Shared Communications v. WHTR Real Estate

J-A28014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHARED COMMUNICATIONS SERVICES IN THE SUPERIOR COURT OF
OF ESR, INC., PENNSYLVANIA

Appellant

v.

WHTR REAL ESTATE LIMITED
PARTNERSHIP, SPRINT
COMMUNICATIONS COMPANY LP

No. 92 EDA 2016

Appeal from the Order Entered December 2, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): Nos. 90-04830 and 00-05539

SHARED COMMUNICATIONS SERVICES IN THE SUPERIOR COURT OF
OF ESR, INC., PENNSYLVANIA

Appellant

v.

CALIFORNIA STATE TEACHERS’
RETIREMENT SYSTEMS

No. 92 EDA 2016

Appeal from the Order Entered December 2, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): Nos. 90-04830 and 00-05539

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED APRIL 13, 2017
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
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Appellant, Shared Communications Services of ESR, Inc., (“SCS”)

appeals from the order entered in the Chester County Court of Common

Pleas on December 2, 2015. On remand from this Court’s memorandum of

December 13, 2012, the trial court awarded SCS attorneys’ fees, costs, and

post-judgment interest as the prevailing party in a lawsuit against Appellee,

California State Teachers’ Retirement System (“CalSTRS”), and Defendant

WHTR Real Estate Limited Partnership (“WHTR”). SCS contends that the trial

court erred by failing to award the full amount of attorneys’ fees as

requested in SCS’s petition, failing to make a joint and several award of

attorneys’ fees and costs, and by denying its request for pre-judgment

interest. After careful review, we affirm in part, vacate in part, and remand

for modification of the judgment consistent with this memorandum.

A prior panel of this Court detailed the lengthy factual and procedural

history of this matter. Therefore, we need not repeat them in detail here and

instead direct the reader to that earlier memorandum decision. See Shared

Communications Services of ESR, Inc. v. Travelers Ins. Co., 2319 EDA

2011, at 4-10 (Pa. Super., filed December 13, 2012) (unpublished

memorandum). For the purposes of this appeal, we will briefly detail the

relevant factual and procedural history as follows. On June 8, 1990, SCS

initiated this action by writ of summons against Swedesford Road Joint

Venture I (“Swedesford”), Eastern Telelogic Corporation, a/k/a Teleport

Communications Group (“ETC”), and Sprint Communications Company, L.P.

(“Sprint”). Through its subsequently filed complaint, SCS alleged that in

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September 1986, it entered into an agreement with Swedesford (“STS

Agreement”) to exclusively provide shared tenant services to tenants in a

group of office buildings (collectively, the “Bay Colony”). SCS alleged that

Swedesford breached this STS Agreement by failing to advise the Bay

Colony tenants of SCS’s services.

Due to a bankruptcy filing by Swedesford, SCS’s complaint was not

filed until September 10, 1998. Between 1990 and 1998, Swedesford’s

interest in the Bay Colony and, as a result, the STS Agreement was assigned

first to the Travelers Insurance Company, MetLife Insurance Company, as

successor in interest (“Travelers”), and then, in 1994, to WHTR. Thus, when

SCS filed its complaint sounding in breach of contract, tortious interference

with prospective contractual and business relationships, tortious interference

with existing business relationships, and civil conspiracy, Travelers, ETC,

WHTR, and Sprint were all named as defendants. The trial court

subsequently entered a default judgment against Sprint and dismissed the

charges against Travelers and ETC, leaving WHTR as the sole defendant in

the matter.

Following a considerable motions practice and the dismissal of SCS’s

tort claims against WHTR as improper pursuant to the “gist of the action”

doctrine, SCS’s remaining breach of contract claim against WHTR proceeded

to a jury trial on March 1-6 of 2000. Prior to the jury returning with its

verdict, SCS and WHTR appeared to have reached a settlement agreement

and the jury was discharged. However, the settlement agreement ultimately

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failed, and despite SCS’s petition to enforce the agreement, the matter was

re-listed for trial. Subsequently, WHTR transferred the Bay Colony and the

STS Agreement to CalSTRS, which prompted SCS to file a separate

complaint alleging breach of contract, tortious interference with contractual

relationships, and tortious relationships with prospective contractual and

business relationships against CalSTRS.

Meanwhile, on December 20, 2001, the trial court granted a petition

filed by Sprint to open the default judgment previously entered in the

matter. The trial court severed the case against Sprint from the case against

WHTR and CalSTRS, and the parties, once again, engaged in a zealous

motions practice. In November 2003, the trial court entered an order

precluding SCS from offering, at the Sprint, WHTR and CalSTRS trials, “any

evidence of lost profits.” The trial court certified this ruling for interlocutory

appeal, and, based upon their interpretation of the STS Agreement, a prior

panel of this Court affirmed. Following a jury trial, a verdict was entered

against Sprint in the amount of $76,330.00.

Prior to the trial against WHTR and CalSTRS in 2009, each party filed a

motion for summary judgment. While the trial court denied the motions in

large part, it granted CalSTRS’s request to dismiss all tort claims against it.

Ultimately, following the jury trial in March 2009, a verdict was entered

against WHTR in the amount of $107,300.00 and against CalSTRS in the

amount of $40,000.00. Both parties filed post-trial motions and petitions for

attorneys’ fees and costs pursuant to a “prevailing party” clause in the STS

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Agreement. The trial court denied both the post-trial motions and the fee

petitions. All parties appealed from the judgment, and SCS appealed from

the trial court’s order denying its requested attorneys’ fees. This Court

affirmed the judgment, but vacated the order denying SCS’s petition for

attorneys’ fees and remanded the matter for the trial court to determine and

award attorneys’ fees to SCS as the prevailing party.

Following remand, the parties proceeded with a hearing on May 29 and

August 5, 2014, to determine the amount of attorneys’ fees and costs owed

to Appellant. At the hearing, Appellant presented evidence that its attorneys’

fees and costs, excluding claimed interest, totaled $2,225,617.66. On

December 2, 2015, the trial court ordered Appellee WHTR to pay SCS

$321,900.00 in attorneys’ fees and $196,971.28 in costs. It further ordered

CalSTRS to pay SCS $120,000.00 in attorneys’ fees and $73,593.66 in costs.

Through this order, the trial court also denied SCS’s request for prejudgment

interest on the attorneys’ fees and costs, fixed the per diem costs of post-

judgment interest on the jury awards, and reversed its prior holding that it

was entitled to prejudgment interest on the jury award. This timely appeal

followed.

On appeal, Appellant presents the following issues.

1. Did the trial court err in failing to award the full amount of
legal fees requested in [SCS’s] [p]etition and supporting
evidentiary submissions because, pursuant to the contractual
fee-shifting provision applicable, such fees were reasonable
and the amount awarded by the trial court was unreasonable
and insufficient[.]

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2. Did the trial court err by reversing its prior ruling awarding
prejudgment interest sua sponte five years after judgment
inclusive of such interest had been entered and all appellate
procedures (other than the determination of attorneys’ fees)
had been adjudicated, thereby failing to include such
prejudgment interest in its per diem calculation of post-
judgment interest[.]

3. Did the trial court err when it failed to make a joint and
several award of attorneys’ fees and costs where WHTR and
CalSTRS were represented by a single counsel, in most
instances filed joint papers, made common and overlapping
argument and participated in a joint and highly litigious
strategy and defense, which resulted in Defendants spending
millions defending bona fide claims with common issues of
law and fact[.]

Appellant’s Brief, at 4-5.

Prior to addressing SCS’s issues on the merits, we must first determine

whether SCS has properly presented their issues for our review. In its third

issue on appeal, SCS contends that the trial court erred in failing to make

WHTR and CalSTRS jointly and severally liable for attorneys’ fees and costs.

See Appellant’s Brief, at 39-43. SCS claims that the trial court erred by

failing to order Appellees jointly and severally liable for all fees and costs

because both WHTR and CalSTRS were represented by single counsel, filed

joint papers, and advanced similar arguments throughout litigation. See id.

at 39. However, we note that SCS fails to provide any legal authority that

would support its contention that the trial court erred by failing to make

Appellees jointly and severally liable for the fees and costs. See Pa.R.A.P.

2119(a) (requiring citation to pertinent legal authority in support of a party’s

legal argument). “The failure to develop an adequate argument in an

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appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.”

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)

(citation, brackets, and quotation marks omitted).

Due to SCS’s failure to comply with the requirements of Pa.R.A.P.

2119(a), we are unable to provide meaningful review of this issue. Thus, we

find this issue waived. See, e.g., Beshore; In re Jacobs, 936 A.2d 1156,

1167 (Pa. Super. 2007).

Moving to the issues SCS preserved for appeal, it challenges the trial

court’s decision to award SCS attorneys’ fees and costs in an amount less

than requested by SCS. See Appellant’s Brief, at 4, 23-38. Initially, SCS

contends that the wording of the prior panel’s December 2012 memorandum

decision required the trial court, on remand, to award SCS all of the

attorneys’ fees and costs that it contends were incurred as the “prevailing

party.” See id., at 7, 11-12. Specifically, SCS contends that our directive for

the trial court to “determin[e] and award … SCS’s attorneys’ fees incurred in

connection with the dispute over the STS Agreement” requires that the trial

court award all of the attorneys’ fees incurred by SCS. See id., at 10

(emphasis omitted).

On the contrary, both the trial court and CalSTRS contest this reading

of the December 2012 memorandum decision and contend that the trial

court was permitted by law to examine the reasonableness of SCS’s request

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for $2,225,617.66 in attorneys’ fees and costs. See Appellee’s Brief, at 3.

See also Trial Court Opinion, 12/2/15, at 1.1 We agree.

As mentioned, a prior panel of this Court previously found that SCS

was entitled to attorneys’ fees and costs as the “prevailing party.” See

Shared Communications Services of ESR, Inc., 2319 EDA 2011, at 27.

Specifically, the panel found that

[a]s SCS properly notes, the STS Agreement contains a
provision for the award of attorneys’ fees generated as a result
of any dispute concerning that agreement. The sole question for
the trial court’s consideration was whether either party was a
“prevailing party” such that it would be entitled to such a fee.
This Court in Profit Wize Marketing v. Weist, 812 A.2d 1270,
1275-1276 (Pa. Super. 2002), has provided guidance in making
this determination, stating:

Consistent with this interpretation, we note that the
noun, “prevailing party,” is commonly defined as “a
party in whose favor a judgment is rendered,
regardless of the amount of damages awarded.” While
this definition encompasses those situations where a
party receives less relief than was sought or even
normal relief, its application is still limited to those
circumstances where the fact finder declares a winner
and the court enters judgment in that party’s favor.
Such a pronouncement does not accompany a
compromise or settlement.
____________________________________________

1
We note that both CalSTRS’s brief and the trial court’s opinion contend that
the trial court was required to employ the reasonableness test in relation to
the entire $3,310,460.37 requested by SCS for attorneys’ fees, costs, and
interest. However, we have determined that the request for attorneys’ fees
and costs must be addressed separately, and have thus subtracted the total
amount of interest requested, $ 1,084,842.71, from the total amount
requested, $ 3,310,460.37, to arrive at $ 2,225,617.66 in total attorneys’
fees and costs.

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Profit Wize Marketing, 812 A.2d at 1275-1276 (holding that a
settlement agreement and compromise did not demonstrate that
either party was the “prevailing party”).

A review of the record reveals … a March 24, 2009 verdict
for $147,300.00. The fact-finder in both trials declared
unequivocally SCS the winner. Therefore, we conclude that SCS
is the prevailing party in both trials. Consequently, and pursuant
to the terms of the STS Agreement, SCS is entitled to its
attorneys’ fees. Accordingly we vacate the trial court’s January
14, 2011 order and remand for the determination and award of
SCS’s attorneys’ fees incurred in connection with the dispute
over the STS Agreement.

2319 EDA 2011, at 27.

In reaching this conclusion, the panel relied upon paragraph 19.06 of

the STS Agreement, which provided that “[i]n the event of any dispute

between the parties hereto arising out of or in connection with this

Agreement, the prevailing party shall be entitled to recover from the other

its reasonable attorneys’ fees and costs incurred in connection hereto.” STS

Agreement, 9/30/86, at ¶ 19.06 (emphasis added).

As we previously looked to the provisions of the STS Agreement to

determine whether SCS was entitled to attorneys’ fees and costs, it is a

given that we would look to the STS Agreement to determine the type of

attorneys’ fees and costs that are recoverable pursuant to the fee-shifting

provision. The STS Agreement clearly provides that the prevailing party is

entitled to “reasonable attorneys’ fees and costs.” Id. Thus, SCS is only

entitled to its attorneys’ fees incurred—to the extent they are reasonable.

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Further, even if the STS Agreement did not indicate that the prevailing

party was entitled to only its “reasonable attorneys’ fees and costs,” a trial

court is permitted to inquire as to the reasonableness of a request for

attorneys’ fees before awarding them. See McMullen v. Kutz, 985 A.2d

769, 777 (Pa. 2009). Thus, we find no merit to SCS’s contention that our

December 13, 2012 memorandum decision required the trial court to award

SCS the attorneys’ fees incurred without a reasonableness inquiry.

Next, SCS contends that even if the wording of the 2012

memorandum decision did not mandate the trial court to award the full

amount of fees, costs and expenses that it incurred against WHTR and

CalSTRS, it was still error for the trial court not to do so. See Appellant’s

Brief, at 20-22. As noted above, the trial court found that SCS’s request for

$2,225,617.66 in attorneys’ fees and costs was unreasonable. See Trial

Court Opinion, 12/2/15, at 1-16. Thus, the trial court awarded SCS

$321,900.00 from WHTR and $120,000.00 from CalSTRS as reasonable

reimbursement for attorneys’ fees, as well as $196,971.28 from WHTR and

$73,593.66 from CalSTRS for costs. See id., at 21.

“Appellate review of a trial court’s order awarding attorney’s fees to a

litigant is limited solely to determining whether the trial court palpably

abused its discretion in making a fee award.” Thunberg v. Strause, 682

A.2d 295, 299 (Pa. 1996) (citation omitted).

Our Supreme Court has set forth a number of factors a trial court must

consider in determining a reasonable award of attorneys’ fees, including:

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the amount of work performed; the character of the services
rendered; the difficulty of the problems involved; the importance
of the litigation; the amount of money or value of the property in
question; the degree of responsibility incurred; whether the fund
involved was ‘created’ by the attorney; the professional skill and
standing of the attorney in his profession; the results he was
able to obtain; the ability of the client to pay a reasonable fee
for the services rendered; and very importantly, the amount of
money or the value of the property in question.

In re LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968) (internal

quotation marks and citations omitted). Further, in reviewing the

reasonableness of an award of attorneys’ fees, we recognize that the amount

of attorneys’ fees awarded is

peculiarly within the discretion of the court of first instance. Its
opportunities of judging the exact amount of labor, skill and
responsibility involved, as well as its knowledge of the rate of
professional compensation usual at the time and place, are
necessarily greater than ours, and its judgment should not be
interfered with except for plain error…. [T]he allowance or
disallowance of counsel fees rests generally in the judgment of
the court of first instance and its decision will not be interfered
with except for palpable error.

Id., at 340 (internal citations omitted).

Neither party produced witnesses to testify regarding each invoice or

to assess the time or activity recorded by each of the persons on the

invoices. Instead, CalSTRS and SCS stipulated that the time entries were

factually accurate, and that it was for the trial court to determine if the time

entered by SCS during the course of litigation was reasonable. As such, both

parties agreed to rest on the invoices produced by SCS and the briefs

CalSTRS and SCS submitted in opposition to and in support of the invoices,

respectfully.

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In support of its request for legal fees, SCS offered more than 627

pages of time entries that amounted, in total, to its request for

$2,225,617.66 in legal fees. However, to a large degree, SCS did not

address the reasonableness of its individual time entries in its filings with the

trial court. Instead, SCS generally concluded that the amount requested in

attorneys’ fees and costs was inherently reasonable as it mirrored the legal

fees incurred by WHTR and CalSTRS over the course of the litigation.

Conversely, CalSTRS, in its filings, while noting that SCS’s action in

incurring more than two million dollars in attorneys’ fees and costs was

patently unreasonable, addressed the reasonableness of the individual, as

well as the categorical, time entries of SCS. CalSTRS noted that

approximately $72,835.512 of SCS’s claimed attorneys’ fees appeared to be

attributable to Sprint, and $23,165.00 appeared to be attributable to

Travelers, defendants that for the most part were not parties to the instant

action after 1999. Further, CalSTRS notes that a large number of the time

entries appeared to be block billed, and that SCS did not provide a

breakdown as to the hours expended on the WHTR matter versus the hours

expended on CalSTRS matters. Accordingly, CalSTRS notes that due to these

____________________________________________

2
We note that while CalSTRS initially indicates that $72,835.51 of all fees
were attributable to Sprint, a sentence later it indicates that $72,379.51
should be deducted from the petition prior to determining any award.

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deficiencies, it was unable to assess the reasonableness of each individual

time entry.

After reviewing the documents submitted by both parties, the trial

court utilized the factors set forth in LaRocca and determined SCS incurred

an unreasonable amount of attorneys’ fees in litigating this matter. While the

trial court abided by the parties’ stipulation that all of the work claimed was

performed, the trial court found that SCS’s failure to realistically assess the

case prior to litigation caused an unnecessary amount of work to be

performed in the case.

Specifically, the trial court determined that SCS frivolously pursued

lost profit damages and tort causes of actions that were unavailable under

the clear language of the STS Agreement, inappropriately employed, and

thus incurred costs from, two law firms for the entirety of the litigation, and

failed to use knowledge gained from similar litigation to the case. The trial

court found that even when necessary motions were filed, the attorneys

spent an inordinate amount of time on each motion, further driving up the

claimed attorneys’ fees. Thus, given its review of SCS’s case strategies and

the LaRocca standards, the trial court concluded that “an award of three []

times the compensatory damage award [was] appropriate and constutite[d]

‘reasonable fees.’” Trial Court Opinion, 12/2/15, at 16. Additionally, the trial

court concluded that SCS was entitled to its full costs, and awarded costs

pursuant to this determination.

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On appeal, SCS contends that it was error for the trial court to use

hindsight and substantially reduce SCS’s attorneys’ fee award due to the

trial court’s opinion as to how SCS should have pursued its litigation

strategy. See Appellant’s Brief, at 25-38. Specifically, SCS disputes the trial

court’s ability to reduce its attorneys’ fee award based upon its opinion that

SCS frivolously pursued lost profit damages and tort causes of action,

inappropriately employed two law firms for the entirety of the litigation, and

failed to otherwise minimize its legal fees. See id. Additionally, as was its

main claim at the hearing addressing attorneys’ fees, SCS contends that one

need only look at CalSTRS’s similarly large legal fees incurred over the

course of litigation to determine that SCS’s purported legal fees were

reasonable. See id., at 9, 20, 24-25.

Accordingly, SCS urges us to remand to the trial court to enter an

order granting SCS all of the claimed legal fees involved. See id., at 22.

Pennsylvania Courts have previously addressed a trial court’s award of

attorneys’ fees where the fee claimed was disproportionate to the amount

awarded. In Mountain View Condominium Association v. Bomersbach,

734 A.2d 468 (Pa. Cmwlth. 1999), the Commonwealth Court3 held that a
____________________________________________

3
“We of course recognize that a decision of the Commonwealth Court is not
binding precedent upon this Court; however, it may be considered for its
persuasive value.” Holland ex rel. Holland v. Marcy, 817 A.2d 1082, 1083
n.1 (Pa. Super. 2002) (en banc) (citation and internal quotation marks
omitted).

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trial court did not abuse its discretion in awarding $46,548.64 in attorneys’

fees on a $1,200.00 claim where the trial court found that the nature of the

litigation warranted the full award. However, it has been held that a trial

court does not abuse its discretion in awarding the prevailing party only a

portion of its fees where the party does not prove the reasonableness of its

request. See Township of Millcreek v. Angela Cres Trust of June 25,

1998, 142 A.3d 948 (Pa. Cmwlth. 2016) (affirming a trial court’s award of

$517,868.00 in attorneys’ fees costs and expenses where the prevailing

party failed to prove the reasonableness of its request for $3,359,900.33 in

attorney’s fees, costs and expenses).

Based upon these cases, the Commonwealth Court has found that

[t]his precedent indicates that, as long as the trial court reviews
the record and considers factors such as the nature and length of
the litigation, the responsibilities of the parties in affecting the
nature and length of the litigation, and the competitiveness of
the rate and time expended, it is difficult for an appellate court
to hold that a trial court abused its discretion in issuing a
particular award of attorney’s fees.

Arches Condominium Ass’n v. Robinson, 131 A.3d 122, 132-133 (Pa.

Cmwlth. 2015).

Here, the trial court appropriately applied the LaRocca factors to

SCS’s request for attorneys’ fees. Pursuant to the trial court’s findings of

fact, which are supported by the record, the trial court determined that the

amount of work performed was far in excess of what was necessary for the

difficulty of the case and the amount of money or the value of property in

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question. While SCS contests the way that the trial court came to this

conclusion, i.e., by applying hindsight to SCS’s trial strategy, we find that

the trial court adequately set forth its reasoning for these findings. As we are

required to give deference to the trial court’s factual findings and judgment,

we conclude that SCS’s argument lacks merit. See LaRocca, 246 A.2d at

340.

Further, we observe that we generally do not support a trial court’s

use of a multiplier, as applied to the compensatory damage award, to arrive

at a reasonable attorneys’ fee. However, our painstaking review of the

record reveals that it is not possible to determine the reasonableness of

SCS’s request from its voluminous time entries alone, as the entries appear

to include time expended on litigation that was separate from the instant

action, block billed time entries, and largely failed to differentiate between

the times expended on each of the defendants in this matter. Additionally,

we have no other way to assess the reasonableness of SCS’s request as SCS

failed to present any testimony regarding the reasonableness of its individual

time entries and largely rested upon generalized conclusions concerning its

entitlement to the attorneys’ fees in its petitions.

Therefore, under these specific circumstances, we cannot say this

decision was “palpable error,” given the fact that SCS presented minimal

evidence to prove the reasonableness of its request for attorneys’ fees and

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costs. Id., at 340. Accordingly, SCS’s contention that the trial court erred in

fashioning its award of attorneys’ fees is without merit.

Lastly, SCS claims that the trial court erred by failing to award

prejudgment interest on the awards for the jury verdict and attorneys’ fees

and costs. See Appellant’s Brief, at 4. First, Appellant claims that it was

error for the trial court to retroactively eliminate the prejudgment interest of

$76,986.19 against WHTR and $20,189.06 against CalSTRS as the trial court

had previously awarded SCS under its January 13, 2011 order. See

Appellant’s Brief, at 44. It contends that the trial court was without

jurisdiction to modify the terms of its prior order more than four years after

the entry of its previous order. See id. at 45.4 We agree.

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4
SCS also contends that, even if the trial court had the jurisdiction to
eliminate its previous award of prejudgment interest on the jury verdict, this
was error as Pennsylvania state law provides that prejudgment interest “is a
legal right when there has been a recovery based on a breach of contract
cause of action.” Appellant’s Brief, at 46 (citing Verner v. Shaffer, 500 A.2d
479, 482 (Pa. Super. 1985). SCS’s statement of the law is misleading. In
Pennsylvania, while trial courts must award prejudgment interest on some
breach of contract claims, trial courts have discretion on whether or not to
award prejudgment interest on other breach of contract claims. See Fidelity
Bank v. Com. Marine and Gen. Assurance Co., 592 F.Supp. 513, 522
(E.D. Pa. 1984). Specifically, the Restatement (Second) of Contracts, which
Pennsylvania follows, provides that prejudgment interest is awarded as a
matter of right only on breach-of-contract damages ascertainable from the
terms of the contract, while, in all other circumstances, prejudgment interest
is awarded at the trial court’s discretion. See Restatement (Second) of
Contracts § 354.

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Under Pennsylvania law, a trial court is permitted to modify or rescind

any order within thirty days, provided that no appeal from the order has

been taken. See 42 Pa.C.S.A. § 5505. Following this thirty-day period, the

order becomes final and the trial court is without jurisdiction to sua sponte

modify an order unless it is to correct a clerical mistake which does not

require the exercise of discretion. See Stockton v. Stockton, 698 A.2d

1334, 1338 (Pa. Super. 1997).

Here, the record reflects that neither party requested that the trial

court revisit its decision concerning prejudgment interest. Thus, because the

decision to vacate an award requires an exercise of discretion, it was clearly

error for the trial court to revisit this matter and vacate its previous award to

SCS of $76,986.19 in prejudgment interest from WHTR and $20,189.06 in

prejudgment interest from CalSTRS.

Further, the trial court’s action patently exceeded the scope of our

remand order. “A trial court has an obligation to comply scrupulously,

meticulously, and completely with an order of the [appellate c]ourt

remanding a case to the trial court.” Commonwealth v. Williams, 877

A.2d 471, 474 (Pa. Super. 2005) (citation omitted). Issues not included in

the remand mandate cannot be considered by the trial court. See id., at

475.

We therefore remand this matter to the trial court and direct the

reinstatement of these prejudgment interest awards.

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Finally, SCS contends that the trial court erred by failing to award it

prejudgment interest on its request for attorneys’ fees. See Appellant’s

Brief, at 52. “Our review of an award of prejudgment interest is for abuse of

discretion.” Kaiser v. Old Republic Ins. Co., 741 A.2d 748, 755 (Pa.

Super. 1999) (citation omitted).

Under Pennsylvania law, the right to prejudgment interest in a

contractual dispute “begins at the time payment is withheld after it has been

the duty to the debtor to make such payment.” Fernandez v. Levin, 548

A.2d 1191, 1193 (Pa. 1988). There is a dearth of Pennsylvania state law

addressing a request for prejudgment interest on an award of attorneys’ fees

under a contractual fee-shifting provision. However, the United States Court

of Appeals for the Third Circuit has interpreted Pennsylvania law in relation

to this exact issue.

In PPG Indus., Inc. v. Zurawin, the Court held that because

Pennsylvania law provides that prejudgment interest does not accrue until

the time payment is withheld, prejudgment interest cannot accrue on an

award of attorneys’ fees and costs pursuant to a contractual fee-shifting

provision because the obligation to pay these fees does not arise until the

trial court enters a final judgment. See 52 Fed. App’x 570, 581 (3d Cir.

2002).

We agree with the Third Circuit’s interpretation of Pennsylvania state

law and adopt it as our own. Thus, because prejudgment interest does not

arise on an award of attorneys’ fees and costs pursuant to a contractual fee-

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shifting provision, we cannot find that it was error for the trial court to fail to

award prejudgment interest on SCS’s award of attorneys’ fees and costs.

Order affirmed in part, vacated in part. Remand for modification of the

judgment consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017

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