J-S44014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

DEL LEVIERE, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

PRESTON FORD, INC., 

 Appellant No. 196 WDA 2014 

Appeal from the Order Entered December 30, 2013 

In the Court of Common Pleas of Mercer County 

Civil Division at No(s): 2011-1091 

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 06, 2014

Appellant, Preston Ford, Inc., appeals from the trial court’s December 

30, 2013 order awarding Appellee, Del LeViere, $50,359.15 in attorneys’ 

fees. We affirm. 

 The trial court summarized the facts and procedural history of this 

case as follows: 

 This is a used car case. Plaintiff Del LeViere alleged that 

Defendant Preston Ford, Inc.[,] sold him a used car that had 

been in an undisclosed frame-bending accident. Mr. LeViere’s 

Complaint in Civil Action contained three counts – fraud, 

violation of the federal Magnuson-Moss [Warranty] Act 

[(MMWA)], and violation of Pennsylvania’s Unfair Trade Practices 

[and Consumer Protection] [L]aw [(UTPCPL)]. The Complaint 

was filed on March 30, 2011 (there had been some preComplaint negotiations), and the case settled about 21⁄2 years 

later[,] on ... the morning of trial on September 10, 2013. 

Preston Ford agreed to buy back the car from Mr. LeViere by 

paying off the remainder of his car loan and paying directly to 

him the difference between the remaining amount of the car loan 
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and the purchase price. The settlement did not address the 

issue of attorneys’ fees.

On November 14, 2013, [LeViere’s] counsel filed Plaintiff’s 

Petition for Counsel Fees and Costs (which included 18 exhibits) 

and a Memorandum of Law in Support of Plaintiff’s Petition for 

Counsel Fees and Costs. [LeViere] claimed $50,359.15 in fees 

and costs. On December 11, 2013, [Preston Ford] filed 

Defendant’s Answer to Plaintiff’s Petition for Counsel Fees and 

Costs, followed by a Memorandum in Support of Defendant’s 

Answer to Plaintiff’s Petition for Counsel Fees and Costs on 

December 19, 2013. This Court held a hearing on the Petition 

[on] December 19, 2013. [LeViere] then filed [a] Reply in 

Support of Petition for Fees and Costs on December 27, 2013, 

and this Court granted [his] petition in its entirety on December 

31, 2013, granting [LeViere] the full $50,359.15 in fees and 

costs. [Preston Ford] then filed a Motion for Reconsideration on 

January 6, 2014, which this Court denied on January 30, 2014. 

Trial Court Opinion (TCO), 3/27/14, at 1-2.

 Preston Ford filed a timely notice of appeal, as well as a timely concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Herein, it raises two issues for our review: 

1. Whether the trial court erred in finding that [LeViere] was the 

prevailing party pursuant only to the Court Order of September 

10, 2013[,] which only rescinded the contract between the 

parties[?] 

2. Whether the trial court erred in awarding [LeViere] his 

attorney’s fees without an evidentiary hearing to determine the 

reasonableness and necessity for said fees? 

Preston Ford’s Brief at 4.

To begin, we note that “[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 
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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)). 

Preston Ford’s first issue entails three sub-arguments. First, Preston 

Ford contends that the court erred by granting LeViere attorneys’ fees 

because he is not a ‘prevailing party’ under the MMWA. Second, Preston 

Ford argues that LeViere is also not entitled to attorneys’ fees under the 

UTPCPL because LeViere did not suffer “actual damages[,] nor has a 

determination been made that he suffered damages[,] as a result of any act 

declared unlawful by the UTPCPL.” Preston Ford’s Brief at 11. Finally, 

Preston Ford contends that LeViere should not have been awarded attorneys’ 

fees because he failed to prove under “which theory of liability the 

settlement occurred[,]” i.e., his fraud action, the MMWA, or the UTPCPL, and 

“there [is] not a common core set of facts” relieving LeViere of the duty to 

specify the theory under which he is seeking attorneys’ fees. Id. 

 Initially, we conclude that Preston Ford waived its latter two claims. In 

its Rule 1925(b) statement, Preston Ford stated two issues that mirror those 

presented in his Statement of the Questions section of his appellate brief, 

quoted supra. See Pa.R.A.P. 1925(b) Statement, 2/13/14. Neither of these 

issues encompasses Preston Ford’s claim that LeViere is not entitled to 

damages under the UTPCPL, or its assertion that LeViere failed to prove 
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under which theory of liability the settlement occurred. Consequently, we 

deem these specific arguments are waived.1

 See Pa.R.A.P. 1925(b)(4)(vii) 

(“Issues not included in the Statement and/or not raised in accordance with 

the provisions of this paragraph (b)(4) are waived.”). Accordingly, we will 

address only Preston Ford’s contention that LeViere is not a ‘prevailing party’ 

under the MMWA. 

____________________________________________ 

1 We note that the trial court’s order directing Preston Ford to file a Rule 

1925(b) statement complies with the requirements of Pa.R.A.P. 1925(b)(3). 

In particular, the order indicated that “any issue not properly included in the 

Statement timely filed and served shall be deemed waived.” Trial Court 

Order, 2/2/14. Thus, waiver is appropriate in this case. See Greater Erie 

Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222, 225 

(Pa. Super. 2014) (“In determining whether an appellant has waived issues 

on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial 

court’s order that triggers an appellant’s obligation[;] ... therefore, we look 

first to the language of that order.”).

 We also point out that in its Rule 1925(a) opinion, the trial court did 

not address Preston Ford’s argument regarding UTPCPL. While the court did 

discuss Preston Ford’s claim that LeViere failed to prove under which theory 

of liability the settlement occurred, the court noted that that argument was 

“not explicitly articulated in Preston Ford’s Statement of Errors Complained 

of on Appeal....” TCO at 3. The court’s choice to assess Preston Ford’s 

claim, despite its absence from the Rule 1925(b) statement, does not 

compel this Court to do the same. See Commonwealth v. Hill, 16 A.3d 

484, 494 (Pa. 2011). In any event, we also conclude that this argument is 

waived because Preston Ford fails to cite any legal authority to support it in 

his brief to this Court. See Preston Ford’s Brief at 11-12; Korn v. Epstein, 

727 A.2d 1130, 1135 (Pa. Super. 1999) (“Where the appellant has failed to 

cite any authority in support of a contention, the claim is waived.”); 

Gallagher v. Sheridan, 665 A.2d 485, 487 (Pa. Super. 1995) (“Arguments 

that are not appropriately developed are waived.”).
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The section of the MMWA permitting the award of attorneys’ fees 

states: 

2) If a consumer finally prevails in any action brought under 

paragraph (1) of this subsection, he may be allowed by the court 

to recover as part of the judgment a sum equal to the aggregate 

amount of cost and expenses (including attorneys' fees based on 

actual time expended) determined by the court to have been 

reasonably incurred by the plaintiff for or in connection with the 

commencement and prosecution of such action, unless the court

in its discretion shall determine that such an award of attorneys' 

fees would be inappropriate. 

15 U.S.C.A. § 2310(d)(2) (italicized emphasis added). 

The MMWA does not define or provide any guidance on when a 

consumer “finally prevails” for purposes of awarding attorneys’ fees. Relying 

on this Court’s decision in Profit Wize Marketing v. Wiest, 812 A.2d 1270 

(Pa. Super. 2002), Preston Ford argues that LeViere is not a ‘prevailing 

party’ because this case resulted in a settlement agreement, rather than a 

judgment on the merits. See Preston Ford’s Brief at 8 (citing Profit Wize, 

834 A.2d at 1275 (holding there was no “prevailing party” where the parties 

reached a settlement agreement). In response, LeViere contends that 

Preston Ford’s reliance on Profit Wize is misplaced, “as Profit Wize is a 

state court opinion applying only state, and not federal, law.” LeViere’s Brief 

at 9. He maintains that because the MMWA is a federal statute, the meaning 

of the term ‘prevailing party’ as used in section 2310(d)(2) is governed by 

federal law, primarily the United States Supreme Court’s decision in 

Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of 

Health and Human Resources, 532 U.S. 598 (2001). 
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We agree with LeViere. In Profit Wize, this Court examined whether 

an employer was entitled to attorneys’ fees from a former employee against 

whom the employer had filed suit, where the parties had ultimately entered 

a settlement agreement. In the course of this assessment, we were tasked 

with determining the meaning of the phrase “prevails in any suit or action” 

as contained in the non-compete clause of the parties’ employment contract. 

See Profit Wize, 812 A.2d at 1275. Thus, unlike the present case, Profit 

Wize involved our interpreting whether an employer was a ‘prevailing party’ 

under the language of a state employment contract, not a federal statute. 

Accordingly, Profit Wize does not compel the application of Pennsylvania 

law in the instant case. Instead, we look to federal law to ascertain whether 

LeViere ‘finally prevailed,’ as that term is used in the MMWA. See SamuelBassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011) (stating 

“[t]he construction of a federal statute is a matter of federal law”).

We begin our analysis by noting that the United States Supreme Court 

has “held that settlement agreements enforced through a consent decree 

may serve as the basis for an award of attorney’s fees” because such 

agreements constitute “a court-ordered ‘chang[e] [in] the legal relationship 

between [the plaintiff] and the defendant.’” Buckhannon, 532 U.S. at 604 

(citations omitted). Nevertheless, under many federal statutes, including 

the MMWA, only a ‘prevailing party,’ or a party who ‘finally prevails,’ is 

entitled to the award of attorneys’ fees. In defining the term ‘prevailing 

party,’ the Supreme Court has stated that a plaintiff must “receive at least 
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some relief on the merits of his claims before he can be said to prevail.” Id. 

at 603 (citation omitted). The Court has also clarified that “[w]hatever relief 

the plaintiff secures must directly benefit him at the time of the judgment or 

settlement.” Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citation omitted). 

“In short, a plaintiff ‘prevails’ when actual relief on the merits of his claim 

materially alters the legal relationship between the parties by modifying the 

defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 

111-112. 

Here, Preston Ford contends that the settlement agreement did not 

alter its legal relationship with LeViere in any way, let alone in a way that 

directly benefited LeViere. See Preston Ford’s Brief at 10. Preston Ford 

explains: 

 In accordance with the settlement, Preston Ford bought

LeViere’s vehicle at the prior purchase price of $16,9[6]3.00. 

Preston Ford paid the outstanding lien and refunded the 

difference to LeViere. Preston Ford then retained the car. In 

other words, Preston Ford and LeViere rescinded the contract 

and no material altering of the legal relationship between the 

parties occurred to the benefit of LeViere. LeViere previously 

argued he received $10,000.00 over and above what he would 

have received had he traded the car in for another vehicle. 

LeViere ignores payments made by him on the loan for the 

vehicle in the amount of $10,967.40, calculated by car 

payment[s] of $304.65 a month for 36 months. LeViere

additionally paid $1000.00 down on the vehicle bringing the total 

amount LeViere paid towards this vehicle to $11,967.40. 

Further, LeViere transferred a vehicle valued by him in the trade 

in [the] amount of $5,500.00. It should be noted that this 

amount would be higher as the car was bought by a dealer for 

purpose of resale. According to LeViere’s own record or 

“evidence[,]” LeViere gave up $17,467.40 of value in exchange 

for $16,963.00[,] or a loss of $504.40. 
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Preston Ford’s Brief at 9-10 (citation to record omitted). 

In response to Preston Ford’s argument, LeViere contends that he 

benefitted from the settlement because he received $16,963.00 “for a 

frame-damaged vehicle with over 70,000 miles that was worth much less 

than that amount....” LeViere’s Brief at 11. LeViere elaborates: 

It is common knowledge to the ordinary layperson that a 

vehicle’s value decreases substantially as soon as [the car] is 

purchased and driven off the car lot. Unless a car is a unique 

and highly prized collectible, a consumer will receive thousands 

less than what they paid if a car is traded in shortly after 

purchase[,] even if the car is in the same condition as 

purchased. Here, LeViere received the entire purchase price of 

$16,963.00 for the vehicle after three years and after being 

driven 50,000 miles. ... LeViere would have received far less 

than the full purchase price for this vehicle if he had tried to sell 

it in a retail setting. 

Id. at 16. 

Under the federal law framework, set forth above, LeViere’s argument 

convinces us that he is a ‘prevailing party’ under the MMWA. The settlement 

agreement rescinded the contract between the parties, thus terminating 

their legal relationship. The agreement further provided LeViere with the full 

purchase price of a vehicle that he had driven for three years, and on which 

he had accumulated significant mileage. At the time the parties entered into 

a settlement agreement, the vehicle was clearly worth much less than the 

$16,963 Preston Ford paid LeViere to settle the litigation. Preston Ford 

essentially admits this fact by stating that it resold the vehicle for $6,300. 

See Preston Ford’s Brief at 10. Regardless of the amount of money LeViere 
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invested into the vehicle over the course of the three years he owned it, at 

the time of the settlement, Preston Ford agreed that LeViere was entitled to 

$16,963 for a vehicle valued by Preston Ford at $6,300. Thus, we conclude 

that LeViere received a benefit on the merits of his claims. See 

Buckhannon, 532 U.S. at 604; Farrar, 506 U.S. at 111. Accordingly, the 

court properly deemed LeViere a ‘prevailing party’ for purposes of awarding 

him attorneys’ fees under the MMWA.

In Preston Ford’s second issue, it argues that it was denied due 

process of law because the trial court failed to conduct an evidentiary 

hearing before awarding LeViere attorneys’ fees. While Preston Ford 

acknowledges that a hearing was conducted on December 19, 2013, it 

maintains that the court only heard oral arguments from counsel for both 

parties, and did not provide Preston Ford with the opportunity to present 

evidence or cross-examine witnesses LeViere may have called. Preston Ford 

also maintains that because the court did not conduct an evidentiary 

hearing, the court had no evidentiary basis upon which to enter the order 

awarding LeViere attorneys’ fees.

Preston Ford’s arguments do not convince us that the trial court 

abused its discretion. Most notably, at the December 19, 2013 hearing, 

Preston Ford did not attempt to introduce evidence or challenge LeViere’s 

failure to do so; thus, Preston Ford cannot now claim the court denied it due 

process. Moreover, LeViere attached abundant documentary evidence, i.e., 

18 exhibits, to his petition for attorneys’ fees, thus providing the court with a 
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sufficient evidentiary basis upon which to enter the December 30, 2013 

order granting LeViere’s petition. Accordingly, Preston’s Ford’s second issue 

is meritless. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/6/2014