J-S26003-23
2024 PA Super 187
STEPHEN SIANA AND CAROL SIANA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellants : : : v. : : : NOAH HILL, LLC : No. 2982 EDA 2022
Appeal from the Judgment Entered October 27, 2022 In the Court of Common Pleas of Chester County Civil Division at No: 2020-01862-JD
STEPHEN SIANA AND CAROL SIANA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellants : : : v. : : : NOAH HILL, LLC : No. 99 EDA 2023
Appeal from the Order Entered November 22, 2022 In the Court of Common Pleas of Chester County Civil Division at No: 2020-01862-JD
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
OPINION BY STABILE, J.: FILED AUGUST 21, 2024
Appellants, Stephen Siana and Carol Siana, brought an action against
Appellee Noah Hill, LLC for confession of judgment in the Court of Common
Pleas of Chester County. Following a non-jury trial, the Honorable Edward
Griffith entered a decision in favor of Appellee. Appellee filed a petition
seeking counsel fees against Appellants under 42 Pa.C.S.A. § 2503. Judge
Griffith awarded Appellee $38,107.31 in counsel fees, and Appellee entered
judgment in its favor. Subsequently, Appellants filed an appeal at 2982 EDA J-S26003-23
2022 from the order granting counsel fees to Appellee and a second appeal at
99 EDA 2023 from an order denying reconsideration of judgment. Judge
Griffith passed away in early 2023. Another judge, the Honorable Anthony
Verwey, authored a Pa.R.A.P. 1925 opinion relating to these appeals. We
consolidated these appeals sua sponte, and we now affirm in the appeal at
2982 EDA 2022, because the award of counsel fees to Appellee was a proper
exercise of Judge Griffith’s discretion. We quash the appeal at 99 EDA 2023.
Appellee, an LLC, is a landscaping and tree removal service. Appellee’s
sole member is an individual, Noah Hill. Appellants own a residential property
in Chester Springs and a neighboring farmhouse with a 30-acre farm. In
September 2019, Hill and his fiancée, Gina Riganati, moved into the
farmhouse and entered into an agreement with Appellants to perform
maintenance services on the farm and residential property in lieu of paying
rent to Appellants (“the caretaker agreement”).
The prior caretaker of the farm, Brenda Schaeffer, owned a pickup truck
(“truck”), ATV and trailer. Appellants had financed Schaeffer’s purchase of
these vehicles but had not been repaid. Hill, on behalf of the LLC Appellee,
agreed to purchase the vehicles, and on September 5, 2019, Appellee
executed a promissory note payable to Appellants in the amount of
$30,600.00. Hill signed the note in his capacity as Appellee’s sole member.
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The three-page note, which Appellant Stephen Siana prepared,1
provided that Appellee would pay the debt in “consecutive equal monthly
installments of principal in the amount of … $500.00” with a “single balloon
payment” for the remaining principal” due one year after execution of the
note. Promissory Note, 9/5/19, at 1. The note stated that it was secured by
Appellee’s interest in in the ATV, the trailer, and all of Appellee’s personal
property. Id. Judge Griffith later found that the note did not reference the
pickup truck. Decision and Order, 5/20/22, at 3 (Finding of Fact 16). Appellee
took title to the truck with Appellants identified as lienholders.
Appellants claim that they attached an amortization schedule as an
exhibit to the note that required Appellee to make a down payment of
$3,000.00 on the date Appellee signed the note (September 5, 2019) and
then make monthly payments of $500.00 for the next year followed by the
balloon payment for the remaining principal. The note did not refer to the
amortization schedule.
Hill testified that two weeks after execution of the note, Appellants
agreed to accept an initial payment of $1,500.00 followed by monthly
payments of $500.00. Between September 2019 and February 2020, Appellee
paid Appellants one check in the amount of $1,500.00 and three other checks
in the amount of $500.00, a total of $3,000.00, the equivalent of six months
____________________________________________
1 The record establishes that Mr. Siana is an attorney, whereas Hill only has a
seventh grade education.
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of payments under the terms of the note. Judge Griffith found that the
Appellee LLC “complied with the payment terms for the note[,] as clarified
and/or modified by discussion and/or conduct post-signing.” Decision and
Order at 4 (Finding of Fact 29).
The parties’ relationship deteriorated towards the end of 2019, a
development that Judge Griffith ascribed to Appellants’ “escalating and
changing demands for work and landscape/tree services” at Appellants’
property and the farmhouse. Id. at 5 (Finding of Fact 36). In an email on
February 5, 2020, Appellants’ counsel raised a litany of monetary demands
totaling $43,028.83, threatened to pursue judgment individually against Hill
and Riganati if they failed to pay this sum, threatened to move forward with
a conversion action, and reserved the right to perfect a security interest in
“the truck, trailer, ATV, and John Deere Zero-Turn”. Trial Exhibit D-14. On
February 14, 2020, Appellant Stephen Siana sent a letter to Appellee enclosing
the February 5, 2020 email and threatening that “your fraudulent conduct will
have ramifications.” Id. at 8. The letter continued:
Your failure to address these matters in a timely manner and mitigate your damages will be at your own peril. Furthermore, I fully intend to inform all relevant authorities of your conduct regarding your refusal to provide an EIN number and your wrongful removal of equipment belongings from the barn that were not your property.
Trial Exhibit D-13. The letter included the earlier email from Appellants’
counsel demanding $43,028.83. The letter contained an additional demand
of $9,500.00 for “farm occupancy,” a sum that Appellants never demanded
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during Hill’s and Riganati’s occupancy of the farmhouse. Exhibit D-15. Hill
and Riganati eventually moved out of the farmhouse. Judge Griffith later
found that Appellant Siana “was … not forthright in his conversations with [Hill
and Riganati] about his expectations and priorities.” Decision and Order at 5
(Finding of Fact 37).
On February 11, 2020, Appellants repossessed the truck, claiming that
Appellee defaulted on the note. The parties agree that at the time of
repossession, the value of the truck was $24,150.00. Id. at 4 (Finding of Fact
24).
On February 14, 2020, Appellants filed an action against Appellee for
confession of judgment in the amount of $29,848.50. The complaint seeking
confession of judgment did not credit (or even mention) the value of the truck
in its calculation of the amount owed. On the same date, Appellants filed a
separate action against Hill and Riganati alleging breach of the caretaker
agreement (“caretaker action”). Appellee filed a petition to strike or open the
judgment. On June 23, 2020, the court denied the petition to strike but
granted Appellee’s petition to open judgment in the confession of judgment
action. Subsequently, Judge Griffith consolidated the confession of judgment
action with the caretaker action.
The case proceeded to a non-jury trial before Judge Griffith. On May
20, 2022, following trial, Judge Griffith filed a decision and order that
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“[Appellants’] complaint in confession of judgment is denied and dismissed.” 2
Order, 5/20/22. The decision also directed Appellants to return the title of the
truck to Appellee. Judge Griffith found that Appellee complied with the
payment terms of the note and that Appellee was not in default at the time
Appellants confessed judgment. Decision and Order at 4 (Findings of Fact 29-
30). Judge Griffith made the following relevant conclusions of law:
1. [Appellants’] seizure of the truck was in violation of [Appellee’s] rights under the note and constitutes conversion of the truck and thereby repudiated the terms of the note.
2. Any obligations of [Appellee] under the note ended and performance was waived by [Appellants’] illegal seizure of the truck in the absence of default. Accordingly, there was no basis for the confession of judgment entered February 14, 2020.
3. Title to the trailer, referenced in the note as security, is properly returned to [Appellee] as the security interest was terminated and released by [Appellants’] conduct.
Id. at 6-7 (Conclusions of Law 1-3) (cleaned up).
In the caretaker action, Judge Griffith found that Hill and Riganati
adequately performed the caretaker agreement by performing “property
maintenance, landscaping, tree removal and pruning, stump removal and
2 This text was consistent with Pa.R.Civ.P. 2960, which provides that when the court opens judgment in a confession action, “the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition [to open judgment], answer and the order of the court opening the judgment.” Pa.R.Civ.P. 2960. Judge Griffith’s order that the complaint was “denied and dismissed” was effectively his determination that the issues raised in the complaint lacked merit, thus requiring a decision in favor of Appellee in the confession action.
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animal care services at both the [farmhouse] and [Appellants’] residence
during the period of their occupancy.” Id. at 5 (Finding of Fact 35). Judge
Griffith, however, awarded $3,285.36 to Appellants and against Hill and
Riganati for the cost of a water filtration system and for unpaid utilities. Judge
Griffith also denied and dismissed Appellee’s counterclaim against Appellants.
None of the parties filed post-trial motions. In an order entered on
October 18, 2022, Judge Griffith removed consolidation of the confession and
caretaker actions. None of the parties appealed the decision in the caretaker
action.
On June 7, 2022, Appellee filed a petition for counsel fees in the
confession action. Appellee pointed out that it fully complied with the note at
the time Appellants seized the truck. Appellee argued that the confession
action was arbitrary, vexatious, and in bad faith, because Appellants
commenced this action “not for the recovery of the confessed amount, but
rather to exert leverage over Noah Hill, individually and Noah Hill, LLC to
concede to the various demands set forth in correspondence.” Appellee’s Brief
In Support Of Award of Counsel Fees, 9/30/22, at 7. Appellee also argued
that Appellants’ bad faith in filing the confession action “is further
demonstrated by the fact that [Appellants] seized the Chevrolet Colorado
truck, in which [Appellants] claimed a security interest for payment of the
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Note,3 on February 11, 2020, yet failed to credit or even mention the truck or
its value ($24,150.00) in the Confession Action.” Id. at 9. Appellee stated
that Appellants’ written threats prior to litigation (the February 5, 2020 email
from Appellants’ attorney and February 14, 2020 letter from Appellant Siana)
contained
numerous unrelated monetary demands and legal threats that were never pursued in later litigation, and demonstrate that the confession of judgment action was commenced, not for the recovery of the confessed amount, but rather to exert leverage over Noah Hill, individually and [Appellee] to concede to the various demands …
Appellee’s Petition For Award Of Counsel Fees, at 6, ¶ 21. One such demand
was Appellant Siana’s demand that Hill and Riganati pay $9,500.00 for farm
occupancy, even though Appellants never demanded rent for farm occupancy
at any other time during Hill’s and Riganati’s occupancy. Appellee’s Brief In
Support Of Award Of Counsel Fees at 7 (citing Judge Griffith’s finding that
“[a]t no time during [Hill’s and Riganati’s] occupancy of the [farmhouse] did
Mr. Siana demand payment of monthly rent as permitted under the
caretaker[] agreement”). Finally, Appellee alleges that it was forced to retain
counsel to defend against Appellants’ threats. Appellee’s petition included an
3 Appellee did not argue, either below or in this Court, that Appellants lacked
the right to claim a security interest in the truck in view of Judge Griffith’s finding that the note did not refer to the truck as security. Since Appellee did not make this argument, we refrain from using this point as a ground for affirming the award of counsel fees.
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affidavit from its counsel setting forth the fees and expenses that Appellee
incurred in defending against Appellants’ lawsuits.
The court issued a rule returnable directing Appellants to file an answer
to the petition and further instructing the parties to take depositions. The
parties took the depositions of Hill and his attorney.
In response to Appellee’s petition, Appellants filed an answer and
accompanying brief claiming that the email from Appellants’ attorney and
Appellant Siana’s letter were mere settlement demands attempting to resolve
the dispute between the parties amicably. Appellants’ Brief In Opposition To
Petition For Award Of Counsel Fees, 10/19/22, at 5. Appellants did not deny
that they never pursued many of the threats in the email or in Appellant
Siana’s letter in later litigation. Nor did Appellants respond in any way to
Appellee’s assertions that Appellee complied with the note and that the
confession of judgment complaint failed to mention the truck or accord any
credit for its value.
On October 21, 2022, Judge Griffith entered an order granting Appellee
$38,107.31 in counsel fees and $168.46 in other record costs (“counsel fee
order”).
Judge Griffith did not enter judgment in favor of Appellee in the
confession action. Thus, on October 27, 2022, Appellee filed a praecipe to
enter judgment against Appellants in the amount of $38,275.77, the
aggregate amount of the counsel fee award and record costs.
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On November 7, 2022, Appellants filed a motion under 42 Pa.C.S.A. §
5505 requesting the court to reconsider the counsel fee order so that it could
strike the judgment Appellees entered on the counsel fee award in connection
with the confession action.
On November 18, 2022, Appellants filed a notice of appeal to this Court
at 2982 EDA 2022 purporting to appeal from the counsel fee order.
On November 22, 2022, the court entered an order denying Appellants’
motion (1) for reconsideration of the counsel fee order and (2) to strike the
award of fees in connection with the confession action. On December 22,
2022, Appellants filed a notice of appeal at 99 EDA 2023 purporting to appeal
from the order denying reconsideration.
Appellants filed Pa.R.A.P. 1925(b) statements in both appeals. In early
2023, Judge Griffith passed away. The court reassigned the confession action
to Judge Verwey, who filed a Pa.R.A.P. 1925(a) opinion on February 27, 2023.
Judge Verwey reasoned:
By correspondence dated February 5 and 14, 2020, prior to entry of the confessed judgment, Appellants made wide-ranging demands of Hill and Riganati and accused them of fraudulent conduct. Appellants claimed a sum exceeding $48,000.00 for the Truck, rental of the farm property, damages to property, water service and utilities. Appellants failed to differentiate any obligation of [Appellee] from that of Hill and Riganati and threatened legal action against Hill and Riganati individually for all sums due … Hill, Riganati and [Appellee] were compelled to retain counsel to defend against Appellants’ ever-changing financial demands and escalating threats …
[Appellants] embarked on a campaign to intimidate and coerce Hill and Riganati to meet his demands and his arsenal included his
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legal skills. Hill, who only has a seventh grade education, and Riganati would have to incur legal fees to defend threats or succumb to his demands. The seizure of the Truck when [Appellee] was not in default and the baseless Confession Action were undoubtedly intended to exert pressure on Hill and Riganati to concede [to Appellants’] unrelated demands. It was [Appellants], not [Appellee], Hill or Riganati, who intertwined the claims.
Pa.R.A.P. 1925 Opinion, 2/27/23, at 10-11 (cleaned up).
Appellants raise two issues in these appeals, which we reorganize for
purposes of convenience:
A. Whether [Appellee’s] praecipe to enter judgment should be stricken where it was prematurely filed with judgment prematurely entered by the trial court six (6) days from the entry of its October 21, 2022 order?
B. Whether the trial court abused its discretion by awarding attorneys’ fees to [Appellee] pursuant to 42 Pa.C.S.A. § 2503(9) (Right of Participants to Receive Reasonable Attorney’s Fees)?
Appellants’ Brief at 3 (cleaned up).
Before addressing Appellants’ arguments, we first determine whether
we have jurisdiction over these appeals. “The appealability of an order directly
implicates the jurisdiction of the court asked to review the order . . . [S]ince
we lack jurisdiction over an unappealable order it is incumbent on us to
determine, sua sponte when necessary, whether the appeal is taken from an
appealable order.” Adams v. Erie Insurance Company, 238 A.3d 428, 431
(Pa. Super. 2020).
We lack jurisdiction over the appeal at 99 EDA 2023 because appeals do
not lie from orders denying reconsideration. See Oliver v. Irvello, 165 A.3d
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981, 983 (Pa. Super. 2017) (“as a general rule, an appellate court’s
jurisdiction extends only to review of final orders . . . An order denying a
motion for reconsideration is not a final order and, thus, not appealable”).
At 2982 EDA 2022, Appellants purport to appeal from the order
awarding counsel fees to Appellee. While Appellants should have appealed
from the judgment entered several days later on the counsel fee award rather
than from the award itself, this technical error does not defeat our jurisdiction
over this appeal. In reaching this conclusion, we find the analysis in Francis
v. LCP North Third, LLC, 293 A.3d 273 (Pa. Super. 2023), instructive.
In Francis, following a bench trial, the trial court held that LCP breached
its contract with Francis and awarded damages to Francis. LCP filed post-trial
motions, and Francis filed a petition for counsel fees. In separate orders
docketed on January 31, 2021, the court denied LCP’s post-trial motions and
granted Francis’s petition for counsel fees. On February 1, 2021, Francis filed
a praecipe for entry of judgment in the aggregate on the verdict and counsel
fee award. LCP then filed a notice of appeal from the order granting attorneys’
fees and a second notice of appeal from the judgment. This Court quashed
the appeal from the order granting attorney fees, stating, “[T]he court ruled
on Francis’ attorneys’ fee request prior to the entry of judgment. The
attorneys’ fee award was therefore included in the judgment and, as such, the
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appeal [from the attorney fee award] is duplicative and is hereby quashed.”
Id., 293 A.3d at 276 n.1.4
We construe Francis to mean that when an order awarding counsel fees
is subsequently reduced to judgment, an aggrieved party should appeal from
the judgment instead of from the counsel fee order. This construction is
consistent with the general principle that appeals should lie from final orders
that “dispose of all claims and all parties.” Pa.R.A.P. 341(b)(1). The final,
appealable disposition in this case is the judgment entered on October 27,
2022, which reduced both the May 20, 2022 non-jury decision and October
21, 2022 counsel fee order to judgment. As in Francis, the award in the
counsel fee order was “included in the judgment.” Id., 293 A.3d at 276 n.1.
Accordingly, Appellants should have filed a notice of appeal from the judgment
instead of from the counsel fee order.
This procedural mistake however, does not require us to quash this
appeal. First, unlike Francis, this appeal is not duplicative of a second
properly taken appeal. Compare Francis, supra (appeal from counsel fee
order quashed as duplicative of proper appeal from judgment). Furthermore,
4 Francis also observed that “[w]here judgment is entered in the underlying
litigation before the trial court rules on a motion for counsel fees, the order on counsel fees is appealable when entered without the need for entry of judgment on it.” Id. (emphasis added) (citing Miller Electric v. DeWeese, 907 A.2d 1051 (Pa. 2007); Carpenter Enterprises v. Murpenter, LLC, 185 A.3d 380, 389 (Pa. Super. 2018)). This situation does not exist in the present case because the trial court entered its counsel fee order prior to entry of judgment.
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quashal would be out of harmony with rules of appellate procedure, Pa.R.A.P.
105 and 902. Rule 105 provides that “the appellate rules shall be liberally
construed to secure the just, speedy and inexpensive determination of every
matter to which they are applicable.” Pa.R.A.P. 105(a). Pa.R.A.P. 902 states
in pertinent part, “[T]he failure of an appellant to take any step [other than
the timely filing of a notice of appeal in each docket in which the order has
been entered] does not affect the validity of the appeal ….” Pa.R.A.P.
902(b)(1). These rules are consistent with observations by our Supreme
Court that “procedural rules are not ends in themselves, and that the rigid
application of our rules does not always serve the interests of fairness and
justice[,]” Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006), especially
where there has been substantial compliance and no prejudice to an opposing
party. Smith v. Pa. Bd. of Prob. and Parole, 683 A.2d 278, 282 (Pa. 1996).
Applying these principles, this Court has exercised jurisdiction over an appeal
even though the notice of appeal was taken from a vacated order.
Commonwealth v. Martin, 462 A.2d 859, 860 (Pa. Super. 1983) (notice of
appeal stated erroneously that appeal was from sentencing order that was
vacated one month later in resentencing order). We also have invoked Rule
105(a) and excused a notice of appeal which stated erroneously that it was
from an order denying motions for a new trial and arrest of judgment instead
of from the judgment of sentence. Commonwealth v. Lahoud, 488 A.2d
307, 390 (Pa. Super. 1985). We think the same principles that underlie
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Martin and Lahoud should also excuse the defect in the present notice of
appeal. Finally, it is important to observe that the notice of appeal was timely
because it was filed after entry of judgment. See Kaufman v. Campos, 827
A.2d 1209, 1210 n.1 (Pa. Super. 2003) (although appellant erred by filing
notice of appeal from order denying post-trial motions, when appeal in fact
lay from judgment entered on jury verdict, such error did not affect Superior
Court’s jurisdiction because notice of appeal was timely filed under Pa.R.A.P.
903 one day after entry of judgment). Guided by these authorities, we will
treat the defect in Appellants’ notice of appeal as harmless and proceed to
consider the appeal at 2982 EDA 2022. We have corrected the caption of this
appeal to state that it is from the October 27, 2022 judgment.
In their first argument, Appellants contend that Appellee’s praecipe for
entry of judgment on October 27, 2022 was premature because they had the
right to move for reconsideration of the counsel fee order before entry of
judgment, and Appellee could not enter judgment until after the court decided
their motion for reconsideration. We disagree. Appellee’s entry of judgment
was timely under the relevant rules governing post-trial procedure,
Pa.R.Civ.P. 227.1 and 227.4.
Pennsylvania Rule of Civil Procedure 227.1, entitled “Post-Trial Relief,”
requires that post-trial motions be filed within ten days after “filing of the
decision in the case of a trial without jury.” Pa.R.Civ.P. 227.1(c)(2). Rule
227.1(a) prescribes that “[u]pon a motion for post-trial relief,” the court may
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order: (1) a new trial, (2) entry of judgment in favor of any party, (3) removal
of a nonsuit, (4) affirmance, modification, or change to the decision, or (5)
any other appropriate order. Pa.R.Civ.P. 227.1(a).
Pa.R.Civ.P. 227.4 provides in full:
In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party and except as otherwise provided by [Pa.R.Civ.P.] 1042.72(e)(3), the prothonotary shall, upon praecipe of a party:
(1) enter judgment upon a nonsuit by the court, the verdict of a jury or the decision of a judge following a trial without jury, if
(a) no timely post-trial motion is filed; or
(b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion. A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration; or
(2) enter judgment when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so.
Id. (emphasis added).5 The use of “or” between Rule 227.4(1) and 227.4(2)
means that entry of judgment is permissible when either of these subsections
5 The Note to Rule 227.4 provides:
If a motion for delay damages has been filed, judgment may not be entered until that motion is decided or otherwise resolved. See [Pa.R.Civ.P.] 238(c)(3)(i). Rule 1042.72(e)(3) prohibits the entry of judgment in a medical professional liability action if a motion for post-trial relief under Rule 227.1 is pending with respect to the ground that a damage award for noneconomic loss is excessive.
Id. Neither of these exceptions applies to the present case.
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is satisfied; it is not necessary to satisfy both subsections. See In Re
Paulmier, 937 A.2d 364, 373 (Pa. 2007) (“‘or’ is disjunctive. It means one
or the other of two alternatives”).
Rule 227.4(1)(a) establishes that when no timely post-trial motions are
filed, a party may file a praecipe for entry of judgment. In this case, on May
20, 2022, the trial court entered a non-jury decision in favor of Appellee. None
of the parties filed post-trial motions under Pa.R.Civ.P. 227.1. 6 Accordingly,
6 Appellants concede, correctly, that Appellee’s petition for counsel fees was not a post-trial motion. We agree that this petition fell outside the scope of Pa.R.Civ.P. 227.1, the rule governing post-trial motions. The comment to Rule 227.1 provides that “a motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice.” Id. Our Supreme Court held in Miller Electric that a petition for counsel fees under 42 Pa.C.S.A. § 2503(3) is not a post-trial motion. Id., 907 A.2d at 1054. The same holds true for Appellee’s request for counsel fees under Section 2503(9) in the present case. Rules of petition practice govern requests for counsel fees in Chester County. Chester County Civil Rule 241(c) provides, “When counsel fees are sought under the provision of 42 Pa.C.S.[A.] § 2503 as part of the taxable costs of a matter, the party seeking them shall do so by filing an appropriate petition within twenty (20) days of the conclusion of the case in this court. The proceedings shall be conducted under Pa.R.C.P. No. 209 and C.C.R.C.P. 206.1.” Pa.R.Civ.P. 209 has been replaced by Pa.R.Civ.P. 206.1 through 206.7, statewide rules governing petition practice. Similarly, Chester County Rule 206.1 is a local rule governing petition practice.
It further bears mention that “a petition for counsel fees under Section 2503 is … connected to but ancillary to the underlying action.” Szwerc v. Lehigh Valley Health Network, Inc., 235 A.3d 331, 336 (Pa. Super. 2020). As an ancillary matter, a counsel fee petition can be litigated (1) before judgment, as the parties did in the present case, see Hart v. Arnold, 884 A.2d 316, 325 (Pa. Super. 2005), (2) after judgment, Szwerc, 235 A.3d at 336 (party may file petition for counsel fees within thirty days after entry of judgment), or even (3) after an appeal is taken, id.; see also Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 48 (Pa. 2011) (“if the petition for counsel (Footnote Continued Next Page)
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Appellee timely entered judgment on October 27, 2022 under Rule
227.4(1)(a).
Appellants do not dispute that entry of judgment was timely under Rule
227.4(1)(a). Instead, relying on Rule 227.4(2), Appellants argue that entry
of judgment was premature until the trial court denied their motion for
reconsideration of the counsel fee order on November 22, 2002. However,
since Appellee properly entered judgment under Rule 227.4(1), it was not
necessary for Appellee to satisfy Rule 227.4(2). Paulmier, 937 A.2d at 373
(use of “or” between provisions means that only one provision need be
satisfied). Furthermore, and in any event, nothing in the text of Rule 227.4(2)
prohibits entry of judgment pending the disposition of a motion for
reconsideration. To the contrary, the law expressly permits courts to decide
motions for reconsideration after entry of judgment. See 42 Pa.C.S.A. §
5505; Pa.R.A.P. 1701(b)(3).7
fees is timely filed, the trial court is empowered to act on it after an appeal is taken”). No matter when the petition is litigated, however, the fact remains that it is not a post-trial motion under Rule 227.1.
7 Pa.R.A.P. 1701 provides in relevant part:
(b) After an appeal is taken . . . the trial court . . . may:
(3) Grant reconsideration of the order which is the subject of the appeal . . . if:
(i) an application for reconsideration of the order is filed in the trial court . . . within the time provided or prescribed by law; and (Footnote Continued Next Page)
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In their next argument, Appellants assert that the court abused its
discretion in awarding counsel fees to Appellee under 42 Pa.C.S.A. § 2503(9).
We review an award of counsel fees for abuse of discretion, Berg v.
Georgetown Builders, Inc., 822 A.2d 810, 816 (Pa. Super. 2003). We
conclude that Judge Griffith properly exercised his discretion by awarding
counsel fees to Appellee.
Section 2503 provides in relevant part, “The following participants shall
be entitled to a reasonable counsel fee as part of the taxable costs of the
matter: . . . (9) Any participant who is awarded counsel fees because the
conduct of another party in commencing the matter or otherwise was
arbitrary, vexatious or in bad faith.” 42 Pa.C.S.A. § 2503(9). Our Supreme
Court has construed this provision as follows:
An opponent’s conduct has been deemed to be “arbitrary” within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature … An opponent also can be deemed to have brought suit “vexatiously” if he filed the suit without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance … Finally, an opponent can be charged with filing a lawsuit in “bad faith” if he filed the suit for purposes of fraud, dishonesty, or corruption … ____________________________________________
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court . . . within the time prescribed by these rules for the filing of a notice of appeal . . . with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal . . . theretofore or thereafter filed or docketed with respect to the prior order.
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By imposing these strict definitional guidelines, the statute serves not to punish all those who initiate legal actions which are not ultimately successful or which may seek to develop novel theories in the law. Such a rule would have an unnecessarily chilling effect on the right to bring suit for real legal harms suffered … Rather, the statute focuses attention on the conduct of the party from whom attorney fees are sought and on the relative merits of that party’s claims.
Thunberg v. Strause, 682 A.2d 295, 299-300 (Pa. 1996). “Because 42
Pa.C.S.[A.] § 2503(9) reads in the disjunctive, the trial court need[s] only to
find that one of the[se] factors [is] present” in order to award counsel fees.
Id. at 301 n.7 (“since we believe the action was commenced arbitrarily, we
need not address whether [the] initiation of the action was vexatious or in bad
faith”).
Judge Griffith acted within his discretion by awarding counsel fees to
Appellee under Section 2503(9) due to Appellants’ vexatious conduct.
Appellants lacked a sufficient basis in law or fact to commence the action for
confession of judgment. Judge Griffith held in his May 20, 2022 decision and
order that the parties agreed that Appellee would pay monthly sums of
$500.00 on the note. Judge Griffith further held that Appellee was fully in
compliance with the note on February 11, 2020, the date Appellants seized
the truck, because Appellee was current with the payment schedule on
February 11, 2020, the date Appellants seized the truck. Finally, Judge Griffith
held that the value of the truck on the date of seizure was $24,150.00.
Appellants, however, demanded $29,848.50 in their confession of judgment
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action without crediting (or even mention) the value of the truck.
Significantly, Appellants did not file post-trial motions challenging Judge
Griffith’s findings. Nor did Appellants contest these findings when Appellee
raised them in its petition for counsel fees in support of its claim of vexatious
conduct. Given Appellants’ complete failure to refute these findings, Judge
Griffith had ample reason to determine that Appellants’ confession action was
vexatious as it lacked sufficient legal or factual basis.
Judge Griffith also had reason to find that the sole purpose of Appellants’
confession action was to cause annoyance to Appellee. Shortly before filing
the confession and caretaker lawsuits, Appellants demanded well over
$40,000.00 by lumping together multiple claims against Appellee, Hill, and
Riganati. Some of these claims, such as the claim of $9,500.00 for farm
occupancy, or the claim of “fraud,” had never been made throughout the six
months that Hill and Riganati occupied the farmhouse and were not made in
the lawsuits. Appellants’ threats prior to litigation, seizure of the truck, and
two lawsuits were a campaign to intimidate and coerce Hill, Appellee’s sole
member, and Riganati to meet Appellants’ demands. Hill only has a seventh
grade education, whereas Appellant Siana is an attorney. As the trial court’s
Rule 1925 opinion observes, Appellants knew that this disparity in education
and sophistication left Appellee vulnerable to baseless demands for payment,
yet Appellants relentlessly pursued these demands in a meritless confession
action. Opinion at 11.
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Appellants contend that Judge Griffith improperly awarded counsel fees
for their pre-litigation conduct because sanctions for pre-litigation conduct are
not available under Section 2503(9).
As discussed above, Section 2503(9) provides that an award of attorney
fees is permissible when “the conduct of another party in commencing the
matter or otherwise was arbitrary, vexatious or in bad faith.” We have held
that Section 2503(9) does not apply to “conduct that occurred prior to
commencement of [the] suit.” Pentek, Inc. v. Meininger, 695 A.2d 812,
817-18 (Pa. Super. 1997). We also have reasoned that pre-litigation conduct
is relevant to determine whether a party’s state of mind at the time he
commences a lawsuit was arbitrary, vexatious or in bad faith. See Hart, 884
A.2d at 343. Under Pentek and Hart, while pre-litigation conduct is not
ordinarily relevant under Section 2503(9), it becomes relevant when it bears
upon a party’s conduct for commencing and pursuing a lawsuit. In Hart, the
plaintiffs’ attorney’s pre-litigation letters were relevant to the consideration of
whether the plaintiffs’ conduct in commencing and pursuing their civil action
was vexatious. Similarly, in the present case, Appellants’ threats and seizure
of the truck prior to commencement of the confession action were relevant to
whether Appellants’ conduct in commencing and pursuing the confession
action were vexatious.
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Therefore, we affirm Judge Griffith’s order awarding counsel fees to
Appellee.8
Judgment affirmed at 2982 EDA 2022. Appeal quashed at 99 EDA 2023.
Date: 8/21/2024
8 Because we have held that the record supports the determination that Appellants acted vexatiously, we need not address whether their conduct was arbitrary or in bad faith. Thunberg, 682 A.2d at 301 n.7.
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