J-A17039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ILYA SIVCHUK AND VIV 

ASSOCIATION, LLC 

Appellants

v.

SOVEREIGN BANK D/B/A 

SANTANDER BANK AND NEVADA 

FIRST FEDERAL, LLC AND FIRST 

COMMERCE, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1843 EDA 2021

Appeal from the Order Entered August 25, 2021

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): 151200887

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED OCTOBER 11, 2022

Appellants, Ilya Sivchuk (“Sivhuk”) and VIV Association, LLC (“VIV”)1,

appeal from the order granting attorneys’ fees in favor of appellees, Sovereign 

Bank d/b/a Santander Bank and Nevada First Federal, LLC (“NFF”), and First 

Commerce, LLC, in the aggregate amount of $94,149.34. This matter comes 

before us after a previous panel of this Court determined that: (1) appellants 

“were not entitled to relief with respect to an award of attorneys’ fees, which 

were clearly authorized in the event of default[]”; and (2) as attorneys’ fees 

were therefore appropriate, a remand was necessary for the lower court to 

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 Retired Senior Judge assigned to the Superior Court.

1

 There is ambiguity in the record as to whether the party’s correct name is 

“VIV Association, LLC” or “VIV Associates, LLC.” 
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ascertain a reasonable and non-arbitrary award of those fees. Sivchuk v. 

Sovereign Bank, 2020 WL 4220048, at *3, 5 (Pa. Super., July 23, 2020)

(unpublished memorandum), appeal denied 249 A.3d 503 (Pa. 2021). On 

appeal, appellants present one issue, which solely challenges whether, in 

accordance with the contract between the parties, there should have been an 

award of attorneys’ fees. As the validity of attorneys’ fees, pursuant to the 

parties’ contract, has already been litigated and ruled upon by this Court and, 

too, because appellants have not challenged any aspect of the attorneys’ fees 

computations following remand, we affirm.

As cogently summarized by this Court:

VIV secured three promissory notes from Sovereign Bank between 

2007 and 2010 for commercial improvements on VIV's properties. 

The notes were guaranteed by Sivchuk and collectively totaled 

more than $1,500,000 in the form of a variable rate construction 

loan note, a variable interest term note, and a line of credit note. 

The agreements with respect to each note contained cross default 

clauses and included provisions permitting the lender to recover 

reasonable attorneys' fees in connection with, inter alia, 

enforcement of the agreements. The notes were extended several 

times.

Appellants defaulted on the term loan when it matured in March 

2011, triggering the cross default clauses on the construction loan 

and the line of credit. The notes, with an aggregate principal sum 

approaching $2,000,000 at that time, were modified and extended 

by a forbearance and modification agreement in June 2011. On 

September 13, 2011, Sovereign Bank offered to extend the 

forbearance. On September 23, 2011, before Appellants accepted 

the extended forbearance, Sovereign Bank sold and transferred 

the notes and loan documents to NFF.

In light of Appellants' failure to make required payments from 

June through October 2011, NFF, through First Commerce, 

applied the default interest rate to the notes pursuant to the terms 
J-A17039-22

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of the forbearance. After failed attempts to negotiate a discounted 

payoff of the notes, Appellants paid the notes in full on December 

15, 2011, and the mortgages were released.

On December 15, 2015, Appellants filed a writ of summons, 

followed by the filing of a complaint on April 27, 2016, in which 

they alleged breach of contract and resulting damages against NFF 

and First Commerce. NFF and First Commerce filed preliminary 

objections. In July 2016, after the trial court sustained some of 

the objections, NFF and First Commerce filed an answer and new 

matter to the remaining claims. Appellants filed their reply to new 

matter in August 2016. From February 1, 2017 until October 25, 

2017, the case was on deferred status due to Appellants' counsel 

being indicted on criminal charges. The case eventually proceeded 

to a bench trial on June 12 and 13, 2018.

On October 17, 2018, the trial court entered a verdict in favor of 

NFF and First Commerce, and awarded them $8,000 in 

attorney[s’] fees. Appellants filed a pro se appeal to this Court on 

the same day at No. 3417 EDA 2018. NFF and First Commerce 

filed a motion for post-trial relief on Monday, October 29, 2018, 

asking the court to modify the verdict and grant reasonable 

attorney fees. The trial court granted the motion on November 14, 

2018, and increased the award of attorney fees to $16,000. On 

December 11, 2018, NFF and First Commerce filed an appeal at 

No. 3697 EDA 2018.

Sivchuk, 2020 WL 4220048, at *2. 

While the previous panel determined that the lower court’s award of 

attorneys’ fees was proper, it simultaneously found that the court “initially 

awarded $8,000 in fees without any explanation. Then the court doubled that 

seemingly arbitrary award, offering a vague basis for doing so[.]” Id., at *5. 

As such, because there was a lack of a “sufficient record or analysis regarding 

the award,” id.; see also Sutch v. Roxborough Memorial Hospital, 142 

A.3d 38, 71 (Pa. Super. 2016) (establishing that a lower court must make

factual findings or utilize evidentiary support to validate the reasonableness 
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of attorneys’ fees), a remand was required for the court to reconsider, with 

specificity, the amount it would award. 

Upon remand, appellees filed a motion for attorneys’ fees, which was 

ultimately granted following oral argument. In the corresponding order, the 

lower court awarded $70,368.66 for costs and fees that were “reasonably 

incurred” up until the time that appellees filed their first fee application, 

$22,530.68 for costs and fees accrued in the prior appeal to this Court, and 

$1,250 for costs and fees associated with the time spent preparing their

motion that followed remand. Order, 8/25/21, at 1 (unpaginated). Therefore, 

in total, the court granted $94,149.34 in costs and fees. Appellants appealed 

this decision, and the relevant parties have complied with their obligations 

under Pennsylvania Rule of Appellate Procedure 1925.

With the appeal being ripe for review, we note that appellants’ only 

argument is that “there was no uncured default which is a pre-requisite, a 

condition precedent, to an enforcement action under the commercial contracts 

between these parties.” Appellant’s Brief, at 4. Appellants’ attempt to relitigate 

whether attorneys’ fees are appropriate is in contravention of an already 

determined outcome. A prior panel of this Court found that attorneys’ fees 

were authorized given, inter alia, that the appellants “did not make any 

payment from [July 15, 2011, when appellants allegedly sent a check that 

should have been credited against their account,] until September 1, 2011 

under the forbearance agreement or between September 1 and December 11, 
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2011 under the extension agreement.” Sivchuk, 2020 WL 4220048, at *3.

Following this decision, our Supreme Court denied the appellants’ petition for 

allowance of appeal. 

“This panel is not empowered to overrule another panel of the Superior 

Court.” See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)

(citations omitted). In addition, when a case is remanded, a lower court “must 

comply strictly with the mandate of the higher court.” Commonwealth v. 

Williams, 877 A.2d 471, 475 (Pa. Super. 2005) (citation omitted) (writing, 

further, that the lower court abuses its discretion when it reaches a conclusion 

on an issue not contained within, or fairly suggested by, the remand order).

Here, the previous panel unambiguously determined that it was not in error 

for the lower court to have awarded attorneys’ fees. While that panel

remanded for the court to make findings to justify its ultimate award, the 

lower court complied with this Court’s directive to establish, precisely, what a 

reasonable amount would be.

The issue presently before this Court, attacking the validity–not the 

amount or reasonableness–of attorneys’ fees, is materially the same as one 

of the arguments presented by the appellants in the previous iteration of this 

case. See Appellant’s Brief, at 4-12. Appellants were not entitled to relief then 

and have, in the present matter, presented no compelling basis, legal or 

otherwise, to deviate from that prior conclusion. Whatever validity appellants 

now suggests their argument holds should have been, or was already, raised 
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when this matter was initially appealed approximately three years ago. 

Even through a strenuous reading of appellants’ brief, we are unable to 

find a single sentence dedicated to the reasonableness of the court’s attorneys’ 

fees calculations. Stated differently, appellants have not challenged any 

particular aspect of the order they have purported to have appealed from. 

Although appellants clearly see no impediment to the argument they 

now advance, given that the present matter is being decided by a three-judge 

panel, we cannot contradict a prior determination of this Court. Otherwise, 

making such a ruling would result in a second investigation into whether 

attorneys’ fees were warranted, effectively giving appellants another bite at 

the proverbial apple. The end result, should we have found differently from 

the prior panel, would have inherently created contradiction. Therefore, based 

purely on the averment they have now advanced before this Court, appellants 

are not entitled to relief.2

Accordingly, we affirm the order granting attorneys’ fees in favor of the 

appellees.

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2 Even if we were to evaluate the reasonableness of the awarded fees, we 

glean from the trial court’s opinion that it considered the appropriate factors 

in determining the attorneys’ fees award, see, e.g., Richards v. Ameriprise 

Financial Services, Inc., 217 A.3d 854, 868 (Pa. Super. 2019) (citation 

omitted), and reached a reasonable conclusion. See Trial Court Opinion, 

3/11/22, at 4-6 (illuminating, among other areas, the attorneys’ hours spent 

on this case, the reasonableness of the attorneys’ asserted hourly rates, the 

amount of filings that were necessary throughout this litigation, and the 

proportionality of the fees awarded vis-à-vis the damages that had been

sought).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2022