PECO Energy Co v. First Montgomery

J-A12013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PECO ENERGY COMPANY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

FIRST MONTGOMERY PROPERTIES, LTD.,
THE FAIRWAYS APARTMENTS
ASSOCIATES, L.P., FAIRWAYS
APARTMENTS G.P., INC., FMP/LAKESIDE
ASSOCIATES, L.P., AND FMP/LAKESIDE
PROPERTIES, INC.,

Appellants No. 2100 EDA 2015

Appeal from the Judgment Entered August 20, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2010-04274-CA

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 30, 2016

First Montgomery Properties, Ltd. (FMP), The Fairways Apartments

Associates, L.P., Fairways Apartments G.P., Inc., FMP/Lakeside Associates,

L.P., and FMP/Lakeside Properties, Inc. (collectively Appellants) appeal from

the judgment entered in favor of PECO Energy Company (PECO) in the

amounts of $109,612.61 and $27,118.76 against Appellants, jointly and

severally, plus interest. We affirm.

PECO filed this collection action against Appellants, who are the

owners of residential rental properties, to recover payment for utility
____________________________________________

*
Former Justice specially assigned to the Superior Court.
J-A12013-16

services it supplied to Appellants’ tenants.1 Following a bench trial that

resulted in a verdict in favor of PECO, Appellants filed post-trial motions,

which were granted to the extent that the verdict was adjusted to include

joint and several liability. See Trial Court Order, 6/9/15. Appellant’s other

post-trial motions were denied.

Appellants appealed to this Court and submitted a concise statement

of errors complained of on appeal in response to the court’s order. See

Pa.R.A.P. 1925(b). The trial court issued an opinion on September 2, 2015,

that addressed the issues raised by Appellants. The court’s opinion relied

extensively on a lengthy footnote contained in its previously issued June 9,

2015 order that addressed all of the issues raised by Appellants in this

appeal.

In addressing Appellants’ issues, we are “limited to determining

whether the trial court’s findings are supported by competent evidence,

whether errors of law have been committed, or whether the trial court’s

determinations demonstrate a manifest abuse of discretion.” McShea v.

City of Philadelphia, 995 A.2d 334, 338 (Pa. 2010). Moreover,

[w]hen this Court entertains an appeal originating from a non-
jury trial, we are bound by the trial court’s findings of fact,
unless those findings are not based on competent evidence. The
____________________________________________

1
In 2003, Appellants had entered into a contract with ConServe to handle
billing for PECO’s services. The deficient payments to PECO arose as a result
of ConServe’s continuing to bill Appellants’ tenants, while stopping its
payments to PECO in 2008.

-2-
J-A12013-16

trial court’s conclusions of law, however, are not binding on an
appellate court because it is the appellate court’s duty to
determine if the trial court correctly applied the law to the facts.

Id.

We have reviewed the extensive certified record, the briefs of the

parties, the applicable law, and the thorough and well-crafted opinion

authored by the Honorable Edward Griffith of the Court of Common Pleas of

Chester County, dated September 2, 2015. We conclude that Judge

Griffith’s comprehensive opinion properly disposes of the issues presented

by Appellants on appeal and we discern no abuse of discretion or error of

law. Accordingly, we adopt Judge Griffith’s opinion as our own and affirm

the judgment on that basis.

Judgment affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2016

-3-
 Circulated 08/12/2016 08:49 AM

PECO ENERGY COMPANY IN THE GOURT OF COMMON PLEAS
· Plaintiff
. v .. CHESTER COUNTY, PENNSYLVANIA
FIRST MONTGOMERY PROPERTIES, NO. 2010-04274
· LTD., individually and t/a FIRST
MONTGOMERY GROUP, THE : CIVILACTION-LAW
FAIRWAYS APARTMENTS·.
ASSOCIATES, LP;, individually and t/a
FAIRWAYS APARTMENTS, FAIRWAYS
APARTMENTS G.P., INC.,
FMP/LAKESIDE ASSOCIATES, LP.
in~i¥1dually and t/a MELROSE STATION
APARTMENTS and FMP/LAKES]DE
PRO.PERTIES, INC.
Defendants

OPINIQN
Defendants, First Montgomery Properfles, Ltd., The Fairways Apartments
Associates, L.P., Fairways. Apartments ·G.P.,· lnc., FMP/Lakeside Associates,
LP., and FMP/Lakesjcte Properties; · Inc. (collectlvely, 'Defendants"), have
appealed from ord~rs entered June 9, 201511nd March 1·8, 2014..
Plaintiff, PECO ·Energy Company.' brought this action to recover sums for
. . . . . .
electrical service .. delivered by PECO to 'resldentlal rental properties owned by
Defendants. Following a· bench trial, a declslon was entered on February 4, 2015
In favor of Plaintiff, PECO Energy Company. Thereafter, Defendants filed a post-
trial motion. The order entered June 9, 2016 granted Defendants some post-trlal
relief, specifically, the award was restated to take into account the Joint and·
several liability of the various defense entitles for the debt owed to PECO;
however, most of the relief Defendants sought post-trial was denied." The order
entered March 18; 2014 had denied Defendants' rnotlon for summary judgment.
Because. the foomote to the June 9, · 2015 Order addresses the issues
preserved by Defendants in their Statement of Matters Complalned of on Appeal,
we reproduce the footnote here2 forthe 'convenlence of the reviewing court:
This is a· collection acflon brought by Plaintiff, · PECO Energy
Cor;npany 1("PECQ11)1 to recover sums for utility. services, electric·
1 Erroneously stated as July 9, 2016 In the Notice of Appeal.
2
Typographical errors have been corrected. .

1157(a)
 and gas, that PECO delivered to resldential rental properties owned
by. Defendants, First Montgomery Properties, Ltd., lndlvldually and
tla First Montgomery Group ("First Montgomery"), The Fairways
Apartments Associates, LP., Individually and t/a Falrways
Apartments, Fairways Apartments G.P.1 Inc., FMP/Lakeslde
Associates, L.P. Individually and· t/a Melrose Station Apartments
and FMP/Lakeside Properties, Inc. · . ·
Defendants operate apartment complexes, Including The ·
Fairways Apartments and Townhomes ("the Fairways Apartments")
and · Melrose Station Apartments· ("the Melrose
Apartme.nts")(collectlvely, "the Apartment Complexes"). This action
concerns the collection of eighteen past due accounts, fourteen at
.the Fairways Apartments and four at the Melrose Apartments.
On June 24, 2003, First Montgomery entered Into a contract
with Conserve Energy ("Conserve") to manage billing for PECO
·s.upplled utlllty services to the Apartment Complexes:
Before June 24, 2003, tenants of the Apartment Complexes
were billed by and paid PECO for utility servlces. .
Subsequent to June 24, 2003, tenants of the Apartment
Complexes were billed by and paid Conserve for utility services.
To facilitate the transition to Conserve as a billing agent, PECO's
metering of Individual tenant's units was ended and PECO Installed
master meters at the Apartment Complexes. Electrlclty delivered by
PECO to the master meters was routed. through underground
transformers Installed by. Conserve and then delivered to individual
tenant's units, where Conserve had -Installed their own metering
equipment. Conserve was responslole for paying PECO for
electricity delivered to the master meters. .
Defendants, as owners/operators of the Apartment Complexes,
were the rate payers or customers of PECO at all times. First
Montgomery directed· PECO to cooperate wlt.h its agent, Conserve,
In setting up a master meter/master account system at the
Apartment. Complexes. First Montgomery directed PECO to send
bills for utility services to Conserve. ·
In or about February, 2008, whlle still collecting payments from
the tenants, Conserve stopped paying PECO and Defendants'
accounts with PECO. fell Into arrears. On April 5, 2010, PECO
commenced this action for breach of contract and · unjust
: enrichment. At trial, PECO established that when suit was
commenced the fourteen accounts as the Fairways Apartments had
an unpaid balance of $109,612.61 and the· four accounts at the
Melrose Apartments had an unpaidbalance of $27,118.76. These
balances were cornprlsed of unpaid charges for utilities as well as
late payment charges that posted monthly.
There had been prior litlgatlor:i between PECO and the Fairways
Apartments defendants, specltlcally, First Montgomery Properties,

2

1158(a)
 · Ltd., The Fairways Apartments Associates, LP., Fairways
Apartments· G.P., inc., FMP/Fairways Associates, L.P. and
FMP/Falrways, Inc. ("Prior Litigation"). On February 12, 2009, a
. settlement agreement resolved the Prior Litigation f'the ..Settlement _ .
Agreement"). The Prior Litigation concerned fourteen Fairways
Apartments' accounts, each separate and distinct from the eighteen
accounts Involved in the current-litigation. ·
Following a bench trial on January 13, 2015 and entry of our
verdict, Defendants filed posHrlal motions, which we now address.
Damages ewera: . ·
We found merit In Defendants' claim that the damages award·
was- lnc.orrectly stated. Our order was amended to 'accurately state
Defendants' liability. ·
Exclusion of evidence of the Settlement Agreement:
· On PECO's motion In limine, evidence of the Settlement
Agreement was precluded from trial. Defendants contend that the
Settlement Agreement contains a general release- that bars the
claims asserted in this action and should have been admitted at
.trial. .
In the Prior Litigation, PECO had sought the appointment of a
·receiver to collect $163,758.71 In past· due utility bills at the
Fairmont Apartments. The Settlement Agreement recites:
WHEREAS, as of January 12, 2009, PECO Energy alleges
that First Montgomery owes PECO Energy the amount of
$163,758.71 for utility service provided to First Montgomery
under the account numbers referenced In Exhibit A (the
"Debt'');
(Settlement Agreement, p.1) Exhibit A, which defines "the Debt"
that Is the subject of the Settlement Agreement, consists solely of
this chart: ·
First Montgomery Group
Account Premlse Address Balance as of Current Due Date
Number 1/12/09 ·Bill
11033-0142? 400 MONTGOMERY BLVD. G3BTIIORNDALB PA 193?2 $19.284.09 $2103.92 02/ffllOO
38882-00600 O OVERLEAF DR. 040 TIIORNDALB PA 193?2 s122ss.n $1 7?4.20 O'lJOOI09
35?88-02226 38SKYVIBWLN F4DTH0RNDALEPA 193?2 · $J6 393.69 Sl?92.?6 02/02/09
26.S0?-01100 OGREBNDIUARLN. 02DTIIORNDALBPA 193?2 $JS 266.48 SI 466.S8 . ffllffll09
14128-01908 200 MONTGOMERY BLVD. A3F THORNDALE PA 193?2 $12,443:SS $1122.44 02/02/09
45068-0080? OTURTLBPOINTLN GSETHORNDALBPA 193?2 . $1?0?6.80 $1803.58 02/02/09
4 I 975,00802 O TURTLBPOINfLN, H40 TIIORNDALE PA 193?2 $16 64l.S3 $1.894.24 (f)J02/09
45069·00600 O BLUFF RD. H4F 11-IORNDALE PA 193?2 $S 829,39 sm.2s W02109
48161.00200 · O BLUFF RD H48 THORNDALE PA 193?2 $8 986.<.iS SI 097.?9 02/0'}/00
48161i