J-A09023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DANIEL JOHNSON                        :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
               v.                         :
                                          :
                                          :
    VALERIE L. WEBER AND RAYMOND          :    No. 1306 WDA 2019
    E. WEBER                              :

             Appeal from the Judgment Entered September 26, 2019
     In the Court of Common Pleas of Beaver County Civil Division at No(s):
                               10758 of 2016 C.A.

    DANIEL JOHNSON                  :          IN THE SUPERIOR COURT OF
                                    :               PENNSYLVANIA
                                    :
               v.                   :
                                    :
                                    :
    VALERIE L. WEBER AND RAYMOND E. :
    WEBER                           :
                                    :          No. 1338 WDA 2019
                   Appellants       :

             Appeal from the Judgment Entered September 26, 2019
     In the Court of Common Pleas of Beaver County Civil Division at No(s):
                                 10758 of 2016


BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                              FILED JULY 14, 2020

        In these consolidated appeals, Daniel Johnson (Appellant) appeals from

the judgment entered in favor of Valerie L. Weber and Raymond E. Weber (the

Webers).     The Webers have also filed a cross-appeal challenging the trial



*   Retired Senior Judge assigned to the Superior Court.
J-A09023-20

court’s award of pre-judgment interest to Appellant. Upon review, we affirm

in part and vacate in part.

      On July 27, 2004, Appellant and the Webers entered into an Installment

Land Contract (ILC) regarding real property (the property) owned by the

Webers in Beaver County. The property is comprised of approximately 26

unimproved acres, and consists of three separate parcels.1 The parties agreed

to a purchase price of $57,000, which Appellant would pay with a down

payment, followed by yearly installments until paid in full. Pertinently, the

ILC provides for Appellant’s responsibilities as the buyer, and the Webers’

rights as sellers:


      Additional terms:

                                       ***

      (2) Buyer, at his sole expense, shall be responsible for the future
      subdivision of the property herein being conveyed to facilitate the
      transfer.

                                       ***

      3. TAX AND ASSESSMENTS. Buyer agrees to pay all taxes and
      assessments levied on the Property, municipal or otherwise,
      falling due after the date hereof. …

      4. INSURANCE. Buyer agrees during the life of this contract to
      keep the Property insured by reputable companies approved by
      Seller in an amount approved by Seller not less than the full
      insurable value of the improvements on the Property, if any. The

1 On the date of execution, a deed was prepared containing a description of
the three parcels, which the parties signed.       The parties agreed that
Appellant’s counsel would hold the deed in escrow, and not record it, until
Appellant had fulfilled all requirements and payments set forth in the ILC.
                                     -2-
J-A09023-20

      insurance shall be made payable to both Seller and Buyer as their
      interest appear [sic], and the policy shall contain an endorsement
      to this effect. A copy of said policy to be supplied to Seller.

                                         ***

      6. DEFAULT. A default shall occur under this contract if the Buyer
      fails to pay … [by the] due date (a) any part of principal or interest
      when due and payable …; (b) or any taxes or assessment under
      paragraph 3 above; (3) [sic] or any insurance premiums
      necessary to keep the Property insured under paragraph 4 above.
      In addition, the failure of Buyer to perform or carry out the terms
      of this contract in any other way or manner shall be a default
      under this contract.

      7. REMEDIES. Upon the occurrence of any default as set forth in
      paragraph 6 above, Sellers may immediately, and without notice
      to Buyer: (a) confess judgment against buyer, and … in favor of
      the seller as of any term, for the above principal sum remaining
      unpaid, interest thereon, and any other sums due from the Buyer
      plus cost[s] of suit and an attorney’s commission of ten percent
      (10%)….

ILC, 7/27/04, at 3-4 (unnumbered).2

      Appellant completed full payment toward the property on October 27,

2012. Pursuant to the ILC, Appellant paid the Webers interest throughout the

years prior to fulfilling payment.     However, Appellant never (1) secured

insurance on the property; (2) paid taxes on the property; or (3) obtained a

subdivision.   Based on these omissions, the deed to the property was not

conveyed to Appellant. Additionally, the Webers retained all of the money

Appellant paid them for the property.




2Importantly, the ILC does not mention the oil and gas rights to the property,
nor does it reference mineral rights.
                                      -3-
J-A09023-20

         On June 8, 2016, Appellant filed a complaint against the Webers,

asserting breach of contract and seeking specific performance of the ILC and

possession of the deed to the property.3 The Webers then filed an answer,

new matter and counterclaim. The Webers asserted claims of breach of the

ILC and quiet title, and requested an award of attorney’s fees. Appellant filed

an answer in response.

         On September 25, 2017, Appellant filed a motion for summary

judgment, asserting that the facts were undisputed and he was entitled to

summary judgment with respect to possession of the deed and the oil and gas

rights to the property. On August 30, 2017, the Webers filed a motion for

judgment on the pleadings. On March 22, 2018, the trial court entered an

order denying both parties’ motions.

         On April 25, 2018, Appellant’s counsel filed a written demand for a jury

trial.    On August 1, 2018, the trial court dismissed Appellant’s request,

deeming it waived because it was untimely.

         On December 6, 2018, the matter proceeded to a two-day non-jury trial.

By order entered at the close of trial on December 7, 2018, the trial court

stated, in relevant part, as follows:

     1. [Appellant] has failed to sustain his burden on the claims asserted
        in his Second Amended Complaint, namely breach of contract and
        specific performance, and said claims are dismissed.




3   Appellant subsequently filed two, substantially similar amended complaints.
                                        -4-
J-A09023-20

    2. [The Webers] have sustained their burden on the claims of breach
       of contract and quiet title asserted against [Appellant] in their
       counterclaim.

    3. Based upon [the Webers] prevailing on their counterclaim, title is
       quieted in their favor, and they may acquire and record any
       appropriate document or deed necessary to retain possession of
       the property.

    4. Under the terms of the [ILC], [the Webers] are entitled to
       attorney’s fees, but the [c]ourt cannot make a determination on
       that amount in this Order. [The Webers] shall be required to file
       a separate petition requesting attorney’s fees that may be
       contested by [Appellant], and the [c]ourt will hold a separate
       hearing on that matter.

    5. Based upon the findings and determinations in this Order, the
       [c]ourt exercises its equitable powers by requiring [the Webers]
       to return the $57,000 amount of the purchase price, plus any
       interest paid by [Appellant] to date, and [Appellant] may petition
       the [c]ourt for interest based upon [the Webers’] retention of this
       money since the time of payment, which the [Webers] will have
       the opportunity to oppose. The [c]ourt will hold a separate
       hearing on that matter as well, at the same time that the [c]ourt
       addresses the issue of attorney’s fees.

Order, 12/7/18, at 1-2.

       On March 22, 2019, the trial court conducted a hearing on the

outstanding matters; i.e., repayment of Appellant’s interest payments and the

Webers’ demand for an award of attorney’s fees and costs. By Order entered

March 26, 2019, the trial court awarded to the Webers attorney’s fees and

costs of approximately $28,400; and to Appellant, pre-judgment interest of

approximately $29,000.4




4 In order to compute the appropriate compounded interest rate, which the
trial court eventually set at 3.5%, it recruited the assistance of a finance
                                      -5-
J-A09023-20



      Both parties timely filed motions for post-trial relief. After conducting a

hearing on June 19, 2019, the trial court denied these motions by order

entered on July 30, 2019. Both parties then respectively filed timely notices

of appeal. In response, the trial court ordered them to file Pennsylvania Rule

of Appellate Procedure 1925(b) concise statements of errors complained of on

appeal. Both parties timely complied, and the trial court issued a Rule 1925(a)

opinion.

      On appeal, Appellant raises seven issues for our review:

   1. Did the court below err in failing to grant the motion for summary
      judgment filed by the Appellant relative to the oil and gas rights
      of the property?

   2. Did the court below err in determining that the failure of the
      Appellant to get a subdivision was a breach of the ILC?

   3. Did the court below err in finding that the failure to pay certain
      taxes was a breach of the ILC by the Appellant?

   4. Did the court below err in finding that the failure to provide
      insurance on the property was a material breach of the [ILC] by
      the Appellant?

   5. Did the court below err in denying the Appellant a jury trial?

   6. Did the court below err in granting attorney’s fees to the
      [Webers]?

   7. Did the court below err in granting the Appellant 3.5% interest on
      the money he paid for the [property]?




officer from the Beaver County Controller’s Office, citing the court’s lack of
expertise to perform such calculation.
                                      -6-
J-A09023-20

Appellant’s Brief at 3-4 (issues numbered and reordered for ease of

disposition).

      In their cross-appeal, the Webers raise two issues for our review:

      I.    Did the [c]ourt err in awarding [Appellant], the defaulting
            party under the ILC, interest where [Appellant] failed to
            provide any legal basis for an award of interest and wholly
            failed to meet his burden of proof to provide competent
            evidence of the calculation of interest[,] compounded over a
            ten (10) year period?

      II.   Did the [c]ourt err where, after the close of the evidentiary
            hearing, the [c]ourt recruited[,] ex parte[,] an unidentified
            individual from the Beaver County Controller’s Office to
            perform an interest calculation based upon a schedule of
            payments not received into evidence[,] and then adopted and
            awarded interest to [Appellant] based wholly upon that
            calculation without providing either party the opportunity to
            cross examine the witness[,] both as to qualifications and the
            means and method of the interest calculation?

Webers’ Brief at 4.

      We begin our discussion by noting:

            Our standard of review in non-jury cases is limited to: a
      determination of whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in the application of law. Findings of the trial
      judge in a non-jury case must be given the same weight and effect
      on appeal as a verdict of a jury and will not be disturbed on appeal
      absent error of law or abuse of discretion. When this Court
      reviews the findings of the trial judge, the evidence is viewed in
      the light most favorable to the victorious party below and all
      evidence and proper inferences favorable to that party must be
      taken as true and all unfavorable inferences rejected.

Landis v. Wilt, 222 A.3d 28, 34 (Pa. Super. 2019) (citation omitted).

Additionally, we review a trial court’s denial of post-trial motions for an abuse

of discretion. Guntrum v. Citicorp Tr. Bank, 196 A.3d 643, 646 (Pa. 2018).

                                      -7-
J-A09023-20

      We first address Appellant’s issues. He argues that the trial court erred

in denying his motion for summary judgment, where he paid the full purchase

price for the property, but the Webers nevertheless “refuse[d] to allow

Appellant to file the deed unless there is a deed to them transferring the oil

and gas rights back to them.” Appellant’s Brief at 10. According to Appellant,

the Webers “are trying to blackmail [] Appellant into giving them something

that they are not entitled to.”   Id.    Appellant emphasizes that there is no

mention in the ILC as to reservation of oil and gas rights to the property, and

“[t]he first time that there is any mention of these rights is after the [ILC had]

been completed and the deed was to be recorded.”          Id. at 12.    Appellant

asserts that pursuant to the longstanding rule announced by our Pennsylvania

Supreme Court in Dunham & Shortt v. Kirkpatrick, 101 Pa. 36 (Pa. 1882)

and its progeny,5 the trial court should have ruled that the oil and gas rights

to the property were transferred to Appellant, who may record the deed. See

Appellant’s Brief at 11-13.

      When reviewing a trial court’s denial of a motion for summary judgment,

we adhere to the following standard and scope of review:




5 The “Dunham Rule” provides that a reference to “minerals” in a reservation
of rights in a private deed does not include oil and gas. Dunham, 101 Pa. at
44. The progeny of Dunham “has been unwavering in its clarity that, absent
the terms ‘oil’ or ‘natural gas’ being included within a reservation for mineral
rights within a private deed, oil or natural gas simply are not encompassed
within the reservation without clear and convincing parol evidence produced
by the proponent of the reservation to the contrary.” Butler v. Charles
Powers Estate, 65 A.3d 885, 896 (Pa. 2013).
                                        -8-
J-A09023-20

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review of
      a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear[:] the trial court’s
      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Pergolese v. Std. Fire Ins. Co., 162 A.3d 481, 486 (Pa. Super. 2017)

(citation omitted).

      Here, the trial court offered the following reasons for its denial of

Appellant’s motion for summary judgment:

             [Appellant] has asserted that the facts in this case are
      undisputed and that those facts entitle him to summary judgment.
      The [c]ourt respectfully disagrees with [Appellant’s] position in
      that regard for, at least, two reasons. First, [Appellant] relies
      primarily upon the [ILC]. [Appellant] asserts that not only is he
      entitled to summary judgment and a ruling that he should receive
      title to the property, but he also asserts that the [ILC] is devoid
      of any mention of oil and gas rights and, therefore, those rights
      should be transferred to him. There is a critical problem in
      connection with [Appellant’s] position.         In the [ILC] …, it
      specifically states that the property in question is “known as Parcel
      18 on Survey dated February 9, 1999 and revised May 19, 1999
      as proposed by Gregory A. Torno, PLS, said description recorded
      at 26/259. A copy of said description and survey is hereby
      attached as unrecorded survey No. 1.” Despite this description,
      these alleged documents, the survey of February 9, 1999 and
      revised survey of May 18, 1999, were not attached to the [ILC],
      were not attached to any of the pleadings or record in this case,
      and were never produced for any purpose. Thus, there is an issue
      of material fact raised by the [Webers] with regard to the actual
      description of the property. The absence of these documents
      creates an issue that needs to be addressed going forward and
      decided by subsequent evidence if necessary.



                                      -9-
J-A09023-20

                Moreover, [Appellant] claims that he paid the full and final
          amount for purchase of the property, but [the Webers] assert that
          the full purchase price was never paid[, i.e., insofar as Appellant
          never paid taxes or insurance on the property,] and that
          [Appellant] is in breach of contract for that reason. This creates
          an additional issue of material fact that must be addressed by the
          evidence and requires denial of [Appellant’s] summary judgment
          motion.

Trial Court Memorandum, 3/28/18, at 6-7.                As the court’s rationale is

supported by the record, we agree with its determination.

          Additionally, our review reveals that counsel for both parties agreed that

whichever party was determined to be the proper owner of the property would

also receive all subsurface rights. See N.T. (Trial), 12/6/18, at 109-110, 118.

As we discuss below, the trial court correctly determined that Appellant had

materially breached the ILC and thus the Webers are the owners of the

property; accordingly, the Webers hold the subsurface rights.                 Finally,

contrary to Appellant’s claim, Dunham and its progeny do not support his

argument. In sum, the trial court did not err or abuse its discretion in denying

Appellant’s motion for summary judgment, and his first issue does not merit

relief.

          Appellant’s next three issues are related in that they each challenge the

trial court’s finding that Appellant breached the terms of the ILC. We address

the issues together, mindful of our standard and scope of review:

          The interpretation of any contract is a question of law and this
          Court’s scope of review is plenary. … In interpreting a contract,
          the ultimate goal is to ascertain and give effect to the intent of the
          parties as reasonably manifested by the language of their written
          agreement. When construing agreements involving clear and

                                         - 10 -
J-A09023-20

      unambiguous terms, this Court need only examine the writing
      itself to give effect to the parties’ understanding. This Court must
      construe the contract only as written and may not modify the plain
      meaning under the guise of interpretation.

Gamesa Energy USA, LLC v. Ten Penn Ctr. Assocs., L.P., 181 A.3d 1188,

1192 (Pa. Super. 2018) (citation omitted).

      “It is well-established that three elements are necessary to plead a

cause of action for breach of contract: (1) the existence of a contract,

including its essential terms, (2) a breach of the contract; and, (3) resultant

damages.” Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law

Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016).              “A

material breach of a contract by one party allows the party not in breach to

suspend performance.” Widmer Eng’g, Inc. v. Dufalla, 837 A.2d 459, 467

(Pa. Super. 2003).    “If, however, the breach is an immaterial failure of

performance, and the contract was substantially performed, the contract

remains effective.” Id. (citation omitted).

      Here, Appellant claims that the trial court erred in determining that he

had materially breached the terms of the ILC by his failure to:

      (1)   obtain insurance on the property;

      (2)   secure a subdivision of the property; and

      (3)   pay property taxes.

See Appellant’s Brief at 15-26.    Appellant argues that even if he did not

comply with all of the requirements of the ILC, such noncompliance does not

amount to a breach of the contract because the requirements were not

                                     - 11 -
J-A09023-20

“material.” Id. at 17 (citing Widmer, supra). Concerning the ILC’s provision

regarding Appellant’s payment of insurance on the property, he avers that

      (1) the Webers did not complain about non-payment of insurance
      until approximately 5 years after Appellant had paid the full
      purchase price on the property; and

      (2) in any event, the property was unimproved, and therefore,
      there was no necessity for insurance.

See id. at 16-18. Regarding the ILC’s requirement that Appellant pay taxes,

he urges that because he had paid the full purchase price prior to the initiation

of litigation, his failure to pay taxes was not a material breach of the contract.

See id. at 22; see also id. at 20, 22 (asserting that the Webers never

communicated to Appellant the amount of taxes he allegedly owed on the

property). Finally, concerning the ILC’s requirement that Appellant subdivide

the property, he maintains that “[t]here is nothing in the agreement that says

the subdivision has to be completed before the transfer” of the deed to the

property. Id. at 24. Appellant posits that “[o]nly the owner of the property

can subdivide the property. Since no deed was ever filed, [] Appellant cannot

proceed to subdivide the property by himself.” Id.

      In its opinion, the trial court addressed and rejected Appellant’s claims

and determined that his separate failures to comply with the terms of the ILC,

when considered collectively, constituted a material breach of the ILC. See

Trial Court Opinion, 7/30/19, at 9-12; see also ILC, 7/27/04, at ¶¶ 1(2) and

6 (providing, respectively, that a “default shall occur under this contract if

[Appellant] fails to pay … any taxes … or any insurance premiums necessary

                                      - 12 -
J-A09023-20

to keep the Property insured[,]” and “[Appellant], at his sole expense, shall

be responsible for the future subdivision of the property[.]”). The trial court’s

determination is supported by both the ILC and the law, and we therefore

affirm on this basis in rejecting Appellant’s second, third and fourth issues.

See Trial Court Opinion, 7/30/19, at 9-12.6

      In his fifth issue, Appellant contends that the trial court erred in denying

his right to a jury trial. See Appellant’s Brief at 14-15. We disagree.

      Pennsylvania Rule of Civil Procedure 1007.1(a) mandates, in relevant

part, that the right to a jury trial “shall be deemed waived unless a party files

and serves a written demand for a jury trial not later than twenty days after

service of the last permissible pleading.”        Pa.R.C.P. 1007.1(a).      Here,

Appellant did not file a written demand for a jury trial until April 25, 2018,

approximately 8 months after the expiration of the Rule 1007.1(a) deadline.7

The trial court’s finding that Appellant’s delay resulted in waiver is supported

by the following analysis of our Pennsylvania Supreme Court in a closely

related case:


6 Even if, arguendo, the trial court improperly found that Appellant’s failure to
secure insurance on the property constituted a material breach of the ILC, this
would not change our disposition. The trial court correctly determined that
Appellant’s additional breaches, i.e., his failure to subdivide the property and
to pay taxes, collectively constituted a material breach of the contract. See
Trial Court Opinion, 7/30/19, at 10.

7The “last permissible pleading” under Rule 1017.1(a) that triggered the 20-
day deadline was Appellant’s July 31, 2017 answer to the Webers’ new matter
and counterclaim.


                                     - 13 -
J-A09023-20

      [The defendants’] demand for a jury trial, first asserted in their
      pre-trial memorandum, was made more than twenty days after
      the last permissible pleading and, therefore, failed to satisfy the
      requirements of Rule 1007.1(a). Accordingly the lower court
      correctly held that a jury trial had been waived. In addition,
      considerations of prejudice to the other side play no part in
      enforcing a waiver of a jury trial where the provisions of Rule
      1007.1(a) have not been met.

Jones v. Van Norman, 522 A.2d 503, 509 (Pa. 1987).

      Finally, we are unpersuaded by Appellant’s assertion that since “this

matter [is] both a civil and equitable matter,” his request for a jury trial should

have been honored pursuant to Pennsylvania Rule of Civil Procedure 1038.3

(governing equitable relief and advisory jury verdicts).8 Appellant’s Brief at

14.    Appellant was required to comply with Rule 1007.1(a), which

unambiguously mandates that the request for a jury trial “shall be deemed

waived unless a party files and serves a written demand” within 20 days.

Pa.R.C.P. 1007.1(a) (emphasis added); see also Jones, supra. Accordingly,

Appellant’s fifth issue is unavailing.

      In his sixth issue, Appellant argues that the trial court erred in awarding

attorney’s fees to the Webers because there was no legal authority for such

award. See Appellant’s Brief at 26-28. According to Appellant:

      None of the [] remedies proposed in the ILC provide for any
      [a]ttorney’s fees in any matter except the confession of judgment.
      There is also no general provision that gives the [c]ourt the right
      to impose fees on anyone.

8 Rule 1038.3 provides that “[i]n any case in which there is a claim for
equitable relief, the court on its own motion or upon the petition of any party
may submit to trial by jury any or all issues of fact arising from that claim.”
Pa.R.C.P. 1038.3.
                                         - 14 -
J-A09023-20



Id. at 27-28.     Appellant further asserts that the trial court improperly

exercised its equitable powers to award attorney’s fees. Id. at 28.

      Our standard of review of an award of attorney’s fees is well settled:

“we will not disturb a trial court’s determination[] absent an abuse of

discretion. A trial court has abused its discretion if it failed to follow proper

legal procedures or misapplied the law.” Kessock v. Conestoga Title Ins.

Co., 194 A.3d 1046, 1059 (Pa. Super. 2018) (citations omitted).

      Pennsylvania subscribes to the “American Rule,” which provides that a

litigant is responsible for the payment of his or her own attorney’s fees “unless

there is express statutory authorization, a clear agreement of the parties or

some other established exception.”        Mosaica Acad. Charter Sch. v.

Commonwealth, 813 A.2d 813, 822 (Pa. 2002); see also Doctor’s Choice

Physical Med. & Rehab. Ctr., P.C. v. Travelers Pers. Ins. Co., 128 A.3d

1183, 1189 (Pa. 2015).

      Here, the trial court opined that its award of reasonable attorney’s fees

was authorized “based upon the general terms of the [ILC], [and] the law in

equity[.]” Trial Court Opinion, 7/30/19, at 14. In support of the invocation

of its equitable powers, the court relies upon our Supreme Court’s decision in

Sack v. Feinman, 413 A.2d 1059, 1065-66 (Pa. 1980) (reversing the

chancellor’s refusal to award plaintiff pre-judgment interest, and holding that

such an award can be permitted in equity in order “to prevent unjust

enrichment or where the payment of interest is required to avoid injustice[,]

                                     - 15 -
J-A09023-20

… [which is within] the discretion of the chancellor.”); see also Trial Court

Opinion, 7/30/19, at 14-15.

      Initially, we disagree with the trial court that an award of attorney’s fees

was authorized “based upon the general terms of the [ILC.]”           Trial Court

Opinion, 7/30/19, at 14.     The only mention of attorney’s fees in the ILC

provides “[u]pon the occurrence of any default … [the Webers] may

immediately … confess judgment against [Appellant] … for the [] principal sum

remaining unpaid, … plus … an attorney’s commission of ten percent….” ILC,

7/27/04, at 4 (unnumbered).9       However, it is undisputed that the Webers

never confessed judgment against Appellant. Accordingly, we cannot discern

a reasonable reading of the terms of the ILC which would afford a contractual

remedy for attorney’s fees absent a confession of judgment.           See, e.g.,

Mosaica, supra (stating that a party is responsible for their own attorney’s

fees unless there is, inter alia, “a clear agreement of the parties[.]”).

      Additionally, we conclude that Sack, supra, upon which the trial court

exclusively relies to support its equitable powers to award attorney’s fees, is

inapposite.   As noted above, Sack concerned awards of pre-judgment

interest, see Sack, 413 A.2d at 1065-66; it did not implicate awards of

attorney’s fees, nor has our research disclosed any precedent citing Sack with




9   Regarding this provision, the trial court correctly found that because
Appellant had paid the entire purchase price for the property prior to initiating
litigation, “there was no basis for an award of attorney’s fees for an unpaid
balance under the terms of the contract.” Trial Court Opinion, 7/30/19, at 14.
                                     - 16 -
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respect to claims for attorney’s fees.     See, e.g., In re Guardianship of

Zorek, 475 A.2d 817, 820 n.5 (Pa. Super. 1984) (noting that the holding in

Sack is limited and pertains only to equitable awards of pre-judgment

interest).   Accordingly, we conclude that the trial court erred in awarding

attorney’s fees to the Webers, and thus vacate the award.

       Before reaching Appellant’s seventh and final issue, we turn to the two

issues that the Webers raise in their cross-appeal. They first argue that the

trial court erred in awarding Appellant pre-judgment interest where the ILC

did not provide any contractual entitlement to same, and equity likewise did

not support the court’s award. See Webers’ Brief at 10-12. The Webers aver:

      [i]n many respects[, Appellant] acted with unclean hands in his
      dealings with the [Webers] relative to the ILC and held a cloud
      over the [Webers’] title to the property for fourteen years. [Thus,
      Appellant] should not be awarded any interest at law or in equity.

Id. at 11. Additionally, the Webers assert that Appellant failed to meet his

burden of proof to establish the amount of interest that he paid over the years,

where he “failed to present any witnesses or admissible evidence to support

his calculation of interest.” Id. at 12.

      Our review of an award of pre-judgment interest is for abuse of

discretion. See Sack, supra. “Our courts have generally regarded the award

of prejudgment interest as not only a legal right, but also as an equitable

remedy awarded to an injured party at the discretion of the trial court.”

Kaiser v. Old Republic Ins. Co., 741 A.2d 748, 755 (Pa. Super. 1999)

(citation omitted).   “The fairest way for a court is to decide questions

                                     - 17 -
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pertaining to interest according to a plain and simple consideration of justice

and fair dealing.” Linde v. Linde, 220 A.3d 1119, 1150 (Pa. Super. 2019)

(citation omitted).

      Instantly, the trial court opined that it properly exercised its equitable

powers in awarding Appellant pre-judgment interest pursuant to Sack, supra.

See Trial Court Opinion, 7/30/19, at 16. Sack stands for the proposition that

a court may award pre-judgment interest as an equitable remedy “in order to

prevent unjust enrichment or where the payment of interest is required to

avoid injustice.” Sack, 413 A.2d at 1065; see also Kaiser, 741 A.2d at 755

(citing Sack and stating that “when a defendant holds money or property

which belongs in good conscience to the plaintiff, and the objective of the

court is to force disgorgement of his unjust enrichment[, p]re-judgment

interest in such cases is a part of the restitution necessary to avoid injustice.”

(citation omitted)).

      Here, an injustice would result if we were to uphold the award of

approximately $29,000 in pre-judgment interest to Appellant (the breaching

party under the ILC), where we afforded Appellant relief and vacated the

improper award of approximately $28,400 in attorney’s fees to the Webers.

Accordingly, to avoid an unjust result, we vacate the trial court’s award of pre-

judgment interest.10




10 We note that our holding does not significantly alter the original disposition
of the trial court. Specifically, vacatur of the respective awards of attorney’s
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      In their second issue, the Webers contend that the trial court erred in

awarding Appellant pre-judgment interest “based solely upon the calculation

performed by [the] unidentified and perhaps unqualified” finance officer from

the Beaver County Controller’s Office. Webers’ Brief at 16. Because we have

vacated the award, this issue is moot.

      Finally, in Appellant’s seventh issue, he complains that the trial court

erred in applying an inadequate interest rate of 3.5% to the award of pre-

judgment interest. See Appellant’s Brief at 28-29. This issue is also moot in

light of our disposition.

      Based upon the foregoing, we vacate the trial court’s awards of (1)

attorney’s fees to the Webers; and (2) pre-judgment interest to Appellant, as

set forth in the court’s March 26, 2019 order. We affirm in all other respects.

      Judgment affirmed in part and vacated in part. Jurisdiction relinquished.


      Judge Shogan joins the memorandum.


      Judge Strassburger files a concurring memorandum.




fees and interest, which differed in amount by approximately $600, essentially
leaves the parties in the same respective positions.
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J-A09023-20

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2020




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