J-S44014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEL LEVIERE,                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PRESTON FORD, INC.,

                        Appellant                   No. 196 WDA 2014


            Appeal from the Order Entered December 30, 2013
             In the Court of Common Pleas of Mercer County
                     Civil Division at No(s): 2011-1091


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 06, 2014




fees. We affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

             This is a used car case. Plaintiff Del LeViere alleged that
      Defendant Preston Ford, Inc.[,] sold him a used car that had
      been in an undisclosed frame-
      Complaint in Civil Action contained three counts            fraud,
      violation of the federal Magnuson-Moss [Warranty] Act

      [and Consumer Protection] [L]aw [(UTPCPL)]. The Complaint
      was filed on March 30, 2011 (there had been some pre-
      Complaint negotiations), and the case settled about 2½ years

      Preston Ford agreed to buy back the car from Mr. LeViere by
      paying off the remainder of his car loan and paying directly to
      him the difference between the remaining amount of the car loan
J-S44014-14


      and the purchase price.      The settlement did not address the



      Petition for Counsel Fees and Costs (which included 18 exhibits)
      and a
      Counsel Fees and Costs. [LeViere] claimed $50,359.15 in fees
      and costs.     On December 11, 2013, [Preston Ford] filed

      Costs, followed by a
                                                                     on
      December 19, 2013. This Court held a hearing on the Petition
      [on] December 19, 2013. [LeViere] then filed [a] Reply in
      Support of Petition for Fees and Costs on December 27, 2013,
      and this Court granted [his] petition in its entirety on December
      31, 2013, granting [LeViere] the full $50,359.15 in fees and
      costs. [Preston Ford] then filed a Motion for Reconsideration on
      January 6, 2014, which this Court denied on January 30, 2014.

Trial Court Opinion (TCO), 3/27/14, at 1-2.

      Preston Ford filed a timely notice of appeal, as well as a timely concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Herein, it raises two issues for our review:

      1. Whether the trial court erred in finding that [LeViere] was the
      prevailing party pursuant only to the Court Order of September
      10, 2013[,] which only rescinded the contract between the
      parties[?]

      2. Whether the trial court erred in awarding [LeViere] his

      reasonableness and necessity for said fees?




attorneys' fees is well-settled. Whether to award attorneys' fees and costs

incurred in bringing an action [is] within the discretion of the trial court, and

we will not reverse a trial court's decision on the matter in the absence of an

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                      Regis Ins. Co. v. Wood, 852 A.2d 347, 349-350 (Pa.

Super. 2004) (citing First Pennsylvania v. National Union, 580 A.2d 799

(Pa. Super. 1990)).

                                                 -arguments. First, Preston




Ford argues that LeViere is also not enti



determination been made that he suffered damages[,] as a result of any act



Preston



                       i.e., his fraud action, the MMWA, or the UTPCPL, and



                                                              Id.

     Initially, we conclude that Preston Ford waived its latter two claims. In

its Rule 1925(b) statement, Preston Ford stated two issues that mirror those

presented in his Statement of the Questions section of his appellate brief,

quoted supra. See Pa.R.A.P. 1925(b) Statement, 2/13/14. Neither of these



damages under the UTPCPL, or its assertion that LeViere failed to prove




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under which theory of liability the settlement occurred.    Consequently, we

deem these specific arguments are waived.1 See Pa.R.A.P. 1925(b)(4)(vii)

                                                                     nce with




under the MMWA.




____________________________________________


1

1925(b) statement complies with the requirements of Pa.R.A.P. 1925(b)(3).

Statement timely filed an
Order, 2/2/14. Thus, waiver is appropriate in this case. See Greater Erie
Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222, 225
                                                                    ssues
on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial



       We also point out that in its Rule 1925(a) opinion, the trial court did


of liability the settlement occurred, the court noted that that argument was
                                             Statement of Errors Complained
of on Appeal
claim, despite its absence from the Rule 1925(b) statement, does not
compel this Court to do the same. See Commonwealth v. Hill, 16 A.3d
484, 494 (Pa. 2011). In any event, we also conclude that this argument is
waived because Preston Ford fails to cite any legal authority to support it in
his brief to this Court. See                           -12; Korn v. Epstein,
727 A.2

Gallagher v. Sheridan
that are not appropriately developed are waived



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states:

      2) If a consumer finally prevails in any action brought under
      paragraph (1) of this subsection, he may be allowed by the court
      to recover as part of the judgment a sum equal to the aggregate
      amount of cost and expenses (including attorneys' fees based on
      actual time expended) determined by the court to have been
      reasonably incurred by the plaintiff for or in connection with the
      commencement and prosecution of such action, unless the court
      in its discretion shall determine that such an award of attorneys'
      fees would be inappropriate.

15 U.S.C.A. § 2310(d)(2) (italicized emphasis added).

      The MMWA does not define or provide any guidance on when a



                          Profit Wize Marketing v. Wiest, 812 A.2d 1270




judgment on the merits. See                                     Profit Wize,



reached a settlement agreement).       In response, LeViere contends that

                            Profit Wize                     Profit Wize is a

state court opinion applying o

at 9. He maintains that because the MMWA is a federal statute, the meaning



federal law, primarily the United States Supreme Cour

Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of

Health and Human Resources, 532 U.S. 598 (2001).

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       We agree with LeViere. In Profit Wize, this Court examined whether

                                                              ployee against

whom the employer had filed suit, where the parties had ultimately entered

a settlement agreement. In the course of this assessment, we were tasked



as contained in the non-

See Profit Wize, 812 A.2d at 1275. Thus, unlike the present case, Profit

Wize

under the language of a state employment contract, not a federal statute.

Accordingly, Profit Wize does not compel the application of Pennsylvania

law in the instant case. Instead, we look to federal law to ascertain whether

                                                               See Samuel-

Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011) (stating



       We begin our analysis by noting that the United States Supreme Court

                                               d through a consent decree



                               -

                                             Buckhannon, 532 U.S. at 604

(citations omitted).   Nevertheless, under many federal statutes, including




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                                                                          Id.



the plaintiff secures must directly benefit him at the time of the judgment or

              Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citation omitted).



materially alters the legal relationship between the parties by modifying the

                                                                       Id. at

111-112.

     Here, Preston Ford contends that the settlement agreement did not

alter its legal relationship with LeViere in any way, let alone in a way that

directly benefited LeViere.   See

explains:

            In accordance with the settlement, Preston Ford bought

     Preston Ford paid the outstanding lien and refunded the
     difference to LeViere. Preston Ford then retained the car. In
     other words, Preston Ford and LeViere rescinded the contract
     and no material altering of the legal relationship between the
     parties occurred to the benefit of LeViere. LeViere previously
     argued he received $10,000.00 over and above what he would
     have received had he traded the car in for another vehicle.
     LeViere ignores payments made by him on the loan for the
     vehicle in the amount of $10,967.40, calculated by car
     payment[s] of $304.65 a month for 36 months.              LeViere
     additionally paid $1000.00 down on the vehicle bringing the total
     amount LeViere paid towards this vehicle to $11,967.40.
     Further, LeViere transferred a vehicle valued by him in the trade
     in [the] amount of $5,500.00. It should be noted that this
     amount would be higher as the car was bought by a dealer for


     for $16,963.00[,] or a loss of $504.40.

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J-S44014-14



                         -10 (citation to record omitted).




frame-damaged vehicle with over 70,000 miles that was worth much less

                               s Brief at 11. LeViere elaborates:

      It is common knowledge to the ordinary layperson that a

      purchased and driven off the car lot. Unless a car is a unique
      and highly prized collectible, a consumer will receive thousands
      less than what they paid if a car is traded in shortly after
      purchase[,] even if the car is in the same condition as
      purchased. Here, LeViere received the entire purchase price of
      $16,963.00 for the vehicle after three years and after being

      than the full purchase price for this vehicle if he had tried to sell
      it in a retail setting.

Id. at 16.



con

agreement rescinded the contract between the parties, thus terminating

their legal relationship. The agreement further provided LeViere with the full

purchase price of a vehicle that he had driven for three years, and on which

he had accumulated significant mileage. At the time the parties entered into

a settlement agreement, the vehicle was clearly worth much less than the

$16,963 Preston Ford paid LeViere to settle the litigation.         Preston Ford

essentially admits this fact by stating that it resold the vehicle for $6,300.

See



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invested into the vehicle over the course of the three years he owned it, at

the time of the settlement, Preston Ford agreed that LeViere was entitled to

$16,963 for a vehicle valued by Preston Ford at $6,300. Thus, we conclude

that LeViere received a benefit on the merits of his claims.             See

Buckhannon, 532 U.S. at 604; Farrar, 506 U.S. at 111. Accordingly, the




process of law because the trial court failed to conduct an evidentiary



acknowledges that a hearing was conducted on December 19, 2013, it

maintains that the court only heard oral arguments from counsel for both

parties, and did not provide Preston Ford with the opportunity to present

evidence or cross-examine witnesses LeViere may have called. Preston Ford

also maintains that because the court did not conduct an evidentiary

hearing, the court had no evidentiary basis upon which to enter the order




abused its discretion.   Most notably, at the December 19, 2013 hearing,

Preston Ford did not attempt

failure to do so; thus, Preston Ford cannot now claim the court denied it due

process. Moreover, LeViere attached abundant documentary evidence, i.e.,




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sufficient evidentiary basis upon which to enter the December 30, 2013



is meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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