Universal Steel Buildings v. Reagan, P.

J-A14013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
UNIVERSAL STEEL BUILDINGS : IN THE SUPERIOR COURT OF
CORP. : PENNSYLVANIA
:
:
v. :
:
:
PAULA REAGAN :
: No. 1314 WDA 2018
Appellant
Appeal from the Judgment Entered August 16, 2018
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): Case No. AR-16-001991
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019
Paula Reagan appeals from the judgment entered on August 16, 2018,
in the Allegheny County Court of Common Pleas, in favor of Universal Steel
Buildings Corp. (“Universal”), following a non-jury trial in this breach of
contract action. On appeal, Reagan raises the following claims: (1) did
Universal violate provisions of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”)1 by failing to provide in its agreement
with Reagan required notices of her rights to cancel; (2) was the refusal by
Reagan to accept delivery of the building an effective cancellation under the
provisions of the UTPCPL where no right to cancel was ever provided; (3) was
____________________________________________
1 73 P.S. §§ 201-1 to 201-9.3.
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a separate and express agreement required under the Pennsylvania
Electronics Transactions Act2 where the transaction was conducted
electronically in part and non-electronically in part; (4) does the evidence
support a determination that regardless of the enforceability of the underlying
agreement, Reagan ratified the contract by conduct; and (5) was there
sufficient evidence for the court to make a determination as to the
reasonableness of attorneys’ fees?3 Based on the following, we affirm in part
and vacate in part.
The trial court set forth the facts and procedural history as follows:
Using the Internet, Defendant Paula Reagan contacted Plaintiff
Universal Steel Building Corporation and requested a price quote
for the purchase of a customized steel building. In response to
Reagan’s inquiry, a sales representative from Universal contacted
Reagan, and the two discussed details of an agreement for the
sale of the building by Universal to Reagan. Using DocuSign, an
online system, Universal thereafter sent a proposed contract to
Reagan at the email she had provided. On or about January 5,
2016, Reagan sent Universal the electronically executed contract
and a $12,705.00 draft drawn on Reagan’s SLR Unlimited business
account. The contract provided, inter alia, for the delivery to
Reagan of a building pre-engineered to various particulars for the
total price of $42,350.00 ($12,705.00 having been already paid
by Reagan and $29,645.00 due on delivery of the building).
Universal’s President signed the contract on or about January 6,
2016.
Universal arranged for Steel Building Corporation (“SBC”) to
manufacture the building according to the specifications agreed
upon in the Reagan-Universal contract. SBC later contacted
Reagan and proposed a delivery date of February 21, 2016.
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2 72 P.S. § 2260.301, et seq.
3 We have reordered the fourth and fifth issues for ease of our analysis.
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Reagan then called Universal, objected to the February 21st date,
and requested a delivery date of February 1, 2016. Universal
agreed to Reagan’s request and, on or about January 14, 2016,
confirmed the February 1st delivery date by letter to Reagan. Also
on or about January 14, 2016, Universal sent Reagan various
permit drawings for the building.
In a letter dated January 19, 2016, Reagan’s lawyer, Roger
Yale, asked for written assurance from Universal that Universal
would deliver Reagan’s building on the date she requested,
namely February 1, 2016. The letter also indicated that any
failure by Universal to deliver Reagan’s building on February 1st
would constitute a breach of the parties’ contract. Universal
responded with two letters (January 19 and 21, 2016) confirming
Universal’s intention to deliver the building on the agreed-upon
date of February 1st.
In order to meet Reagan’s demand for delivery on February
1st, Universal switched the intended manufacturer from SBC to
Corle Building Systems. Universal had, however, already incurred
a fee of $1,500.00 to pay for various drawings that SBC had
prepared in anticipation of constructing and delivering the
intended steel structure.
On January 29, 2016, Universal’s attorney contacted
Reagan’s attorney (Yale) and advised Yale that the building was
being shipped to Reagan for a February delivery. Universal’s
attorney likewise sent Yale confirming emails on January 29th and
on February 1st (just prior to delivery).
On February 1, 2016, Reagan’s building, having been
constructed in accordance with the contract specifications, was
delivered to the agreed-upon address. Along with the building
came construction drawings. Reagan refused to accept delivery
of the building. The building was then shipped back at an expense
of $2,700.00 to Universal.
To mitigate its losses, Universal sold the building for
$23,100 and incurred a $1,000.00 fee necessary to facilitate the
sale. Universal could not reasonably secure a higher sale price
because the structure had been built to custom specifications
contained in the parties’ agreement. Although the contract
provided that Reagan’s deposit of $12,705.00 was not refundable,
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Reagan’s bank reversed the payment and, as such, Universal did
not retain that amount.
Universal sued Reagan in breach of contract. Reagan lodged
six counterclaims. The case proceeded to trial and this court
rendered a verdict in Universal’s favor on its claim and on all of
Reagan’s claims. The particulars of the award are specified on the
verdict slip, and they include attorneys’ fees (provided for by the
contract) in an amount this court found to be reasonable.
[Reagan] filed post-trial motions essentially claiming this
court lacked subject matter jurisdiction, there was no valid
contract, and the attorneys’ fees were excessive and otherwise
unwarranted.
Trial Court Opinion, 8/16/2018, at 2-4.
The trial court denied the post-trial motions. On August 16, 2018,
judgment was entered on the April 10, 2018, verdict in the amount of
$114,202.92, in favor of Universal and against Reagan. 4 This appeal
followed.5
In her first argument, Reagan essentially argues the UTPCPL applies to
the present matter. She first complains Universal violated the provisions of
the UTPCPL by failing to provide in its agreement with Reagan required notices
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4 The breakdown of the award is as follows: (1) $19,250.00 for unpaid sales
price; (2) $1,500.00 for drafting deposit; (3)$2,700.00 for return shipping;
(4) $1,000.00 for mitigation referral fee; (5) $167.00 for court costs; and (6)
$89,585.92 for attorneys’ fees. See Verdict, 4/10/2018, at 1.
5 On September 19, 2018, the trial court ordered Reagan to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reagan filed a concise statement on October 9, 2018. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on October 25, 2018, relying on its
August 16, 2018 memorandum.
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of her rights to cancel, but to the contrary by providing false and misleading
information as to cancellation rights. See Reagan’s Brief at 12. Relying on
Section 201-3 of the UTPCPL,6 she states “[t]here can be no dispute but that
the transaction involved in this case involves ‘trade and commerce’ as defined
in” the UTPCPL. Id. Moreover, she asserts that pursuant to Section 201-77
of the UTPCPL,
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6 Section 201-3 provides:
Unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce as defined by
subclauses (i) through (xxi) of clause (4) of section 2 of this act
and regulations promulgated under section 3.1 of this act are
hereby declared unlawful. The provisions of this act shall not
apply to any owner, agent or employe of any radio or television
station, or to any owner, publisher, printer, agent or employe of
an Internet service provider or a newspaper or other publication,
periodical or circular, who, in good faith and without knowledge of
the falsity or deceptive character thereof, publishes, causes to be
published or takes part in the publication of such advertisement.
73 P.S. § 201-3.
7 Section 201-7 provides:
(a) Where goods or services having a sale price of twenty-five
dollars ($ 25) or more are sold or contracted to be sold to a buyer,
as a result of, or in connection with, a contact with or call on the
buyer or resident at his residence either in person or by telephone,
that consumer may avoid the contract or sale by notifying, in
writing, the seller within three full business days following the day
on which the contract or sale was made and by returning or
holding available for return to the seller, in its original condition,
any merchandise received under the contract or sale. Such notice
of rescission shall be effective upon depositing the same in the
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[t]he evidence adduced at trial showed that Paula Reagan was
contacted by telephone by Universal’s salesperson, George
Poelcher, as a result of an inquiry by Reagan on the internet
relative to the purchase of pre-fabricated steel building. Poelcher
then on January 5, 2016 sent by email a purchase order that was
returned and eventually countersigned by Universal on January 6,
2016. Any fair reading of the language of the statute ([UTPCPL])
compels the conclusion that buyer (Reagan) is entitled to the
protections of Section 201-7, including notice of cancellation
rights, a copy of the contract at the time it is signed signed [sic],
____________________________________________
United States mail or upon other service which gives the seller
notice of rescission.
(b) At the time of the sale or contract the buyer shall be provided
with:
(1)
A fully completed receipt or copy of any contract
pertaining to such sale, which is in the same language
(Spanish, English, etc.) as that principally used in the
oral sales presentation, and also in English, and which
shows the date of the transaction and contains the
name and address of the seller, and in immediate
proximity to the space reserved in the contract for the
signature of the buyer or on the front page of the
receipt if a contract is not used and in bold face type
of a minimum size of ten points, a statement in
substantially the following form:
“You, the buyer, may cancel this transaction at any time
prior to midnight of the third business day after the date of
this transaction. See the attached notice of cancellation
form for an explanation of this right.”
(2) A completed form in duplicate, captioned “Notice of
Cancellation,” which shall be attached to the contract or receipt
and easily detachable, and which shall contain in ten-point bold
face type the following information and statements in the same
language (Spanish, English, etc.) as that used in the contract[.]
73 P.S § 201-7.
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the right to cancel the transaction within three business days, and
a continuing right to cancel until actual notice of cancellation rights
are provided. []If the language as fairly construed encompasses
the buyer then the buyer must be afforded the benefits of the
statute ([UTPCPL]). Burke v Yingling, 666 A. 2d 288, __ Pa.
Super __ (Pa. Super 1991)[.]
To the contrary, the standardized agreement furnished by
Universal did not contain any notice of cancellation rights and
instead falsely advised the buyer, Reagan, that no cancellation
rights existed. In a subsequent writing dated January 14, 2016
Victor Guiterrez, again falsely led Reagan to believe no
cancellation rights existed.
Reagan’s Brief at 14-15.
Lastly, Reagan contends the court erred in failing to apply Section 201-
7 to the matter by finding that because of Reagan’s business-account
payment, the case involved a commercial transaction. Id. at 16. She asserts
this was a commercial transaction, but protected under the UTPCPL, and
points to the following: (1) the action specifically named her an individual;
(2) all subsequent allegations mentioned her only; (3) the written agreement
identified her as the buyer; and (4) the testimony concerning the deposit
check, which was drawn from SLR Unlimited’s account, failed to provide any
identity as to SLR Unlimited or any relationship by SLR Unlimited to the
transaction. Id. at 16-17. Reagan states, “The protections afforded by the
[UTPCPL] are not restricted to individuals and do not exclude other types of
entities. Commercial transactions are not precluded from coverage under the
law. To the contrary, it is logical to conclude that most transactions involving
the [UTPCPL] are, in fact, commercial.” Id. at 17.
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Reagan’s issue concerns statutory interpretation of the UTPCPL, which
is a legal question. Therefore, “our scope of review is plenary, and our
standard of review is de novo.” Gregg v. Ameriprise Fin., Inc., 195 A.3d
930, 940 (Pa. Super. 2018), appeal granted on other grounds, __ A.3d __
[490 WAL 2018] (June 27, 2019). We are also guided by the following:
The UTPCPL is Pennsylvania’s consumer protection law, which
serves the purpose of protecting the public from unfair or
deceptive business practices. The UTPCPL explicitly authorizes a
private cause of action for anyone who purchases goods primarily
for personal, family, or household purposes and “suffers any
ascertainable loss of money or property” as a result of any person
employing an unlawful method, act, or practice. 73 P.S. §201-
9.2(a).
Zajick v. Cutler Grp., Inc., 169 A.3d 677, 680 (Pa. Super. 2017) (citation
omitted). Whether a purchase is for “personal, family or household purposes”
is contingent on the “purpose of the purchase, not the type of product
purchased.” Valley Forge Towers S. Condo. v. Ron-Ike Foam
Insulators, Inc., 574 A.2d 641, 648 (Pa. Super. 1990) (italics in original)
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(“Valley Forge”), aff’d, 605 A.2d 798 (Pa. 1992).8 See also Novinger Grp.,
Inc. v. Hartford Ins., Inc., 514 F. Supp. 2d 662, 670 (M.D. Pa. 2007).9
Moreover,
[t]he statute affords the right to cancel to any consumer who
agrees to purchase goods or services with a value of $ 25 or more
“as a result of or in connection with” contact between the seller
and the consumer at the consumer’s home. The statute provides
for no exceptions.
Burke v. Yingling, 666 A.2d 288, 291 (Pa. Super. 1995).
Here, the trial court found the following:
Reagan is incorrect to argue that Section 201-7 of Pennsylvania
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”)
bars Universal’s recovery. Reagan’s business-account payment
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8 The Valley Forge panel set forth the following example, illustrating the
distinction between the purpose of a purchase and the type of product
purchased:
If a laundry business were to purchase a home-use model,
department store dryer for the primary purpose of drying clothes
for the laundry business, such a purchase would be primarily for
a business purpose, despite the fact that the dryer may have been
a typical “consumer product.” On the other hand, if the parents
of twelve growing children purchased an industrial washer and
dryer from a business supplier to be used primarily to do the
family’s laundry, the purchase would be primarily for a family
purpose and come within the ambit of 73 P.S. § 201-9.2,
notwithstanding the fact that industrial washers and dryers
generally might not be considered typical "consumer products."
Valley Forge, 574 A.2d at 648 (emphasis in original).
9 We note “decisions of the federal district courts . . . are not binding on
Pennsylvania courts, even when a federal question is involved.” Kubik v.
Route 252, Inc., 762 A.2d 1119, 1124 (Pa. Super. 2000) (citation omitted).
Nevertheless, these decisions are persuasive authority and helpful in our
review of the issue presented.
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for the building in question persuaded this court that this case
involved a commercial transaction. Section 201-7 of the UTPCPL
is intended to protect residential consumers who have fallen prey
to sellers who contact those customers at their home before they
have time to reflect on the transaction. See Johnson v. Metlife
Bank, 883 F.Supp.2d 542, 551 (E.D.Pa. 2012); Burke v.
Yingling, 666 A.2d 288, 291 (Pa. Super. 1991); 73 P.S. § 201-7.
The UTPCP[L] is inapplicable.
Trial Court Opinion, 8/16/2018, at 5.
We agree with the trial court that the UTPCPL does not apply to the
present matter. As noted above, the UTPCPL provides for a private cause of
action for anyone who purchases goods “primarily for personal, family, or
household purposes” and “suffers any ascertainable loss of money or
property” as a result of any person employing an unlawful method, act, or
practice. 73 P.S. §201-9.2(a). A review of Reagan’s original answer, her four
sets of amended answers, new matters, and counterclaims, and her
preliminary objections10 reveals that Reagan failed to set forth any allegation
or point to any evidence establishing her “purpose” for the purchase. Valley
Forge, 574 A.2d at 648. Indeed, in none of those documents did Reagan
even mention that the purchase at issue was “primarily for personal, family,
or household purposes” as set forth in Section 201-9.2 of the UTPCPL. Zajick,
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10 See Defendant’s Original Answer, 6/28/2016; Amended Answer, New
Matter and Counterclaim, 1/19/2017; Second Amended Answer, New Matter
and Counterclaim, 2/27/2017; Third Amended Answer, New Matter and
Counterclaim, 4/7/2017; Amended Answer, New Matter and Counterclaim,
5/11/2017; and Defendant’s Preliminary Objections to Plaintiff’s New Matter
Raising Questions of Fact, 7/3/2017.
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169 A.3d at 680. Rather, she made general references to the UTPCPL but did
not explicitly plead why she qualified for protection under the statute. For
example, in her second Amended Answer, New Matter and Counterclaim,
Reagan sets forth the following allegations, in relevant part:
5. The averments of paragraph 5 of [Universal]’s Complaint are
denied. It is denied that Paula Reagan provided a check to
[Universal] in the amount of $12,705.00 for engineering of a
building and other preliminary work. To the contrary Paula
Reagan at no time knowingly and/or intentionally provided any
check or funds to [Universal]. By way of further response, at all
times material, [Universal] engaged in conduct intended to cause
the likelihood of confusion and misunderstanding on the part of
Paula Reagan in violation of the [UTPCPL]. [Universal] provided
false information to Paula Reagan and/or knowingly failed to
disclose material facts to Ms. Reagan including the fact that
[Universal] intended to obtain information from [Reagan] to be
used to withdraw funds from her bank accounts without her
consent or knowledge. The funds alleged to have been provided
were reversed by Ms. Reagan’s bank based on [Universal]’s
fraudulent conduct.
…
New Matter
…
17. [Universal]’s claims are barred based on [Universal]’s fraud
in execution of the alleged agreement.
18. In the course of conducting an internet search to purchase a
pre-fabricated steel building, [Reagan] came upon [Universal]’s
website. [Reagan] requested an on-line quote for the type and
size of building she required.
19. On or about January 5, 2016, [Universal]’s salesperson,
George Poelcher, contacted [Reagan] and represented to [her]
that the information [Universal] was requesting from [Reagan]
was in order to allow [Universal] to prepare a bid (quote) on the
type of building [Reagan] was shopping, when in reality it was the
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intention of [Universal] to induce [Reagan] to provide information
which would be used by [Reagan]’s software to affix [Reagan]’s
e-signature without her knowledge or consent on both an
agreement and deposit check.
20. The representations by George Poelcher were material to the
transaction, knowingly false and/or made with reckless disregard
for the truth with the intent to mislead [Reagan], who justifiably
relied upon [Universal]’s representations, suffering injuries as a
result.
21. [Universal] deceived [Reagan] into believing the information
she was providing was to allow [Universal] to prepare a bid when
in reality [Universal] intended to fraudulently obtain [Reagan]’s
electronic signature without her knowledge, agreement, consent,
or intention.
22. [Reagan] at no time formed any intent to enter an agreement
and/or to provide an electronic signature to any agreement nor
did [she] intend to provide [Universal] with an advance payment.
23. [Universal] used [Reagan]’s information to fraudulently
obtain funds without [her] knowledge or consent as there was no
mutual assent to enter any agreement.
…
27. [Universal]’s claims are barred as [its] conduct in this matter
is in violation of the requirements of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.[S.] 201 et seq.
…
Counterclaim
…
COUNT 1-PLAINTIFF HAS VIOLATED THE UNFAIR TRADE
PRACTICES AND CONSUMER PROTECTION LAW
66. [Reagan] incorporates paragraphs 1 through 51 as though
fully set forth at length.
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67. [Reagan] brings this count and the Court has jurisdiction
pursuant to Section 201.92 of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law (hereinafter UTPCPL) 73
P.S. 201-1 et seq.
68. Pursuant to 73 P.S[.] 201.92 of the UTPCPL [Reagan] avers
that the conduct by [Universal] described herein has violated the
UTPCPL Section 201-2(4) ii, iii, v, viii, ix, xi, xvii, and xxi by:
a. engaging in conduct which created a likelihood of
confusion and misunderstanding and,
b. engaging in fraudulent or deptive [sic] practices as set
forth hereinabove.
69. Pursuant to the provisions of the UTPCPL 201-9.2 (a)
[Reagan] requests three (3) times her actual damages or $100.00
plus attorney’s fees and costs.
WHEREFORE, [Reagan] requests judgment in her behalf as set
forth above plus any additional relief as deemed necessary and
proper by the Court.
Second Amended Answer, New Matter and Counterclaim, 2/27/2017, at ¶¶ 5,
17-23, 27, and 66-69.
Furthermore, even in her appellate brief, Reagan does not assert what
her purpose in acquiring the building was to support a finding that the UTPCPL
applies to this case; rather, she merely points to the fact that she, as an
individual, was the only party named in the action and the underlying
allegations, and there was no connection between her company, SLR
Unlimited, and the disputed transaction even though funds were taken from
SLR Unlimited’s business account to pay for the building. See Reagan’s Brief
at 16-17.
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Likewise, Reagan does not provide any argument regarding the
standard described in Burke, supra, in which the UTPCPL affords any
consumer the right to cancel when she agrees “to purchase goods or services
with a value of $ 25 or more ‘as a result of or in connection with’ contact
between the seller and the consumer at the consumer’s home.” Burke,
666 A.2d at 291 (emphasis added).11 Specifically, Reagan never alleged that
Universal made contact with her at her home.
Without more evidence, it does not appear that Reagan, as the buyer in
this case, has met her burden of demonstrating that she was in need of any
special protection from Universal, the seller. One can reasonably infer that
Universal’s services, constructing a customized steel building, were of a
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11 In Burke, supra, the appellant-buyer initially contacted appellee-seller,
and the parties entered into a contract whereby appellee-seller was to design
and install a customized audio/video system in appellant-buyer’s home.
“Buyer and Seller then met at Buyer’s home to discuss the transaction. The
parties continued to negotiate concerning the purchase of the system over the
next few months. At least one more meeting between the parties concerning
the transaction occurred at Buyer’s home.” Burke, 666 A.2d at 289. The
trial court “found little or no significance to the fact that Seller made repeated
contacts with Buyer at Buyer’s home[,]” and concluded that “since Buyer is a
sophisticated consumer who himself initiated contact with Seller and who
conducted lengthy negotiations over the purchase of a very expensive
product,” he was “not the type of consumer that [S]ection 201-7 s[ought] to
protect.” Id. at 290. On appeal, a panel of this Court rejected that finding,
determining “the broad language of UTPCPL does not support the trial court’s
rationale or decision.” Id. at 290-291. The panel concluded the buyer was
entitled to the benefits of the statute based on the facts of the case, the Buyer
and Seller negotiated the terms of the transaction at Buyer’s home. Burke is
distinguishable from the present matter, where the record is void of any
evidence that Universal went to Reagan’s home and discussed the terms of
the contract.
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commercial nature and were not intended to serve family, personal or
household purposes. Moreover, the building was to be delivered to an address
different from Reagan’s residence. See Complaint, 5/18/2016, at ¶¶ 2, 7
(Reagan resided in Roanoke, Texas, and the building was to be delivered to
Valley View, Texas). Therefore, the trial court acted properly in finding the
UTPCPL did not apply to the present matter. Accordingly, Reagan’s first claim
fails.
Next, Reagan argues, “Where no notice of a right to cancel was ever
provided[,] was the refusal by [] Reagan to accept the building transported to
her by Universal and effective cancellation [protected] under the [UTPCPL]?”
Reagan’s Brief at 19. Specifically, she states:
The evidence adduced at trial is that the required notice was never
provided by Universal to Reagan at the time or at any time
thereafter. Under [73 P.S. § 201-7](b)(2) … the cancellation
period never began to run. Ms. Reagan, therefore, possessed
such rights through February 1, 2016. Ms. Reagan could not
provide the written notice of cancellation detailed in the act
because she never received it. However, she clearly provided
other notice which gave the seller, Universal notice in notifying
the transport company that she did not intend to accept delivery
(exhibit 10) and in refusing to accept delivery and returning the
goods in the same condition they were delivered.
Those rights to cancel were not amenable to waiver under
§201-7 (j.1) (1) and, therefore, no prior conduct on the part of
Ms. Reagan can be deemed such a waiver.
Id. at 20.
Based on our above-provided analysis, including our agreement with the
trial court’s findings, we conclude Reagan’s second argument also fails. As
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discussed supra, the UTPCPL does not apply to the present matter because
Reagan failed to meet her burden in demonstrating that she is protected under
the statute. Accordingly, we need not address this issue further.
In her third argument, Reagan contends that because the transaction
was conducted, in part, electronically and, in part, non-electronically, a
separate and express agreement to do so was required under the
Pennsylvania Electronic Transactions Act (“PETA”).12 Relying on Subsections
2260.901 and 2260.903 of PETA, Reagan alleges there is “no evidence of any
such separate agreement upon which [Universal] can rely agreeing to conduct
the transaction (signature) by electronic means” between Universal and
Reagan. Id. at 22. She argues the testimony supports her contention and
points to the following: “The evidence [in] this case is that part of the
transaction was conducted by electronic means, the email of the purchase
order to Ms. Reagan and the return; and part of the transaction was conducted
non-electronically, the signing by Arnold Davis and the return of the
agreement to Reagan by mail.” Id. Reagan concludes,
There is no authority for the trial court’s conclusion that since the
contract was executed by both parties the [PETA] is satisfied. The
Act nowhere discusses that conclusion. Execution by both parties
may satisfy one of the requirements for a nonelectronic
transaction, but the act specifically requires the separate
agreement in a transaction such as here.
Id.
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12 73 P.S. § 2260.301, et seq.
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Subsection 2260.901 provides:
In the case of a nonelectronic consumer contract or agreement,
the contract or agreement may not contain a provision authorizing
the conducting of the transaction or any part thereof by electronic
means unless the consumer agrees to such a provision by a
separate and express acknowledgment. Such an agreement shall
specifically indicate the parts of the transaction to be conducted
by electronic means, and shall indicate the manner in which the
electronic transaction or a part thereof shall be conducted. An
agreement to conduct a consumer transaction or a part thereof
electronically may not be inferred solely from the fact that the
consumer has used electronic means to pay an account or register
a purchase or warranty.
73 P.S. § 2260.901.
Subsection 2260.903 provides:
The provisions of this chapter may not be varied by agreement of
the parties to a consumer contract or transaction.
73 P.S. § 2260.903.
The court found the following: “Reagan’s contention that there needed
to be a separate, non-electronic agreement under 73 P.S. § 2260.901 in order
to validate the electronic contract is incorrect. The instant contract was
executed by both parties and constitutes an enforceable electronic contract
under 73 P.S. § 2260.101, et seq.” Trial Court Opinion, 8/16/2018, at 5.
Keeping our standard of review regarding statutory interpretation in
mind, we agree with the court’s conclusion. Reagan misconstrues the
language in Subsection 2260.901, which provides: “In the case of a
nonelectronic consumer contract or agreement, the contract or
agreement may not contain a provision authorizing the conducting of the
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transaction or any part thereof by electronic means unless the consumer
agrees to such a provision by a separate and express acknowledgment.” 73
P.S. § 2260.901 (emphasis added). Here, this was not the case of a
non-electronic consumer contract or agreement. Rather, as noted above, this
was a commercial transaction. Moreover, Universal sent Reagan a proposed
contract via email and she electronically executed the contract. See Trial
Court Opinion, 8/16/2018, at 2. Therefore, her argument that a separate
agreement authorizing electronic means with respect to the transaction is
meritless. Accordingly, Reagan’s third argument also fails.
In her penultimate issue, Reagan claims there was insufficient evidence
to support the conclusion that she ratified the contract by her conduct
regardless the enforceability of the underlying agreement. Reagan’s Brief at
31. She points out that she did not raise this issue in her concise statement
but that the trial court “elected to[,] on its own initiative[,] to raise this
contention for the first time” in its Rule 1925(a) opinion. Id. A review of
Reagan’s concise statement confirms that she did not raise the issue of
ratification with the trial court. See Defendant’s Statement of Errors
Complained of on Appeal, 10/9/2018. Nevertheless, Reagan’s contention
warrants no relief as the trial court was merely supplementing its analysis
regarding Reagan’s UTPCPL and PETA issues, and not sua sponte addressing
a new claim. The court stated:
In any event, however, Reagan’s conduct (e.g., making a down
payment, objecting to an initially intended delivery date,
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demanding a different specific delivery date, threatening to claim
breach if Universal failed to deliver on the date she demanded,
acquiescing in and not repudiating the contract as Universal/Corle
prepared to ship and did ship the building) demonstrate plainly
that she ratified the contract in this case. Sams v. Sams, 808
A.2d 206, 212 (Pa. Super. 2002) (indicating a party ratifies a
contract by accepting benefits, remaining silent, or acquiescing
when party has an opportunity to void the contract). Reagan
cannot now avoid her responsibilities by relying on the [UTPCPL]
or 73 P.S. § 2260.901.
Trial Court Opinion, 8/16/2018, at 5. The underlying substantive issue at trial
was whether Reagan breached the contract with Universal even though she
had accepted the benefits of the agreement through ratification. The court
was merely pointing out that she cannot rely on UTPCPL and PETA to avoid
her acceptance of the contract. Accordingly, Reagan’s fourth argument fails.
Lastly, Reagan contends there was insufficient evidence to support the
court’s determination as to the reasonableness of the attorneys’ fees and the
court abused its discretion in awarding $89,585.92 in attorneys’ fees on a
$24,450.00 breach of contract dispute. Reagan’s Brief at 23. She states:
The fee award in this case operates as a windfall to Universal
and their attorneys. The case involved a simple breach of contract
complaint involving at most $24,450.00 in damages. It required
no special skill or expertise to litigate.
In support of its fee determination the trial court indicated
that it relied upon the “factors relevant” in [Holz v. Holz, 850
A.2d 751 (Pa. Super. 2004)] but failed to actually discuss any of
the factors.
Reagan’s Brief at 26. Reagan further complains that “in this case the only
factors discussed in support of the fee award were that Ms. Reagan had raised
six counterclaims involving electronic communications and that there was
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vigorous litigation by both parties.” Id. at 27. She notes the award of
attorneys’ fees is almost four times the amount of damages, and appears to
be punitive and an abuse of discretion, arguing:
There is no evidence in the record as to what efforts or services
were required of Universal’s counsel as a result of Ms. Reagan’s
counterclaims. The pleadings indicate that Universal’s first
counsel, Anthony Jeselnik, filed an Answer to the counterclaims.
No motions or objections relevant to the counterclaims were ever
filed nor discovery or depositions relevant thereto were taken and
the reality is that the counterclaims were never really litigated.
No evidence or testimony is on the record as to any efforts in that
regard.
The record also does not support the conclusion that this case
involved vigorous litigation. There was a one-half day arbitration
hearing and a one day non-jury trial. The record in this case
shows that attorney Anthony Jeselnik, was counsel of record for
Universal from the inception of the lawsuit in May 2016 through
the pre trial conference in December 2018, one month before the
non-jury trial. Without explanation or formal filing of a request to
withdraw by attorney Jeselnik, J. Alexander Hershey, Esq. of Clark
Hill, a Pittsburgh law firm, entered an appearance on behalf of
Universal on January 3, 2018, five days before trial.
Neither attorney offered into evidence a fee agreement or any
writing relative to a fee arrangement with Universal.
Id. at 27-28.
The contract between the two parties provides:
In the event that Buyer defaults or breaches any of the terms or
conditions of this Contract and Seller utilizes an attorney to
enforce or defend any of the provisions of the Contract, Buyer
shall pay to Seller, Seller’s attorneys’ fees and costs to the
maximum extent allowed by law. Seller’s attorney’s fees include
attorney time spent by its in house counsel, which shall be payable
by Buyer at the prevailing market rates of Seller’s outside
attorneys in Pittsburgh Pennsylvania.
Complaint, 5/18/2016, at Exhibit A (page 3, ¶ 20).
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“[O]ur standard of review of awards of attorneys’ fees is well-settled.
Whether to award attorneys’ fees and costs incurred in bringing an action [is]
within the discretion of the trial court, and we will not reverse a trial court’s
decision on the matter in the absence of an abuse of discretion.” Regis Ins.
Co. v. Wood, 852 A.2d 347, 349-350 (Pa. Super. 2004), citing First
Pennsylvania v. National Union, 580 A.2d 799 (Pa. Super. 1990).
Moreover, the Pennsylvania Supreme Court “has held that courts may consider
reasonableness when making a counsel fee award, regardless of the precise
verbiage of the document authorizing such award.” Law Offices of Justin
R. Lewis, PLLC v. Diven, 18 A.3d 1223, 1224 (Pa. Super. 2011), appeal
denied, 34 A.3d 831 (Pa. 2011), citing McMullen v. Kutz, 985 A.2d 769, 776-
777 (Pa. 2009) (“[W]e join the majority of our sister states in finding that
parties may contract to provide for the breaching party to pay the attorney
fees of the prevailing party in a breach of contract case, but that the trial court
may consider whether the fees claimed to have been incurred are reasonable,
and to reduce the fees claimed if appropriate.”).
This Court has previously evaluated the reasonableness of
attorneys’ fees by examining the following factors:
[T]he amount of work performed; the character of the
services rendered; the difficulty of the problems involved;
the importance of the litigation; … 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.
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Holz v. Holz, 2004 PA Super 181, 850 A.2d 751, 761 (Pa. Super.
2004), appeal denied, 582 Pa. 700, 871 A.2d 192 (2005) (quoting
Gilmore by Gilmore v. Dondero, 399 Pa. Super. 599, 582 A.2d
1106, 1109 (Pa. Super. 1990). “[I]n exercising its discretion, [the
trial court] must evaluate the reasonableness of time spent by
counsel in relation to the particular case.” Danks v. Government
Employees Ins. Co., 307 Pa. Super. 421, 453 A.2d 655, 656 (Pa.
Super. 1982).
Although the responsibility for setting counsel fees lies primarily
with the trial court, this Court has the power to reverse that
exercise when there is plain error. Gilmore, supra at 1108.
“Plain error is found where the award is based either on factual
findings for which there is no evidentiary support or on legal
factors other than those that are relevant to such an award.” Id.
Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38, 70 (Pa. Super. 2016).
Here, the court found the following:
[T]his court’s award of counsel fees was appropriate. This case
involved Universal’s breach of contract claim, six counterclaims
raised by Reagan, evidence involving numerous electronic
communications, and vigorous litigation by both parties. This
court reviewed the claim for counsel fees and, in light of all factors
relevant thereto, see [Holz v. Holz], 850 A.2d 751, 761 (Pa.
Super. 2004) (discussing factors relevant to award of counsel
fees), determined that the awarded amount was fair and
reasonable.
Trial Court Opinion, 8/26/2018, at 6.
Based on the specific record before us, we are constrained to disagree
with the court’s determination as we find the award of attorneys’ fees
($89,585.92), which is over three times the amount of damages
($24,617.00), facially unreasonable. Moreover, while the court generally
refers to applying the Holz reasonableness factors, it provides no detailed
explanation, including why the filing of six counterclaims could amount to such
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excessiveness for attorneys’ fees. Additionally, with respect to the Holz
reasonableness factors, we note that even though the transaction was
processed electronically, this was a standard breach of contract cause of
action, and the matter began in May of 2016 and concluded in August of 2018,
with a one-day non-jury trial. Pursuant to Holz, we are “unable to discern
from the court’s opinion exactly what factors it found relevant and on what
basis it awarded the counsel fees. Moreover, we are unable to determine the
parties’ respective financial situations[.] Holz, 850 A.2d at 761. With such a
deficient record and analysis regarding the reasonable factors, we conclude
the attorneys’ fee award in the present matter “is based either on factual
findings for which there is no evidentiary support [and] on legal factors other
than those that are relevant to such an award.” Gilmore by Gilmore, 582
A.2d at 1108. Accordingly, we are compelled to vacate the attorneys’ fees
award and remand the matter to allow the court also to reconsider the amount
of the attorneys’ fees to be awarded.
Judgment affirmed in part, vacated in part and remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2019
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