J-A28014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHARED COMMUNICATIONS SERVICES 

OF ESR, INC.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

WHTR REAL ESTATE LIMITED 

PARTNERSHIP, SPRINT 

COMMUNICATIONS COMPANY LP

No. 92 EDA 2016

Appeal from the Order Entered December 2, 2015

In the Court of Common Pleas of Chester County

Civil Division at No(s): Nos. 90-04830 and 00-05539

SHARED COMMUNICATIONS SERVICES 

OF ESR, INC.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

CALIFORNIA STATE TEACHERS’ 

RETIREMENT SYSTEMS

No. 92 EDA 2016

Appeal from the Order Entered December 2, 2015

In the Court of Common Pleas of Chester County

Civil Division at No(s): Nos. 90-04830 and 00-05539

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED APRIL 13, 2017

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant, Shared Communications Services of ESR, Inc., (“SCS”) 

appeals from the order entered in the Chester County Court of Common 

Pleas on December 2, 2015. On remand from this Court’s memorandum of 

December 13, 2012, the trial court awarded SCS attorneys’ fees, costs, and 

post-judgment interest as the prevailing party in a lawsuit against Appellee, 

California State Teachers’ Retirement System (“CalSTRS”), and Defendant 

WHTR Real Estate Limited Partnership (“WHTR”). SCS contends that the trial 

court erred by failing to award the full amount of attorneys’ fees as 

requested in SCS’s petition, failing to make a joint and several award of 

attorneys’ fees and costs, and by denying its request for pre-judgment 

interest. After careful review, we affirm in part, vacate in part, and remand 

for modification of the judgment consistent with this memorandum. 

A prior panel of this Court detailed the lengthy factual and procedural 

history of this matter. Therefore, we need not repeat them in detail here and 

instead direct the reader to that earlier memorandum decision. See Shared 

Communications Services of ESR, Inc. v. Travelers Ins. Co., 2319 EDA 

2011, at 4-10 (Pa. Super., filed December 13, 2012) (unpublished 

memorandum). For the purposes of this appeal, we will briefly detail the 

relevant factual and procedural history as follows. On June 8, 1990, SCS 

initiated this action by writ of summons against Swedesford Road Joint 

Venture I (“Swedesford”), Eastern Telelogic Corporation, a/k/a Teleport 

Communications Group (“ETC”), and Sprint Communications Company, L.P. 

(“Sprint”). Through its subsequently filed complaint, SCS alleged that in 
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September 1986, it entered into an agreement with Swedesford (“STS 

Agreement”) to exclusively provide shared tenant services to tenants in a 

group of office buildings (collectively, the “Bay Colony”). SCS alleged that 

Swedesford breached this STS Agreement by failing to advise the Bay 

Colony tenants of SCS’s services. 

Due to a bankruptcy filing by Swedesford, SCS’s complaint was not 

filed until September 10, 1998. Between 1990 and 1998, Swedesford’s 

interest in the Bay Colony and, as a result, the STS Agreement was assigned 

first to the Travelers Insurance Company, MetLife Insurance Company, as 

successor in interest (“Travelers”), and then, in 1994, to WHTR. Thus, when 

SCS filed its complaint sounding in breach of contract, tortious interference 

with prospective contractual and business relationships, tortious interference 

with existing business relationships, and civil conspiracy, Travelers, ETC, 

WHTR, and Sprint were all named as defendants. The trial court 

subsequently entered a default judgment against Sprint and dismissed the 

charges against Travelers and ETC, leaving WHTR as the sole defendant in 

the matter. 

Following a considerable motions practice and the dismissal of SCS’s 

tort claims against WHTR as improper pursuant to the “gist of the action” 

doctrine, SCS’s remaining breach of contract claim against WHTR proceeded 

to a jury trial on March 1-6 of 2000. Prior to the jury returning with its 

verdict, SCS and WHTR appeared to have reached a settlement agreement 

and the jury was discharged. However, the settlement agreement ultimately 
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failed, and despite SCS’s petition to enforce the agreement, the matter was 

re-listed for trial. Subsequently, WHTR transferred the Bay Colony and the 

STS Agreement to CalSTRS, which prompted SCS to file a separate 

complaint alleging breach of contract, tortious interference with contractual 

relationships, and tortious relationships with prospective contractual and 

business relationships against CalSTRS. 

Meanwhile, on December 20, 2001, the trial court granted a petition 

filed by Sprint to open the default judgment previously entered in the 

matter. The trial court severed the case against Sprint from the case against 

WHTR and CalSTRS, and the parties, once again, engaged in a zealous 

motions practice. In November 2003, the trial court entered an order 

precluding SCS from offering, at the Sprint, WHTR and CalSTRS trials, “any 

evidence of lost profits.” The trial court certified this ruling for interlocutory 

appeal, and, based upon their interpretation of the STS Agreement, a prior 

panel of this Court affirmed. Following a jury trial, a verdict was entered 

against Sprint in the amount of $76,330.00. 

Prior to the trial against WHTR and CalSTRS in 2009, each party filed a 

motion for summary judgment. While the trial court denied the motions in 

large part, it granted CalSTRS’s request to dismiss all tort claims against it. 

Ultimately, following the jury trial in March 2009, a verdict was entered 

against WHTR in the amount of $107,300.00 and against CalSTRS in the 

amount of $40,000.00. Both parties filed post-trial motions and petitions for 

attorneys’ fees and costs pursuant to a “prevailing party” clause in the STS 
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Agreement. The trial court denied both the post-trial motions and the fee 

petitions. All parties appealed from the judgment, and SCS appealed from 

the trial court’s order denying its requested attorneys’ fees. This Court 

affirmed the judgment, but vacated the order denying SCS’s petition for 

attorneys’ fees and remanded the matter for the trial court to determine and 

award attorneys’ fees to SCS as the prevailing party. 

Following remand, the parties proceeded with a hearing on May 29 and 

August 5, 2014, to determine the amount of attorneys’ fees and costs owed 

to Appellant. At the hearing, Appellant presented evidence that its attorneys’ 

fees and costs, excluding claimed interest, totaled $2,225,617.66. On 

December 2, 2015, the trial court ordered Appellee WHTR to pay SCS 

$321,900.00 in attorneys’ fees and $196,971.28 in costs. It further ordered 

CalSTRS to pay SCS $120,000.00 in attorneys’ fees and $73,593.66 in costs. 

Through this order, the trial court also denied SCS’s request for prejudgment 

interest on the attorneys’ fees and costs, fixed the per diem costs of postjudgment interest on the jury awards, and reversed its prior holding that it 

was entitled to prejudgment interest on the jury award. This timely appeal 

followed. 

On appeal, Appellant presents the following issues. 

1. Did the trial court err in failing to award the full amount of 

legal fees requested in [SCS’s] [p]etition and supporting 

evidentiary submissions because, pursuant to the contractual 

fee-shifting provision applicable, such fees were reasonable 

and the amount awarded by the trial court was unreasonable 

and insufficient[.]
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2. Did the trial court err by reversing its prior ruling awarding 

prejudgment interest sua sponte five years after judgment 

inclusive of such interest had been entered and all appellate 

procedures (other than the determination of attorneys’ fees) 

had been adjudicated, thereby failing to include such 

prejudgment interest in its per diem calculation of postjudgment interest[.]

3. Did the trial court err when it failed to make a joint and 

several award of attorneys’ fees and costs where WHTR and 

CalSTRS were represented by a single counsel, in most 

instances filed joint papers, made common and overlapping 

argument and participated in a joint and highly litigious 

strategy and defense, which resulted in Defendants spending 

millions defending bona fide claims with common issues of 

law and fact[.]

Appellant’s Brief, at 4-5. 

Prior to addressing SCS’s issues on the merits, we must first determine 

whether SCS has properly presented their issues for our review. In its third 

issue on appeal, SCS contends that the trial court erred in failing to make 

WHTR and CalSTRS jointly and severally liable for attorneys’ fees and costs. 

See Appellant’s Brief, at 39-43. SCS claims that the trial court erred by 

failing to order Appellees jointly and severally liable for all fees and costs 

because both WHTR and CalSTRS were represented by single counsel, filed 

joint papers, and advanced similar arguments throughout litigation. See id. 

at 39. However, we note that SCS fails to provide any legal authority that 

would support its contention that the trial court erred by failing to make 

Appellees jointly and severally liable for the fees and costs. See Pa.R.A.P. 

2119(a) (requiring citation to pertinent legal authority in support of a party’s 

legal argument). “The failure to develop an adequate argument in an 
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appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.” 

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) 

(citation, brackets, and quotation marks omitted). 

Due to SCS’s failure to comply with the requirements of Pa.R.A.P. 

2119(a), we are unable to provide meaningful review of this issue. Thus, we 

find this issue waived. See, e.g., Beshore; In re Jacobs, 936 A.2d 1156, 

1167 (Pa. Super. 2007). 

Moving to the issues SCS preserved for appeal, it challenges the trial 

court’s decision to award SCS attorneys’ fees and costs in an amount less 

than requested by SCS. See Appellant’s Brief, at 4, 23-38. Initially, SCS 

contends that the wording of the prior panel’s December 2012 memorandum 

decision required the trial court, on remand, to award SCS all of the 

attorneys’ fees and costs that it contends were incurred as the “prevailing 

party.” See id., at 7, 11-12. Specifically, SCS contends that our directive for 

the trial court to “determin[e] and award ... SCS’s attorneys’ fees incurred in 

connection with the dispute over the STS Agreement” requires that the trial 

court award all of the attorneys’ fees incurred by SCS. See id., at 10 

(emphasis omitted). 

On the contrary, both the trial court and CalSTRS contest this reading 

of the December 2012 memorandum decision and contend that the trial 

court was permitted by law to examine the reasonableness of SCS’s request 
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for $2,225,617.66 in attorneys’ fees and costs. See Appellee’s Brief, at 3. 

See also Trial Court Opinion, 12/2/15, at 1.1 We agree. 

As mentioned, a prior panel of this Court previously found that SCS 

was entitled to attorneys’ fees and costs as the “prevailing party.” See 

Shared Communications Services of ESR, Inc., 2319 EDA 2011, at 27. 

Specifically, the panel found that 

[a]s SCS properly notes, the STS Agreement contains a 

provision for the award of attorneys’ fees generated as a result 

of any dispute concerning that agreement. The sole question for 

the trial court’s consideration was whether either party was a 

“prevailing party” such that it would be entitled to such a fee. 

This Court in Profit Wize Marketing v. Weist, 812 A.2d 1270, 

1275-1276 (Pa. Super. 2002), has provided guidance in making 

this determination, stating: 

Consistent with this interpretation, we note that the 

noun, “prevailing party,” is commonly defined as “a 

party in whose favor a judgment is rendered, 

regardless of the amount of damages awarded.” While 

this definition encompasses those situations where a 

party receives less relief than was sought or even 

normal relief, its application is still limited to those 

circumstances where the fact finder declares a winner 

and the court enters judgment in that party’s favor. 

Such a pronouncement does not accompany a 

compromise or settlement. 

____________________________________________

1 We note that both CalSTRS’s brief and the trial court’s opinion contend that 

the trial court was required to employ the reasonableness test in relation to 

the entire $3,310,460.37 requested by SCS for attorneys’ fees, costs, and 

interest. However, we have determined that the request for attorneys’ fees 

and costs must be addressed separately, and have thus subtracted the total 

amount of interest requested, $ 1,084,842.71, from the total amount 

requested, $ 3,310,460.37, to arrive at $ 2,225,617.66 in total attorneys’ 

fees and costs. 
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Profit Wize Marketing, 812 A.2d at 1275-1276 (holding that a 

settlement agreement and compromise did not demonstrate that 

either party was the “prevailing party”). 

A review of the record reveals ... a March 24, 2009 verdict 

for $147,300.00. The fact-finder in both trials declared 

unequivocally SCS the winner. Therefore, we conclude that SCS 

is the prevailing party in both trials. Consequently, and pursuant 

to the terms of the STS Agreement, SCS is entitled to its 

attorneys’ fees. Accordingly we vacate the trial court’s January 

14, 2011 order and remand for the determination and award of 

SCS’s attorneys’ fees incurred in connection with the dispute 

over the STS Agreement. 

2319 EDA 2011, at 27. 

In reaching this conclusion, the panel relied upon paragraph 19.06 of 

the STS Agreement, which provided that “[i]n the event of any dispute 

between the parties hereto arising out of or in connection with this 

Agreement, the prevailing party shall be entitled to recover from the other 

its reasonable attorneys’ fees and costs incurred in connection hereto.” STS 

Agreement, 9/30/86, at ¶ 19.06 (emphasis added). 

As we previously looked to the provisions of the STS Agreement to 

determine whether SCS was entitled to attorneys’ fees and costs, it is a 

given that we would look to the STS Agreement to determine the type of 

attorneys’ fees and costs that are recoverable pursuant to the fee-shifting 

provision. The STS Agreement clearly provides that the prevailing party is 

entitled to “reasonable attorneys’ fees and costs.” Id. Thus, SCS is only 

entitled to its attorneys’ fees incurred—to the extent they are reasonable.
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Further, even if the STS Agreement did not indicate that the prevailing 

party was entitled to only its “reasonable attorneys’ fees and costs,” a trial 

court is permitted to inquire as to the reasonableness of a request for 

attorneys’ fees before awarding them. See McMullen v. Kutz, 985 A.2d 

769, 777 (Pa. 2009). Thus, we find no merit to SCS’s contention that our 

December 13, 2012 memorandum decision required the trial court to award 

SCS the attorneys’ fees incurred without a reasonableness inquiry. 

Next, SCS contends that even if the wording of the 2012 

memorandum decision did not mandate the trial court to award the full 

amount of fees, costs and expenses that it incurred against WHTR and 

CalSTRS, it was still error for the trial court not to do so. See Appellant’s 

Brief, at 20-22. As noted above, the trial court found that SCS’s request for 

$2,225,617.66 in attorneys’ fees and costs was unreasonable. See Trial 

Court Opinion, 12/2/15, at 1-16. Thus, the trial court awarded SCS 

$321,900.00 from WHTR and $120,000.00 from CalSTRS as reasonable 

reimbursement for attorneys’ fees, as well as $196,971.28 from WHTR and 

$73,593.66 from CalSTRS for costs. See id., at 21. 

“Appellate review of a trial court’s order awarding attorney’s fees to a 

litigant is limited solely to determining whether the trial court palpably 

abused its discretion in making a fee award.” Thunberg v. Strause, 682 

A.2d 295, 299 (Pa. 1996) (citation omitted). 

Our Supreme Court has set forth a number of factors a trial court must 

consider in determining a reasonable award of attorneys’ fees, including: 
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the amount of work performed; the character of the services 

rendered; the difficulty of the problems involved; the importance 

of the litigation; the amount of money or value of the property in 

question; the degree of responsibility incurred; whether the fund 

involved was ‘created’ by the attorney; the professional skill and 

standing of the attorney in his profession; the results he was 

able to obtain; the ability of the client to pay a reasonable fee 

for the services rendered; and very importantly, the amount of 

money or the value of the property in question. 

In re LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968) (internal 

quotation marks and citations omitted). Further, in reviewing the 

reasonableness of an award of attorneys’ fees, we recognize that the amount 

of attorneys’ fees awarded is 

peculiarly within the discretion of the court of first instance. Its 

opportunities of judging the exact amount of labor, skill and 

responsibility involved, as well as its knowledge of the rate of 

professional compensation usual at the time and place, are 

necessarily greater than ours, and its judgment should not be 

interfered with except for plain error.... [T]he allowance or 

disallowance of counsel fees rests generally in the judgment of 

the court of first instance and its decision will not be interfered 

with except for palpable error. 

Id., at 340 (internal citations omitted). 

Neither party produced witnesses to testify regarding each invoice or 

to assess the time or activity recorded by each of the persons on the 

invoices. Instead, CalSTRS and SCS stipulated that the time entries were 

factually accurate, and that it was for the trial court to determine if the time 

entered by SCS during the course of litigation was reasonable. As such, both 

parties agreed to rest on the invoices produced by SCS and the briefs 

CalSTRS and SCS submitted in opposition to and in support of the invoices, 

respectfully. 
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In support of its request for legal fees, SCS offered more than 627 

pages of time entries that amounted, in total, to its request for 

$2,225,617.66 in legal fees. However, to a large degree, SCS did not 

address the reasonableness of its individual time entries in its filings with the 

trial court. Instead, SCS generally concluded that the amount requested in 

attorneys’ fees and costs was inherently reasonable as it mirrored the legal 

fees incurred by WHTR and CalSTRS over the course of the litigation. 

Conversely, CalSTRS, in its filings, while noting that SCS’s action in 

incurring more than two million dollars in attorneys’ fees and costs was 

patently unreasonable, addressed the reasonableness of the individual, as 

well as the categorical, time entries of SCS. CalSTRS noted that 

approximately $72,835.512of SCS’s claimed attorneys’ fees appeared to be 

attributable to Sprint, and $23,165.00 appeared to be attributable to 

Travelers, defendants that for the most part were not parties to the instant 

action after 1999. Further, CalSTRS notes that a large number of the time 

entries appeared to be block billed, and that SCS did not provide a 

breakdown as to the hours expended on the WHTR matter versus the hours 

expended on CalSTRS matters. Accordingly, CalSTRS notes that due to these 

____________________________________________

2 We note that while CalSTRS initially indicates that $72,835.51 of all fees 

were attributable to Sprint, a sentence later it indicates that $72,379.51 

should be deducted from the petition prior to determining any award. 
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deficiencies, it was unable to assess the reasonableness of each individual 

time entry. 

After reviewing the documents submitted by both parties, the trial 

court utilized the factors set forth in LaRocca and determined SCS incurred 

an unreasonable amount of attorneys’ fees in litigating this matter. While the 

trial court abided by the parties’ stipulation that all of the work claimed was 

performed, the trial court found that SCS’s failure to realistically assess the 

case prior to litigation caused an unnecessary amount of work to be 

performed in the case. 

Specifically, the trial court determined that SCS frivolously pursued 

lost profit damages and tort causes of actions that were unavailable under 

the clear language of the STS Agreement, inappropriately employed, and 

thus incurred costs from, two law firms for the entirety of the litigation, and 

failed to use knowledge gained from similar litigation to the case. The trial 

court found that even when necessary motions were filed, the attorneys 

spent an inordinate amount of time on each motion, further driving up the 

claimed attorneys’ fees. Thus, given its review of SCS’s case strategies and 

the LaRocca standards, the trial court concluded that “an award of three [] 

times the compensatory damage award [was] appropriate and constutite[d] 

‘reasonable fees.’” Trial Court Opinion, 12/2/15, at 16. Additionally, the trial 

court concluded that SCS was entitled to its full costs, and awarded costs 

pursuant to this determination. 
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On appeal, SCS contends that it was error for the trial court to use 

hindsight and substantially reduce SCS’s attorneys’ fee award due to the 

trial court’s opinion as to how SCS should have pursued its litigation 

strategy. See Appellant’s Brief, at 25-38. Specifically, SCS disputes the trial 

court’s ability to reduce its attorneys’ fee award based upon its opinion that 

SCS frivolously pursued lost profit damages and tort causes of action, 

inappropriately employed two law firms for the entirety of the litigation, and 

failed to otherwise minimize its legal fees. See id. Additionally, as was its 

main claim at the hearing addressing attorneys’ fees, SCS contends that one 

need only look at CalSTRS’s similarly large legal fees incurred over the 

course of litigation to determine that SCS’s purported legal fees were 

reasonable. See id., at 9, 20, 24-25. 

Accordingly, SCS urges us to remand to the trial court to enter an 

order granting SCS all of the claimed legal fees involved. See id., at 22. 

Pennsylvania Courts have previously addressed a trial court’s award of 

attorneys’ fees where the fee claimed was disproportionate to the amount 

awarded. In Mountain View Condominium Association v. Bomersbach, 

734 A.2d 468 (Pa. Cmwlth. 1999), the Commonwealth Court3 held that a 

____________________________________________

3

“We of course recognize that a decision of the Commonwealth Court is not 

binding precedent upon this Court; however, it may be considered for its 

persuasive value.” Holland ex rel. Holland v. Marcy, 817 A.2d 1082, 1083 

n.1 (Pa. Super. 2002) (en banc) (citation and internal quotation marks 

omitted).
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trial court did not abuse its discretion in awarding $46,548.64 in attorneys’ 

fees on a $1,200.00 claim where the trial court found that the nature of the 

litigation warranted the full award. However, it has been held that a trial 

court does not abuse its discretion in awarding the prevailing party only a 

portion of its fees where the party does not prove the reasonableness of its 

request. See Township of Millcreek v. Angela Cres Trust of June 25, 

1998, 142 A.3d 948 (Pa. Cmwlth. 2016) (affirming a trial court’s award of 

$517,868.00 in attorneys’ fees costs and expenses where the prevailing 

party failed to prove the reasonableness of its request for $3,359,900.33 in 

attorney’s fees, costs and expenses). 

Based upon these cases, the Commonwealth Court has found that 

[t]his precedent indicates that, as long as the trial court reviews 

the record and considers factors such as the nature and length of 

the litigation, the responsibilities of the parties in affecting the 

nature and length of the litigation, and the competitiveness of 

the rate and time expended, it is difficult for an appellate court 

to hold that a trial court abused its discretion in issuing a 

particular award of attorney’s fees.

Arches Condominium Ass’n v. Robinson, 131 A.3d 122, 132-133 (Pa. 

Cmwlth. 2015). 

Here, the trial court appropriately applied the LaRocca factors to 

SCS’s request for attorneys’ fees. Pursuant to the trial court’s findings of 

fact, which are supported by the record, the trial court determined that the 

amount of work performed was far in excess of what was necessary for the 

difficulty of the case and the amount of money or the value of property in 
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question. While SCS contests the way that the trial court came to this 

conclusion, i.e., by applying hindsight to SCS’s trial strategy, we find that 

the trial court adequately set forth its reasoning for these findings. As we are 

required to give deference to the trial court’s factual findings and judgment, 

we conclude that SCS’s argument lacks merit. See LaRocca, 246 A.2d at 

340. 

Further, we observe that we generally do not support a trial court’s 

use of a multiplier, as applied to the compensatory damage award, to arrive 

at a reasonable attorneys’ fee. However, our painstaking review of the 

record reveals that it is not possible to determine the reasonableness of 

SCS’s request from its voluminous time entries alone, as the entries appear 

to include time expended on litigation that was separate from the instant 

action, block billed time entries, and largely failed to differentiate between 

the times expended on each of the defendants in this matter. Additionally, 

we have no other way to assess the reasonableness of SCS’s request as SCS 

failed to present any testimony regarding the reasonableness of its individual 

time entries and largely rested upon generalized conclusions concerning its 

entitlement to the attorneys’ fees in its petitions. 

Therefore, under these specific circumstances, we cannot say this 

decision was “palpable error,” given the fact that SCS presented minimal 

evidence to prove the reasonableness of its request for attorneys’ fees and 
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costs. Id., at 340. Accordingly, SCS’s contention that the trial court erred in 

fashioning its award of attorneys’ fees is without merit. 

Lastly, SCS claims that the trial court erred by failing to award 

prejudgment interest on the awards for the jury verdict and attorneys’ fees 

and costs. See Appellant’s Brief, at 4. First, Appellant claims that it was 

error for the trial court to retroactively eliminate the prejudgment interest of 

$76,986.19 against WHTR and $20,189.06 against CalSTRS as the trial court 

had previously awarded SCS under its January 13, 2011 order. See

Appellant’s Brief, at 44. It contends that the trial court was without 

jurisdiction to modify the terms of its prior order more than four years after 

the entry of its previous order. See id. at 45.4 We agree. 

____________________________________________

4 SCS also contends that, even if the trial court had the jurisdiction to 

eliminate its previous award of prejudgment interest on the jury verdict, this 

was error as Pennsylvania state law provides that prejudgment interest “is a 

legal right when there has been a recovery based on a breach of contract 

cause of action.” Appellant’s Brief, at 46 (citing Verner v. Shaffer, 500 A.2d 

479, 482 (Pa. Super. 1985). SCS’s statement of the law is misleading. In 

Pennsylvania, while trial courts must award prejudgment interest on some 

breach of contract claims, trial courts have discretion on whether or not to 

award prejudgment interest on other breach of contract claims. See Fidelity 

Bank v. Com. Marine and Gen. Assurance Co., 592 F.Supp. 513, 522 

(E.D. Pa. 1984). Specifically, the Restatement (Second) of Contracts, which 

Pennsylvania follows, provides that prejudgment interest is awarded as a 

matter of right only on breach-of-contract damages ascertainable from the 

terms of the contract, while, in all other circumstances, prejudgment interest 

is awarded at the trial court’s discretion. See Restatement (Second) of 

Contracts § 354. 
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Under Pennsylvania law, a trial court is permitted to modify or rescind 

any order within thirty days, provided that no appeal from the order has 

been taken. See 42 Pa.C.S.A. § 5505. Following this thirty-day period, the 

order becomes final and the trial court is without jurisdiction to sua sponte

modify an order unless it is to correct a clerical mistake which does not 

require the exercise of discretion. See Stockton v. Stockton, 698 A.2d 

1334, 1338 (Pa. Super. 1997). 

Here, the record reflects that neither party requested that the trial 

court revisit its decision concerning prejudgment interest. Thus, because the 

decision to vacate an award requires an exercise of discretion, it was clearly 

error for the trial court to revisit this matter and vacate its previous award to 

SCS of $76,986.19 in prejudgment interest from WHTR and $20,189.06 in 

prejudgment interest from CalSTRS. 

Further, the trial court’s action patently exceeded the scope of our 

remand order. “A trial court has an obligation to comply scrupulously, 

meticulously, and completely with an order of the [appellate c]ourt 

remanding a case to the trial court.” Commonwealth v. Williams, 877 

A.2d 471, 474 (Pa. Super. 2005) (citation omitted). Issues not included in 

the remand mandate cannot be considered by the trial court. See id., at 

475.

We therefore remand this matter to the trial court and direct the 

reinstatement of these prejudgment interest awards. 
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Finally, SCS contends that the trial court erred by failing to award it 

prejudgment interest on its request for attorneys’ fees. See Appellant’s 

Brief, at 52. “Our review of an award of prejudgment interest is for abuse of 

discretion.” Kaiser v. Old Republic Ins. Co., 741 A.2d 748, 755 (Pa. 

Super. 1999) (citation omitted). 

Under Pennsylvania law, the right to prejudgment interest in a 

contractual dispute “begins at the time payment is withheld after it has been 

the duty to the debtor to make such payment.” Fernandez v. Levin, 548 

A.2d 1191, 1193 (Pa. 1988). There is a dearth of Pennsylvania state law 

addressing a request for prejudgment interest on an award of attorneys’ fees 

under a contractual fee-shifting provision. However, the United States Court 

of Appeals for the Third Circuit has interpreted Pennsylvania law in relation 

to this exact issue. 

In PPG Indus., Inc. v. Zurawin, the Court held that because 

Pennsylvania law provides that prejudgment interest does not accrue until

the time payment is withheld, prejudgment interest cannot accrue on an 

award of attorneys’ fees and costs pursuant to a contractual fee-shifting 

provision because the obligation to pay these fees does not arise until the 

trial court enters a final judgment. See 52 Fed. App’x 570, 581 (3d Cir. 

2002).

We agree with the Third Circuit’s interpretation of Pennsylvania state 

law and adopt it as our own. Thus, because prejudgment interest does not 

arise on an award of attorneys’ fees and costs pursuant to a contractual fee-
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shifting provision, we cannot find that it was error for the trial court to fail to 

award prejudgment interest on SCS’s award of attorneys’ fees and costs. 

Order affirmed in part, vacated in part. Remand for modification of the 

judgment consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2017