Niagara Village v. HDSC08 ( 2019 )

J-S50022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NIAGARA VILLAGE LIMITED : IN THE SUPERIOR COURT OF
PARTNERSHIP : PENNSYLVANIA
:
:
v. :
:
:
HDSCO8, LLC AND VALERIE S. :
GILREATH : No. 22 WDA 2018
:
Appellants :
Appeal from the Judgment Entered November 30, 2017
In the Court of Common Pleas of Erie County
Civil Division at No(s): No. 11532-2016
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 06, 2019
HDSCO8, LLC and Valerie S. Gilreath (hereinafter “Tenant”) appeal from
the judgment entered November 30, 2017, in the Erie County Court of
Common Pleas in favor of Niagara Village Limited Partnership (hereinafter
“Landlord”). The trial court entered judgment in the amount of $38,809.01,
following a jury verdict for Landlord in this action to recover damages for
breach of a commercial lease. On appeal, Tenant contends the trial court
erred or abused its discretion in: (1) precluding Tenant from arguing it was
constructively evicted from the premises; (2) precluding Tenant from arguing
the lease was never signed by Landlord; (3) permitting hearsay evidence in
support of Landlord’s purported damages; and (4) awarding counsel fees to
Landlord. For the reasons below, we affirm.
J-S50022-18
We have gleaned the following facts from the record. On July 12, 2011,
Landlord entered into a commercial lease with Tenant for a medical office in
Erie, Pennsylvania.1 The lease was for a term from August 1, 2011, until
December 31, 2016. In February of 2014, Tenant informed Landlord that it
intended to move to Arizona. Under the terms of the Lease, the Tenant was
not permitted to sublet the office “without Landlord’s prior written consent,
which consent shall be in Landlord’s sole judgment[.]” Complaint, 6/7/2016,
Exhibit A, Facility Lease, 7/12/2011, at ¶ 16. Although Tenant produced two
potential sub-tenants, neither were accepted by Landlord. In June of 2014,
Tenant abandoned the premises, moved out of state, and neglected to pay
any further rent.
On June 7, 2016, Landlord filed a complaint against Tenant seeking
damages as a result of Tenant’s breach of the lease.2 After both parties filed
preliminary objections and later withdrew them, Tenant filed an answer to the
complaint on September 22, 2016. The case proceeded to an arbitration
hearing on January 12, 2017. That same day, the arbitrators entered an
award in favor of Landlord and against Tenant in the amount of $42,291.70.
Tenant filed a timely appeal to the Erie County Court of Common Pleas.
____________________________________________
1 The Lease lists the tenant as HDSC08. Valerie Gilreath, the doctor operating
the office, signed a separate Guaranty of Lease.
2 The damages sought included, inter alia, unpaid rent, improvements
required for a new tenant, and a leasing commission.
-2-
J-S50022-18
Following a trial, on September 15, 2017, a jury found for Landlord, and
awarded damages in the amount of $30,684.57, against Tenant. Both
Landlord and Tenant filed timely post-trial motions. Tenant challenged the
trial court’s exclusion of certain defenses and its admission of hearsay
evidence of damages. Landlord sought an additur and attorneys’ fees. On
November 29, 2017, the trial court conducted a hearing on the motions for
post-trial relief, and, thereafter, entered an order: (1) denying Tenant’s post-
trial motions and Landlord’s request for an additur, and (2) granting Landlord’s
request for attorneys’ fees in the amount of $8,124.44. The court also entered
judgment for Landlord in the amount of $38,809.01. This timely appeal
followed.3
On February 27, 2018, the trial court filed an opinion, noting that
although Tenant had requested the trial transcript, it “failed to make any
payment or deposit for the transcription of any of the court proceedings in this
case pursuant to Pa.R.A.P. 1911(a), Rule of Judicial Administration 4007(D),
and Erie County Rule of Judicial Administration 4007(B).” Trial Court Opinion,
2/26/2018, at 5. Therefore, the court concluded Tenant had waived most of
its claims on appeal. See id. at 6. Nevertheless, the court was able to address
two of Tenant’s issues which did not require review of the transcript. See Id.
____________________________________________
3On January 3, 2018, the trial court ordered Tenant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Tenant
complied with the court’s directive and filed a concise statement on January
24, 2018.
-3-
J-S50022-18
at 6-10 (addressing claims that (1) the lease was unenforceable because the
copy attached to the complaint was not signed by Landlord, and (2) the award
of attorneys’ fees was improper). Sometime after the court authored the
opinion, Tenant submitted payment for the trial transcripts, and they were
included in the certified record that was provided to this Court on appeal.
Therefore, on November 9, 2018, we remanded the case to the trial court, so
that it could issue a supplemental opinion, addressing the claims it found
waived based upon the lack of a transcript. The court then filed a
supplemental opinion on December 27, 2018.
Tenant raises the following claims on appeal:
1) the trial court erred in precluding Tenant from presenting
evidence that it was justified in breaking the lease based upon
Landlord’s constructive eviction;
2) the trial court erred in precluding Tenant from arguing the
lease was not legally binding because it was not signed by
Landlord;
3) the trial court erred in permitting Landlord to prove damages
by impermissible hearsay;
4) the court erred in awarding Landlord attorneys’ fees; and
5) the trial court abused its discretion by failing to enter judgment
for Tenant.
See Tenant’s Brief at 18, 23-24, 26-27.4
____________________________________________
4 We note Tenant lists two additional claims in the statement of questions
involved section of its brief: (1) the court erred in finding that “over $22,500”
of “‘build-out’ sums” included in the verdict was reasonable and necessary;
and (2) the amount of unpaid rent was “factually incorrect.” Tenant’s Brief at
-4-
J-S50022-18
It is well-settled that “we review challenges to the trial court’s
evidentiary rulings for an abuse of discretion.” MB Fin. Bank v. Rao, ___
A.3d ___, ___, 2018 Pa. Super. 353, *3 (Pa. Super. Dec. 24, 2018). Our review
of a court’s decision to permit attorneys’ fees is also limited to whether the
court abused its discretion. See Krishnan v. Cutler Grp., Inc., 171 A.3d
856, 871 (Pa. Super. 2017).
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court thoroughly addressed and
properly disposed of Tenant’s first four issues on appeal in its original and
supplemental opinions. See Trial Court Opinion, 2/26/2018, at 6-10;
Supplemental Opinion, 12/27/2018, at 2-7 (finding (1) Tenant waived claim
that it was justified in breaking the lease or constructively evicted from the
premises when it failed to plead either defense in new matter pursuant to
Pa.R.C.P. 1030(a); (2) Tenant waived argument that the lease was never
signed by Landlord when (a) it failed to raise statute of frauds claim in new
matter, and (b) admitted it entered into a lease with Landlord in its answer;
(3) evidence of a demand email, accompanied by receipts of damages, was
properly admitted as a business record to prove Landlord’s damages, when
the manager of the property, who created the document, testified; and (4)
____________________________________________
8. However, neither of these claims are addressed in the argument portion of
Tenant’s brief. Accordingly, they are waived on appeal. See Kessler v. Pub.
Documents Pen Register & Wire Taps, 180 A.3d 406, 410 (Pa. Super.
2018).
-5-
J-S50022-18
award of attorneys’ fees was both provided for in the lease, and reasonable
based upon testimony provided at the post-trial hearing). Accordingly, we
rest on the court’s well-reasoned bases.
With regard to Tenant’s fifth claim, we find it is simply a restatement of
its first two issues. Indeed, Tenant asserts, without citation to the record or
any authority, that the court was “incorrect” in refusing to grant a compulsory
nonsuit, directed verdict, or binding instructions in its favor based upon the
fact it was constructively evicted from the office and/or the lease was never
signed by the Landlord. Tenant’s Brief at 27-28. As we have already
determined these claims are meritless, Tenant’s fifth issue similarly fails.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2019
-6-
Circulated 01/14/2019 10:29 AM
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LIMITED PARTNERSHIP,
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HDSC08, LLC and NO. 11532 -2016
VALERIE S. GILREATH, �·_ ... 0)
Defendants C)
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Attorneys:
Timothy D. McNair, Esq. -Niagara Village Limited Partnership (Appellee)
OPINION
Domitrovich, J., February 261\ 2018
This matter is before the Pennsylvania Superior Court on Defendants' HDSC08, LLC and
Valerie S. Gilreath (hereinafter "Appellants") appeal from this Trial Court's Order dated
November 2911\ 2018. Although Appellants served this Trial Court with a Concise Statement of
Matters Complained of on Appeal (hereinafter "Concise Statement"), which raises six (6) issues,
Appellants have failed to comply with the mandates set forth in Pa.R.A.P. 191 l(a) since
Appellants have failed to make any necessary payment or deposit for transcription of the comi
proceedings in this case pursuant to Rule of Judicial Administration 4007(D) and Erie County
Rule of Judicial Administration 4007(B) (Attached are Exhibits A through E). Without the
availability of the critical information that transcripts provide, this Trial Court's ability to draft a
thorough and accurate Opinion, and the Superior Court's ability to review this instant appeal, are
severely hampered.
This Opinion addresses the issue of whether Appellants' Errors Complained of on Appeal
requiring transcripts of the court proceedings in this case should be deemed waived for failure to
make any necessary payment or deposit for said transcripts. Nevertheless, this Trial Court will
also attempt to address two of the issues Appellants raised on appeal notwithstanding the absence
Page 1 of 10
of these transcripts: (1) whether Appellants are precluded from raising the issue concerning the
validity of the Facility Lease since Appellants unqualifiedly admitted Appellants entered into the
Facility Lease in their pleadings; and (2) whether the award of attorney's fees is justified
pursuant to the Facility Lease and reasonable under the circumstances.
This Trial Court hereby provides the following factual and procedural background:
Appellee filed a Civil Complaint in the Erie County Court of Common Pleas on June r: 2016.
Thereafter, on July 22 d, 2016, Appellee served a ten-day Default Notice upon Appellant Valerie
11
S. Gilreath. Appellants filed Preliminary Objections on August 4t11, 2016. Appellee filed
Preliminary Objections to Appellants' Preliminary Objections and a Brief in Supp011 on August
is'', 2016. Prior to the hearing on both parties' Preliminary Objections, both counsel agreed to
withdraw their respective Preliminary Objections, and this Trial Court issued an Order on
September 2?1\ 2016 cancelling the hearing on the Preliminary Objections. Appellant Gilreath
filed her Answer to Appellee's Complaint on September 22"d, 2016.
Appellee filed a Praecipe for Reference to Arbitrators on October 131h, 2016. Matthew W.
McCullough, Esq.; Christopher J. Sinnott, Esq.; and Jessica A. Fiscus, Esq., were chosen as
Arbitrators on October 251\ 2016. An Arbitration Hearing was scheduled for January lih, 2017.
At the conclusion of the Arbitration Hearing, the Arbitrators found in favor of Appellee and
against Appellants in the total amount of $42,291. 70.
Appellant Gilreath filed a Notice of Appeal from Award of Arbitrators on February 101\
2017. AppeJlee filed a Pre-trial Narrative Statement on April 4th, 2017 and filed a Certification II
on June 23rd, 2017. Appellants filed a Certification on June 26th, 2017. Appellants filed their Pre-
trial Narrative Statement on June 261\ 2017. A Status Conference was held on July 191h, 2017.
Following said Status Conference, this Trial Court (1) scheduled the instant civil action for jury
Page 2 of 10
trial on September 151\ 2017; (2) set a date for a second Status Conference on August 81\ 2017;
and (3) directed both counsel to provide proposed Voir Dire questions, Jury Instructions, and
Verdict Slips on or before September 51\ 2017.
A Civil Jury Trial was held on September I 5°\ 2017, following which the jury entered
judgment in favor of Appellee in the amount of $30,684.57.
On September 22"d, 2017, Appellee filed its Motion for Post-Trial Relief wherein
Appellee requested relief in the form of additur and attorney's fees. On the same date, Appellants
filed their Motion for Reconsideration and/or Post-Trial Relief Rule 227 .1. By Order dated
September zs", 2017, this Trial Court scheduled a Rule to Show Cause for September 291\
2017. After this Trial Court heard oral argument by counsel at the September 291\ 2017 hearing,
this Trial Court directed the parties, by Order dated September 29th, 2017, to submit Memoranda
of Law on the relevant issues presented in said post-trial motions within fifteen days from the
date of said Order.
Appellants submitted their Memorandum of Law on October 131\ 2017, and AppeJlee
filed its Memorandum of Law on October 161h, 2017. Appellants thereafter filed their Motion to
Strike on October 19 1\ 2017, wherein Appellants requested this Trial Court to strike the
1
Memorandum of Law filed by Appellee, alleging Appellee's Memorandum of Law was
purposely filed untimely as to make Appellee's Memorandum of Law a response to Appellants'
Memorandum of Law. This Trial Court, by Order dated October 191'\ 2017, scheduled a Rule to
Show Cause for November 291\ 2017, on the Post-Trial Motions, the Memoranda of Law
submitted by both counsel, and Appellants' Motion to Strike.
On November 29th, 2017, after the scheduled hearing on Appellants' Motion to Strike and
AppeJlee's Motion for Post-Trial Relief, by Order dated November 291\ 2018, this Trial Court:
Page 3 of 10
(1) granted Appellee's Motion for Post-Trial Relief to the extent that this Trial Court awarded
reasonable attorney's fees in the amount of $8,124.44, but denied the remainder of Appellee's ·
Motion for Post-Trial Relief; (2) denied Appellants' Motion for Reconsideration and/or Post-
Trial Relief Rule 227.1 and Motion to Strike; and (3) directed the Erie County Prothonotary's
Office to enter judgment in favor of Appellee and against Appellants in the total amount of
$38,809.01. Appellants appealed this Order dated November 291h, 2017.
Appellants filed the instant Notice of Appeal to Superior Court on December 2ih, 2017.
This Trial Court filed its 1925(b) Order on January 3rd, 2018 in which it directed Appellants to
file their Concise Statement within twenty-one days of the date of said Order. Appellants served
this Trial Court with a Concise Statement on January 22"d, 2018 and filed said Statement on
January 24 2018. The issues Appellants raised in their Concise Statement are difficult to
1'\
decipher, and written transcripts are necessary to fully address these issues; nevertheless, this
Trial Court has determined that two of the Errors Complained of by Appellants may be
addressed upon review of the case record. However, the written transcripts are necessary for the
remaining issues raised in Appellants' Concise Statement that reference testimony elicited during
the jury trial, indicate evidentiary determinations this Trial Court made during trial, and discuss
the evidence upon which the jury based Appellee's damage award. (See Appellants' Concise
Statement at ,r 1-5). As of the date of this Opinion, Appellants have failed to make any necessary
payment or deposit as required under Pa.R.A.P. 191 l(a), Rule of Judicial Administration
4007(D), and Erie County Rule of Judicial Administration 4007(B) (See Email from Court
Reporter Samantha Reed and Three Letters from Chief Court Reporter Sylvia M. Waid to Judge
Domitrovich, dated Feb. 1, 2018; Feb. 15, 2018; and Feb. 26, 2018 (Attached as Exhibits A
through E)). Indeed, th.is Trial Court patiently waited for Appellants to make any necessary
Page 4 of 10
payment or deposit to the Court Reporter and monitored whether Appellants made such payment
or deposit until the due date of this l 925(a) Opinion on February 261\ 2018.
Although AppeJlants requested the trial transcripts, Appellants have failed to make any
payment or deposit for the transcription of any of the court proceedings in this case pursuant to
Pa.R.A.P. 191I(a), Rule of Judicial Administration 4007(D), and Erie County Rule of Judicial
Administration 4007(B). Therefore, Appellants have waived any and all issues that require a
transcript of said court proceedings. Under Pa.R.A.P. l 911 ( a), the appellant has the duty to order
any and all transcripts required for review and to make any necessary deposit or payment for said
transcripts:
(a) General rule. The appeJlant shall request any transcript required under this
chapter in the manner and make any necessary payment or deposit therefor in the
amount and within the time prescribed by Rules 4001 et seq. of the Pennsylvania
Rules of Judicial Administration.
(d) Effect offailure to comply. If the appellant fails to take the action required by
these rules and the Pennsylvania Rules of Judicial Administration for the
preparation of the transcript, the appellate court may take such action as it deems
appropriate, which may include dismissal of the appeal.
Pa.R.A.P. 191 l(a) and (b). The Superior Court of Pennsylvania has stated: "With regard to
missing transcripts, . . . [ w]hen the appellant . . . fails to conform to the requirements of Rule
1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts
must be deemed waived for the purpose of appellate review." Commonwealth v. Houck, 102
A.3d 443, 456 (Pa.Super.2014) (citing Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super.2006)
("It is not proper for either the Pennsylvania Supreme Court or the Superior Court to order
transcripts nor is it the responsibility of the appellate courts to obtain the necessary transcripts.");
see e.g. Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa.Super.2008) (finding that appellant's issue was
Page 5 of 10
waived where appellant failed to provide the Superior Court with a transcript of the relevant
proceeding).
In this case, in the absence of transcripts of the court proceedings, this Trial Court must
rely upon its own personal notes of said court proceedings in this matter. Accordingly, since this
Trial Court is without complete transcripts of the record to review, this Trial Court finds
Appellants have waived all issues raised in this instant appeal that require said transcripts of the
court proceedings.
Notwithstanding the absence of these transcripts of the court proceedings in this case, this
Trial Court will attempt to provide the following analysis with respect to the remaining Errors
Complained of on Appeal regarding only two issues: (1) whether Appellants are precluded from
raising the issue concerning the validity of the Facility Lease since Appellants unqualifiedly
admitted Appellants entered into the Facility Lease in their pleadings; and (2) whether the award
of attorney's fees is justified pursuant to the Facility Lease and reasonable under the
circumstances.
Appellants allege this Trial Court erred "in not finding that the purported lease was never
signed and never contractually accepted by [Appellee] ... " since Appellee did not affix a
signature to the Facility Lease executed by the parties. (See Appellants' Concise Statement at
� 2). Under Pennsylvania law, a lease of real property for a term of more than three years must
be made in writing and signed by the parties creating the lease. 68 Pa-S. § 250.202. However,
this statute of frauds requiring a writing for rental leases longer than three years is a waivable
defense. Blumer v. Dorfman, 289 A.2d 463, 468 (Pa. 1972). Thus, this statute will not bar
recovery if the defendant fails to raise the defense in his pleadings or admits to the existence of
a contract in pleadings or testimony. Target Sportswear, Inc. v. Clearfield Found., 474 A.2d
Page 6 of 10
1142, 1150 (Pa.Super.1984). Indeed, "[i]t has long been established that a contract within the
statute of frauds will be accorded full legal effect if those who are entitled to the protection of the
statute choose to affirm the existence of the contract and recognize it as binding on them.'' Sferra
v. Urling, 195 A. 422, 425 (Pa. 1937).
In the instant case, Appellee's Complaint alleged that "[o]n or about July 12, 2011,
Plaintiff and Defendant HDSC08, LLC entered into a facility lease, a copy of which is attached
hereto as Exhibit 'A."' (Appellee's Complaint at � 4). Appellants in response did not raise the
affirmative defense of statute of frauds found in 68 Pa.S. § 250.202 in either its Answer to
Complaint or Preliminary Objections as required under Pa.R.C.P. 1030(a) and 1032(a). On the
contrary, Appellants' Answer to Complaint expressly "ADMITTED" the allegation set forth in
the fourth paragraph of Appellee's Complaint averring Appellants and Appellee entered into a
valid and binding lease agreement. (Appellants' Answer to Complaint at � 4). Therefore,
Appellants have waived any issues relating to the validity of the Facility Lease.
Appellants also raise the issue of whether this Trial Court erred in awarding Appellee
attorney's fees. (See Appellants' Concise Statement at 1 6). The law in Pennsylvania is well
established in that Pennsylvania follows the American rule, which states there can be no
recovery of attorney's fees from an adverse party absent express statutory authority, agreement
by the parties, or another established exception. Merlino v. Delaware Cty., 728 A.2d 949, 951
(Pa. 1999). Thus, parties may contract to provide for the breaching party to pay the attorney's
fees of the prevailing party in a breach of contract case, but the trial court may consider whether
the fees claimed to have been incurred are reasonable and may reduce the fees claimed if
appropriate. AfcMullen v. Kutz, 985 A.2d 769, 776-77 (Pa. 2009). The Pennsylvania Supreme
Page 7 of 10
Court has set f011h the "facts and factors to be taken into consideration in determining the fee or
compensation" of an attorney:
[T]he 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 Lakocca's Tr. Estate, 246 A.2d 337, 339 (Pa. 1968). Finally, the reasonableness of the fee
is a matter for the sound discretion of the trial court. Id.
In this instant matter, the Facility Lease, which Appellants expressly admitted they
entered into with Appellee as noted above, states the following in the "Event of Default":
Landlord shall be entitled to recover from the Tenant all expenses incurred in
connection with such default, including repossession costs, reasonable attorneys'
fees; and all reasonable expenses incurred in connection with efforts to relet the
leased Premises, including cleaning, altering, advertising and brokerage
commissions; and all such expenses shall be reimbursed by Tenant as Additional
Rent ...
(Facility Lease at Section 18) ( emphasis added). On September zz=; 2017, Appellee, by and
through counsel, Timothy D. McNair, Esq., filed its Motion for Post-Trial Relief wherein
Appellee requested this Trial Court award Attorney McNair $8,124.44 in reasonable attorney's
fees pursuant to Section 18 of the Facility Lease. Specifically, Appellee averred Attorney
McNair expended 35.1 hours of attorney time and $226.94 in additional expenses litigating the
case. Appellee also submitted to this Trial Court a time log of the hours expended litigating this
present action. A Rule to Show Cause dated September 251\ 2017 was scheduled for hearing and
argument before the undersigned Judge to take place on November 29111, 2017. Although the
post-trial hearing and argument were held on November 291\ 2017, Appellants have not
requested these transcripts of said hearing and argument and also did not make any necessary
Page 8 of 10
payment or deposit for said transcripts. By Order dated November 291h, 2017, this Trial Court
granted in part and denied in part Appellee's Motion for Post-Trial Relief. Specifically, this Trial
Court awarded reasonable attorney's fees to Appellee in the amount of $8,124.44, but denied
Appellee's request for additur to be added to the. sum of the jury's verdict in the amount of
$16,448.50 for the buildout expenses allegedly necessitated by Appellants' premature vacation
of the premises.
This Trial Court provides the following in support of the reasonableness of the attorney's
fee award to Appellee: Attorney McNair expended 35. l hours working on this case (and this
Trial Court notes Attorney McNair submitted an itemization which omitted charges that were
either not contemporaneously documented or removed in the exercise of billing discretion),
Attorney McNair has thirty-five years of experience as a practicing attorney, and the hourly rate
of $225.00, which Attorney McNair ordinarily charges to clients in non-complex matters, is
based on the fair market in the Erie County region for attorneys with similar education and
experience. Although this Trial Court and the Superior Court do not have the benefit of any
transcripts of said post-trial hearing, this Trial Court's review of the record even without said
transcripts adequately demonstrates this Trial Court properly awarded Attorney McNair
attorney's fees that were justified pursuant to the Facility Lease. and are reasonable under the
relevant case law as to the "facts and factors" for determining the fee or compensation of
Attorney McNair. See In re Lakocca's Tr. Estate, 246 A.2d at 339.
Page 9 of 10
Accordingly, for all of the reasons as set forth above, this Trial Cami requests the
Honorable Pennsylvania Superior Cou11 to dismiss this instant appeal and respectfully requests
the Pennsylvania Superior Court affirm its Order dated November 291h, 2017.
BY THE COURT:
1
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Step}IBn'eDomitrovich, Judge
cc: Angelo A. Papa, Esq., 318 Highland Avenue, New Castle, PA 16101
Timothy D. McNair, Esq., 821 State Street, Erie, PA 16501
Sylvia M. Waid, Chief Cami Reporter
Page 10 of 10
CJ ()6, <./ - r C.
ERIE COUNTY
RULES OF JUDICIAL ADMINISTRATION
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that Erie County Rules of Judicial Admini�� 400 I, 4007 and 4008, governing court :z :-,·· ---:;,)':"
reporting and transcripts, are hereby adopted as rules of this Court. This Ord hall be � �-� � ::-, co
processed in accordance with Pa.R.J.A. l03(c). The dopted nil shall b ef ctive thirty��Q); � ::-.1 '2
days after publication in the Pennsylvania Bulleti w "ch er is
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Rule 4001. Scope of Rules ·,::;
These rules shall govern the process for the request, payment and receipt of transcripts of
record proceedings before the Erie County Court of Common Pleas. These rules shall be read
in conjunction with and supplement the Uniform Rules Governing Court Reporting and
Transcripts, as set forth in the Pennsylvania Rules of Judicial Administration, Nos. 4001 -
40 I 6. In the event of any conflict between these rules and the state rules, the Pennsylvania
Rules shall control.
Rule 4007. Requests for Transcripts
(A) The original transcript request shall be on a standardized form ("Transcript
Request Form") provided by the Administrative Office of Pennsylvania Courts
and shall be filed with the appropriate filing office for the case docket. The form
is available on The Unified Judicial System's Web Portal, the website for the Erie
County Court of Common Pleas or by contacting the District Court Administrator
for the Erie County Court of Common Pleas. In order for the request to be
processed, a copy of the request must be served on the District Court
Administrator, as well as on all other individuals designated by Pa.R.J.A. 4007.
For purposes of service on the District Court Administrator, the request may be
hand delivered to Room 210 of the Erie County Courthouse, e-mailed to the
District Court Administrator, or mailed to: District Court Administrator, Erie
County Courthouse, J40 West 61h Street, Room 210, Erie, PA 16501.
(B) The District Court Administrator will not direct the court reporter to proceed with
transcription until either (1) receipt of partial payment in the amount ofone-half
of the estimated cost of the transcript; or (2) receipt of an order granting
permission to proceed in forma pauperis or waiving costs in accordance with
¥ATIEST_
Pa.R.J.A. 4008(B) and Erie County Rule of Judicial Administration 4008(B). The
party ordering the transcript is responsible for contacting the court reporter to
determine the amount of deposit required. Deposit checks shall be made payable
to the County of Erie and delivered to the District Court Administrator.
(C) Upon receipt of notification from the court reporter of the completion of the
transcript and the amount of the balance owed, the party ordering the transcript
shall forward to the District Court Administrator a check in the amount of the
balance due. The check shall be made payable to the County of Erie. Upon
receipt of final payment, the District Court Administrator will direct the court
reporter to file and deliver the transcript in accordance with Pa.R.J.A. 4007(D)(4).
Rule 4008. Transcript Costs Payable by a Requesting Party Other than Than the
Commonwealth or a Subdivision Thereof.
(A)The per page cost for a transcript in electronic format shall be as follows:
(1) $2.50 per page for an ordinary transcript;
(2) $3.50 per page for an expedited transcript;
(3) $4.50 per page for a daily transcript; and
(4) $6.50 per page for same day delivery'.
(5) If the transcript is requested in bound paper format, the costs shall be as stated
above, plus a surcharge of $0.25 per page.
(6) The trial judge may impose a reasonable surcharge in cases such as mass tort,
medical malpractice or other unusually complex litigation where the judge
determines that the surcharge is necessary because of the need for the court
reporter to significantly expand his/her dictionary.
(7) Costs for a copy of any transcript previously ordered, transcribed and filed of
record shall be in accordance with Pa.R.J.A 4008(D). Copy requests may be
directed to the District Court Administrator in person in Room 210 of the Brie
County Courthouse, e-mailed to the District Court Administrator, or mailed to:
District Court Administrator, Erie County Courthouse, 140 West 61h Street, Room
210, Erie, PA 16501. The District Court Administrator will inform the requesting
individual of the total amount due for copying. The full copying fee shall be paid
prior to receipt of the copy. Checks shall be made payable to the County of Erie
and delivered to the District Court Administrator,
(B) Economic hardship
(1) In accordance with Pa.R.J.A. 4008(B)(l), a litigant who has already been
permitted to proceed with the commencement of the underlying action or with the
taking of the appeal in Jonna pauper is will, in matters under appeal or where the
transcript is necessary to advance the litigation, receive waiver of transcript costs.
The order granting the litigant in forma pauperls status shall be attached to the
Transcript Request Form which is filed and served in accordance with Pa.R.J.A.
4007 and Erie County Rule of Judicial Administration 4007. In addition to
attaching the order to the request, the litigant should also attach a verified
statement indicating that the party is aware of his or her continuing obligation to
inform the court of improvement in his or her financial circumstances and that no
.such improvement has occurred since entry of the order granting permission to
proceed in forma pauperis. A litigant's failure to attach the in forma pauperis
order to the transcript request may result in delayed transcription.
(2) Any litigant who has not already been granted in forma pauperis status, but who
wishes to pursue waiver of or reduction in transcript costs, shall file a petition
requesting waiver of or reduction in transcript costs under the docket of the case.
The petition must include:
(a) the caption and docket number of the case;
(b) a statement indicating whether or not the transcript is in a matter which
is currently under appeal;
(c) a statement indicating whether or not the transcript is necessary to
advance pending litigation; and
(d) a fully completed and executed affidavit substantially in the form
required by Pennsylvania Rule of Civil Procedure 240(h).
Upon filing the petition and affidavit, the party requesting waiver of or reduction
in transcript costs shall also serve a copy of the same on the judge assigned to the
case for disposition. The petitioner shall be responsible for forwarding a copy of
the resulting order to the District Court Administrator. Failure to serve the order
may result in delayed transcription.
Waid, Sylvia
From: Reed, Samantha
ent: Friday, January 12, 2018 11 ;07 AM
1'0: Waid, Sylvia
Subject: FW: Niagara Village v. HDSC08 Transcript
From: Reed, Samantha
Sent: Friday, January 12, 2018 11:07 AM
To: 'CEO@signaturehlll.com'
Subject: Niagara Village v. HDSC08 Transcript
Good morning, Attorney Papa. I just wanted to advise that we received your request for the trial transcript in this matter
that was held on 9/15/17. I am sending this e-mail to let you know that we require a down payment before transcription
can begin. There were two separate reporters that were present during the trial on this day, so two separate down
payments are requested. One in the amount of $75.00 and the other in the amount of $350.00. Two separate checks
would be appreciated since payment is going to two different reporters, and please make them payable to Erie County.
Once these are received, transcription will begin! Thank you!
Samantha K. Reed
Official Court Reporter
Erie County Courthouse
140 West 61h Street, Rm 303
l:rie, PA 16501
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SYLVIA JM. WAID, RMR
Chief Court Reporter Erie County Court of Common Pleas ANDREA C. IvITJSCARELLA
Sixth Judicial District GREG SCHERF
ROBINLATA OFFICE OF COURT REPORTERS SANDY HACKWELDER
Office Assistant Erie County Courthouse ANNETTE ALLEGRETTO
140 West Sixth Street, Room 303 LISA M. LEOPOLD
(814)451 ·6238 Erie, Pennsylvania 16501 · 1030 TAMARA Y. DOXEY
FAX (814)451·7680 SAMANTHA K. REED
TDD (814)451·7054 HEATHER POWELL
February 1, 2018
RE: Niagara Village v HDSC08 et al
Dear Judge Domitrovich,
The attached email was sent to Attorney Papa at the email address he provided, and
we have gotten no response nor as of this date has this office received a check for
the deposit as required, therefore no trial transcript has been produced in the
above-referenced case.
If I can be of further assistance in this matter, please do not hesitate to contact me.
Sincerely,
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SYLVIAM. WAID, RMR
Chief Court Reporter Erie County Court of Common Pleas ANDREA C. MUSCARELLA
Sixth Judicial District GREG SCHERF
ROBINLATA OFFICE OF COURT REPORTERS SANDY HACKWELDER
Office Assistant Erie County Courthouse ANNETTE ALLEGRETTO
140 West Sixth Street, Room 303 LISA M. LEOPOLD
(814)451 ·6238 Erie, Pennsylvania 16501-1030 TAMARA Y. DOXEY
FAX (814)451·7680 SA1v1ANTHA K. REED
TDD (814)451·7054 HEATHER PO\VELL
February 15, 2018
RE: Niagara Village v HDSC08 et al
Dear Judge Domitrovich,
The attached email was sent to Attorney Papa at the email address he provided, and
we have gotten no response nor as of this date has this office received a check for
the deposit as required, therefore no trial transcript has been produced in the
above-referenced case.
If I can be of further assistance in this matter, please do not hesitate to contact me.
Sincerely, /7
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SYLVIAM. WAID, RMR
Chief Court Reporter Erie County Court of Common Pleas ANDREA C. MUSCARELLA
Sixth Judicial District GREG SCHERF
ROBINLATA OFFICE OF COURT REPORTERS SANDY HACKWELDER
Office Assistant Erie County Courthouse ANNE'ITE ALLEGRETTO
140 West Sixth Street, Room 303 LISA M. LEOPOLD
(814)451 ·6238 Erie, Pennsylvania 16501·1030 TAMARA Y. DOXEY
FAX (814)451 ·7680 SAMANTHA K. REED
TDD (814)451 ·7054 HEATHER POWELL
February 26, 2018
RE: Niagara Village v HDSC08 et al
Dear Judge Domitrovich,
The attached email was sent to Attorney Papa at the email address he provided, and
we have gotten no response nor as of this date has this office received a check for
the deposit as required, therefore no trial transcript has been produced in the
above-referenced case.
If I can be of further assistance in this matter, please do not hesitate to contact me.
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Sine erely,
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NIAGARA VILLAGE IN THE COURT OF COMMON PLEAS
LIMITED PARTNERSHIP, OF ERIE COUNTY, PENNSYL V ANl--s\
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HDSC08, LLC and NO. 11532 - 2016
VALERIE S. GILREATH, 22 WDA 2018
Appellants
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Appearances: Angelo A. Papa, Esq., for Appellants HDSC08, LLC and Valerie S. Gilreath
Timothy b. McNair, Esq., for Appellee Niagara Village Limited Partnership
SUPPLEMENTAL OPINION
Domitrovich, J., December 2?1\ 2018
This Supplemental Opinion is in response to the Pennsylvania Superior Court's Order
dated November 91 2018, wherein the Pennsylvania Superior Court remanded jurisdiction of the
1\
instant civil case to this Trial Court in the Erie County Court of Common Pleas for the issuance
of a supplemental opinion addressing the issues this Trial Court found to be waived due to the
Appellants' failure to pay for the trial transcripts before this Trial Court filed its 1925(a) Opinion
dated February 261\ 2018. This Trial Court incorporates by reference its Opinion dated February
26111, 2018.
On January 241\ 2018, Appellants filed and served this Trial Court with "Concise
Statement of Errors Complained of on Appeal," which raised six (6) issues. Due to Appellants
failure to make the necessary payments or deposits for transcription of the court proceedings in
this case set forth in Pa.R.A.P. 191 l(a), Rule of Judicial Administration 4007(D), and Erie
County Rule of Judicial Administration 4007(8), this Trial Court was only able to address two
(2) of Appellants' six (6) issues in this Trial Court's l925(a) Opinion dated February 261h, 2018.
Appellants' four (4) remaining issues are: (]) "The Court erred, in finding that the Defendants
were not forced out of the purported leasehold, that they were not justified, and that they were
Page 1 of 9
not constructively evicted. The Plaintiff readily admitted that he didn't want 'these kind of
people' around (substance abuse impaired patients of the Defendants) and that he forced the
Defendants out early for discriminatory reasons"; (2) whether this Trial Court "egregiously erred
in permitting hearsay evidence concerning over $23,000.00 in renovation and repair expenditures
of the Plaintiffs, which were improperly permitted to be added to damages, without giving the
Defendants the opportunity to cross-examine to [sic] party presenting the bill, the contractors";
and (3) "The Court errored [sic] in finding that over $22,500 of the verdict arose from an
allegation that these 'build-out' sums were reasonable, due and owing because of the contract,
and validly necessary, such that these damages could be assigned to the Defendants, and by
derivative, to the defendant, Dr. Valerie Gilreath, when they were not reasonable sums and not
due and owing"; and ( 4) "Even if the Plaintiff was owed any funds, which Defendants
vehemently dispute, the Court errored [sic] in the amount awarded to Plaintiff for allegedly
unpaid rent as the amount was factually incorrect." This Trial Court provides the following
analysis:
Appellants' first issue concerns whether Appellants waived defenses of being "forced out
of the purported leasehold," justification, and constructive eviction, which were not pled. Under
Pennsylvania Rule of Civil Procedure Rule 1032(a):
A party waives all defenses and objections which are not presented either by
preliminary objection, answer or reply, except a defense which is not required to
be pleaded under Rule 1030(b ), the defense of failure to state a claim upon which
relief can be granted, the defense of failure to join an indispensable party, the
objection of failure to state a legal defense to a claim, the defenses of failure to
exercise or exhaust a statutory remedy and an adequate remedy at law and any
other nonwaivable defense or objection.
Pa.R.Civ.P. l032(a)(emphasis added). Defenses that need not be pled are "the affirmative
defenses of assumption of the risk, comparative negligence and contributory negligence."
Pa.R.Civ.P. 1030(b).
Page 2 of9
In the instant case, on the morning of the jury trial, this Trial Court reviewed with both
counsel the proposed jury instructions, Appellee's counsel raised objections to Appellants'
proposed jury instructions as this was the first time Appellants raised the issues of justification
and constructive eviction, as demonstrated henceforth:
MR. MCNAIR: In reviewing the proposed jury instructions submitted by
the Defendant, they have an instruction on justification. That's not a
defense that was pleaded. That is not the answer that was pleaded. It does
not set forth any facts that would support that defense. It's not an issue
that we've had notice of and we would ask that you rule in limine that the
Defendant be precluded from offering any evidence or arguing to the jury
that Dr. Gilreath was justified in terminated the lease.
THE COURT: And it was never pied?
MR. MCNAIR: Never pied. There's no facts that would support it that
have been pied.
THE COURT: Very well. Counsel?
MR. PAP A: Yes, your Honor. My response is, and I would ask the Court
to take judicial notice of the nine-paragraph complaint that basically we
answered sufficiently and would not - we would not need to do that. I was
trying to help the Court with a joint jury instruction anticipating where he
was going and anticipating that we could have that defense afterwards,
Your Honor, as a rebuttal. And I don't think - he's putting the cart before
the horse right now on that issue because he hasn't even presented his
case.
THE COURT: But you have not pied it, counsel.
MR. PAP A: I certainly have not pied it, I was under no obligation to
plead it when you look at their nine-paragraph complaint. Paragraph 6
basically gets to the substance, on or about June 141h in breach of the
provision of the lease, Defendant abandoned their occupancy.
(Notes of Testimony, Jury Trial - A.M. Session, September 15, 201 7, at pg. 2: 19-3 :25 ("N.T. l "))
(emphasis added). Appellee's counsel then addressed the issue of constructive eviction being
raised for the first time by Appellants:
MR. MCNAIR: I did have one other item, Your Honor. The proposed
jury instructions make reference to the defense of constructive eviction.
Page 3 of9
Again, no facts have ever been pleaded that would support that defense
and it would simply confuse the jury to even talk about it. So, I would ask
that in limine you rule that the Defendant shall not be permitted to discuss
or argue that he was constructively evicted.
MR. PAPA: Your Honor, we haven't got to argument yet and I'll gladly
have him revisit this issue, but I think that's something that should come
up later depending on what their case is. I only submitted those proposed
jury instruction thinking he would agree with them and we can argue over
what jury instruction should say or not say or whatever I'm going to raise
at the time. I certainly won't do it in front of the jury to hurt the trial I
think that would be in advance and premature, his request, at this time.
MR. MCNAIR: Well, Your Honor, my motion is not directed to jury
instruction, it's directed to what appears to be an attempt to ambush the
Plaintiff with some convoluted and unsupported argument of constructive
eviction.
MR. PAPA: I recognize that it's unsupported at this time. I withdraw my
request for jury instruction and will resubmit them again later, after the
evidence is done and we can see where we're at.
MR. MCNAIR: And again, I'm not talking about jury instruction, I'm
talking about trying to put evidence in front of the jury or argue
constructive eviction, which is a fairly complicated topic and it hasn't
been raised by the pleadings and has not been explored by the parties in
discovery or at the prior hearing in this case. ·
THE COURT: Never raised, counsel, nothing in here. You are forbidden
to talk about constructive eviction. You have not raised it in your
pleadings, none of your pleadings have given him advance notice, so it's
not allowed.
(N.T.l at 18:14-20:5). As illustrated above, Appellants' counsel admitted on the record he did
not plead the issues of justification and constructive eviction. Further, as to the issue of whether
Appellants were forced out of the leasehold, after review of Appellants' Preliminary Objections,
Answer, Pre-Trial Narrative, and even the transcript of the Status Conference on July 19, 2017,
Appellants' counsel never raised this issue prior to the morning of the jury trial. Because
Appellants failed to raise properly the issues of being forced out of the leasehold, justification,
Page 4 of 9
and constructive eviction, this Trial Court properly ruled on these issues as being waived by the
Appellants as per the Pennsylvania Rules of Civil Procedure Rule 1030.
Appellants' second issue concerns whether this Trial Court erred m permitting the
introduction of evidence of a business record sent to Appellants' counsel, showing the amount
owed to Appellee, from Appellee's property manager as a part of his regularly conducted
activities. "Hearsay is not admissible except as provided by these rules, by other rules prescribed
by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802. Two such exceptions to the rule
against hearsay are business records and records of a regularly conducted activity. See 42
Pa.C.S.A. § 6108; Pa.R.E. 803(6).
When determining whether evidence presented to a court is considered a business record,
the Uniform Business Records as Evidence Act provides:
A record of an act, condition or event shall, insofar as relevant, be competent
evidence if the custodian or other qualified witness testifies to its identity and the
mode of its preparation, and if it was made in the regular course of business at or
near the time of the act, condition or event, and if, in the opinion of the tribunal,
the sources of information, method and time of preparation were such as to justify
its admission.
42 Pa.C.S.A. § 6108(b). "Whether a document should be admitted under the 'business record'
exception is within the discretionary power of the trial court provided such is exercised within
the bounds of the Uniform Act." Thomas v. Allegheny & E. Coal Co., 455 A.2d 637, 640 (1982).
The requirements for Records of a Regularly Conducted Activity are similar to the rule regarding
the Uniform Business Records as Evidence:
(6) Records of a Regularly Conducted Activity. A record (which includes
a memorandum, report, or data compilation in any form) of an act, event or
condition if:
(A) the record was made at or near the time by-or from information
transmitted by-someone with knowledge;
Page5of9
(B) the record was kept in the course of a regularly conducted activity of a
"business", which term includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule 902(11) or
(12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
Pa.RE. 803(6).
In the instant case, Appellants objected to Appellee's "Exhibit B" (Attached hereto as
"Exhibit B''). Appellee's "Exhibit B" is a demand email sent to an attorney representing
Appellants in January 2015, containing an itemized list and amounts Appellants owed to
Appellee as a result of the breach of the lease along with documentation. The email in "Exhibit
B" was sent by Mr. Randy Rydzewski, Associate Broker, Manager, Howard Hanna Commercial,
on January 5, 2015. Mr. Rydzewski, who was Appellee's sole witness at the jury trial, indicated:
THE WITNESS: I wrote to -
THE COURT: Okay.
THE WITNESS: - Dr. Gilreath and sent the same letter to his home
address in Arizona and his office address in· Arizona as well.
BY MR. MCNAIR:
Q. Did you receive any response to that?
A. Response came from another attorney, Joel Snavely, in Erie that
he is now representing Dr. Gilreath and all future correspondence should
flow to doctor - or excuse me, to Attorney Snavely.
MR. PAPA: Your Honor, I would ask for an offer of proof.
MR. MCNAIR: Your Honor, this is a tabulation of the balance of - that
was due on the lease as of January 5, 2015. It was transmitted to doctor -
to the defendant's legal representative, Joel Snavely, with supporting
documentation.
Page 6 of 9
THE COURT: Very well.
(Notes of Testimony, Jury Trial-p.m. session, September 15, 2017, at pg., 45:8-46: 1 ("N.T.2")).
After this testimony and an objection by Appe1lants' counsel, this Trial Court made the
following determination:
THE COURT: Yes, they're receipts and they show, yes, and he's offering
them under oath and they're admitted. Okay, go ahead.
(N.T.2 at 46:21-23). Here, Exhibit B was admitted as evidence because the creator and custodian
of this document was the witness, Randy Rydzewski, manager of the property, who stated the
identity and mode of Exhibit B's preparation, and that Exhibit B was made near the time of the
condition of having the property remodeled. The document was created in an attempt to collect
unpaid expenses from the Appellants' breach of the lease in the course of regularly conducted
activity of managing this property; the document was created only a few weeks after the
remodeling work was completed; and after being advised from Appellant's attorney at the time
that all communication should flow through the attorney. Finally, the sources of information as
well as the method and time of preparation were such as to justify Exhibit B's admission.
Therefore, Exhibit B was properly admitted into evidence by this Trial Court,
This Trial Court will jointly address Appellant's third and fourth issues as both ultimately
involve jury questions. It is the province of the jury to weigh evidence and decide damages.
"Assessment of damages is within the province of the jury who, as finders of fact, weigh the
veracity and credibility of the witnesses and their testimony." Mcbdanamon v. Washko, 906 A.2d
1259, 1280 (Pa. Super. 2006) (citing Dranzo v. Winterhalter, 577 A.2d 1349 (Pa. Super. 1990))
When reviewing an award of damages, we are mindful that:
The determination of damages is a factual question to be decided by the fact-
finder. The fact-finder must assess the testimony, by weighing the evidence and
determining its credibility, and by accepting or rejecting the estimates of the
damages given by the witnesses.
Page 7 of 9
Although the fact-finder may not render a verdict based on sheer conjecture or
guesswork, it may use a measure of speculation in estimating damages. The fact-
finder may make a just and reasonable estimate of the damage based on relevant
data, and in such circumstances may act on probable, inferential, as well as direct
and positive proof.
J.J. Deluca Co. v. Toll Naval Assocs., 56 A.3d 402, 417-18 (Pa. Super. 2012) (citing Liss &
Marion, P.C. v. Recordex Acquisition Corp., 937 A.2d 503, 514 (Pa. Super. 2007)). "[Tjhe jury's
verdict may be set aside if it is the product of passion, prejudice, partiality, or conuption, or if it
is clear the verdict bears no reasonable relationship to the loss suffered by the plaintiff based on
the uncontroverted evidence presented." Carroll v. Avallone, 939 A.2d 872, 874 (2007) (citing
Kiser v. Schulte, 648 A.2d 1 (1994)).
Appellants are appealing from an award by a jury. Appellants raised the issue during trial
as to whether the "build-out" fees were reasonable; in fact Appellants' counsel acknowledged
that reasonableness is a question for the jury.
MR. PAP A: To protect the record, I would orally move that all defendants
owe nothing. I would direct that certainly Dr. Gilreath owes nothing.
Third, my argument is that nobody owes at the very least 6500, and I think
16,000 at the constantly accruing interest, and I wanted to preserve the
record that I made that motion before I put my case on.
THE COURT: Very well.
MR. MCNAIR: Your Honor, I believe that those are all provided for in
the lease and that we've proved the lease and we've proved the breach and
we've proved our entire damages. I would move that you direct a verdict
in favor of the plaintiff. Or maybe that's a little aggressive. I would ask
that you deny the plaintiffs motion - or the defendant's motion.
THE COURT: Thank you.
MR. PAP A: I understand the reasonableness is a jury question.
THE COURT: Yes, and ifs denied, but you protected the record. Are you
going to give your opening statement like you said?
(N.T.2 at 119:13-120:10).
Page 8 of9
First, it should be noted this Trial Court is neither the finder of fact nor does it determine
damages at a jury trial. The jury heard the testimony and made its decision, and no evidence was
presented by Appellants that the jury award was a product of passion, prejudice, partiality, or
corruption, Furthermore, the jury awarded Appellee $30,684.57; however.: the Appellee
presented evidence demonstrating that it could seek damages as high as nearly $70,000, but
rather was seeking the maximum amount of damages of $46,000. (N.T.2 at 178:23). This
demonstrates the award has a reasonable basis in loss to the Appellee based upon the evidence
heard by the jury and therefore the award should not be disturbed.
Accordingly, for all of the reasons set forth above and in this Trial Court's original
1925(a) Opinion dated February 261\ 20 I 8, which is incorporated by reference, this Trial Court
requests the Honorable Pennsylvania Superior Court to dismiss this instant appeal and
respectfully requests the Pennsylvania Superior Court affirm the jury award and this Trial Court.
BY THE COURT:
cc: Angelo A. Papa, Esq., 318 Highland Ave., New Castle, PA 16101
Timothy D. McNair, Esq., 821 State Street, Erie, PA 16501
Page 9 of 9
:. Untitled Message Pagel of 2
Randy Rydzewski
Sent: Monday, January 05, 2015 2:03 PM
To: jsnavely@qulnnflrm.com
Happy New Year Joel! -- - - �- - - -·-- - - -· - , .
I am writing as a follow up to our ongoing discussion regarding your client, Dr. Gilreath.
Paragraph 4b of our lease provides for an annual reconciliation of the CAM expenses. We
were preparing this information on Saturday for all of the tenants In the building and realized
that as a result of the severe winter we had last year that Dr. Giireath owes an additional
$1,011.40 in additional rent. A copy of the reconciliation is attached. I have also attached
supporting documentation for all of the costs that Dr. Gilreath Is responsible for, summarized
as follows:
$11,908.00 - Overdue rent from 06/14 through 10/14
$16,448.50 - Required improvements to the space as outlined on Exhibit C of new lease
$ 6,300.00 - Leasing commission - ..
$ 119.25 - Cost to change locks •.. :,
$ 302.10 - Cleaning cost _; .•-, : =
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$ 13.30 - Postage
$ .1,011.40 - CAM reconciliation ,-0
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$36;102.ss· - subtotal --·'
$:-1-r750.00- Security Deposit
$34,352.55. ;_,.)
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In my original correspondence to Dr. Gilreath I indicated that he had until November 5, 2'614
to pay his overdue balance without incurring any late charges or penalties. Most recently, we
agreed to a rather substantial discount provided the balance due was paid by December
22nd. Thus far, we have not received payment. As such, we are now enforcing the 10% late
charge as outlined In Paragraph 18 of our lease agreement. As a result, an additional
is
$�1290.17 now due and payable. This amount represents 8/12 of a year of the 10% penalty
brining the total amount due to $36,642.72. I have been instructed by my partners to pursue
any legal steps necessary for collection if the full balance is not paid by February 1, 2015. I
would certainly appreciate it if we could avoid this. Please make arrangements with
Dr. Gilreath for payment. ·
Thank you,
Randy Rydzewski, GRI
- Associate Broker, Manager
Howard Hanna Commercial
4244 West 12th Street
Erle, PA 16505
(814) 480-8400 x 312 (phone)
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Waterford, Pa 16441 New Fax Number __;
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(814} 195-oo3o
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(814) 796-2435 Phone & t, __ :....-....,_.._...........
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RANDY RYDZEWSKI
NIAGARA tIMITED PARTNERSHIP
2380 _V�llage common Dr
Erie, Pa
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Project: SU:i.te 202
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Terms: Due upon rec_ei_pt . . ... .- .. .. ···
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WORK COMPLETED PER PROPOSAL 3076 $ 15,976.00 ..
Invoice billed 10/17/14 (;'.'.)DTfjC,�) - 9,000�00 .q., ,-90 ' e,C)
$ 6,976.oq
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Additional·countertop ($ 585.00) ,
Split by owner & contractor 292.50 :
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TOTAL INVOICE \ $ 7,268.50
Alstb,'*1e.01-f tl'e /c , �"/G.�0
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$ 7,268.5().
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NUCERINO General Contracting -�m�any
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2060. Elk Creek Road
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New Fax Number
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Waterford, Pa 16441
ca-14-) · 1-96-2435 Phone &. ,. (814)··79&-ooao -- .._2_4_0__
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RANDY RYDZEWSKI
NIAGARA LIMITED PARTNERSHIP
2380 Village Common Dr
Erie, Pa
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: Project: Suite 202
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Terms: Due Up(?n receipt ... ---- � �.
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ADDITIONAL ELECTRICAL WORK: Add ( 1 ) do1,1ble '
duplex receipticle $_180. 00
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cJ.,li;;1¥(' TOTAL $ 180. 00
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HOWARD HANNA COMMERCIAL rnvolce No. 2014.fo·-- --
4244 W�ST 12TH STREET
ERIE, PA 16505
814-480-8400
� INVOICE�
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Customer - - ..� , : . ,;;
NIAGARA VILLAGE LIMITED PARTNERSHIP Date ,10/1/2014_- . _
4244 WESi 12TH srREET. - . . -- -
:_ERIE - PA
_
16605 .1'
Invoice No.
Rep
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2014-10
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.D!?scrip_tlon-.::. - •' .. .. TOTAL
PROPERTY ADDRESS: 5473VILLAGE COMMON DRIVE #202
TENANT: NORTH COAST FOOT & ANKLE PC
LEASE TERM: 11/01/2014 --10/31/2019
LEASE COMMISSION: 6% 1}� ''·< ·J··
COMMISSION DUE 11/01/2014 ($21,000/YR X 5 YRS X 6%) $6,300.00
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· · Payment Details ··
O Cash
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O Credit Card
Name. NIA
NIA -�
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CC# .
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PLEASE RETURN COPY OF INVOICE WITH REMIITANCE TO: ATTN:
---- ---.:- ,.-=-,----.TAMMY. A-T7HEADDRESS ABOVE I
Harry E. Mueller
The Key Man Invoice·- .
445 W. 8th Street
•''
Date Invoice#
Erie, PA 16502 -
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814-452-3345 Fax: 814-454-5054
10/24/2014 162001
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Bill To Ship To
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. Niagara Village Prof. Bldg.
4244. West 12th Street
Erie PA 16505
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P.0.No. Terms Rep Ship Date Ship Via Project Job Card#
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Randy Ryzewski Net30 ,.
10/24/2014 53436
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Qty Item Description Rate Amount
. ' , ... ..
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2 SRV-RECORE RECORE CYLiNDER REKEYED 17.50 35.00T
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13 SRV-K.EY-SINGLE SINGLE SIDED DUPLICATE KEY 1.75 22.75T
1 .SRV-CALLI -· SERVICE CALL I LABOR 54.75, 54.75T
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RE· Suite 202
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Subtotal $112.50
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Sales Tax (6.0%) $6.75
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Total $119.25
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Diamorid Cleaning Corp
1446 East 34/h St. Invoice
Erie, PA 16504
Invoice #: 2063
Invoice Date: 10/31i2014
Due Date: 11/30i2014
Biii To: Project:
.P.O. Number:
NIAGARA VILL4GE PARTNERSHIP
4244 WEST 12TH ST-
ERIE, PA. 16505
O�te Description Amount
10i.31/2014 . Cleaning NEJW Office forFoof6octor's. 285.00T
·. Work Included: Stripping and Waxing ( 5) offlces, cleaning all cabinets, ceiling
; • vents, and vacumming·alf .carpeting. Also removed trash to dumpster. .
· 'Work was completed on October 26 & 27th , 2014.
. Sales Tax 17.10
. I
Total $302.10
I
Payments/Credits $0.00
Balance Due $302.10
PRESQUE ISLE . PO .
Erie, Pennsylvania
165063100
4125460002 -0097
10/01/2014 (800)276-9777 04:46:25 PM
· s.;.1 es Receipt
Product Sale Unft final°
Dascrfptton Qty Price Prf�e
Q@ �N GOODYEAR AZ 85395.2287 $6.65
Zone-7
Prforfty Nail 2-Day 8.v.Weteht
2.10 oz.
Expected Oelfver.v1 Fri 10/03/14
USPS Tracking 1/1
9114 9011 5981 · 5970 7789 86 . 11J(?.[d
Includes $50 Insurance c(d ivt(ld.. 1�·.tK'
Issue Postage: •$6.65
@@'"-:"GLENDALE AZ 85306-1701 $6.65
Zone-7
Priority Mail 2-Day By Weight
2.ao oz.
Expected Delivery: frl 10/03/14
USPS Tracking #1
9114 9011 5991 5970 7790 06
Includes $50 insurance
(W.1 "'td.. (i:,{�t I� e.. { {: t/l (>.ft1
Inue Posta!ie1 $6,65
Tot11l I $13.3'0
Paid b.vr
VISA $13.30
Account #: XXXXXXXXXXXX3847
Approval #1 677852
Transact I on #1 481
23 903050011
@ll for tracking or 'inquiries go to I
USPS.com or call 1-800-222-1811, ·I
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