J-A11006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

YORK DEVELOPMENT LIMITED                         IN THE SUPERIOR COURT OF
PARTNERSHIP,                                           PENNSYLVANIA

                            Appellee

                       v.

ATLANTIC WIRELESS GROUP, INC.
T/D/B/A CINGULAR WIRELESS AND THE
WIRELESS EXPERIENCE OF PA,

                            Appellant                No. 1519 MDA 2016


              Appeal from the Judgment Entered August 31, 2016
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2012-SU-004408-89


YORK DEVELOPMENT LIMITED                         IN THE SUPERIOR COURT OF
PARTNERSHIP,                                           PENNSYLVANIA

                            Appellant

                       v.

ATLANTIC WIRELESS GROUP, INC.
T/D/B/A CINGULAR WIRELESS AND THE
WIRELESS EXPERIENCE OF PA,

                            Appellee                 No. 1524 MDA 2016


              Appeal from the Judgment Entered August 31, 2016
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2012-SU-004408-89


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11006-17



MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 02, 2017

       Atlantic Wireless Group, Inc. t/d/b/a Cingular Wireless (“Atlantic”) and

The Wireless Experience of PA1 filed an appeal at Docket Number 1519 MDA

2016, from the judgment entered on August 31, 2016, in the amount of

$110,719.99, against them and in favor of York Development Limited

Partnership (“York”) following a bench trial.    York filed a cross-appeal at

Docket Number 1524 MDA 2016. By order filed October 4, 2016, this Court

sua sponte consolidated these appeals. After review, we affirm in part and

reverse in part. We remand for a recalculation of damages.

       These actions and consequent appeals result from the breach of a

commercial lease entered into by the parties on August 12, 2004 (“Lease”).

On October 26, 2012, York filed a complaint against Atlantic.      On May 8,

2014, with leave of court, York filed an amended complaint against Atlantic,

asserting one count of breach of contract and seeking judgment in its favor

for the unpaid rent through the end of lease term in the amount of

$165,854.25.        Atlantic filed an answer and a counterclaim.        In its

counterclaim, Atlantic asserted one count of breach of contract and raised

multiple affirmative defenses.

____________________________________________


1
  Because these entities acted as one throughout the proceedings, and
because Atlantic was the party to the Lease at issue, Atlantic will be used to
refer to Atlantic and The Wireless Experience of PA, collectively, throughout
this Memorandum.



                                           -2-
J-A11006-17


       A nonjury trial was held on April 13, 2016.      Following trial, the trial

court announced from the bench that it found in favor of York and against

Atlantic in the amount of $110,719.99, together with interest at the

statutory rate from the date of entry of judgment. N.T., 4/13/16, at 146.

Generally, the trial court found that Atlantic breached the lease, but also

that York failed to fully attempt to mitigate the loss, as required by the

Lease. It also found no basis for awarding York attorneys’ fees. The court

found against Atlantic on its counterclaim.

       The trial court made the following findings after the nonjury trial:

       [T]he Court finds that [York] is a limited partnership that owns
       the leased premises in Northwest Plaza. [Atlantic] who [sic]
       were the tenants under [the Lease] dated August 12, 2004.[2]

              The parties entered into [the Lease] on that date for
       property at 1139 B Northwest Plaza Shopping Center in York
       County, Pennsylvania [(“Northwest Plaza Property”)]. The term
       of the lease was for a period of 10 years to run through the end
       of August 2014 unless terminated earlier. [Atlantic] paid the
       rent through July 31, 201[2]. On September 4, 2012, the
       Plaintiff sent a letter to [Atlantic] regarding notice of default
       abandonment, failure to pay rent, and competition.

       . . . . Minimum rent was $61,250 per year, payable monthly in
       advance by the first of each month. It provided for a three

____________________________________________


2
 The Lease was entered into by Atlantic. N.T., 4/13/16, at 32. In late 2009
or early 2010, Wainwright created The Wireless Experience of PA which took
over some business operations of Atlantic.      Atlantic and The Wireless
Experience of PA operated a business of wireless communications sales and
service. Id. at 26-33. Atlantic operated and occupied the Northwest Plaza
Property store through July 2012. Id. at 33.




                                           -3-
J-A11006-17


       percent increase in the rent each year and provided for a five
       percent penalty in the event of late payment of rent.

            There was a security deposit requirement. It’s unclear
       whether or not that payment of security deposit was $5,104 or
       $10,208. However, to the extent that the security deposit has
       not been applied to unpaid rent, [York] may apply that to the
       judgment and [Atlantic] will be given credit for that amount.

             The lease required that the tenant use the lease premises
       solely for the purposes of conducting the business of wireless
       communication sales and services and related products and
       service. [Atlantic] was precluded from using or permitting the
       property to be used for any other business or purpose.

             The tenant was required to remain open for business
       during customary business days and hours for the vicinity but no
       less than 10:00 a.m. to 6:00 p.m. Monday through Saturday.
       The tenant was to keep the display windows and signs lighted[,]
       and was to identify Northwest Plaza in any advertising. There
       was no assignment permitted without prior written consent of
       the landlord.[3]

             The lease provided that the landlord had certain remedies
       if the tenant defaulted. That would be within 30 days after
       written notice of the default to either evict the tenant, to enter
       on to the premises, or to release the premises. And if the
       landlord reentered the premises, the lease was to terminate.
       The tenant remained obligated to pay the rent and other
       charges, but the tenant, though, [was] specifically entitled to
       credit for rent received for the landlord re-renting the premises.

             We find that [Atlantic] breached the lease by failing to use
       the premises for the purposes as required by the lease, failed to
       remain open for business, failed to pay rent, moving the
       business to a location within three miles of the lease premises,
       advertising the new location on the premises of the leased

____________________________________________


3
  Pursuant to the Lease, Atlantic also was prohibited from opening or
operating another store that had a similar or competing business, within a
three-mile radius of the property.



                                           -4-
J-A11006-17


      premises at Northwest Plaza. The tenant vacated the property
      without any prior notice of the landlord.

            We find no eviction by the landlord. The action taken by
      the landlord given that there was no prior notice or
      communication from the tenant was certainly reasonable. The
      tenant did not contact the landlord after August 2012 about the
      tenant’s intention with regard to the premises, nor with any of
      the tenant’s plans for the premises after August of 2012.

             We also note that the tenant did not contact the landlord
      prior to moving from the leased premises. Just as an aside, this
      entire litigation could most likely have been avoided entirely had
      the tenant taken the time to contact the landlord.

            The tenant ceased doing business at the leased premises
      at Northwest Plaza on July 31, 2012. It opened for business at
      the new location at 303 Arsenal Road on August 1, 2012. The
      tenant moved the inventory to the new store location and a few
      days later removed the fixtures and equipment.

             The landlord gave notice of default to the tenant on
      September 4, 2012.       Mr. [Robert] Reynolds [(“Reynolds”),
      Manager of York], had testified that [York] did attempt to re-
      lease the premises in 2012 after the tenant left, but was unable
      to find a new tenant.

Trial Court Opinion, 4/18/16, at 1-5.

      Both parties filed post-trial motions, which were denied.     Judgment

was entered in favor of York in the amount of $110,719.99, on August 31,

2016. Atlantic filed a notice of appeal on September 12, 2016. York filed its

notice of appeal on September 16, 2016. Both parties were directed to and

filed statements pursuant to Pa.R.A.P. 1925(b).       The trial court filed a

Pa.R.A.P. 1925(a) opinion, and in it, refers this Court to the trial court’s

order and general findings filed April 18, 2016.        Trial Court Opinion,

11/14/16, at 1-2.

                                    -5-
J-A11006-17


       Atlantic presents the following issues for our review:

       I.    Did Atlantic Wireless, the tenants/Appellee, abandon the
       Property, where they were locked out by York Development, the
       landlord/Appellant, had left valuable fixtures in the Property and
       planned to sue them for a cell phone repair business in the
       Property if the landlord would not renegotiate the lease?

       II.  Did York Development evict Atlantic Wireless from the
       Property, where the landlord twice locked tenants out of the
       Property without notice and with the intent to deny them access?

       III. Was York Development entitled to damages even though it
       failed to comply with its duties under the Lease to provide
       Atlantic Wireless with notice and opportunity to cure any alleged
       breach?

                    A.    Was there any basis for               awarding
              attorneys’ fees to York Development?

                     B.   Was York             Development   entitled   to
              liquidated damages?

                    C.  Was York               Development   entitled   to
              prejudgment interest?

       IV.  Did the trial court err in its calculation of damages
       awarded to York Development?

       V.  Did York Development have an obligation to mitigate
       damages?

Atlantic’s Brief at 1-4.4

____________________________________________


4
  We note that Atlantic’s Issues III.(A), (B), and (C), and V. were not raised
in its Pa.R.A.P. 1925(b) statement. “Any issues not raised in a 1925(b)
statement will be deemed waived.” Commonwealth v. Hill, 16 A.3d 484,
491 (Pa. 2011) (quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998). Because these issues were raised by York on appeal and preserved
in its Pa.R.A.P. 1925(b) statement, however, these issues will nonetheless
be discussed in the context of York’s cross-appeal.



                                           -6-
J-A11006-17


     Our standard of review is as follows:

            Our appellate role in cases arising from non-jury 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 findings of
     the trial judge in a non-jury case must be given the same weight
     and effect on appeal as the verdict of a jury, and the findings will
     not be disturbed on appeal unless predicated upon errors of law
     or unsupported by competent evidence in the record.
     Furthermore, our standard of review demands that we consider
     the evidence in a light most favorable to the verdict winner.

Baney v. Eoute, 784 A.2d 132, 135 (Pa. Super. 2001) (citations omitted).

     This appeal concerns the interpretation and application of a contract.

           In Pennsylvania, lease agreements are governed by
           contract law and general contract law principles. As
           such, when the language of a lease is clear and
           unequivocal, its meaning will be determined by its
           contents alone in ascertaining the intent of the
           parties. Every contract imposes a duty of good faith
           and fair dealing on the parties in the performance
           and the enforcement of the contract.

     Trizechahn Gateway, LLC v. Titus, 930 A.2d 524, 533–534
     (Pa.Super.2007) (citations omitted). Inasmuch as a lease must
     be construed according to general principles of contract law, we
     are mindful that the primary objective in construing a contract is
     to effectuate the intentions of the parties. Id. at 537 (citing
     Seven Springs Farm v. Croker, 569 Pa. 202, 207, 801 A.2d
     1212, 1215 (2002)).

           Nonetheless, it is firmly settled that the intent of the
     parties to a written contract is contained in the writing itself.
     Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d
     638, 642 (1993), appeal denied, 536 Pa. 626, 637 A.2d 287
     (1993). Accordingly, when the words of a contract are clear and
     unambiguous, we are to determine what the parties intended by
     looking only at the express language of the agreement. Id.

           Where there is any doubt or ambiguity as to the
           meaning of the covenants in a contract or the terms

                                    -7-
J-A11006-17


           of a grant, they should receive a reasonable
           construction, and one that will accord with the
           intention of the parties; and, in order to ascertain
           their intention, the court must look at the
           circumstances under which the grant was made. It
           is the intention of the parties which is the ultimate
           guide, and, in order to ascertain that intention, the
           court may take into consideration the surrounding
           circumstances, the situation of the parties, the
           objects they apparently have in view, and the nature
           of the subject-matter of the agreement.

     In re Estate of Quick, 588 Pa. 485, 491, 905 A.2d 471, 474–
     475 (2006) (quoting Hindman v. Farren, 353 Pa. 33, 35, 44
     A.2d 241, 242 (1945)) (emphasis omitted).

Giant Food Stores, LLC v. THF Silver Spring Development, L.P., 959

A.2d 438, 447-448 (Pa. Super. 2008) (internal quotation marks omitted).

     To show a breach of contract, a party must establish: (1) the
     existence of a contract, including its essential terms, (2) a
     breach of a duty imposed by the contract, and (3) resultant
     damages. When performance of a duty under a contract is due,
     any nonperformance is a breach.

           If a breach constitutes a material failure of performance,
     the non-breaching party is relieved from any obligation to
     perform; thus, a party who has materially breached a contract
     may not insist upon performance of the contract by the non-
     breaching party. Conversely, a party might breach the contract
     but still substantially perform its obligations under the
     agreement. In that case, the breach is deemed nonmaterial and
     the contract remains in effect. The breaching party retains the
     right to enforce the contract and demand performance; the
     nonbreaching party has no right to suspend performance.

McCausland v. Wagner, 78 A.3d 1093, 1101 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

     Atlantic first argues that the trial court erred in finding that it

abandoned the property when it was actually evicted by York.       Atlantic’s

                                   -8-
J-A11006-17


Brief at 13.   Atlantic asserts that it did not abandon the property, as

evidenced by its actions in keeping personal property worth up to

$100,000.00 at the Northwest Plaza Property and not removing valuable

fixtures. Id. at 13-14. Atlantic also asserts that it was current on its rent,

which was paid through July 31, 2012.      Id. at 14.   Atlantic further posits

that York failed to give notice of any default in payment as required by the

Lease. Id.

      In order to prove abandonment, the landlord bears the burden of

demonstrating: (1) an intention on the part of the tenant to abandon; and

(2) conduct by which the intention is carried into effect.         Ferrick v.

Bianchini, 69 A.3d 642, 656 (Pa. Super. 2013).

      Furthermore, where a tenant abandons property, a non-
      breaching landlord has no duty to mitigate damages.
      Stonehedge Square Ltd. Partnership v. Movie Merchants,
      Inc., 552 Pa. 412, 715 A.2d 1082 (1998); Trizechahn
      Gateway, LLC v. Titus, 930 A.2d 524 (Pa.Super.2007) (rev’d
      on other grounds 601 Pa. 637, 976 A.2d 474 (2009)); in accord
      Restatement (Second) of Property, § 12.1, Comment k (“A
      tenant who abandons leased property is not entitled to insist on
      action by the landlord to mitigate the damages, absent an
      agreement otherwise. Abandonment of property is an invitation
      to vandalism, and the law should not encourage such conduct by
      putting a duty of mitigation of damages on the landlord.”).

Id. at 655-656.




                                    -9-
J-A11006-17


       District Manager of the York store,5 Steven Stanion, testified that Brian

Wainwright, President of Atlantic, (“Wainwright”), directed him to move all

inventory from the Northwest Plaza store to the Arsenal Road store by July

31, 2012, so that the Arsenal Road store could be opened on August 1,

2012.6 N.T., 4/13/16, at 12-13. Although he could not recall exactly when,

Stanion stated that Wainwright gave him this directive in July of 2012. Id.

at 11-12.     On July 30 and 31, 2012, Stanion and employees from the

Northwest Plaza Property packed inventory and equipment necessary to

open the Arsenal Road store.          Id. at 13.   On July 31, 2012, Stanion and

employees set up computers and cleaned at the Arsenal Road location, in

preparation for opening that location on August 1, 2012. Id. at 13. Stanion

opened the store at Arsenal Road for business on August 1, 2012. Id. at 14.

The store at Northwest Plaza was not opened for business on August 1,

2012. Id. at 14. Stanion returned to the Northwest Plaza store on Sunday,

August 5, 2012, to remove some fixtures and equipment that had been left

behind at that location.         Id. at 14-15.     Stanion did not return to the

____________________________________________


5
 The “York store” refers to Atlantic’s store operated in York County, and the
subject of this action. It was first located at the Northwest Plaza Property,
but later moved to the Arsenal Road location.
6
  Stanion was the District Manager for the York store when it was at the
Northwest Plaza location and remained the manager of that store when it
was relocated to the Arsenal Road property until August 2014. N.T.,
4/13/2016, at 6-7, 18. At the time of trial, Stanion continued to serve as a
District Manager for Atlantic, but for different stores. Id.



                                          - 10 -
J-A11006-17


Northwest Plaza location until months later in order to survey damages of

the property with representatives of the landlord. Id. at 16. Stanion also

testified that the Arsenal Road property was located close to the Northwest

Plaza Property, opining that it was not more than two miles away. Id. at 14.

         Matthew Sweigart, Store Manager at the York store during July and

August of 2012, testified that he received directions from Stanion to pack

the inventory from the Northwest Plaza location and move it to the Arsenal

Road location. N.T., 4/13/16, at 18-20. Sweigart testified that he received

this information from Stanion during the month of July, approximately a few

weeks before July 31, 2012. Id. at 21. After closing the Northwest Plaza

Property store on July 31, 2012, Sweigart moved inventory and equipment

to the Arsenal Road location.     Id. at 21.   He opened the store at Arsenal

Road on August 1, 2012, which remained open to the date of the nonjury

trial. Id. at 21-22. He further testified that he returned to the Northwest

Plaza Property on August 5, 2012, with other employees in order to retrieve

some fixtures and equipment that had been left behind. Id. at 22-23. At

that time, the employees affixed signs to the windows of the Northwest

Plaza Property that advertised the store’s new location at Arsenal Road. Id.

at 23.

         Wainwright also testified. In 2004, Wainwright entered into the Lease

on behalf of Atlantic with Reynolds and York for the Northwest Plaza




                                     - 11 -
J-A11006-17


Property. N.T., 4/13/16, at 32.7 In early 2012, Wainwright began looking

for possible alternative locations for the York store. Id. at 34. Wainwright

testified that the store at Northwest Plaza was having difficulties, and as a

result, he was seeking alternative locations for the York store at the latest in

early 2012, and possibly as early as late 2011. Id. at 37. Wainwright had

negotiated a lease for the Arsenal Road property well in advance of July

2012. Id. at 38. In his negotiations with the landlord for the Arsenal Road

property, he negotiated a build-out and construction for his cellular phone

store.    Id. at 38-40.      Wainwright subsequently executed a lease for the

Arsenal Road property. Id. at 40.

         Wainwright intended to open the store at Arsenal Road on August 1,

2012. N.T., 4/13/16, at 40. Wainwright conceded that the location of the

new store was likely no more than two miles from the Northwest Plaza

Property location. Id. at 40. Wainwright advised his employees to pack and

move the inventory from the Northwest Plaza Property to the Arsenal Road

location, in order to open the Arsenal Road store on August 1, 2012. Id. at

41.   Wainwright explained that fixtures from the Northwest Plaza Property

store were not necessary for the operation of the new store because the

Arsenal Road store was newly built and “there was a whole new fixture
____________________________________________


7
  Wainwright explained the corporate interplay of Atlantic and the Wireless
Experience. N.T., 4/13/16, at 26-33. Atlantic, however, continued to
operate and occupy the Northwest Plaza Property location until the end of
July 2012. Id. at 33.



                                          - 12 -
J-A11006-17


package for the new location.” Id. at 41. Furthermore, Wainwright testified

that “the only thing that was necessary was the inventory, as in phones and

tablets.” Id. at 41. Although unable to provide a specific date, Wainwright

indicated that he gave his employees notice in advance of July 31, 2012,

regarding the directive to pack inventory in anticipation of the move. Id. at

41-41. Wainwright never contacted Mr. Reynolds at York to advise him of

his plan to move out of the Northwest Plaza Property.         Id. at 41-42.

Wainwright did not contact Reynolds on August 1, 2012, to advise of its

move. Id. at 42. In fact, Wainwright never contacted York with regard to

the lease at the Northwest Plaza Property after August 1, 2012. Id. at 42.

Wainwright also testified that he never discussed any future plans for the

Northwest Plaza Property with Reynolds. Id. at 42-43.

      With regard to payment on the Lease, Wainwright testified that in

August of 2012, he sent a check to the bank used by York, where payments

were routinely sent.    N.T., 4/13/16, at 44.   Wainwright explained that he

personally wrote the rent check on behalf of Atlantic under the Lease. Id. at

44.   The rent check was dated August 10, 2012.       Id. at 45.   Wainwright

wrote on the check that the check was void prior to August 10, 2012. Id. at

45. On August 10, 2012, Wainwright placed a stop payment on this check

through his bank.      Id. at 45-46.    Wainwright did not communicate with

Reynolds or York regarding the stop payment. Id. at 47. Atlantic did not

pay the August rent to York. Id. at 48.


                                       - 13 -
J-A11006-17


      In reviewing the     evidence, we conclude that the         trial court’s

determination that Atlantic abandoned the Northwest Plaza Property is

supported by the record.    As noted, during the term of the Lease for the

Northwest Plaza property with York, Wainwright negotiated with a different

landlord for lease of the Arsenal Road property for purposes of moving the

York store. Wainwright had the Arsenal Road store built and the new fixture

package included in that property in anticipation of operating the store at

that location.   Wainwright took these actions well in advance of July 31,

2012. Wainwright subsequently advised his employees at the York store to

remove inventory and equipment necessary from the Northwest Plaza

Property to open the store at Arsenal Road on August 1, 2012. Employees

did as instructed, packing inventory and equipment from the Northwest

Plaza Property location on July 30 and 31, 2012, and opened the Arsenal

Road location on August 1, 2012. The Northwest Plaza Property location was

no longer open for business as of August 1, 2012. As such, the evidence

reflects that Atlantic intended to abandon the Northwest Plaza Property, and

indeed, carried that intention into effect. Ferrick, 69 A.3d at 656.

      Atlantic’s argument that it intended to utilize the Northwest Plaza

Property for another cell phone business lacks credibility, especially in light

of Wainwright’s testimony that he never discussed any future plans for the

Northwest Plaza store with York, and testified that “in my eyes, I didn’t see

there was any need to make contact.” Id. at 42. Moreover, the evidence


                                    - 14 -
J-A11006-17


regarding Wainwright’s treatment of the August 2012 rent payment to York

established that Atlantic did not pay rent for August of 2012, did not intend

to pay rent for August of 2012, and did not intend to pay any further rent on

this Lease.     Therefore, we conclude that the trial court did not err in

determining that Atlantic had abandoned the property.

      In its second issue, Atlantic asserts that the trial court erred in failing

to find that York evicted it from the Property.        Appellant’s Brief at 15.

Specifically, Atlantic argues that York locked Atlantic out of the Property a

day after Atlantic moved inventory from the Property, while Atlantic was

current on its rent and while Atlantic’s fixtures remained in the property. Id.

at 16. Atlantic asserts that this action clearly demonstrates York’s intent to

hold the property adversely to Atlantic. Id. at 16. Atlantic also argues that

York was obligated by the terms of the Lease to give notice and “an

opportunity to cure any alleged breach, and then to initiate eviction or

ejectment proceedings before locking the tenant out of the premises.” Id.

at 16-17.     Atlantic asserts that York did not give notice nor did it initiate

eviction or ejectment proceedings.       Id. at 17.    Atlantic maintains that

because York breached the requirements of Paragraph 24 of the Lease, its

actions constituted an eviction under Pennsylvania law. Id.

      What constitutes an eviction under Pennsylvania Law was addressed

by the Supreme Court of Pennsylvania in Kahn v. Bancamerica–Blair

Corp., 193 A. 905 (Pa. 1937). There, the Court held:


                                      - 15 -
J-A11006-17


      For the landlord’s acts to constitute an “eviction” of the tenant,
      they must amount to an actual “interference with the tenant’s
      beneficial enjoyment of the demised premises” ... “Eviction, such
      as will suspend rent, is more than a mere trespass by the lessor
      ... it is an actual expulsion of the lessee out all or some part of
      the demised premises.”

Id. at 906 (internal citations omitted). The Kahn Court went on to explain,

however, that:

            It has uniformly been held that where a tenant, during the
      term, abandons the demised premises, the landlord is not
      bound, under the penalty of loss of his right to receive rent, to
      permit the tenement to remain wholly unoccupied with the
      consequent possible or probable loss of his insurance,
      destruction by waste, or other like injuries. The mere fact that
      he resumes possession is not of itself a sufficient
      foundation upon which to predicate either an acceptance
      of a surrender or an eviction.

Id. at 907 (emphasis added). See also Harper & Bro. Co. v. Jackson, 87

A. 430, 431 (Pa. 1913) (“Where the tenant, not under compulsion, but

voluntarily, abandons the premises, there is no eviction.”); Kull v.

Mastbaum & Fleisher, 12 A. 631, 632 (Pa. 1921) (“In face of the

abandonment, clearly no damages could be recovered for the alleged

eviction.”).

      As explained previously, the evidence supports the conclusion that

Atlantic abandoned the Northwest Plaza Property. Thus, the fact that York

resumed possession and secured the premises cannot be construed as an

eviction. Kahn, 193 A. at 907. Atlantic’s second claim fails.

      In its third issue, Atlantic asserts that the trial court erred in

determining that York was entitled to damages “even though no notice or

                                    - 16 -
J-A11006-17


opportunity to cure any alleged breach under the Lease was afforded to

[Atlantic], and [York] elected to evict [Atlantic] in lieu of claiming damages.”

Atlantic’s Brief at 17. Atlantic asserts that it was locked out of the property,

that York did not allow Atlantic to cure the alleged breach, and that York

never initiated lawful eviction or ejectment proceedings, but unlawfully

evicted Atlantic.   Id. at 18.   Therefore, Atlantic argues, York’s claim for

damages is precluded by its breach of the Lease. Id. at 18.

      Again, we have concluded that the evidence of record supports the

conclusion that Atlantic abandoned the property and that York did not evict

Atlantic.   Accordingly, we conclude that York was not precluded from

claiming and obtaining damages. We will address the specific damages to

which York is entitled in discussion of the issues raised by York on its cross-

appeal.

      Moreover, Atlantic’s three remaining issues, calculation of damages,

York’s obligation to mitigate these damages, and York’s efforts to re-let the

property, are directly related to those raised by York. Accordingly, we shall

address those issues in conjunction with our discussion of the issues raised

by York on cross-appeal.

      In its cross-appeal at Docket Number 1524 MDA 2016, York presents

the following issues for our review:

      I.    Did the trial court commit an error of law by determining
      that    York    Development      Limited    Partnership   (“York
      Development”) had an obligation to mitigate damages following
      Atlantic Wireless’s breach of commercial lease agreement?

                                       - 17 -
J-A11006-17



      II.    Was there a lack of competent evidence to support the
      trial court’s determination that York Development’s efforts to
      relet the Property were not reasonable or that York Development
      would have relet the Property within one year had it used
      alternative efforts?

      III. Did the trial court err as a matter of law in finding no basis
      for awarding attorneys’ fees to York Development?

      IV.    Did the trial court err as a matter of law in failing to award
      York Development liquidated damages for Atlantic Wireless’s
      violation of the contractual non-compete covenant?

      V.    Did the trial court err as a matter of law in failing to award
      prejudgment interest to York Development?

York’s Brief at 4.

      In its first issue, York argues that the trial court erred when it

concluded that York had an obligation to mitigate damages following

Atlantic’s breach of the Lease.     York’s Brief at 12-13.     In support, York

asserts that the law holds that where a tenant abandons property, a non-

breaching landlord has no duty to mitigate damages, and cites to

Stonehedge Square Ltd. P’ship v. Movie Merchants, Inc., 685 A.2d

1019 (Pa. Super. 1996), and Ferrick v. Bianchini, 69 A.3d 642 (Pa. Super.

2013).   Id. at 12-13.    Furthermore, York maintains that while the parties

could have modified the general rule through their own contract, they did

not do so.   Id. at 13.   Specifically, York asserts that Paragraph 24 of the

Lease does not modify this general holding, and that the trial court

incorrectly interpreted that paragraph to create a duty to mitigate damages.

Id. at 14.



                                     - 18 -
J-A11006-17



      Conversely, Atlantic asserts that the trial court correctly determined

that York was required to mitigate damages pursuant to Paragraph 24 of the

Lease. Atlantic’s Brief at 26. Atlantic further argues that Stonehedge and

Ferrick do not apply because Atlantic did not abandon the property. Id. at

27.
      The evidence supports the conclusion that Atlantic abandoned the

property. Thus, we find Stonehedge and Ferrick apply to this situation. In

Stonehedge, this Court discussed the state of the law with respect to a

commercial landlord’s duties following its tenant’s breach of lease as follows:

             In Milling v. Becker, 96 Pa. 182 (1880), the Supreme
      Court held “if the relation of landlord and tenant was not ended
      by contract, he was not bound to rent to another during the term
      for relief of the defendant.” In Auer v. Penn, 99 Pa. 370
      (1882), the Supreme Court held “the landlord may allow the
      property to stand idle, and hold the tenant for the entire rent.”
      Finally, in Ralph v. Deiley, 293 Pa. 90, 141 A. 640 (1928), the
      Supreme Court cited Auer for the rule that “reletting is not
      imposed on a landlord as a duty.”

                                     ***

           In summary, the Supreme Court has held that a landlord
      has no duty to mitigate damages, and absent a contrary decision
      by that Court, it is the duty of this Court and the court of
      common pleas to adhere to that authority. Commonwealth v.
      Buehl, 540 Pa. 493, 658 A.2d 771 (1995).

Stonehedge, 685 A.2d at 1025-1026.

      This Court confirmed and reiterated its Stonehedge holding in

Ferrick, as follows:

      Furthermore, where a tenant abandons property, a non-
      breaching landlord has no duty to mitigate damages.


                                    - 19 -
J-A11006-17


     Stonehedge Square Ltd. Partnership v. Movie Merchants,
     Inc., 552 Pa. 412, 715 A.2d 1082 (1998); Trizechahn
     Gateway, LLC v. Titus, 930 A.2d 524 (Pa.Super.2007) (rev’d
     on other grounds 601 Pa. 637, 976 A.2d 474 (2009)); in accord
     Restatement (Second) of Property, § 12.1, Comment k (“A
     tenant who abandons leased property is not entitled to insist on
     action by the landlord to mitigate the damages, absent an
     agreement otherwise. Abandonment of property is an invitation
     to vandalism, and the law should not encourage such conduct by
     putting a duty of mitigation of damages on the landlord.”). In
     the case of abandonment, the landlord may either choose to
     allow the property to stand idle and hold the tenant liable for the
     difference, if any.

Id. at 655-656. Because we have determined that Atlantic abandoned the

property, we conclude that York, as the landlord, had no duty to mitigate

damages. Stonehedge; Ferrick.

     Furthermore, we cannot agree with Atlantic’s assertion or the trial

court’s conclusion that Paragraph 24 of the Lease modified this general

holding. Paragraph 24 of the Lease provides, in relevant part, as follows:

     the Lessee covenants and agrees, notwithstanding any entry or
     re-entry by the Lessor whether by summary proceedings,
     termination or otherwise, to pay and be liable for on the days
     originally fixed herein for the payment thereof, amounts equal to
     the several installments of rent and other charges reserved as
     they would, under the terms of this Lease, become due if this
     Lease had not been terminated of if the Lessor had not entered
     or re-entered, as aforesaid, and whether the Demised Premises
     be relet or remain vacant in whole or in part or for a period less
     than the remainder of the term, and for the whole thereof, but
     in the event the Demised Premises be relet by the Lessor,
     the Lessee shall be entitled to a credit in the amount of rent
     received by the Lessor in reletting after deduction of all expenses
     incurred in reletting the Demised Premises (including, without
     limitation, advertising costs and realtor’s commissions), and in
     collecting the rent in connection therewith.

Lease Agreement, 8/12/04, at ¶ 24 (emphasis added).


                                   - 20 -
J-A11006-17



      The trial court provided the following analysis regarding the effect of

Paragraph 24 of the Lease:

      Paragraph 24 of the lease requires a duty in the landlord to
      mitigate damages.      Mitigation of damages.      Ordinarily in
      Pennsylvania, when a landlord has no duty to mitigate damages
      -- at least a commercial landlord – when the tenant abandons a
      premises where the lease provides the ability of a tenant to
      mitigate [its] own damages, or implies a requires [sic] the
      landlord to mitigate damages, then the landlord has that duty.

            There is no provision in this lease that would permit tenant
      to mitigate its own damages. And therefore, we have concluded
      that the landlord was required to mitigate damages in this case
      by using reasonable, customary means for mitigating the
      damages.

Trial Court Opinion, 4/18/16, at 5-6.

      We are constrained to disagree with the trial court’s conclusion. While

the trial court properly acknowledged the general rule that the landlord has

no duty to mitigate damages when the tenant abandons a premises, it erred

in its conclusion that in this case the landlord was required to mitigate

damages pursuant to Paragraph 24 of the Lease.

      The language of Paragraph 24 makes clear that the tenant, Atlantic in

this case, if no longer present at the property as a result of nonperformance,

was responsible for payments as set forth in the Lease Agreement.           The

language further states that:

      in the event the Demised Premises be relet by the Lessor,
      the Lessee shall be entitled to a credit in the amount of rent
      received by the Lessor in reletting after deduction of all expenses
      incurred in reletting the Demised Premises (including, without


                                    - 21 -
J-A11006-17


      limitation, advertising costs and realtor’s commissions), and in
      collecting the rent in connection therewith.

Lease Agreement, 8/12/04, at ¶ 24 (emphasis added).

      Thus, there is no duty on the landlord, here York, to re-let the

premises or to mitigate the damages. Instead, the language provides that if

the landlord does re-let the premises, that rent collected from the new

tenant would offset the debt owed by the previous tenant, here Atlantic. In

other words, it prohibits York from receiving double recovery from payments

made by Atlantic under the terms of the Lease and payments made by a

new tenant for the same period.      As a result, we cannot agree that the

parties through Paragraph 24 of the Lease changed the general holding that

a landlord has no duty to mitigate damages once a party abandons the

property. Thus, we are constrained to reverse the trial court’s determination

on this issue.

      In its second issue on cross-appeal, York argues that the trial court

erred in concluding that York’s efforts to mitigate damages were inadequate.

York’s Brief at 4, 15. Specifically, York argues that notwithstanding the fact

that York had no duty to mitigate, there was no testimony or evidence

produced at trial to support the trial court’s conclusion that York’s efforts

were not reasonable or that other efforts would have resulted in a more

expedient re-occupancy of the property. Id. at 15.

      We previously concluded that York had no obligation to mitigate

damages.    Thus, we need not undertake consideration of whether York’s

                                    - 22 -
J-A11006-17


efforts in attempting to mitigate damages were sufficient. This issue has no

merit.

      York’s final three issues on cross-appeal relate to the damages to

which it is entitled.      In discussion of these issues, we will concurrently

address Atlantic’s related issues raised on appeal.

      York asserts that the trial court erred in failing to find a basis for

awarding it attorneys’ fees. York’s Brief at 16. York argues that while under

the “American Rule,” litigants generally bear their own costs in litigation,

including attorneys’ fees, a litigant is entitled to recover counsel fees from

an adverse party where an express contractual provision provides for such

recovery. Id. at 17. York posits that the Lease, pursuant to Paragraph 6,

provides for recovery of costs resulting from the tenant’s failure under the

Lease causing those expenditures. Id. at 17. York maintains that Atlantic’s

failure to perform its obligation, specifically to pay rent as required by the

Lease, resulted in York’s need to hire counsel and initiate legal proceedings,

thus resulting in its incurrence of attorneys’ fees. Id. at 17.

      Conversely, Atlantic argues that York is not entitled to any damages

“due to its failure to provide the notice and opportunity to cure and its

eviction   of   Atlantic   prior   to   its   initiation   of   eviction   or   ejectment

proceedings.” Atlantic’s Brief at 21. Additionally, Atlantic argues that even

if a claim for attorneys’ fees were not completely barred by York’s eviction of

Atlantic, the Lease provision relied on by York in support of its claim for


                                          - 23 -
J-A11006-17


attorneys’ fees is ambiguous and should be construed against York. Id. at

21. Specifically, Atlantic asserts that there is no mention of attorneys’ fees

in this provision, as would be expected in an attorney fee-shifting clause.

Id. at 22.

      As explained fully above, we have rejected Atlantic’s assertion that

York is not entitled to any damages due to York’s alleged breach of the

Lease. Thus, we must consider whether York is entitled to attorneys’ fees as

part of the damages to which it is entitled.

      In addressing a claim for attorneys’ fees in the context of the breach of

a lease, we have stated:

             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. Generally,
      landlords and tenants can include in a lease any terms and
      conditions that are not prohibited by statute or other rule of law.
      The Landlord and Tenant Act of 1951 does not specifically
      provide for the recovery of attorney’s fees nor does it prohibit
      inclusion of a fee shifting provision in rental agreements.
      Furthermore, we are not presented with any applicable
      exceptions to the general rule. Consequently, the validity of the
      instant provision is solely dependent upon contract law. Where
      the language of a lease is clear and unequivocal, its meaning will
      be determined by its contents alone in ascertaining the intent of
      the parties.

Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009) (internal citations

omitted). Our Supreme Court has explained that “Under the American Rule,

applicable in Pennsylvania, a litigant cannot recover counsel fees from an

adverse party unless there is express statutory authorization, a clear


                                     - 24 -
J-A11006-17


agreement of the parties,         or   some   other   established exception.”

Trizechahn, 976 A.2d at 482-483 (emphasis added).

      Thus, the question here is whether there was a clear agreement of the

parties to award attorneys’ fees to the lessor. We must consider Paragraph

6 of the Lease to determine if it is ambiguous.

      “A contract is ambiguous if it is reasonably susceptible of
      different constructions and capable of being understood in more
      than one sense.” Insurance Adjustment Bureau v. Allstate,
      588 Pa. 470, 481, 905 A.2d 462, 468–69 (2006).                The
      “reasonably” qualifier is important: there is no ambiguity if one
      of the two proffered meanings is unreasonable. See Murphy v.
      Duquesne Univ. Of The Holy Ghost, 565 Pa. 571, 591, 777
      A.2d 418, 430 (2001) (“[C]ontractual terms are ambiguous if
      they are subject to more than one reasonable interpretation
      when applied to a particular set of facts.” (emphasis added)).
      Furthermore, reviewing courts will not “distort the meaning of
      the language or resort to a strained contrivance in order to find
      an ambiguity.” Madison Constr. Co. v. Harleysville Mut. Ins.
      Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). Finally, while
      ambiguous writings are interpreted by the finder of fact,
      unambiguous ones are construed by the court as a matter of
      law. See Kripp v. Kripp, 578 Pa. 82, 91, 849 A.2d 1159, 1163
      (2004).

Trizechahn, 976 A.2d at 653.

      Paragraph 6 of the Lease provides as follows:

      6.    ADDITIONAL RENT:           In addition to the foregoing
      minimum rent, all other payments to be made by Lessee, either
      to Lessor or the Merchant’s Association, shall be deemed to be
      and shall become additional rent hereunder, whether or not the
      same be designated as such; and shall be due and payable on
      demand or together with the next succeeding installment of rent,
      whichever shall first occur; and Lessor shall have the same
      remedies for failure to pay the same as for a non-payment of
      rent. Lessor, at his election, shall have the right to pay or do
      any act which requires the expenditure of any sums of money by
      reason of the failure or neglect of Lessee to perform any of the

                                    - 25 -
J-A11006-17


        provisions of this Lease, and in the event Lessor shall at his
        election pay such sums or do such acts requiring the expenditure
        of monies, Lessee agrees to pay Lessor, upon demand, all such
        sums, and the sum so paid by Lessor, together with interest
        thereon, shall be deemed additional rent and be payable as
        such.

Lease Agreement, 8/12/04, at ¶ 6.

        In reviewing Paragraph 6, we are compelled to conclude that the

paragraph is ambiguous regarding the damages that York may recover

under it because it is reasonably susceptible to different constructions and

capable of being understood in more than one sense.              Trizechahn, 976

A.2d at 482-483.     The heading “ADDITIONAL RENT” leads to ambiguity of

damages recoverable under this paragraph, notwithstanding the additional

statement that damages under this provision shall be considered additional

rent “whether or not the same be designated as such.” Id. Moreover, there

is no reference to the hiring of counsel or recovery of those related costs.

Thus, we cannot agree that this provision clearly reflects agreement

between the parties for payment of attorneys’ fees. Trizechahn, 976 A.2d

at 482-483.     See also Neal v. Bavarian Motors, Inc., 882 A.2d 1022,

1032 n. 11 (Pa. Super. 2005) (“There can be no recovery of attorneys’ fees

from an adverse party, absent an express statutory authorization, a clear

agreement     by   the   parties   or   some     other   established   exception.”).

Accordingly, the trial court did not err in declining to award York attorneys’

fees.




                                        - 26 -
J-A11006-17


      York next argues that the trial court erred as a matter of law in failing

to award it liquidated damages as a result of Atlantic’s violation of the

contractual non-compete covenant pursuant to Paragraph 13 of the Lease.

York’s Brief at 4, 18.   York asserts that the trial court found that Atlantic

breached the Competition clause, yet without explanation, refused to

provide for the increased minimum rent in its damages award. Id. at 18.

York maintains that the liquidated damages clause is not a penalty and is a

reasonable remedy given the difficulty associated with calculating precise

damages associated with a breach of the Competition clause, along with the

certainty of some level of associated harm resulting from such a breach. Id.

at 19. Accordingly, York posits it is entitled to a fifty percent premium on

the rent due after Atlantic opened the Arsenal Road store. Id. at 19.

      Atlantic conversely maintains that York is not entitled to liquidated

damages due to its failure to provide the notice and opportunity to cure as

required under the Lease and its eviction of Atlantic. Atlantic’s Brief at 24.

According to Atlantic, even if York had not evicted Atlantic, the liquidated

damages clause in Paragraph 13 of the Lease amounts to an unlawful

penalty rather than a reasonable approximation of any expected loss to

York. Id.

      In addressing liquidated damages, our Supreme Court has provided

the following explanation:

      Liquidated damages is a term of art originally derived from
      contract law; it denotes the sum a party to a contract agrees to

                                    - 27 -
J-A11006-17


     pay if he breaks some promise, and which, having been arrived
     at by a good faith effort to estimate in advance the actual
     damage that will probably ensue from the breach, is legally
     recoverable ... if the breach occurs. A penalty, by contrast, is
     fixed, not as a pre-estimate of probable actual damages, but as
     a punishment, the threat of which is designed to prevent the
     breach.      Thus, contracting parties may provide for pre-
     determined liquidated damages in the event one party fails to
     perform, particularly in circumstances where actual damages
     would be difficult to estimate in advance or to prove after a
     breach occurs.       See Restatement (Second) of Contracts, §
     356(1)(“Damages for breach by either party may be liquidated in
     the agreement but only at an amount that is reasonable in the
     light of the anticipated or actual loss caused by the breach and
     the difficulties of proof of loss[;] [a] term fixing unreasonably
     large liquidated damages is unenforceable on grounds of public
     policy as a penalty.”). See generally Geisinger Clinic v. Di
     Cuccio, 414 Pa.Super. 85, 99, 606 A.2d 509, 516 (1992)(listing
     criteria to differentiate liquidated damages from penalties).

Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277, 1282

(Pa. 2002) (some internal citations and quotation marks omitted).

     In Geisinger Clinic, this Court explained:

     this court, . . . in Holt’s Cigar Co. v. 222 Liberty Associates,
     404 Pa.Super. 578, 591 A.2d 743 (1991), held that the lynchpin
     of a liquidated damage clause is compensation for damages
     sustained. The court further observed that a provision which
     represents a good-faith and reasonable forecast of anticipated
     damages for breach which are otherwise difficult to prove with
     certainty will be construed as one for liquidated damages rather
     than for punishment or to secure compliance.          This court
     characterized liquidated damages as a measure of foreseeable
     business losses or as damages for loss of good will. If no
     measure of compensation is intended, the damages clause is a
     penalty to secure compliance. Id. In that case, we reiterated
     the factors to which we must look in deciding whether the
     damages are liquidated or for penalty:

           The question of whether stipulation is a penalty or a
           valid liquidated damages provision ... is to be
           determined by the intention of the parties, drawn

                                   - 28 -
J-A11006-17


           from the words of the whole contract, examined in
           the light of its subject-matter and its surroundings;
           and in this examination we must consider the
           relation which the sum stipulated bears to the extent
           of the injury which may be caused by the several
           breaches provided against, the ease or difficulty of
           measuring a breach in damages, and such other
           matters as are legally or necessarily inherent in the
           transaction.

     404 Pa. Superior Ct. at 587, 591 A.2d at 747[.]

Geisinger Clinic, 606 A.2d at 517. See also Palmieri v. Partridge, 853

A.2d 1076, 1080 (Pa. Super. 2004) (“A liquidated damages clause that is

tantamount to a penalty is unenforceable.     To be enforceable, liquidated

damages must be a reasonable forecast of the possible harm to the non-

breaching party.”)

     Paragraph 13 of the Lease provides:

     13. COMPETITION: Lessee shall not open or operate another
     store for business in any similar or competing business within a
     circle, the radius of which is three (3) miles, the center of which
     shall be the Shopping Center.         Lessor, for breach of this
     covenant and in addition to any other remedy otherwise
     available, may increase the minimum rent payable then and in
     the future by fifty (50%) percent. The above paragraph shall
     not apply to any Cingular store or dealership which is not owned
     or operated by Atlantic Wireless Group, Inc. or any of its
     principal shareholders which own five (5) percent of its stock.

Lease Agreement, 8/12/04, at ¶ 13.

     The trial court found that Atlantic “mov[ed] the business to a location

within three miles of the lease premises, advertising the new location on the

premises of the leased premise at Northwest Plaza.”      Trial Court Opinion,

4/18/16, at 4. Thus, the trial court determined that Atlantic breached the

                                   - 29 -
J-A11006-17


non-compete clause.         Despite concluding that Atlantic violated the non-

compete clause, however, the trial court failed to make a determination

regarding Paragraph 13 of the Lease as it relates to liquidated damages.

       Ordinarily if a trial court has failed to address an issue raised in a

Pa.R.A.P. 1925(b) statement,8 the remedy is “a remand to the trial court

with directions that an opinion be prepared and returned to the appellate

court.”     Scampone v. Grane Healthcare Co., 11 A.3d 967, 974 (Pa.

Super. 2010). Remand is unnecessary, however, if the lack of an opinion

does not impact upon our ability to conduct appellate review. Id. Here, the

trial court’s failure to address this issue impacts our ability to conduct

appellate review, especially in light of the analysis necessary to determine

the enforceability of a liquated damages claim.          Thus, we direct the trial

court to address York’s claim for liquidated damages on remand.

       York next argues that it was entitled to prejudgment interest.          York

maintains that in Pennsylvania, the nonbreaching party to a contract is

entitled to recover pre-judgment interest on the amount due under the

contract.    York’s Brief at 20.      Thus, it asserts that its entitlement to pre-

judgment interest is not subject to the trial court’s discretion.        Id.   York

argues that the trial court, without comment, erred in failing to award York

____________________________________________


8
  As noted previously, York raised this issue in its Pa.R.A.P. 1925(b)
statement. York’s Concise Statement of Errors Complained of on Appeal,
11/2/16, at ¶ 5.



                                          - 30 -
J-A11006-17


prejudgment interest.   Id. Conversely, Atlantic maintains that York is not

entitled to damages, including prejudgment interest, because Atlantic was

not in breach of the Lease. Atlantic’s Brief at 25.

      In addressing the issue of pre-judgment interest, this Court has

explained:

      “a court has discretion to award or not award prejudgment
      interest on some claims, but must or must not award
      prejudgment interest on others.” The Restatement (Second) of
      Contracts § 354, which Pennsylvania follows, reflects this
      discretion:

             (1) If the breach consists of a failure to pay a
             definite sum in money or to render a performance
             with fixed or ascertainable monetary value, interest
             is recoverable from the time for performance on the
             amount due less all deductions to which the party in
             breach is entitled.

             (2) In any other case, such interest may be allowed
             as justice requires on the amount that would have
             been just compensation had it been paid when
             performance was due.

      Restatement (Second) of Contracts § 354(1)-(2) (1981). Thus,
      before awarding prejudgment interest, the court must identify
      the nature of the breach. See id.

Cresci Const. Services, Inc. v. Martin, 64 A.3d 254, 258-259 (Pa. Super.

2013) (some internal citations omitted). Thus, pursuant to the Restatement

(Second) of Contracts § 354(1), prejudgment interest is a matter of right

where the amount is ascertainable from the contract. Ely v. Susquehanna

Aquacultures, Inc., 130 A.3d 6, 15 (Pa. Super. 2015). Where the amount




                                     - 31 -
J-A11006-17


due and owing is not sufficiently definite, prejudgment interest is awardable

at the discretion of the trial court. Id.

      Herein, the trial court did not award York pre-judgment interest, but

failed to provide any explanation for its determination.       Indeed, the trial

court failed to address this issue despite the fact that York had raised it in its

Pa.R.A.P.    1925(b)   statement.      York’s   Concise   Statement    of   Errors

Complained of on Appeal, 11/2/16, at ¶ 6.           The trial court’s failure to

address this issue hampers our ability to conduct appellate review.

Scampone, 11 A.3d at 974.            Accordingly, we direct the trial court to

address York’s claim for prejudgment interest on remand.

      Finally, we address Atlantic’s claim that the trial court mistakenly

found that York was entitled to $110,719.99 in damages. Atlantic’s Brief at

25.   Atlantic maintains that if York was entitled to damages, the total

damages should be $84,718.41. Id. Atlantic asserts that the trial court’s

incorrect calculation resulted from a simple mathematical error.              Id.

According to Atlantic, the trial court erroneously counted August of 2012

through December of 2012, as eight months rather than five, resulting in the

incorrect calculation of damages. Id. at 25-26.

      In outlining its damages calculation, the trial court stated the

following:

            With regard to the amount of rent that we have awarded
      to [York], we base that rent on a reasonable period of time for
      the landlord to re-lease the premises and mitigate the damages
      which we determined to be through August of 2013.

                                      - 32 -
J-A11006-17



            The calculation of rent was $6,634.17 from August of 2012
      through December of [2012]. The evidence indicated that it was
      in January of each year when the rent was increased. We also
      awarded rent of $6,833.20 from January of 2013 through July of
      2013. The first amount from August through December we
      calculated from August of 2012 through December of [2012] to
      be $53,073.30. From January of 2013 through July of 2013, we
      calculated that amount to be $47,832.40.

            We believe that one year would be sufficient for the
      landlord to re-lease the premises if the landlord used reasonable,
      ordinary, and the type of efforts that is normally used in the
      industry of commercial shopping center leasing. The total rent,
      therefore, was $100,905.70 with late fees of $5,045.29.

            We also considered that the reasonable repairs for the
      damages done by the tenant in removing fixtures and necessary
      [to] restore the premises to [its] original condition, reasonable
      wear and tear excepted, would be the $4,769 paid by the
      landlord.

             Therefore, we reach the total judgment amount entered of
      $110,719.99. With regard to taxes, insurance and utilities, we
      find that there was not sufficient specific testimony to permit the
      [c]ourt to enter an order based on the evidence that was
      presented. We also find no basis for awarding attorney’s fees.

Trial Court Opinion, 4/18/16, at 6-7.

      While it indeed appears that the trial court mistakenly concluded that

August of 2012 through December of 2012 constituted eight months instead

of five, resulting in a miscalculation of rent damages, this mathematical

error is of no consequence. The trial court’s calculation of rent damages was

based on its conclusion that York had an obligation to mitigate its damages

and its determination that York should have been able to re-let the premises

within one year. As explained previously, York had no obligation to mitigate


                                    - 33 -
J-A11006-17


its damages. Thus, York was not limited to rent damages for only one year

as determined by the trial court.

      Instead, York was entitled to rent damages for the remainder of the

Lease, with the exception of the months that York was able to re-let the

premises. Thus, the trial court’s calculation of damages, specifically based

on damages for rent through July of 2013, was incorrect. York was entitled

to rent payments from Atlantic through the end of the Lease, August of

2014, to the extent that York did not re-let the Property. Thus, despite the

mathematical error in calculating rent damages for 2012, the trial court

must undertake a new determination regarding damages based on rent

payments due York through the end of the Lease.

      Accordingly, we affirm with respect to the appeal at Docket Number

1519 MDA 2016, and reverse with respect to the cross-appeal at Docket

Number 1524 MDA 2016, as outlined in this Memorandum. We remand this

matter to the trial court for a determination of damages owed to York

consistent with this Memorandum, specifically with regard to liquidated

damages, pre-judgment interest and rent damages.

      Judgment affirmed in part, reversed in part.        Case remanded.

Jurisdiction relinquished.




                                    - 34 -
J-A11006-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




                          - 35 -
