds that if [the Hoyaks] are indeed entitled to
      attorney’s fees, it is necessarily by way of additional rent.

TCO I at 8-9 (citations to record omitted).

      The trial court then went on to determine whether paragraph 7.00

constitutes an exception to the American Rule.      In its analysis, the court

relied predominantly on the decision in Wrenfield Homeowners Ass’n,

Inc. v. DeYoung, 600 A.2d 960 (Pa. Super. 1991), which directly

addressed the question of whether certain language that did not clearly refer

to attorney’s fees nonetheless authorized an award of such fees.

            To begin with, the [c]ourt notes that the operative term in
      Wrenfield, “costs of collection,” is more readily connotative of
      attorney’s fees than is the phrase used in the parties’ Lease,
      “any and all damages, costs, and expenses which [the Hoyaks]
      may suffer or incur.” However, aside from this, every other
      aspect of the court’s analysis in Wrenfield lends support to [the
      Hoyaks’] position.

            First, in Wrenfield, the Superior Court affirmed the trial
      court’s award of attorney’s fees “because it found that such fees
      were included in the phrase ‘costs of collection.’” Wrenfield,
      600 A.2d at 627 (emphasis added). This indicates that the
      proper inquiry is whether the language at issue includes


                                    - 21 -
J-A31014-16


     attorney’s fees, not necessarily whether the language at issue is
     merely another word for attorney’s fees. Here, the [c]ourt
     believes it to be plain that the pertinent language in paragraph
     7.00, namely “any and all … costs and expenses which [the
     Hoyaks] may suffer or incur,” includes attorney’s fees. Focusing
     on whether attorney’s fees are included in that language, broad
     terms such as “any and all,” “costs and expenses,” and “may
     suffer or incur” are highly inclusive in nature, strongly supporting
     [the Hoyaks’] argument.

           Moreover, the [c]ourt notes the following discussion in
     Wrenfield, which dispositively answers the question of whether
     [the Hoyaks] are entitled to attorney[’s] fees in this instant case:

        The fact that the Declaration did not explicitly state that
        attorney[’s] fees are part of the costs of collection does not
        prevent the court from finding that there was a valid,
        enforceable agreement to assess them. In a case in which
        the controlling document did not expressly provide for
        attorney[’s] fees, the Pennsylvania Supreme Court found
        that the language nevertheless permitted the imposition of
        such fees. The court found that a provision in a trust
        agreement requiring that a party “reimburse the Trustee
        for all its expenditures, and to indemnify and save the
        Trustee harmless against any liabilities which it may incur
        in the exercise and performance of its powers and duties
        hereunder,” was broad enough to include the payment of
        attorney[’s] fees. Fidelity-Philadelphia Trust Co. v.
        Philadelphia Transp. Co., 404 Pa. 541, 548, 173 A.2d
        109, 113 (1961). The Court specifically held that “the
        broad scope of reimbursement provided by the general
        provision of the Indenture is sufficiently specific to include
        attorney[’s] fees.” Id. at 548[-]549, 173 A.2d at 113-14.
        Similarly, we find that the term “costs of collection” within
        the context of the Declaration was also sufficiently broad
        enough to encompass attorney[’s] fees.

     Wrenfield, 600 A.2d at 629-30 (emphasis added). Reading the
     Wrenfield analysis as a whole, it becomes clear that the issue
     presently before the [c]ourt is whether the phrase “any and all …
     costs and expenses which [the Hoyaks] may suffer or incur by
     reason of any … failure on [Mr. Dippolito’s] part to comply with
     the covenants of this [L]ease” includes and/or is sufficiently
     broad enough to encompass attorney’s fees within the context of
     the Lease. Framing the question that way, the [c]ourt finds it

                                    - 22 -
J-A31014-16


     implausible to argue that the pertinent language in paragraph
     7.00, which [the Hoyaks] accurately describe as “significantly
     broad,” does not include or is not sufficiently broad enough to
     encompass the attorney’s fees incurred by [the Hoyaks] in
     litigating this action.

                                     …

           Further, it is clear that this action was only initiated “by
     reason” of [Mr. Dippolito’s] breaches of the parties’ lease.
     Although [the Hoyaks] were of the opinion that those breaches
     warranted forfeiture of the Lease and the [c]ourt was not, the
     principle remains the same. For all of the above reasons, the
     [c]ourt finds that paragraph 7.00 of the Lease entitles [the
     Hoyaks] to an award of attorney’s fees as additional rent.

TCO I at 11-14.

     Next, Mr. Dippolito alleges that the trial court erred in failing to

consider and compare the amount of damages claimed in the Hoyaks’

complaint and the amount actually awarded. This claim is waived due to Mr.

Dippolito’s failure to raise it in his motion for post-trial relief or in his

memorandum of law in opposition to the Hoyaks’ motion for counsel fees.

See Pa.R.A.P. 302(a) (providing that “issues not raised in the lower court

are waived and cannot be raised for the first time on appeal”); see also

Sovereign Bank v. Valentino, 914 A.2d 415, 426 (Pa. Super. 2006)

(stating that issues not raised in a post-trial motion are waived for appeal

purposes).

     Even if this claim had been properly preserved, we would deem the

issue to be meritless, as our review of the record reveals the trial court

properly considered the amount of damages awarded to the Hoyaks in

determining the amount of attorney’s fees awarded them.       The trial court


                                   - 23 -
J-A31014-16



expressly addressed this issue in its April 7, 2016 Opinion granting the

Hoyaks’ request for attorney’s fees:

      The final relevant factor to be considered by the [c]ourt is the
      result obtained by [the Hoyaks]…. [The Hoyaks] suffered no
      damages as a result of [Mr. Dippolito’s] actions or inactions and
      were awarded nominal damages. Out of the two claims brought,
      ejectment and breach of contract, [the Hoyaks] were only
      successful on one, the breach of contract claim. With regard to
      that claim, [the Hoyaks] were only successful on four of the five
      alleged breaches, resulting in this [c]ourt finding only that [Mr.
      Dippolito] had committed four technical breaches of the Lease, a
      result that was more or less symbolic. In sum, [the Hoyaks]
      were only successful on eighty percent of one-half of their
      claims, or forty percent of their claims.

TCO I at 19-20 (emphasis in original).          Based largely on the nominal

monetary damages awarded to the Hoyaks, the trial court found that it

would be unreasonable to require Mr. Dippolito to pay all of their counsel

fees and, thus, it reduced the attorney’s fees award by approximately sixty

percent. See id. at 20; See also Trial Court Opinion (“TCO II”), 6/2/16, at

3.

      Next, Mr. Dippolito avers that the trial court erred in assuming that it

was required to award attorney’s fees to the Hoyaks, because they received

a de minimis award.       However, this argument is based on a faulty

assumption. As the trial court stated in its Pa.R.A.P. 1925(a) opinion, “the

[c]ourt notes that it did not assume that it was required to award

attorney[’s] fees to [the Hoyaks]; rather, the [c]ourt found that the parties’

lease agreement and [Mr. Dippolito’s] breaches thereof entitled [the Hoyaks]




                                       - 24 -
J-A31014-16



to such an award.”      TCO II at 4.   Thus, Mr. Dippolito’s argument is of no

moment.

        Mr. Dippolito further argues that the trial court erred in failing to find

that the Hoyaks’ claim was to uphold a significant public purpose before it

awarded attorney’s fees in connection with a nominal award. In support of

his argument, Mr. Dippolito cites solely to Farrar v. Hobby, 506 U.S. 103

(Pa. 1992), for the proposition that no attorney’s fees, or at best a very

nominal award of attorney’s fees, are appropriate, “unless the action was to

advance a public benefit.”      Mr. Dippolito’s Brief at 16 (citing Farrar, 506

U.S. at 121-122). Mr. Dippolito suggests that the Hoyaks’ motives were to

advance their own interests, not the public’s interest, and concludes that the

award for fees “cannot withstand scrutiny and should be stricken.” Id.

        As the trial court pointed out in its Rule 1925(a) opinion, Mr. Dippolito

is relying on a federal civil rights case in which attorney’s fees are claimed

pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §

1988.    Accordingly, the trial court concluded that “[b]ecause this is not a

civil rights case, [Mr. Dippolito’s] complaint is not applicable.” TCO II at 4.

We agree, as federal civil rights actions apply a different legal standard when

determining attorney’s fees awards.       This Court has previously noted this

distinction:

        [W]here counsel fees are statutorily authorized in order to
        promote the purposes of a particular legislative scheme, the trial
        court should not determine the appropriateness of counsel fees
        under the general standards applicable in all litigation. Rather, it
        should consider whether an award of fees would, in the

                                       - 25 -
J-A31014-16


      circumstances of the particular case under consideration,
      promote the purposes of the specific statute involved.

Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 788 (Pa.

Super. 2006) (quoting Krassnoski v. Rosey, 684 A.2d 635, 639 (Pa.

Super. 1996)). Based on the foregoing, we find no abuse of discretion on

the part of the trial court and deem this claim to be without merit.

      The last two issues listed in Mr. Dippolito’s Statement of Questions

Involved are not even mentioned in the argument section of his brief. Thus,

we need not reach the merits of these claims.           Pennsylvania Rule of

Appellate Procedure 2119 expressly states that the argument section of a

brief “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.”       Pa.R.A.P.

2119(a).      “Appellate arguments which fail to adhere to [the Rules of

Appellate Procedure] may be considered waived, and arguments which are

not appropriately developed are waived.         Arguments not appropriately

developed include those where the party has failed to cite any authority in

support of a contention.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.

Super. 2014). Here, Mr. Dippoito’s brief is completely void of any discussion

whatsoever of these claims, and he fails to cite to any authority in support

thereof. “This Court will not act as counsel and will not develop arguments

on behalf of an appellant.” Id. Accordingly, we conclude that these issues

are waived.

                                    - 26 -
J-A31014-16



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




                          - 27 -
