Sherwood, M. v. Farber, J. ( 2021 )

J-A19032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIA SHERWOOD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY FARBER AND CATHERINE :
HALPER :
: No. 20 EDA 2021
Appellants :
Appeal from the Order Entered November 13, 2020
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2018-03780
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 29, 2021
Jeffrey Farber and Catherine Halper (collectively, “Appellants”) appeal
from the judgment entered following a bench trial in a landlord-tenant action
brought against them by their former tenant, Appellee Maria Sherwood. For
the reasons set forth below, we affirm the judgment in part, vacate in part,
and remand for further proceedings.
The following factual background is derived from the trial court’s findings
of fact.1 Sherwood is a disabled combat veteran who suffers from Post-
Traumatic Stress Disorder (“PTSD”). Trial Court Opinion, 6/22/20, Findings
of Fact (“F.F.”) ¶¶1, 8-9. Appellants are a married couple who co-own a rental
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* Retired Senior Judge assigned to the Superior Court.
1 Appellants concede that the trial court’s findings of fact are supported by the
record. See Appellants’ Brief at 5.
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property at 1089 Durham Road, Pineville, Pennsylvania (“Property”). Id., F.F.
¶¶2-4. On July 15, 2015, Sherwood rented an apartment at the Property from
Appellants on a one-year term that renewed annually. Id., F.F. ¶¶5-6.
Sherwood continued living in the apartment beyond the first lease term and
the lease renewed in July 2016 and again in July 2017. Id., F.F. ¶7.
In November 2017, Sherwood announced to Farber that she was
traveling to Arizona to receive treatment following a recurrence of her PTSD
symptoms. Id., F.F. ¶10. At that time, Farber informed Sherwood that her
behavior had been disturbing other tenants, that he was going to obtain a
restraining order against her, and that she needed to find a new place to live.
Id., F.F. ¶¶11-12.
While Sherwood was in Arizona, her friend, Louren Campoverde,
regularly checked on the apartment and picked up Sherwood’s mail. Id., F.F.
¶13. Sherwood remained in Arizona for several months longer than expected
after her wallet was stolen and she went through the process to obtain a new
identification card and other documents. Id., F.F. ¶16. However, she
continued to pay her rent of $1,150 per month during her entire stay in
Arizona. Id., F.F. ¶¶17, 41.
In April 2018, during one of her periodic visits, Campoverde discovered
that someone else was living in Sherwood’s apartment. Id., F.F. ¶18.
Campoverde did not see a posted eviction notice during any of her visits; in
fact, Appellants never served Sherwood with a summons to appear for an
eviction proceeding, a notice to quit, or a notice of a determination of
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abandonment. Id., F.F. ¶¶19, 20. Furthermore, in spite of the fact that
Farber had Sherwood’s cellular telephone number and he had in fact called
her in January 2018 to request that she move her vehicles left on the property,
Farber never attempted to contact Sherwood by telephone to inform her that
she was being evicted. Id., F.F. ¶¶14-15, 24. Instead, Appellants re-rented
the apartment without any notice to Sherwood. Id., F.F. ¶20.
Upon receiving the news that someone else was living in her apartment,
Sherwood returned to Pennsylvania in April 2018 and discovered that her
belongings had been removed from the apartment and placed in a portable
metal storage container, referred to as a Pod, that was situated in the
Property’s parking lot. Id., F.F. ¶¶21-22 & p.6 n.22. Sherwood attempted to
contact Farber but received no reply. Id., F.F. ¶26. Sherwood also discovered
that the keys to her truck were locked with her other belongings in the Pod,
which necessitated her having the truck towed from the Property and having
a new key made. Id., F.F. ¶¶25, 38.
Sherwood enlisted the assistance of the Housing Equality Center of
Pennsylvania, which contacted Appellants and demanded that Sherwood be
provided immediate access to her personal property; Farber refused, stating
that Sherwood would not be allowed access to her belongings unless she paid
for the costs of storage and hired professional movers. Id., F.F. ¶¶28-30.
Sherwood also discovered that Appellants had used her security deposit and
rent payments during her time in Arizona to pay for the apartment clean-out
and Pod rental fees. Id., F.F. ¶23. When Sherwood returned to the Property
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in June 2018 to attempt to access her belongings, Farber handed her a number
of notices that he claimed to have posted before the eviction and threatened
that he would call the police if she returned to the Property. Id., F.F. ¶¶32-
33.
On June 29, 2018, Sherwood filed in the trial court a complaint and
motion for injunctive relief seeking immediate access to her belongings. After
a hearing in the trial court, Sherwood was able to recover her possessions in
July 2018. Id., F.F. ¶35. Sherwood amended her complaint three times, and
the operative complaint filed on September 25, 2018 asserted claims against
Appellants for wrongful eviction, conversion, trespass to chattels, trespass,
intentional infliction of emotional distress, breach of contract, violations of
Section 505.1 and 512 of the Landlord and Tenant Act of 1951 (“LTA”), 2 and
a violation of the Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”).3
A one-day non-jury trial was held on December 11, 2019. On June 22,
2020, the trial court issued its verdict in favor of Sherwood on her claims of
breach of contract and violations of the LTA, while dismissing her claims of
conversion, trespass to chattels, trespass, violation of the UTPCPL, and
intentional infliction of emotional distress. Order, 6/22/20; Trial Court
Opinion, 6/22/20, Conclusions of Law (“C.L.”) ¶¶ 1-9. The trial court
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2 68 P.S. §§ 250.505a, 250.512.
3 73 P.S. §§ 201-1 to 201-10.
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concluded that Appellants wrongfully evicted Sherwood by re-renting her
apartment despite the fact that she was continually paying them rent;
improperly moved Sherwood’s belongings to the storage Pod without
providing her notice; and improperly used Sherwood’s security deposit to
cover the costs of the apartment clean out and storage. Trial Court Opinion,
6/22/20, C.L. ¶¶ 7-9.
The trial court awarded Sherwood damages in the amount of $59,666.64
consisting of: (i) $1,150 for her security deposit; (ii) $1,874.83 for hotel fees
from April 25, 2018 to June 6, 2018; (iii) $859.67 for the tow and key
replacement for her truck; (iv) $6,098.82 for storage fees from July 2018 to
September 2019; (v) $4,600 for rent paid from January 2018 to April 2018;
(vi) $1,500 statutory damages for misuse of security deposit under Section
512 of the LTA; and (vii) $43,583.32 statutory treble damages for removal of
possessions without permission under Section 505.1 of the LTA. Id., F.F.
¶¶37-41, C.L. ¶¶10, 13, 15. In addition, the trial court ordered Appellants to
pay attorneys’ fees and court costs in the amount of $92,750 pursuant to
Section 505.1 of the LTA. Id., C.L. ¶17.
Both Appellants and Sherwood filed post-trial motions. On November
6, 2020, the trial court issued an order granting Sherwood’s post-trial motion
in part, directing judgment in her favor on the trespass to chattels, conversion,
and UTPCPL claims. Order, 11/6/20, ¶¶1, 2, 4. The trial court amended the
verdict in Sherwood’s favor by awarding her additional damages of $15,000
on the trespass to chattels claim, $1,000 on the conversion claim, and $100
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on the UTPCPL claim. Id. The court denied Sherwood’s post-trial motion in
all other respects and denied Appellants’ post-trial motion in its entirety. Id.,
¶¶3, 5. Therefore, the total verdict in Sherwood’s favor after post-trial
motions was $168,516.64, consisting of $75,766.64 in damages and $92,750
in fees and costs. Judgment was entered on November 13, 2020, and
Appellants filed a timely notice of appeal.4
Appellants raise the following issues on appeal:
[1.] Whether the trial court committed a manifest abuse of
discretion and/or a clear error of law in awarding [Sherwood] any
storage fees beyond July 15, 2018.
[2.] Whether the trial court’s award of treble damages of
$43,583.32 pursuant to 68 P.S. § 250.505a(i) constituted a
manifest abuse of discretion and/or a clear error of law.
[3.] Whether the trial court’s awards of damages on [Sherwood’s]
claims of conversion and trespass to chattels constituted manifest
abuses of discretion and/or [] clear errors of law.
[4.] Whether the trial court’s award of attorneys’ fees and court
[costs] in the amount of $92,750.00 constituted a manifest abuse
of discretion and/or a clear error of law.
Appellant’s Brief at 3 (trial court disposition and unnecessary capitalization
omitted).
Our review of an order denying a post-trial motion is limited to
determining whether the trial court abused its discretion or committed an error
of law. Spencer v. Johnson, 249 A.3d 529, 549 (Pa. Super. 2021). “An
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4 Appellants filed their concise statement of errors pursuant to Pa.R.A.P.
1925(b) on January 27, 2021, and the trial court issued a Pa.R.A.P. 1925(a)
opinion on February 19, 2021.
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abuse of discretion exists when the trial court has rendered a judgment that
is manifestly unreasonable, arbitrary, or capricious, has failed to apply the
law, or was motivated by partiality, prejudice, bias, or ill will.” Id. (citation
omitted). Where the appellant raises an issue as to an error of law, our
standard of review is de novo and our scope of review is plenary. Id.Appellants’ first three appellate issues concern the trial court’s award of
damages to Sherwood.
Our standard of review of a trial court’s award of damages is
narrow: In reviewing the award of damages, the appellate courts
should give deference to the decisions of the trier of fact who is
usually in a superior position to appraise and weigh the evidence.
If the verdict bears a reasonable resemblance to the damages
proven, we will not upset it merely because we might have
awarded different damages.
Witherspoon v. McDowell-Wright, 241 A.3d 1182, 1187 (Pa. Super. 2020)
(citation omitted).
Appellants first challenge the $6,098.82 damages award for storage fees
from the date Sherwood was able to collect her possessions from the storage
Pod in July 2018 until September 2019. Appellants argue that the trial court
abused its discretion and committed an error of law by awarding Sherwood
damages to store her property for the period beyond July 15, 2018, when her
lease expired.
“[I]t is settled in this state that any wrongful act of the landlord which
results in an interference of the tenant’s possession, in whole or in part, is an
eviction for which the landlord is liable in damages to the tenant.” Kohl v.
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PNC Bank National Association, 912 A.2d 237, 248–49 (Pa. 2006) (citation
omitted)); see also Kuriger v. Cramer, 498 A.2d 1331, 1338 (Pa. Super.
1985); Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. 1976). “The
general rule [is] that the lessee may recover . . . for all losses which he can
prove he has actually sustained, or which he will necessarily sustain, under
the circumstances, as a result of the unlawful eviction.” Pollock, 369 A.2d at
462 (citation omitted).
The trial court explained that its award of damages for storage fees
through September 2019 was based on the fact that Appellants’ wrongful
actions in evicting her from her apartment and placing her items in storage
led to her being unable to find a new dwelling adequate to store all of her
belongings. Trial Court Opinion, 2/19/21, at 14-15. The trial reasoned that
compensating her “for the small period of time in between her wrongful
eviction and the date of her lease expiration would be only a partial
compensation of her financial injuries.” Id. at 15.
We conclude that the trial court did not abuse its discretion in awarding
Sherwood damages for storage fees beyond the expiration of her lease term
at Appellants’ Property. Sherwood testified that, upon her return to
Pennsylvania in April 2018, she had to quickly find somewhere to stay and she
did not have access to her possessions at the time to furnish her new
accommodations; as a result, she rented a single, furnished room in an
acquaintance’s house in June 2018. N.T., 12/11/19, at 34, 54, 62-63. This
left her with nowhere to move her possessions when she finally gained access
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to them in July 2018 and she was forced to place her items in a rented storage
unit. Id. at 63. Therefore, the trial court reasonably concluded that the
storage fees Sherwood was required to pay from July 2018 to September 2019
were sustained “as a result of the unlawful eviction” and the withholding of
her possessions. Pollock, 369 A.2d at 462 (citation omitted).
Appellants next argue that the trial court erred and abused its discretion
in requiring them to pay $43,583.32 in statutory treble damages under
Section 505.1 of the LTA. This statute provides in relevant part as follows:
(f) Under no circumstances may a landlord dispose of or otherwise
exercise control over personal property remaining upon inhabited
premises without the express permission of the tenant. If the
conditions under which personal property may be deemed
abandoned no longer exist, the landlord shall have no right to
dispose of or otherwise exercise control over the property.
...
(i) A landlord that violates the provisions of this section shall be
subject to treble damages, reasonable attorney fees and court
costs.
68 P.S. § 250.505a(f), (i).
Appellants argue that Sherwood did not submit any evidence regarding
damage to her belongings as a result of their removal from her apartment and
placement into the storage Pod. Appellants contend that all of the damages
as to which evidence was submitted related to Sherwood’s wrongful eviction,
rather than the treatment of her personal property. Therefore, Appellants
assert that there were no damages to treble and no award should have been
made pursuant to Section 505.1.
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Upon review, we agree with Appellants that the trial court’s award of
treble damages was in error. Initially, we observe that the trial court offered
no explanation for how it arrived at the $43,583.32 treble damages figure or
which other damages were included in this award. To the best that this Court
can discern, the trial court calculated treble damages by tripling five other
categories of damages awarded to Sherwood for her security deposit, hotel
fees, the tow and key replacement for her truck, storage fees, and four months
of rent, which total $14,583.82.5
However, we fail to discern how some of the damages included in the
treble damages award relate to the subject matter of Section 505.1, relating
to a landlord’s “dispos[al] of or [] exercise [of] control over” a tenant’s
property. 68 P.S. § 250.505a(f). In particular, we note that the trial court
included in the treble damages award $1,150 of actual damages based upon
Appellants’ failure to return Sherwood’s security deposit and $4,600 of
damages for four months of rent that Sherwood paid while she was in Arizona
but was evicted from her apartment. While these damages certainly were
recoverable based upon Appellants’ wrongful eviction of Sherwood and their
breach of the lease, we cannot agree with the trial court that these damages
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5 Nevertheless, it appears that the treble damage award is the result of a
mathematical error. The damages for the security deposit ($1,150), hotel
fees ($1,874.83), tow and key replacement ($859.67), storage fees
($6,098.82), and rent ($4,600) total $14,583.82. It appears that the trial
court intended to multiply this figure by three, which would have given a
product of $43,749.96, but instead the court transposed several digits from
the actual damages award and arrived at $43,583.82 instead.
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related to Appellants’ unauthorized removal of Sherwood’s property from her
apartment and the placement of those items into storage.
Furthermore, the manner in which the trial court calculated treble
damages resulted in, effectively, a quadruple damages award. In Richards
v. Ameriprise Financial, Inc., 217 A.3d 854 (Pa. Super. 2019), this Court
addressed a similar award in the context of the treble damages provision of
the UTPCPL. In that case, the trial court “ascertained the actual damages of
$34,006.44 under the UTPCPL,” multiplied the actual damages by three
resulting in $102,019.32, then awarded treble damages of $102,019.32 in
addition to the actual damage award of $34,006.44 Id. at 866. Noting that
the UTPCPL “does not authorize [] the award of quadruple damages,” we
concluded that a treble damages award is properly calculated by determining
the amount of actual damages sustained under the UTPCPL and multiplying
that figure by three. Id. at 865-66. As the method of calculation employed
by the trial court in Richards resulted in the extra award of $34,006.44 to
the plaintiff, we struck this amount from the damages award. Id. at 866.
Here, the trial court awarded actual damages of $14,583.82 for
Appellant’s security deposit, hotel fees, the tow and key replacement, storage
fees, and four months of rent. The trial court then multiplied the actual
damages by three and included this sum in the damage award in addition to
the $14,583.82 of actual damages, resulting in what was effectively a
quadrupling of the actual damages. However, Section 505.1 of the LTA, like
the UTPCPL, only authorizes the imposition of treble damages, not quadruple
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damages. 68 P.S. § 250.505a(i); cf. Richards, 217 A.3d at 865.6 Therefore,
the treble damage award here cannot stand.
Accordingly, we vacate the treble damages award and remand for a
recalculation of these damages. In determining the proper treble damages
award on remand, we direct the trial court to only include those damages that
relate to Appellants’ improper “dispos[al] of or [] exercise [of] control over”
Sherwood’s property. 68 P.S. § 250.505a(f).
Appellants next challenge the trial court’s award of damages to
Sherwood of $15,000 on her trespass to chattels claim and $1,000 on her
conversion claim. Noting that “the measure of damages for conversion is the
market value of the converted property at the time and place of conversion,”
L.B. Foster Co. v. Charles Caracciolo Steel and Metal Yard, Inc., 777
A.2d 1090, 1096 (Pa. Super. 2001), Appellants argue that the record was
completely devoid of any evidence either as to the market value of any of the
possessions in her apartment or of the value of any impairment to her
possessions as a result of their temporary placement in the storage Pod.
“Conversion is the deprivation of another’s right of property in, or use
or possession of, a chattel, without the owner’s consent and without lawful
justification.” Witherspoon, 241 A.3d at 1187 (citation omitted). Trespass
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6 We note that Section 505.1 was amended in 2014 with the treble damages
provision added at that time. See Act of October 22, 2014, P.L. 2620, No.
167. While no case law exists interpreting the treble damages provision of
Section 505.1, we see no basis upon which to interpret it any differently than
other treble damages provisions set forth in Pennsylvania law.
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to chattels is a similar tort committed when an individual “dispossess[es]
another of chattel . . . or us[es] or intermeddl[es] with a chattel in the
possession of another.” Pestco, Inc. v. Associated Products, Inc., 880
A.2d 700, 708 (Pa. Super. 2005) (citing Restatement (Second) of Torts §
217); see also Rosemont Taxicab Co., Inc. v. Philadelphia Parking
Authority, 327 F.Supp.3d 803, 828 (E.D. Pa. 2018) (noting that in
Pennsylvania, the elements of trespass to chattel “are essentially the same”
as those of the tort of conversion) (citation omitted).
While this Court applies a deferential review of damage awards, we have
recognized that a more rigorous standard is due as to a trial court’s valuation
of damaged personal property. See Witherspoon, 241 A.3d at 1187.
Damages for conversion and trespass to chattels may be based on the market
value of property that is permanently converted, the diminution in market
value as a result of a temporary conversion or trespass, or damages
associated with the loss of use of personal property. Witherspoon, 241 A.3d
at 1187; Restatement (Second) of Torts § 927, Comment O; id. § 928; see
also Kintner v. Claverack Rural Electric Co-op., Inc., 478 A.2d 858, 861-
62 (Pa. Super. 1984). In addition, a plaintiff who is tortiously deprived of
property may recover the special value of the property to her if greater than
the market value of the property. Witherspoon, 241 A.3d at 1187;
Restatement (Second) of Torts § 927, Comment C.
Estimates of market value are permitted in determining the damage
award, however the verdict may not be “based on speculation or guesswork.”
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Witherspoon, 241 A.3d at 1187-88 (citation omitted). Thus, while
“mathematical certainty” is not required, the damages as to personal property
must be proved “with reasonable certainty” based upon “sufficient facts [that
allow] the court [to] arrive at an intelligent estimate without conjecture.” Id.
at 1188 (citation omitted); see also Croft v. Malli, 105 A.2d 372, 375 (Pa.
1954) (holding that damages for loss of use or impairment of property is
permitted so long as the plaintiff demonstrated actual loss “with a reasonable
degree of certainty through witnesses with knowledge of the facts”) (citation
omitted). Moreover, although the fact-finder may estimate the damages and
rely on “probable and inferential,” as well as “direct and positive,” proof of
damages, the plaintiff retains the primary burden of proving the amount of
damages. Witherspoon, 241 A.3d at 1188 (citation omitted); see also
Penn Electric Supply Co., Inc. v. Billows Electric Supply Co., Inc., 528
A.2d 643, 645 (Pa. Super. 1987).
In its Rule 1925(a) opinion, the trial court stated that it based its $1,000
conversion damages award on Sherwood’s testimony regarding the items that
were removed from her apartment, including plants that had sentimental
value that she had cared for over many years. Trial Court Opinion, 2/19/21,
at 12. The trial court explained that, while Sherwood did not provide exact
values for the property, the $1,000 award was fair compensation for her
injury. Id. at 12-13. With respect to the $15,000 trespass to chattels award,
the court explained that it was “forced to estimate the reasonable cost of the
[Sherwood’s] items and the harm [Appellants] caused when withholding them
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for three months.” Id. at 13. The trial court based its calculation on
Sherwood’s monthly rent payments under the lease of $13,800 and her
storage fees for her property over a 14-month period of $6,098.82. Id. The
court “ascertained” that the harm caused to her property should be “slightly
above her year’s rent payment[; p]resumably, had her property been worth
more, [Sherwood] would have tendered more expensive accommodations.”
Id.
With respect to the conversion award, we find that the trial court acted
within its discretion in calculating damages at $1,000. Sherwood explained at
trial that several plants in her apartment—including a bonsai tree that she had
cared for over eight years and an African violet plant handed down from her
grandmother—were destroyed when placed into the storage Pod. N.T.,
12/11/19, at 56-57. Sherwood stated that she “cherished” the bonsai and
African violet plant and that the violet was a “sentimental belonging[]” and
“the only living thing that [she had] in remembrance of her” grandmother.
Id. at 57. While Sherwood did not provide the trial court with exact monetary
values for the bonsai and violet, Sherwood established that the plants had a
special value to her beyond the cost to replace these items, and the trial court
was permitted to arrive at a “just and reasonable estimate” calculation of the
damages based upon this special value. Witherspoon, 241 A.3d at 1188
(citation omitted); see also Lynch v. Bridges & Co. Inc., 678 A.2d 414,
416 (Pa. Super. 1996) (“[I]t is the traditional function of the fact finder in
conversion actions to estimate damages.”) (citation omitted); Pikunse v.
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Kopchinski, 631 A.2d 1049, 1050-52 (Pa. Super. 1993) (affirming conversion
damages award to tenant for personal property improperly disposed of by
landlord where some of the converted possessions had only sentimental value
to the tenant as to which no market value could be affixed).
However, we must conclude that the trial court abused its discretion in
awarding Sherwood $15,000 on her trespass to chattels cause of action. Aside
from Sherwood’s inability to access the keys to her truck leading to the tow
and key replacement—as to which she was independently compensated by the
trial court—Sherwood did not present any evidence of damages resulting from
her temporary loss of use of her personal property or any diminution of market
value of these items owing to Appellants’ actions. The trial court thus was
required to engage in “speculation and guesswork” in calculating what the
value of these items would have meant to her during the period of
dispossession, Witherspoon, 241 A.3d at 1187 (citation omitted), and such
guesswork cannot make up for the absence of any record upon which the
award could have been based to a degree of “reasonable certainty.” Id. at
1188 (citation omitted). Accordingly, we affirm the award of $1,000 of
damages to Sherwood for conversion of her personal property but vacate the
trial court’s $15,000 trespass to chattels award.
Finally, Appellants challenge the trial court’s award of attorneys’ fees
and costs to Sherwood in the amount of $92,750. Appellants argue that the
award was excessive as the trial court did not make any effort to apportion
the fees and costs as they related to the litigation of her claim under Section
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505.1 of the LTA, the only one among her nine claims for which fees and costs
were awarded.
Where an award of attorneys’ fees is authorized by statute, we review
the amount awarded under an abuse of discretion standard. Samuel-Bassett
v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011). The trial court is
afforded great latitude in fashioning its award, and we will not disturb it merely
because we might have reached a different conclusion. Id.; Pelissero v.
Seraly, 247 A.3d 433, 437 (Pa. Super. 2021). “Rather, we require a showing
of manifest unreasonableness, partiality, prejudice, bias, ill-will, or such lack
of support in the law or record for the award to be clearly erroneous.”
Samuel-Bassett, 34 A.3d at 51.
This Court has held that where a statute authorizes the recovery of
attorneys’ fees on one cause of action among several claims raised in the
litigation, the trial court must undertake efforts to limit the fee award to the
claims brought under the authorizing statute. See Krishnan v. The Cutler
Group, Inc., 171 A.3d 856, 871 (Pa. Super. 2017); Neal v. Bavarian
Motors, Inc., 882 A.2d 1022, 1031-32 (Pa. Super. 2005); Croft v. P & W
Foreign Car Service, Inc., 557 A.2d 18, 20 (Pa. Super. 1989). Thus, in
awarding the fees, the trial court “must link the attorney fee award to the
amount of damages sustained under [the statutory claim] and eliminate from
the award of attorney fees the efforts to recover on” the claims as to which
there exists no statutory authority for recovery of fees. Neal, 882 A.2d at
1031-32; see also Krishnan, 171 A.3d at 871. Nevertheless, we have
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recognized that it is often difficult to parse out the time spent on a claim as to
which recovery of fees and costs is authorized from other claims with “a
common core of facts and related legal theories.” P & W Foreign Car
Service, 557 A.2d at 20; see also Boehm v. Riversource Life Insurance
Co., 117 A.3d 308, 335 (Pa. Super. 2015).
In its Rule 1925(a) opinion, the trial court opined that the hours spent
by a plaintiff in litigating an “unsuccessful claim should be excluded in
considering the amount of a reasonable fee” only where the unsuccessful claim
is “distinct in all respects from his successful claims.” Trial Court Opinion,
2/19/21, at 15 (quoting Township of South Whitehall v. Karoly, 891 A.2d
780, 786 (Pa. Cmwlth. 2006)). In addition, the court reasoned that “[o]nly
where the plaintiff has ‘limited success’ in her claim should the trial court
reduce her attorney fee award to be proportional to her legal victory.” Id. at
16 (quoting Karoly, 891 A.2d at 786). The trial court concluded that each of
the claims Sherwood brought, including the Section 505.1 claim, “stemmed
from the wrongful eviction” and she therefore “should not be punished
[through a reduction of the award of fees and costs] for bringing appurtenant
claims against her former landlords.” Id.Here, while we agree with the trial court that the nine claims brought by
Sherwood all involve “a common core of facts and related legal theories,”
Croft, 557 A.2d at 20, we cannot concur in the trial court’s judgment that
Sherwood was entitled to the entirety of her attorneys’ fees and court costs
without any reduction related to the litigation of her non-Section 505.1 claims.
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For example, we note that Sherwood amended her complaint three times, and
it is unclear to what extent her pleadings pertaining to the dispossession of
her property changed with each respective version of the complaint.
Furthermore, Sherwood filed three motions in limine, at least two of which
relate to evidence concerning events prior to her departure for Arizona, long
before Appellants improperly removed her personal property from her
apartment and placed them in the storage Pod. Additionally, Sherwood filed
a motion for summary judgment, seeking relief on six claims, only one of
which was her Section 505.1 claim. Finally, we observe that, while the Section
505.1 claim substantially overlapped with the other claims asserted in the
complaint, the evidence adduced at trial to show a violation and damages on
certain of her claims, most notably her intentional infliction of emotional
distress claim, differed markedly from that put forward to prove a violation of
Section 505.1.7
Accordingly, we conclude that the trial court abused its discretion in not
undertaking any effort to separate the attorneys’ fees and court costs related
to the litigation of the Section 505.1 claim from those associated with the
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7 We also note, while the trial court relied on the Commonwealth Court opinion
in Karoly in support of its conclusion that a reduction of the award of
attorneys’ fees and court costs is not required unless the unrelated claims are
entirely distinct from the claim for which recovery is authorized, Karoly is not
binding on this Court and indeed inconsistent with our well-established
caselaw regarding the recovery of attorneys’ fees in litigation involving mixed
claims. See Murphy v. Karnek, 160 A.3d 850, 860 n.11 (Pa. Super. 2017)
(stating that Superior Court is not bound by Commonwealth Court decisions).
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litigation of her other claims. However, we additionally note that, while the
trial court based its award of fees and costs solely on the Section 505.1 claim,
the UTPCPL also permits recovery of fees and costs on a successful claim under
that statute. See 73 P.S. § 201-9.2(a). The trial court here did find that
Appellants violated the UTPCPL but only in its November 6, 2020 ruling on
post-trial motions after initially dismissing this claim in its June 22, 2020
verdict, the same ruling where the court made its award of fees and costs
under Section 505.1. Because the trial court did not have the opportunity to
base its award of fees and costs on the UTPCPL, we conclude that it may do
so on remand.8 We therefore vacate the $92,750 award and remand this
matter for the trial court to determine the proper amount of attorneys’ fees
and court costs related to the litigation of the Section 505.1 and UTPCPL
claims.9
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8 This Court has held that, in the context of an award under the UTPCPL, there
must be “a sense of proportionality between an award of damages [under the
UTPCPL] and an award of attorney’s fees.” Richards, 217 A.3d at 868
(citation omitted); see also Boehm, 117 A.3d at 335. In its Rule 1925(a)
opinion, the trial court found that Appellants waived any challenge to the
proportionality of the award of fees and costs by not raising the argument in
their post-trial motions. Trial Court Opinion, 2/19/21, at 16 n.65. We agree
with the trial court that Appellants failed to preserve an objection to the
proportionality of the award insofar as the award was based on the fees and
costs associated with the litigation of the Section 505.1 claim.
9 Appellants raise two other challenges to the award of fees and costs that do
not warrant relief. First, Appellants argue that Sherwood did not present any
“testimony or documentary evidence [] regarding the attorney’s fees incurred
in terms of time, details, hours, reasonableness or necessity.” Appellants’
Brief at 11. However, Appellants waived this argument by failing to raise it in
(Footnote Continued Next Page)
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Judgment vacated in part and affirmed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2021
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their post-trial motion or their Rule 1925(b) statement of matters complained
of on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.
1925(b)(4)(vii) (issues not included in Rule 1925(b) statement are waived).
Appellants further contend that the dispute related to Sherwood’s personal
property—which was the subject of the Section 505.1 claim—was rendered
moot when the property was returned to her in July 2018 and any attorneys’
fees and costs from after the date of return could not be assessed against
Appellants. We disagree that Sherwood’s Section 505.1 claim was mooted by
the return of her property as that statute clearly provides that a tenant may
recover damages arising out of a landlord’s violation of the statute. See 68
P.S. § 250-505a(i). Appellants have cited to no authority, and we are aware
of none, that would restrict the recovery of attorneys’ fees and court costs
solely to the fees and costs incurred during the period when the defendant is
actively violating the statute that authorizes recovery.
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