           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Serota,                          :
                         Appellant       :
                                         :
                   v.                    :   No. 1451 C.D. 2017
                                         :   Argued: October 15, 2018
London-Towne Homeowners                  :
Association                              :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: November 16, 2018


      Matthew Serota (Serota) appeals from the Order of the Court of Common
Pleas of Allegheny County (common pleas) that denied his Motion to Assess
Damages for the Sum of Attorney’s Fees and Court Costs (Motion). The Motion
sought the payment of approximately $48,000 in attorneys’ fees and costs. Serota
incurred these fees in initiating, litigating, and defending on appeal a declaratory
judgment action he had filed against London-Towne Homeowners Association
(Association) that was resolved in his favor by common pleas and, ultimately, this
Court. Serota v. London-Towne Homeowners Ass’n. (Pa. Cmwlth., No. 2073 C.D.
2016, filed Apr. 27, 2017) (Serota I). On appeal, Serota argues common pleas
abused its discretion in denying the Motion because, as the prevailing party in
Serota I, he is entitled to attorneys’ fees and court costs under any, or all, of the
following: the Bylaws of London-Towne Homeowners Association (Bylaws);
Section 5108 of the Uniform Planned Community Act 1 (Planned Community Act)
(related to the ongoing application of common law and equity unless inconsistent
with the act) and the common law; Section 5503(a)(1) of the Nonprofit
Corporation Law of 19882 (Nonprofit Law) (authorizing members to bring actions
against a nonprofit corporation to enjoin or prevent the corporation from, inter
alia, engaging in unauthorized acts); or Section 5412 of the Planned Community
Act and the associated Uniform Law Comment (allowing persons who are
adversely affected by the violation of the act, a declaration, or the bylaws of a
planned community, to have a claim for appropriate relief, and indicating, in the
Uniform Law Comment, that a discretionary award of attorneys’ fees to the
prevailing party may be permitted).3 Because, under these circumstances, none of
these provisions require an award of attorneys’ fees, contrary to Serota’s
contention, there was no abuse of discretion in common pleas’ denying the Motion.


I.     Background
       In Serota I, this Court detailed the facts of the underlying civil action upon
which the Motion is based, the relevant facts of which are summarized as follows.4
The London-Towne Plan of Lots (Community) is a planned community of 70




       1
         68 Pa. C.S. § 5108.
       2
         15 Pa. C.S. § 5503(a)(1).
       3
         68 Pa. C.S. § 5412. Section 5412 was amended by Section 8 of the Act of May 4, 2018,
P.L. 96, effective in 60 days (July 3, 2018).
       4
         These facts are derived from Serota I unless otherwise indicated.



                                             2
townhomes, of which Serota owned 12.5                 Under the original Declaration of
Covenants, Conditions, and Restrictions (Declaration), which, per its terms, runs
with the land and could be amended only in certain ways, each unit/lot was entitled
to one vote, i.e., an owner could have more than one vote if he owned more than
one unit. In 1998, Association adopted the Bylaws, which provide, inter alia, that
Association would be governed by the requirements of Section 5306 of the
Planned Community Act, 68 Pa. C.S. § 5306, as well as the Nonprofit Law. The
Bylaws also contained a one-unit, one-vote provision and a provision related to the
requirements for amending the Declaration. The Bylaws also contain a provision
for the award of attorneys’ fees to a prevailing party “[i]n any proceeding arising
out of an alleged default by a Unit Owner.”               (Section 6.1.2 of the Bylaws,
Reproduced Record (R.R.) at 48a.)                  Between August and October 2014,
Association members, without the permission of Serota and another unit owner,
sought to amend the Declaration to change the 1 vote per unit provision to a
provision allowing only 1 vote per owner, thereby reducing Serota’s votes from 12
out of 70 to 1 out of 59.            On October 14, 2017, Association recorded the
amendment with the Allegheny County Department of Real Estate.                     Without
advising Serota of the amendment’s recording, Association refused to record more
than one vote from Serota at its next meeting.
       Serota filed a civil complaint asserting the amendment was invalid for
multiple reasons, including violating the amendment procedures of the Declaration
and Bylaws, as well as various provisions of the Planned Community Act and the
Nonprofit Law by diminishing Serota’s property and contractual rights without his

       5
            Serota now owns 18 units in the Community. (Motion ¶ 1, Reproduced Record (R.R.)
at 594a.)



                                               3
consent. Serota sought: a declaration that the amendment was invalid and that he
was entitled to one vote for each unit he owned; injunctive relief to prevent
Association from enforcing the amendment and requiring the amendment to be
removed from the books and records; and an award of costs, attorneys’ fees, and
such additional relief deemed appropriate by the Court. (Complaint, Wherefore
Clause, R.R. at 16a-17a.) Association filed an Answer, which set forth legal
support for its actions in amending the Declaration and an explanation on why
Serota’s claims were without merit.
       Serota filed a motion for partial judgment on the pleadings, which, after oral
argument, common pleas granted.6 Common pleas entered judgment in Serota’s
favor and directed Association to remove the amendment from the books and
records. Common pleas did not rule on Serota’s request for costs and attorneys’
fees. Association appealed common pleas’ order, which this Court affirmed in
Serota I. Thereafter, Serota filed with this Court an application for further costs
pursuant to Rules 2744 and 2751 of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 2744, 2751, seeking more than $18,000 in attorneys’ fees on
the basis that Association’s appeal was frivolous, dilatory, obdurate, and vexatious.
See Serota v. London-Towne Homeowners Ass’n. (Pa. Cmwlth., No. 2073 C.D.
2016, filed June 9, 2017), slip op. at 1. This Court denied the application for
further costs concluding that Serota had not satisfied the high standard required by
Rule 2744 for the imposition of attorneys’ fees. This Court subsequently granted



       6
         Association had filed counterclaims against Serota related to his actions as Association
President, to which Serota had filed an answer and new matter. These counterclaims were
eventually discontinued without prejudice by Association to allow common pleas’ order granting
Serota’s motion for partial judgment on the pleadings to become a final, appealable order.



                                               4
Serota’s request for expedited remand of the record to common pleas on June 27,
2017.


II.     Current Matter
        Serota filed the current Motion with common pleas on June 30, 2017,
asserting that, as the prevailing party in Serota I, he was entitled to attorneys’ fees
and court costs. (Motion ¶¶ 2, 6, R.R. at 594a-95a.) Serota asserted the attorneys’
fees and costs were his actual damages incurred as a direct result of Association’s
improper actions, which he had requested in the original complaint against
Association. (Id. ¶¶ 3, 10, R.R. at 595a-96a.) According to Serota, he was entitled
to these fees and costs pursuant to contract, Section 6.1.2 of the Bylaws, because
this section “expressly contemplates that as between the Association and any Unit
Owner, the prevailing party shall be entitled to recover the prevailing party’s costs
of litigation and such reasonable attorney’s fees as may be determined by the
court.” (Id. ¶ 29, R.R. at 600a.) He further asserted he was entitled to attorneys’
fees and court costs pursuant to statute: Section 5412 of the Planned Community
Act, 68 Pa. C.S. § 5412 and the associated Uniform Law Comment; and Section
5503(a)(1) of the Nonprofit Law, 15 Pa. C.S. § 5503(a)(1). Additionally, Serota
claimed that, pursuant to Section 5108 of the Planned Community Act, 68 Pa. C.S.
§ 5108, common law rights to attorneys’ fees should be awarded under this Court’s
decision in In re Application of Nonprofit Corporate Trustees to Compel
Inspection of Corporate Documents, 157 A.3d 994 (Pa. Cmwlth. 2017) (Penn State
Trustees), because, like the trustees in that case, he was forced to compel
Association, a nonprofit corporation, to comply with the Nonprofit Law.




                                          5
        Association filed a Motion to Strike Serota’s Motion (Motion to Strike),
asserting it was untimely, should have been filed prior to the appeal in Serota I,
and was foreclosed by this Court’s unappealed denial of fees under Pa.R.A.P.
2744.       Association also filed an answer in opposition to Serota’s Motion,
acknowledging that Serota was the prevailing party in Serota I, but challenging
Serota’s claim that he was entitled to attorneys’ fees. Association argued neither
the Bylaws nor the statutory language cited by Serota require the imposition of
attorneys’ fees under the circumstances or otherwise give Serota an absolute
entitlement to attorneys’ fees. Additionally, it asserted Penn State Trustees did not
support Serota’s argument because, unlike here, the nonprofit corporation’s bylaws
in that case provided for the payment of attorneys’ fees. 157 A.3d at 1002.
Association maintained that it believed in good faith that the amendment to the
Declaration was proper, legal, and permissible under the Bylaws and, therefore,
attorneys’ fees were not warranted in this case.7
        Common pleas heard oral argument on Association’s Motion to Strike and
Serota’s Motion.       Association reiterated its arguments that the Motion was
untimely, to which Serota responded that it was not until after the appeal was final
that he was a “prevailing party” who could seek an award of attorneys’ fees.
Serota also noted that the attorneys’ fees sought before the Commonwealth Court
were solely for the appeal, and the Motion sought payment of all of his attorneys’
fees. On Serota’s Motion, Serota argued the general rule that parties should bear
their own attorneys’ fees and costs was inapplicable here because, as set forth in
his Motion, there were both contractual and statutory bases for his being awarded

        7
         Serota filed an answer to Association’s Motion to Strike and a reply to Association’s
answer to his Motion.



                                              6
attorneys’ fees. Association responded with the arguments set forth in its answer
arguing that, while Section 5412 of the Planned Community Act and the Uniform
Law Comment appeared to permit an award of attorneys’ fees, it did not mandate
an award. At the time of the hearing, Serota’s attorneys’ fees exceeded $48,000.
While Association questioned the rate and the amount of time spent on certain
tasks, it did not challenge that Serota paid those fees. (R.R. at 1253a-55a.)
       Common pleas denied Serota’s Motion and dismissed Association’s Motion
to Strike as moot. In its opinion, common pleas explained its decision as follows.
Common pleas concluded that none of the exceptions to the general rule that
parties to an action are responsible for their own attorneys’ fees and costs applied
here. (Common Pleas Opinion (Op.) at 2 (citing Cresci Constr. Servs., Inc. v.
Martin, 64 A.3d 254 (Pa. Super. 2013)).) In rejecting Serota’s argument that he
was entitled to an award of attorneys’ fees, common pleas held that none of the
statutory provisions upon which Serota relied mandated an award of attorneys’
fees. Section 5412 of the Planned Community Act did not reference the payment
of attorneys’ fees, and the associated Uniform Law Comment had not been
discussed in any case law, was not binding on the court, and did not mention an
entitlement to an award of fees.8 (Id. at 2-3.) Serota did not explain how Section

       8
         Common pleas observed that the Uniform Law Comment could be used for statutory
construction purposes, but was not binding on the court. (Op. at 3.) This is consistent with
Section 1939 of the Statutory Construction Act of 1972, which states:

               The comments or report of the commission, committee, association or
       other entity which drafted a statute may be consulted in the construction or
       application of the original provisions of the statute if such comments or report
       were published or otherwise generally available prior to the consideration of the
       statute by the General Assembly, but the text of the statute shall control in the
       event of conflict between its text and such comments or report.

(Footnote continued on next page…)


                                              7
5108 of the Planned Community Act, which also contains no reference to
attorneys’ fees, entitled him to those fees. (Id. at 3.) Similarly, Section 5503(a)(1)
of the Nonprofit Law made no mention of attorneys’ fees in the statutory language,
and Serota did not explain why this provision entitled him to attorneys’ fees. (Id.
at 3-4.) There was no contractual exception because the Bylaws did not support
Serota’s contention that he was entitled to attorneys’ fees because his argument
“ignore[d] Section 6.1 and most of the language of 6.1.2,” stressing only the
statement that “the prevailing party shall be entitled to . . . such reasonable
attorney’s fees as may be determined by the court.” (Id. at 7 (quoting Section 6.1.2
of the Bylaws, R.R. at 48a).) This matter did not involve an “alleged default by a
unit owner, but rather a unit owner[] seeking to enforce the terms of the
Declaration.” (Id.) Finally, there was no common law exception to the general
rule because Penn State Trustees is distinguishable.                 The court in that case
concluded that attorneys’ fees could be recovered based on the nonprofit
corporation’s bylaws and did not address the trustees’ statutory arguments. (Id. at
4-5 (citing Penn State Trustees, 157 A.3d at 1002 n.10).) Serota now appeals to
this Court.


_____________________________
(continued…)
1 Pa. C.S. § 1939. The Planned Community “Act[, 68 Pa. C.S. §§ 5101-5114,] was modeled on
the Uniform Planned Community Act, which was adopted by the National Conference of
Commissioners on Uniform State Laws in 1980 . . . . Pennsylvania was the first jurisdiction to
adopt a planned community act modeled on the Uniform Act.” Saw Creek Cmty. Ass’n, Inc. v.
Cty. of Pike, 866 A.2d 260, 263 n.9 (Pa. 2005). “[O]fficial comments are not law, [but] they may
be given weight in the construction of the statute as they provide evidence of legislative intent.”
Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev. Co., 90 A.3d 682, 691 n.11 (Pa.
2014); see Young v. Kaye, 279 A.2d 759, 765 n.3 (Pa. 1971) (stating “[i]t is settled in this
Commonwealth that the official comments of a commission drafting legislation may be given
weight in the construction of a statute”).



                                                8
III.   Discussion
       Serota argues, as he did before common pleas, that as the prevailing party in
Serota I, he is entitled to an award of attorneys’ fees9 under the Bylaws, various
provisions of the Planned Community Act and the Nonprofit Law, Penn State
Trustees, and the common law because his attorneys’ fees are the actual damages
that were directly and foreseeably related to Association’s negligence or breach of
contract actions. Before addressing each of Serota’s claims, we set forth the
general principles related to attorneys’ fees in Pennsylvania and this Court’s
review of a decision on a request for attorneys’ fees.
       The general rule is that parties to an action are responsible for their own
attorneys’ fees and costs unless otherwise provided by agreement, statute, or
recognized exception. Richard Allen Preparatory Charter Sch. v. Dep’t of Educ.,
161 A.3d 415, 428 (Pa. Cmwlth. 2017), aff’d, 185 A.3d 984 (Pa. 2018). In
Pennsylvania, this rule is embodied in Section 1726(a)(1) of the Judicial Code, 42
Pa. C.S. § 1726(a)(1), which provides that attorneys’ fees are not an item of
taxable costs except as permitted by Section 2503 of the Judicial Code, 42 Pa. C.S.
§ 2503 (relating to right of participants to receive counsel fees), which is not at
issue here. “The standard of review when the trial court refuses to grant counsel
fees is that the reasonableness of the refusal is a matter which rests within the
sound discretion of the trial court and will be reversed only when there is a clear
abuse of discretion.” Twp. of Lower Merion v. QED, Inc., 762 A.2d 779, 781 (Pa.
Cmwlth. 2000). “[A]n abuse of discretion may not be found merely because the
appellate court might have reached a different conclusion, but requires a showing

       9
         Although the Motion references court costs, Serota’s arguments on appeal focus on his
entitlement to attorneys’ fees.



                                              9
of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack
of support as to be clearly erroneous.” Wagner v. Pa. Capitol Police Dep’t, 132
A.3d 1051, 1057 (Pa. Cmwlth. 2016) (quoting Paden v. Baker Concrete Constr.,
Inc., 658 A.2d 341, 343 (Pa. 1995)).


       A.     The Bylaws
       Serota first argues10 common pleas’ interpretation of the Bylaws disregarded
Section 6.1.3, which authorizes a unit owner to bring an action against a defaulting
owner. Here, Serota contends, the members of Association’s board are unit owners
who defaulted on their contractual obligations to the other unit owners and,
therefore, this matter falls squarely within Section 6.1.2. Moreover, he asserts, an
interpretation allowing only Association to recover attorneys’ fees under Section
6.1.2 would allow homeowner association boards to violate their controlling
documents or the law with financial impunity, leaving planned community
homeowners vulnerable to being forced to expend their own money to restore their
rights without being able to recover those funds from the violating party, the
association board.
       Association responds11 that Section 6.1.2 of the Bylaws does not apply to
this situation because it is not a proceeding arising out of any alleged default of a

       10
          We have rearranged Serota’s arguments for ease of discussion.
       11
          Additionally, Association argues in its brief that Serota’s appeal should be dismissed
under the doctrine of collateral estoppel because of this Court’s June 9, 2017 order denying
Serota’s Motion for Further Costs. Association recognizes it raised this argument in a Motion to
Quash Serota’s appeal pursuant to Rule 1972(a)(7) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1972(a)(7), which was subject to argument before a single judge of this
Court and was denied by Order dated January 23, 2018. Notwithstanding, it reiterates the
arguments it previously made and, additionally, argues it was Serota’s choice to seek attorneys’
fees before this Court rather than seeking an immediate remand to common pleas and the filing
(Footnote continued on next page…)


                                              10
unit owner. Rather, it was a declaratory judgment action by a unit owner against
Association seeking to invalidate Association’s amendment to the Declaration, as
Serota acknowledged during oral argument before common pleas. (R.R. at 1221a-
25a.) Association asserts nothing else in the Bylaws supports Serota’s contract-
based claim for attorneys’ fees.
       The bylaws of “a non[]profit corporation[] establish rules of internal
governance which, like contracts . . . , are construed according to their plain
meaning within the context of the document as a whole.”                 Purcell v. Milton
Hershey Sch. Alumni Ass’n, 884 A.2d 372, 379 n.10 (Pa. Cmwlth. 2005). We have
explained that

       [w]hen construing corporate . . . bylaws, this Court must use the same
       rules applicable to the interpretation of statutes, contracts and other
       written instruments . . . [.] If the bylaw is unambiguous, then [it] is to
       be construed as it is written and the language is given the force and
       effect required since the Court does need to interpret it or look to the
       parties’ intent.

Id. (citation omitted).     Article VI of the Bylaws addresses “Compliance and
Default” and states, in pertinent part:

       6.1. Relief. Each Unit Owner shall be governed by, and shall comply
       with, all of the terms of the Declaration, these Bylaws, the Rules and
       Regulations and the [Planned Community] Act, as any of the same
       may be amended from time to time. In addition to the remedies
       provided in the [Planned Community] Act and the Declaration, a

_____________________________
(continued…)
of the Motion. Association requests these arguments be reconsidered, Serota’s appeal be
dismissed, and common pleas’ Order affirmed. Serota asserts Association did not seek
reconsideration of the January 23, 2018 order denying its Motion to Quash and is improperly
seeking reconsideration now. This Court has already rejected Association’s request to dismiss
Serota’s appeal on this ground and will not revisit that decision.



                                             11
      default by a Unit Owner shall entitle the Association, acting through
      its Executive Board, to the following relief.
      ....
      6.1.2. Costs and Attorney’s Fees. In any proceeding arising out of any
      alleged default by a Unit Owner, the prevailing party shall be entitled
      to recover the costs of such proceeding and such reasonable attorney’s
      fees as may be determined by the court.

(R.R. at 48a.)    Section 6.1.2 of the Bylaws does authorize the payment of
attorneys’ fees to a prevailing party under certain situations, specifically “[i]n any
proceeding arising out of any alleged default by a Unit Owner.” (Id.) Serota reads
this provision as meaning that in any action between a unit owner and Association,
the prevailing party is entitled to recover reasonable attorneys’ fees. However, as
noted by common pleas, this interpretation does not give effect to the first part of
the sentence, which requires that it be a “proceeding arising out of any default by
a Unit Owner.” (Id. (emphasis added).) This proceeding did not arise out of a
default by a Unit Owner. Accordingly, this section does not support Serota’s
asserted entitlement to attorneys’ fees under the Bylaws.
      Alternatively, Serota contends that reading Section 6.1.2 of the Bylaws in
conjunction with Section 6.1.3 of the Bylaws supports his entitlement to attorneys’
fees. Section 6.1.3 of the Bylaws provides:

      6.1.3. No Waiver of Rights. The failure of the Association, the
      Executive Board or of a Unit Owner to enforce any right, provision,
      covenant or condition which may be granted by the Declaration, these
      Bylaws, the Executive Board Rules and Regulations or the [Planned
      Community] Act shall not constitute a waiver of the right of the
      Association, the Executive Board or the Unit Owner to enforce such
      right, provision, covenant or condition in the future. All rights,
      remedies and privileges granted to the Association, the Executive
      Board or any Unit Owner pursuant to any term, provision, covenant or
      condition of the Declaration, these Bylaws, the Rules and Regulations
      or the [Planned Community] Act shall be deemed to be cumulative


                                         12
       and the exercise of any one or more thereof shall not be deemed to
       constitute an election of remedies, nor shall it preclude the party
       exercising the same from exercising such other privileges as may be
       granted to such party by the Declaration, these Bylaws, the Rules and
       Regulations or the Act or at law or in equity.

(Id.) Serota claims he is entitled to attorneys’ fees because Section 6.1.3 of the
Bylaws authorizes a unit owner to bring an action against other unit owners based
on an alleged default by those unit owners, which is what he did in Serota I
because that was an action filed by him against defaulting unit owners,
Association’s board members.      However, Serota I was not an action against
defaulting unit owners, but a declaratory judgment action against Association
seeking declaratory and injunctive relief against Association.     Reviewing the
Bylaws’ language, Serota I is not the type of proceeding contemplated by Section
6.1.2 as warranting an award of reasonable attorneys’ fees. Thus, we agree with
common pleas’ interpretation of this section and not awarding attorneys’ fees on
this basis.

       B.     Section 5108 of the Planned Community Act, Penn State Trustees, and
              other Common Law Theories
       Serota next argues that common law remedies remain applicable to actions
under the Planned Community Act pursuant to Section 5108 of that Act, 68 Pa.
C.S. § 5108, and he is entitled to attorneys’ fees under two common law theories.
He maintains this Court’s decision in Penn State Trustees, awarding attorneys’ fees
based on a nonprofit entity’s violation of the Nonprofit Law, is applicable and
supports an award here because, as in Penn State Trustees, the nonprofit
corporation’s (Association) bylaws authorize an award of attorneys’ fees under
these circumstances. (Serota’s Reply Brief (Br.) at 16.) Alternatively, he asserts
that, under common law, Association “is liable for the actual monetary damages to

                                        13
. . . Serota, i.e., Serota’s monetary losses, that were directly and foreseeably caused
to [Serota] by [Association’s] negligent breach of the duty to obey the law and not
to default on complying with the provisions of its . . . Declaration and Bylaws.”
(Serota’s Br. at 33 (emphasis in original).)       Serota argues it was reasonably
foreseeable that he would have to file a legal action and “expend monies/suffer
monetary losses in the form of attorney’s fees and costs . . . to restore his lawful
voting strength.” (Id.)
        Association responds that Penn State Trustees is distinguishable because the
Bylaws do not support an award of attorneys’ fees under these circumstances.
Thus, it argues, the common law does not support Serota’s claim for attorneys’
fees.
        Section 5108 of the Planned Community Act provides:

        The principles of law and equity, including the law of corporations
        and unincorporated associations, the law of real property and the law
        relative to capacity to contract, principal and agent, eminent domain,
        estoppel, fraud, misrepresentation, duress, coercion, mistake,
        receivership, substantial performance, or other validating or
        invalidating cause supplement the provisions of this subpart, except to
        the extent inconsistent with this subpart.

68 Pa. C.S. § 5108. The associated Uniform Law Comment, drafted by the
National Conference of Commissioners on Uniform State Laws, states, in relevant
part:

                          UNIFORM LAW COMMENT
              ....

        1.    This Act displaces existing law relating to planned communities
              and other law only as stated by specific sections and by
              reasonable implication therefrom.             Moreover, unless
              specifically displaced by this statute, common law rights are


                                          14
             retained. The listing given in this section is merely an
             illustration: no listing could be exhaustive.
             ....

68 Pa. C.S. § 5108, Uniform Law Comment. Serota claims that, under this section
and this Court’s decision in Penn State Trustees, he is entitled to the award of
attorneys’ fees.   However, common pleas correctly concluded that Serota’s
reliance on Penn State Trustees was misplaced. The bylaws in Penn State Trustees
specifically directed the payment of attorneys’ fees in the type of actions brought
by board members in that case. 157 A.3d at 1002. Unlike the bylaws in Penn
State Trustees, however, the Bylaws here, as discussed above, do not provide an
award of attorneys’ fees under these circumstances and, therefore, Penn State
Trustees is inapplicable.
      Serota’s alternative argument for seeking attorneys’ fees under the common
law, that he is entitled to the payment of attorneys’ fees because they represent his
actual damages that are directly related to and the foreseeable result of
Association’s actions, is not persuasive. Attorneys’ fees are not actual damages,
and Serota does not cite any legal support for that proposition. Actual damages are
“[a]n amount awarded to complainant to compensate for a proven injury or loss;
damages that repay actual losses.” Black’s Law Dictionary 445 (9th ed. 2009)
(emphasis added). For example, had Serota been required to sell several units for
less based on the amendment to the Declaration, the difference between what he
could have sold them for and what he did sell them for would be his actual
damages. However, he does not assert these kinds of damages, and the fact that he
included a request for attorneys’ fees in the complaint does not transform those
fees into a proven injury or loss resulting from Association’s amendment of the
Declaration. Pursuant to the general rule, parties to an action are responsible for


                                         15
their own attorneys’ fees and costs unless otherwise provided by agreement,
statute, or recognized exception, Richard Allen Preparatory Charter School, 161
A.3d at 428, and Serota has not established a common law exception to this
general rule.12

       C.      Section 5412 of the Planned Community Act and Section 5503(a)(1) of
               the Nonprofit Law.
       Serota next asserts Section 5412 of the Planned Community Act and the
Uniform Law Comment related thereto specifically provide him with the statutory
right to bring the action in Serota I and for him to recover his attorneys’ fees as the
prevailing party. The right to bring such actions, he maintains, is further supported
by Section 5503(a)(1) of the Nonprofit Law. Serota argues common pleas abused
its discretion in refusing to follow the General Assembly’s intent, reflected in the
Uniform Law Comment, based on its belief that this comment was not binding and
did not reference a mandatory award of attorneys’ fees. Serota points out that
“[a]lthough . . . official comments are not law, they may be given weight in the
construction of the statute as they provide evidence of legislative intent.”
Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev. Co., 90 A.3d 682, 692
n.11 (Pa. 2014).         Here, he argues, because Section 5412 does not define
“appropriate relief,” it is ambiguous and the Court should consider the Uniform
Law Comment as evidence of the intent that an award of attorneys’ fees to the
prevailing party is required.13

       12
           In fact, if Serota’s position was accepted, any party bringing an action to enforce his or
her rights and who prevailed could claim attorney fees as damages, thereby obliterating the
general rule.
        13
           Serota also argues common pleas deprived him of his rights to equal protection under
article I, section 26 of the Pennsylvania Constitution and Section 1 of the Fourteenth
(Footnote continued on next page…)


                                                16
       Association argues Section 5412 of the Planned Community Act does not
mandate an award of attorneys’ fees and, although the Uniform Law Comment
refers to an award of attorneys’ fees, any such award is within the discretion of the
court. It asserts that a discretionary award of fees is not warranted under this
section. As for Serota’s reference to Section 5503(a)(1) of the Nonprofit Law,
Association points out this section does not mention attorneys’ fees, although it
does state that a trial court “may, . . . if it deems the result to be equitable,” award
“such compensation as may be appropriate” for the contract, 15 Pa. C.S.
§ 5503(a)(1), which could, perhaps, allow a discretionary award of attorneys’ fees.
But that language does not support a claim that an award of fees is required.
Association maintains that, because there are no statutorily required reasons for
awarding attorneys’ fees, common pleas exercised its discretion in considering the
Motion and did not abuse that discretion in denying the Motion.
       At the time relevant to this matter, Section 5412 of the Planned Community
Act stated:

       If a declarant or any other person subject to this subpart violates any
       provision of this subpart or any provisions of the declaration or
       bylaws, any person or class of persons adversely affected by the
       violation has a claim for appropriate relief. Punitive damages may be
       awarded in the case of a willful violation of the subpart.



_____________________________
(continued…)
Amendment to the United States Constitution as a result of its “selective non-enforcement” of
Sections 5412 and/or 5108 of the Planned Community Act. (Serota’s Br. at 32.) Serota’s
constitutional claims are based, essentially, on common pleas’ interpretation of these provisions.
If common pleas erred or abused its discretion in its interpretation, such legal error or abuse of
discretion does not rise to the level of a constitutional violation, and Serota cites no legal
authority to support his claim that it does.



                                               17
68 Pa. C.S. § 5412. The Uniform Law Comment relied upon by Serota was drafted
by the National Conference of Commissioners on Uniform State Laws and states:

                                 Uniform Law Comment
       ....
       This section provides a general cause of action or claim for relief for
       failure to comply with the Act by either a declarant or any other
       person subject to the Act’s provisions. Such persons might include
       unit owners, persons exercising a declarant’s rights of appointment
       pursuant to Section 3-103(d), or the association itself. A claim for
       appropriate relief might include damages, injunctive relief, specific
       performance, rescission or reconveyance if appropriate under the law
       of the state, or any other remedy normally available under state law.
       The section specifically refers to “any person or class of persons” to
       indicate that any relief available under the state class action statute
       would be available in circumstances where a failure to comply with
       this Act has occurred. This section specifically permits punitive
       damages to be awarded in the case of willful failure to comply with
       the Act and also permits attorney’s fees to be awarded in the
       discretion of the court to any party that prevails in an action.

68 Pa. C.S. § 5412, Uniform Law Comment (emphasis added).14 Section 5412 of
the Planned Community Act authorizes, among others, an adversely affected unit
owner to assert a claim for “appropriate relief,” but does not define “appropriate
relief.” 68 Pa. C.S. § 5412. But the Uniform Law Comment indicates that an
award of attorneys’ fees may be granted at common pleas’ discretion. Section
1939 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1939, provides, in
relevant part, that “[t]he comments or report of the commission . . . or other entity

       14
          Recently, the General Assembly amended the statutory language of Section 5412 to
add “and, if appropriate, the prevailing party may be entitled to an award of costs and reasonable
attorney fees” after the statement “[p]unitive damages may be awarded in the case of a willful
violation of the subpart.” 68 Pa. C.S. § 5412. This new provision was not effective until July 3,
2018, after this case was filed. Under the amended language of Section 5412, the award of
attorneys’ fees is still discretionary.



                                               18
which drafted a statute may be consulted in the construction” of “the original
provisions of the statute if such comments or report were published or otherwise
generally available prior to the consideration of the statute by the General
Assembly.” See also Bricklayers of W. Pa. Combined Funds, Inc., 90 A.3d at 692
n.11 (acknowledging that uniform comments are not the law, but allowing for their
consideration to ascertain the legislature’s intent). Here, the Uniform Planned
Community Act and comments were drafted in 1980, and Pennsylvania enacted the
Planned Community Act, which was based on that Uniform Act, in 1996. Saw
Creek Cmty. Ass’n v. Cty. of Pike, 866 A.2d 260, 263 n.9 (Pa. 2005). Thus, the
Uniform Law Comment is not law, but it may be considered evidence of an intent
that attorneys’ fees could be awarded within common pleas’ discretion. Contrary
to Serota’s contentions, however, neither the statutory language of Section 5412 of
the Planned Community Act nor the Uniform Law Comment mandate an award of
attorneys’ fees. As observed by common pleas, the statutory language at that time
did not refer to attorneys’ fees. (Common Pleas Op. at 2.) And, while the Uniform
Law Comment does refer to attorneys’ fees, such reference is not binding on the
court and, additionally, it considers the award of such fees to be within the
discretion of the court. Given the parties’ arguments before common pleas,
common pleas could have exercised its discretion to award attorneys’ fees, but it
was not obligated to do so. We discern no abuse of discretion in common pleas’
decision not to award attorneys’ fees, given the complexity of the underlying
litigation and common pleas’ familiarity with the litigation between these parties,
including Serota I and a second lawsuit that was eventually settled, (Motion ¶ 15,
R.R. at 597a).




                                        19
       Serota also references Section 5503(a)(1) of the Nonprofit Law,15 which,
similar to Section 5412 of the Planned Community Act, authorizes a member of a
nonprofit corporation to file an action to enjoin the corporation from engaging in
“unauthorized acts or the transaction or continuation of unauthorized business.” 15
Pa. C.S. § 5503(a)(1). However, other than explaining that this section reflects a
legislative intent to protect members of nonprofit corporations from misconduct or
wrongdoing by that corporation or its board, Serota does not explain how this
section authorizes an award of attorneys’ fees, particularly since this section does
not mention attorneys’ fees. (Serota’s Br. at 29 n.1.) Thus, there was no abuse of
discretion in not granting the Motion on this basis.


       15
            Section 5503(a)(1) of the Nonprofit Law states:

       (a) General rule.--A limitation upon the business, purposes or powers of a
       nonprofit corporation, expressed or implied in its articles or bylaws or implied by
       law, shall not be asserted in order to defend any action at law or in equity between
       the corporation and a third person, or between a member and a third person,
       involving any contract to which the corporation is a party or any right of property
       or any alleged liability of whatever nature, but the limitation may be asserted:

       (1)       In an action by a member against the corporation to enjoin the doing of
             unauthorized acts or the transaction or continuation of unauthorized business.
             If the unauthorized acts or business sought to be enjoined are being transacted
             pursuant to any contract to which the corporation is a party, the court may, if
             all of the parties to the contract are parties to the action and if it deems the
             result to be equitable, set aside and enjoin the performance of the contract,
             and in so doing shall allow to the corporation, or to the other parties to the
             contract, as the case may be, such compensation as may be appropriate for the
             loss or damage sustained by any of them from the action of the court in
             setting aside and enjoining the performance of the contract, but anticipated
             profits to be derived from the performance of the contract shall not be
             awarded by the court as a loss or damage sustained.

15 Pa. C.S. § 5503(a)(1).



                                                 20
IV.   Conclusion
      In sum, the general rule in Pennsylvania is that parties to an action are
responsible for their own attorneys’ fees and costs unless otherwise provided by
agreement, statute, or recognized exception. Richard Allen Preparatory Charter
Sch., 161 A.3d at 428. After reviewing the various contractual, statutory, and
common law bases Serota asserts require an award of attorneys’ fees because he
prevailed in Serota I, none of these provisions require an award of attorneys’ fees
under these circumstances. Common pleas, familiar with these parties and this
litigation, reviewed these provisions and decided, within its discretion, to deny the
Motion.   In doing so, common pleas did not abuse its discretion because its
decision did not show “manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support as to be clearly erroneous.” Wagner, 132 A.3d at
1057 (quoting Paden, Inc., 658 A.2d at 343).


      Accordingly, common pleas’ Order is affirmed.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Serota,                       :
                       Appellant      :
                                      :
                  v.                  :   No. 1451 C.D. 2017
                                      :
London-Towne Homeowners               :
Association                           :


                                   ORDER


     NOW, November 16, 2018, the Order of the Court of Common Pleas of
Allegheny County, entered in the above-captioned matter, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
