           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William and Bette Ann Belleville, h/w :
                                      :
              v.                      :             No. 953 C.D. 2017
                                      :             Submitted: March 15, 2019
David Cutler Group, Inc. and Malvern :
Hunt Homeowners Association           :
                                      :
Appeal of: David Cutler Group, Inc.   :
                                      :
William and Bette Ann Belleville, h/w :
                                      :
              v.                      :             No. 1020 C.D. 2017
                                      :             Submitted: March 15, 2019
David Cutler Group, Inc., and Malvern :
Hunt Homeowners Association           :
                                      :
Appeal of: William and Bette Ann      :
Belleville, h/w                       :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: June 28, 2019

               In these consolidated cross-appeals, Appellant David Cutler Group,
Inc. (Cutler) and Appellees William and Bette Ann Belleville (the Bellevilles)1
appeal from an order of the Court of Common Pleas of Chester County (trial court),
dated June 13, 2017. After determining that the Bellevilles were entitled to an award
of punitive damages and attorneys’ fees payable from Cutler and conducting a


       1
         This Court had previously designated Cutler as appellant and the Bellevilles as appellees
pursuant to Pennsylvania Rule of Civil Procedure 2136.
hearing to determine the amount of such awards, the trial court ordered Cutler to pay
the Bellevilles $100,000 in punitive damages and $212,895 in attorneys’ fees. For
the reasons set forth below, we affirm in part, vacate in part, and remand for further
action by the trial court.
                                I. BACKGROUND
             To fully understand how this matter is presently before the Court, a
summary of the facts and procedural history from our decision in Belleville v. David
Cutler Group, 118 A.3d 1184 (Pa. Cmwlth. 2015) (Belleville I), is helpful:
                    [Cutler] was the developer of a planned community
             known as Malvern Hunt (the Development),
             which consists of 279 properties and was subdivided
             into [3] communities: The Reserve, The Chase,
             and The Ridings.         The        Reserve       consists
             of 101 minimum-maintenance single[-]family lots, The
             Chase consists of 95 carriage homes, and The Ridings
             consists of 83 standard single-family units. Open spaces
             and       amenities,      including      tennis     courts
             and [2] playgrounds, are owned and maintained by the
             [Malvern Hunt Homeowners Association (Association)].
             [The Bellevilles] own property in The Ridings.
                    Membership in the Association consists of
             the 196 lot owners of The Chase and The Reserve. The
             Bellevilles and the other 82 residents of The Ridings are
             excluded from membership in the Association.
                    Per the requirements for creating a planned
             community under the Uniform Planned Community Act
             (UPCA), [68 Pa. C.S. §§ 5101-5414,] Cutler filed a
             Declaration with the Office of the Recorder of Deeds for
             Chester County (Chester County Recorder of Deeds) on
             March 20, 2001 (the Recorded Declaration).            The
             Recorded Declaration provided that only members of the
             Association (i.e., owners in The Chase and The Reserve)
             received snow removal services for their sidewalks and
             driveways, grass-cutting services, weed treatments and
             mulching services. The owners in The Ridings received


                                          2
no services from the Association and were responsible for
all aspects of their own property maintenance.
       The Recorded Declaration also provided that “[The
Ridings] shall be exempt from all assessments, charges or
liens” except for a $1,000 contribution at the time of
conveyance. Furthermore, the Recorded Declaration
provided that, outside of the $1,000 lump sum payment
made at the time of conveyance, “[n]o other terms or
provisions of Article IV [(pertaining to maintenance
assessments)] shall apply” to The Ridings. The Recorded
Declaration also prohibited the Association from making
amendments to the Recorded Declaration that impose any
further monetary obligation on owners in The Ridings.
       The Bellevilles purchased their home in
August 2001, [5] months after the Recorded Declaration
was recorded. The Bellevilles, however, did not receive a
copy of the Recorded Declaration. Instead, Cutler
provided the Bellevilles with a declaration that had not
been recorded (Unrecorded Declaration), which contained
different language than the Recorded Declaration.
Specifically, the Unrecorded Declaration required
residents of The Ridings to pay a one-time
$1,000 contribution to the Association plus an annual
assessment of 20% of the uniform assessment paid by the
owners of The Chase and The Reserve. Cutler provided
the Bellevilles with a summary of the Unrecorded
Declaration (Summary), which provide[d], in pertinent
part:
              1. The open space and amenities within
       same as depicted on the approved subdivision
       plan for all of [the Development], which
       includes [The Chase], [The Reserve] and
       [The Ridings,] is available for the use and
       enjoyment of the owners of lots and dwelling
       units in all [3] such areas.
              ....
              3. The [Ridings] are intended to be
       owned and enjoyed without the Association
       providing any services with regard to snow
       removal, lawn mowing or any other type of
       lot maintenance. In short, [The Ridings] are
                           3
afforded the use and enjoyment of the
Common Open Space, but the owners of
these lots are not members of the
[Association] never to be assessed for use and
enjoyment of the open space or in any other
matter impacted by the operation of the
Association.
       4. Each [lot located within The
Ridings] will have contributed $1,000.00
toward the Association funds, as a one time
only contribution upon settlement between
[Cutler] and the initial buyer of each [lot]. It
shall be this sum, in concert with the
percentage payment of the annual assessment
as set forth hereinbelow, which will be the
contribution towards use, enjoyment and
maintenance of the Common Open Space,
without any further financial obligation upon
[the lots located within The Ridings].
Article XI provides that each [lot owner in
The Ridings] shall pay a sum equal to twenty
percent (20%) of the annual assessment as
established by the Association and applicable
to all other types of lot owners being those
within [The Chase] and [The Reserve], which
annual sum shall be the sole financial
obligation upon [the lot owners in The
Ridings] with regard to the use, enjoyment
and maintenance of the Common Open Space
and Association Facilities, without any
further financial obligation upon [The
Ridings]. Moreover, the Declaration, at
Article X, Section 1, expressly prohibits any
future amendments to the Declaration that
could affect the rights of the [lot owners in
The Ridings] or impose any financial
obligation above and beyond the initial
$1,000.00 contribution and the annual
payment equal to twenty (20%) percent of the
standard annual assessment as imposed by
the Association on all other Lot Owners.


                       4
In reliance on the Unrecorded Declaration provided to
them, the Bellevilles paid the 20% annual assessment.
       More than [2] years later, in October 2003, Cutler
filed and recorded with the Chester County Recorder of
Deeds a First Amendment to the Recorded Declaration
(First Amendment) to “clarify” that property owners in
The Ridings were to pay an annual 20% assessment.
Notably, the First Amendment also, for the first time,
indicate[d] that owners in The Chase and The Reserve may
be charged differing annual assessments. The Recorded
Declaration and Unrecorded Declaration both state, in
Article IV, Section 3, that the annual assessment “shall be
fixed at a uniform rate for all Lots.” The Bellevilles and
other homeowners in the Development were not notified
of the First Amendment or provided with a copy.
       In 2006, the Association took control of the
Development from Cutler in accordance with Article II,
Section 2 of the Recorded Declaration.                   On
August 15, 2007, the Association filed a Second
Amendment to the Recorded Declaration, allegedly to
cure an ambiguity as it related to a budget shortfall
(Second Amendment).
       On May 7, 2008, the Association recorded a Third
Amendment to the Recorded Declaration, allegedly to
cure an ambiguity regarding the collection of late fees,
interest[], costs, and attorney fees related to the
non-payment of annual assessments (Third Amendment).
In January 2008, the Association sent the Bellevilles an
assessment notice that was calculated differently from all
previous invoices. The 2008 assessment used a two-tiered
format for owners in The Chase and The Reserve, and
charged owners in The Ridings 20% of the higher amount.
The Bellevilles disputed the calculation using the
two-tiered system as unauthorized by the [Recorded]
Declaration.      The Bellevilles first learned of the
amendments to the Recorded Declaration during the
dispute, when the Association used the amendments to
justify the higher assessment.
       Unable to resolve their dispute with the Association,
and believing that they had been wrongfully assessed
under the terms of the Recorded Declaration, the

                             5
Bellevilles filed a complaint on December 3, 2008, against
Cutler and the Association, seeking declaratory judgment
and compensatory and punitive damages.                       In
Counts I through VI, the Bellevilles asked the trial court
to “declare null and void” the First and Third
Amendments. They argued that the First and Third
Amendments were recorded without notice to any owner
within the Development and without consent as required
by Section 5219(d) of the UPCA, 68 Pa. C.S. § 5219(d),
and in violation of the terms of Article X, Section 1 of the
Recorded Declaration, which required 90 day[s] advance
written notice to all [o]wners of any amendments and
prohibited any changes which “affect solely the rights and
provisions as appl[ied] to [The Ridings] . . . or which
would in any manner impose any financial obligation upon
[the lot owners in The Ridings] above and beyond those
set forth [in the Recorded Declaration].” In Count VII, the
Bellevilles sought a refund from Cutler and the
Association for the allegedly illegal annual assessments
they collected from the Bellevilles. In Count VIII, the
Bellevilles sought punitive damages from Cutler for
“intentionally deceitful” conduct.
       Cutler and the Association filed preliminary
objections asserting, among other things, that the
Bellevilles’ claim as to the First Amendment was time
barred under Section 5219(b) of the UPCA.                  On
March 7, 2012, the trial court granted the preliminary
objections in part, dismissing the Bellevilles’ claims as to
the First Amendment. Thereafter, the Bellevilles filed a
motion to reconsider the March 7, 2012 order, which the
trial court granted on April 30, 2012, vacating its
March 7, 2012 order. The Association filed a motion to
reconsider the April 30, 2012 order, which the trial court
denied on May 24, 2012.
       Prior to trial, Cutler filed a motion to dismiss the
Bellevilles’ cause of action for declaratory relief due to
lack of jurisdiction for failure to join indispensable parties,
namely the other 278 property owners in the Development.
The trial court reserved its ruling until after the trial. A
nonjury trial was held on October 16, 2012. On
October 31, 2012, without ruling on the merits of the case,
the trial court dismissed the Bellevilles’ complaint in its
                              6
             entirety for failure to join indispensable parties. On appeal
             to this Court, the Bellevilles challenged only the trial
             court’s dismissal of their causes of action seeking
             declaratory relief. By order dated January 3, 2014, we
             vacated the trial court’s October 31, 2012 order, holding
             that the other 278 owners were not indispensable parties,
             and remanded the matter to the trial court for proceedings
             consistent with our opinion.
                    On remand, the trial court, citing footnote 10 of this
             Court’s [January 3, 2014] opinion, considered only the
             declaratory judgment counts—i.e., whether the First and
             Third Amendments were valid. In an opinion dated
             July 29, 2014, the trial court concluded that the First
             Amendment was not valid. It concluded that the Recorded
             Declaration was not ambiguous, and the First Amendment,
             therefore, could not be made as a technical correction
             under Section 5219(f) of the UPCA. The trial court
             further concluded that the Association violated
             Section 5219(f) by failing to obtain an independent legal
             opinion, and that the First Amendment [both] violated
             Section 5219(d) [of the UPCA] and . . . contradicted
             Article IV, Section 3 and Article X, Section 1 of the
             Recorded Declaration. The trial court likewise concluded
             that the Third Amendment was invalid because the
             Association failed to obtain an independent legal opinion
             in violation of Section 5219(f), [and that] the [Third
             Amendment both] violated Section 5219(d)[] and . . .
             contradicted Article IV, Section 10 and Article X,
             Section 1 of the Recorded Declaration. The trial court’s
             order, therefore, declared the First and Third Amendments
             void and stricken and allowed any party to record a copy
             of the July 29, 2014 order with the Chester County
             Recorder of Deeds.
Belleville I, 118 A.3d at 1187-92 (footnotes omitted) (record citations omitted)
(headings omitted).
             The Association and the Bellevilles cross-appealed the trial court’s
order to this Court. The Association’s main argument on the merits was that the trial
court committed an error of law by concluding that the First and Third Amendments


                                          7
were invalid.      More specifically, the Association argued that Cutler and the
Association properly amended the Recorded Declaration in accordance with
Section 5219(f) of the UPCA2 because the First and Third Amendments constituted
technical amendments that Cutler and the Association made to clarify an ambiguity
in the Recorded Declaration. We concluded that the Recorded Declaration was not
ambiguous, and, therefore, Cutler and the Association could not amend it under
Section 5219(f) of the UPCA. We also agreed with the trial court that, even if an
ambiguity existed in the Recorded Declaration, the First and Third Amendments
were procedurally invalid as technical corrections, because Cutler and the
Association failed to obtain the necessary “opinion from independent legal counsel”
as required by Section 5219(f) of the UPCA. In their cross-appeal, the Bellevilles


       2
          At the time the First Amendment was filed and recorded in October 2003,
Section 5219(f) of the UPCA provided:
       Technical corrections.—Except as otherwise provided in the declaration, if any
       amendment to the declaration is necessary in the judgment of the executive board
       to do any of the following:
              (1) cure an ambiguity;
               (2) correct or supplement any provision of the declaration, including the
       plats and plans, that is defective, missing or inconsistent with any other provision
       of the declaration or with this subpart; or
              (3) conform to the requirements of any agency or entity that has established
       national or regional standards with respect to loans secured by mortgages or deeds
       of trust or units in planned community or so-called “PUD” [(planned unit
       development)] projects, such as Federal National Mortgage Association and the
       Federal Home Loan Mortgage Corporation;
       the executive board may effect an appropriate corrective amendment without the
       approval of the unit owners or the holders of liens on the planned community, upon
       receipt of an opinion from independent legal counsel to the effect that the proposed
       amendment is permitted by the terms of this subsection.
68 Pa. C.S. § 5219(f) (1996). Section 5219(f) of the UPCA has since been amended on multiple
occasions and contains additional/different language.
                                                8
argued, inter alia, that the trial court committed an error of law by concluding that
they had waived their claim for damages. We concluded that our January 3, 2014
opinion and order reinstated the Bellevilles’ claims for declaratory judgment and
their ability to pursue any relief available and requested on such claims, regardless
of how the Bellevilles characterized their request for remedies in their complaint. In
so doing, we disagreed with the trial court’s conclusion that the Bellevilles waived
their claims for damages by only appealing the trial court’s dismissal of their
declaratory relief count and not their damages counts. As a result, we reversed the
portion of the trial court’s order finding waiver of the Bellevilles’ request for relief
in the form of damages and remanded the matter to the trial court to consider whether
the Bellevilles were entitled to any such relief. We affirmed the trial court’s order
in all other respects.
                On remand, the trial court relied on the record created during the
nonjury trial held on October 16, 2012, and the findings of fact issued on
July 29, 2014, to determine whether the Bellevilles were entitled to damages. By
order dated February 19, 2016, the trial court awarded the Bellevilles compensatory
damages in the amount of $1,000 plus interest payable from Cutler, which amount
represented the $200 annual assessment paid by the Bellevilles to Cutler
from 2001 through 2005. The trial court also awarded the Bellevilles punitive
damages and attorneys’ fees pursuant to Section 2503(7) of the Judicial Code3
payable from Cutler in amounts to be determined following a hearing. By order
dated November 21, 2016, the trial court, inter alia, indicated that, in connection
with the Bellevilles’ claim for attorneys’ fees, it would not consider any attorneys’
fees incurred by the Bellevilles before this action was pending, as part of the

       3
           42 Pa. C.S. § 2503(7).

                                           9
Bellevilles’ efforts to overturn the Second Amendment during this litigation, or
during any appeal to this Court. Thereafter, on February 24, 2017, the trial court
held a hearing for the parties to submit evidence that would enable the trial court to
set the amount of punitive damages and attorneys’ fees. On June 13, 2017, the trial
court entered an order directing Cutler to pay the Bellevilles punitive damages in the
amount of $100,000, and attorneys’ fees in the amount of $212,895. Cutler and the
Bellevilles cross-appealed the trial court’s order to this Court.
                         II. ARGUMENTS ON APPEAL
             On appeal, Cutler argues that the trial court: (1) abused its discretion
by holding Cutler liable to the Bellevilles for punitive damages; and (2) abused its
discretion by awarding attorneys’ fees to the Bellevilles as taxable costs under
Section 2503(7) of the Judicial Code. In their cross-appeal, the Bellevilles argue
that the trial court committed an error of law by failing to consider their claim for
attorneys’ fees incurred in connection with the prior appeals to this Court.
                                 III. DISCUSSION
                               A. Punitive Damages
             Cutler argues that the trial court abused its discretion by holding Cutler
responsible to the Bellevilles for punitive damages. In making this argument, Cutler
appears to suggest that its actions in connection with the recording of the First
Amendment were not outrageous and, therefore, do not support an award of punitive
damages because: (1) Cutler believed that the terms of the Recorded Declaration
permitted it to file the First Amendment as a means to resolve the “mutual mistake”
in recording the incorrect declaration; (2) Cutler never imposed the two-tiered
assessment established by the First Amendment during the time that it was in control
of the Association; and (3) Cutler realized no financial gain/profit from imposing


                                          10
the $200 annual assessment on the lot owners in The Ridings. In other words, Cutler
suggests that its state of mind at the time that it recorded the First Amendment does
not support the imposition of punitive damages. Cutler also argues that, even though
the trial court found that both Cutler and the Association “proceeded in the same
manner in the recording of the First and Third Amendments,” the trial court
determined that only Cutler’s actions warranted the imposition of punitive damages.
(Cutler’s Br. at 18.)
             In response, the Bellevilles argue that the trial court did not abuse its
discretion by awarding punitive damages because Cutler’s actions in secretly
changing the substantive terms of the Recorded Declaration by recording the First
Amendment “were outrageous and done with reckless disregard for the rights of
[the] Bellevilles and all others in the [Development].” (Bellevilles’ Br. at 15.) The
Bellevilles further argue that the trial court’s distinction between Cutler and the
Association relative to the imposition of punitive damages was appropriate because
“the only substantive problem with the Third Amendment[—i.e., the only reason for
the Bellevilles’ challenge to the Third Amendment—]was that it restated the First
Amendment.” (Bellevilles’ Br. at 20.) The Bellevilles also argue that Cutler’s
appeal of the trial court’s imposition of punitive damages “is nothing more than a
request for reconsideration[,]” and Cutler has failed to cite anything in the record
that “demonstrates any prejudice, bias, [or] ill-will by the trial court” that would
establish that the trial court abused its discretion. (Bellevilles’ Br. at 24.)
             An “[a]ssessment of punitive damages [is] proper when a person’s
actions are of such an outrageous nature as to demonstrate intentional, willful,
wanton or reckless conduct and are awarded to punish that person for such conduct.”
SHV Coal, Inc. v. Cont’l Grain Co., 587 A.2d 702, 704 (Pa. 1991) (internal citation


                                           11
omitted). “In assessing punitive damages, the trier of fact can properly consider the
character of the defendant’s act, the nature and extent of the harm to the plaintiff that
the defendant caused or intended to cause[,] and the wealth of the defendant.” Id.
(citing Section 908(2) of the Restatement (Second) of Torts as adopted by the
Pennsylvania Supreme Court in Feld v. Merriam, 485 A.2d 742 (Pa. 1984)). “The
determination of whether a person’s actions arise to outrageous conduct lies within
the sound discretion of the fact-finder and will not be disturbed [on appeal] so long
as that discretion has not been abused.” Id. at 705.
             Here, the trial court concluded that the Bellevilles were entitled to an
award of punitive damages against Cutler because Cutler’s conduct was outrageous
and demonstrated a reckless indifference to the rights of others. The trial court
reasoned that, in order to correct Cutler’s attorney’s error in recording the incorrect
declaration, Cutler secretly recorded the First Amendment all the while knowing that
the First Amendment “was inconsistent with both the Recorded Declaration and the
Unrecorded Declaration” and “materially changed the substantive rights and
obligations of all unit owners in the [Development].” (Trial Ct. Op., Feb. 19, 2016,
at 6, 8.) The trial court reasoned further that Cutler also knew that the First
Amendment would not qualify as a technical amendment under Section 5219(f) of
the UPCA, and that, even if it did, “the mandatory procedural steps required to make
a technical amendment[—i.e., obtaining the necessary ‘opinion from independent
legal counsel’—]had not been followed.” (Id. at 9.) The trial court also reasoned
that Cutler profited from the recording of the First Amendment and the collection of
annual assessments from lot owners in The Ridings because “[e]very dollar that
Cutler collected while in control of the [Development] was a dollar that Cutler did
not have to spend since Cutler was responsible for the maintenance of the common


                                           12
areas and facilities during [that] period.” (Id. at 10.) The trial court further reasoned
that it is irrelevant that Cutler did not impose the two-tiered assessment established
by the First Amendment during the time that it was in control of the Association,
because “Cutler set in motion the events that led to [such] assessment.” (Id. at 11.)
In addition, while Cutler suggests that its state of mind should have negated the
imposition of punitive damages, Cutler ignores the fact that it did not present any
evidence on what its state of mind was at the time that it recorded the First
Amendment that the trial court could consider in making its decision on whether to
impose punitive damages. Given the trial court’s reasoning as outlined above, we
cannot conclude that the trial court abused its discretion by holding Cutler
responsible to the Bellevilles for punitive damages.
                                 B. Attorneys’ Fees
             Cutler argues that the trial court abused its discretion by awarding
attorneys’ fees to the Bellevilles as taxable costs under Section 2503(7) of the
Judicial Code. More specifically, Cutler argues that the trial court failed “to arrive
at any precise finding as to [any] dilatory, obdurate or vexatious conduct” and,
instead, relied on Cutler’s conduct that occurred prior to the commencement of this
litigation as the basis to award attorneys’ fees, which is improper. (Cutler’s Br.
at 25.) Cutler argues further that the docket activity in this case clearly reflects that
it successfully defended against certain claims brought by the Bellevilles, including
the Bellevilles’ attempt to certify a class and Cutler’s challenge to the trial court’s
jurisdiction based upon the Bellevilles’ failure to join indispensable parties, and,
therefore, its conduct in asserting these defenses could not have been dilatory,
obdurate or vexatious. In response, the Bellevilles argue that the trial court did not
abuse its discretion by awarding attorneys’ fees, because such award was made in


                                           13
connection with Cutler’s conduct during the pendency of these proceedings—i.e.,
Cutler’s assertion of a frivolous defense.
              In their cross-appeal, the Bellevilles argue that the trial court committed
an error of law by failing to consider their claim for attorneys’ fees incurred in
connection with the prior appeals to this Court. More specifically, the Bellevilles
argue that the attorneys’ fees award should include the attorneys’ fees incurred by
the Bellevilles in connection with those appeals because they never should have
occurred. In other words, the Bellevilles contend that this “case never should have
proceeded beyond preliminary pleadings,” and Cutler’s frivolous defenses have
perpetuated this matter for 9 years. (Bellevilles’ Br. at 34.)
              Section 2503(7) of the Judicial Code allows a trial court to award
reasonable attorneys’ fees to a party “as a sanction against another [party] for
dilatory, obdurate or vexatious conduct during the pendency of the matter.”
42 Pa. C.S. § 2503(7) “Vexatious conduct has been defined as that which is ‘without
sufficient grounds and serving only to cause annoyance.’” Am. Mut. Liab. Ins. Co.
v. Zion & Klein, P.A., 489 A.2d 259, 261 (Pa. Super. 1985) (quoting Chervenak,
Keane & Co., Inc. (C.K.C. Assocs.) v. Hotel Rittenhouse Assocs., Inc., 477 A.2d 487,
490 (Pa. Super. 1984)).4 “Generally speaking, ‘obdurate’ conduct may be defined
in this context as ‘stubbornly persistent in wrongdoing.’” In re Estate of Burger,
852 A.2d 385, 391 (Pa. Super. 2004) (quoting Webster’s Ninth New Collegiate
Dictionary 815 (1987)), aff’d, 898 A.2d 547 (Pa. 2006). A trial court’s decision to
award attorneys’ fees under Section 2503(7) of the Judicial Code will not be
overturned on appeal absent an abuse of discretion. F. Zacherl, Inc. v. Flaherty

       4
          Although not binding on this Court, Pennsylvania Superior Court decisions may be cited
for their persuasive value when they address analogous issues. Lerch v. Unemployment Comp. Bd.
of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).

                                              14
Mech. Contractors, LLC, 131 A.3d 1030, 1041 n.12 (Pa. Cmwlth.), appeal denied,
145 A.3d 729 (Pa. 2016).
             Here, the trial court concluded that Cutler’s conduct during the
pendency of this litigation was obdurate and vexatious because Cutler essentially
advanced a frivolous defense to the merits of the Bellevilles’ claims. The trial court
reasoned:
             Cutler defended this action claiming that the First
             Amendment was recorded as a technical correction
             pursuant to [Section 5219(f) of the UPCA] knowing that
             the First Amendment was not a technical correction, that
             any claim for a technical correction would be defeated
             because it was procedurally invalid, and that it had secretly
             recorded a document that materially affected the
             substantive rights and obligations of every [lot] owner in
             [the Development]. Because the same attorney who
             represented Cutler throughout this litigation also
             represented Cutler when the Recorded Declaration and
             First Amendment were recorded, Cutler was fully aware
             of all relevant circumstances at the time the litigation was
             commenced.
(Trial Ct. Op., Feb. 19, 2016, at 15.) The trial court further concluded that every
task undertaken by the Bellevilles’ attorneys, except for those undertaken before this
action was pending, as part of the Bellevilles’ efforts to overturn the Second
Amendment during this litigation, or during any appeal to this Court, were
“precipitated by Cutler’s misconduct.”         (Trial Ct. Op., June 13, 2017, at 3.)
Ultimately, the trial court awarded attorneys’ fees for 473.1 hours of the Bellevilles’
attorneys’ time at a rate of $450 per hour for a total attorneys’ fees award of
$212,895.
             Based on our review of the trial court’s decision, we find no abuse of
discretion with respect to the trial court’s conclusion that Cutler’s advancement of a
frivolous defense on the merits constituted obdurate and vexatious conduct

                                          15
warranting an award of attorneys’ fees under Section 2503(7) of the Judicial Code.
The facts as found by the trial court support a conclusion that Cutler stubbornly
persisted in its advancement of a frivolous defense on the merits without sufficient
grounds, especially considering the fact that Cutler did not present any evidence at
the time of the nonjury trial held on October 16, 2012. See In re Estate of Burger,
852 A.2d at 391; Am. Mut. Liab. Ins. Co., 489 A.2d at 261.
                We do, however, find that the trial court abused its discretion by
awarding attorneys’ fees to the Bellevilles for each and every task—except those
previously excluded from consideration—that the Bellevilles’ attorneys undertook
during these proceedings. While Cutler may have advanced a frivolous defense on
the merits, Cutler successfully asserted valid procedural/non-merit based defenses
throughout this litigation that altered the course of these proceedings. Cutler cannot
be held responsible for the Bellevilles’ attorneys’ fees in connection with its
successful assertion of any of these defenses. For these reasons, we cannot conclude
that the trial court abused its discretion by concluding that the Bellevilles were
entitled to an award of attorneys’ fees as taxable costs against Cutler under
Section 2503(7) of the Judicial Code. We must, however, conclude that the trial
court abused its discretion by awarding attorneys’ fees in the amount of $212,895
for each and every task undertaken by the Bellevilles’ attorneys during these
proceedings, except for those as previously excluded from consideration by the trial
court. For these same reasons, we must also conclude that the trial court did not
commit an error of law by failing to consider the Bellevilles’ claim for attorneys’
fees incurred in connection with the prior appeals to this Court.5


        In the first appeal to this Court, the Bellevilles appealed the trial court’s dismissal of their
        5

complaint for failure to join indispensable parties. Although the Bellevilles were successful in


                                                  16
                                      IV. CONCLUSION
               Accordingly, we affirm the trial court’s order with respect to the award
of punitive damages, we vacate the trial court’s order with respect to the award of
attorneys’ fees, and we remand the matter to the trial court for further refinement of
the amount of attorneys’ fees to be awarded to the Bellevilles as taxable costs under
Section 2503(7) of the Judicial Code. On remand, the trial court is directed to
exclude from its award of attorneys’ fees any and all attorneys’ fees incurred by the
Bellevilles     in    connection       with     Cutler’s      successful      assertion      of    any
procedural/non-merit based defenses during this litigation, which shall include, but
not necessarily be limited to, those attorneys’ fees incurred in connection with the
Bellevilles’ motion for class certification, Cutler’s preliminary objections to the
Bellevilles’ complaint, Cutler’s motion to dismiss for failure to join an indispensable
party, and the prior appeals to this Court.6




                                                   P. KEVIN BROBSON, Judge



their appeal to this Court, Cutler cannot be held responsible for the payment of the Bellevilles’
attorneys’ fees in connection with an appeal of a ruling that was made by the trial court in favor of
Cutler. Likewise, in the second appeal to this Court, the Association and the Bellevilles
cross-appealed the trial court’s decision declaring the First and Third Amendments void and
stricken and concluding that the Bellevilles had waived their claim for damages. Again, even
though the Bellevilles may have prevailed on appeal, Cutler cannot be held responsible for the
payment of the Bellevilles’ attorneys’ fees in connection with an appeal that was not brought by
Cutler and in which Cutler did not participate.
       6
         In their brief to this Court, the Bellevilles request that this Court award them attorneys’
fees in connection with this appeal because Cutler’s appeal is frivolous. Given our disposition
above and the fact that Cutler is partially successful in this appeal, Cutler’s appeal is not frivolous,
and, therefore, we decline to grant the Bellevilles’ request.

                                                  17
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William and Bette Ann Belleville, h/w :
                                      :
              v.                      :      No. 953 C.D. 2017
                                      :
David Cutler Group, Inc. and Malvern :
Hunt Homeowners Association           :
                                      :
Appeal of: David Cutler Group, Inc.   :
                                      :
William and Bette Ann Belleville, h/w :
                                      :
              v.                      :      No. 1020 C.D. 2017
                                      :
David Cutler Group, Inc., and Malvern :
Hunt Homeowners Association           :
                                      :
Appeal of: William and Bette Ann      :
Belleville, h/w                       :



                                    ORDER


             AND NOW, this 28th day of June, 2019, the order of the Court of
Common Pleas of Chester County (trial court) is hereby AFFIRMED to the extent it
awarded punitive damages and VACATED to the extent it awarded attorneys’ fees,
and the matter is REMANDED to the trial court for further consideration of an
appropriate award of attorneys’ fees consistent with this opinion.
             Jurisdiction relinquished.




                                          P. KEVIN BROBSON, Judge
