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

v.
LCP NORTH THIRD, LLC

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 665 EDA 2022 Appeal from the Order Entered January 31, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180702329 JAMES M. FRANCIS

v.
LCP NORTH THIRD, LLC

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 666 EDA 2022 Appeal from the Judgment Entered January 31, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180702329

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J. MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30 , 2023 LCP North Third , LLC (LCP ) appeals from the judgment , 1 entered in the Court of Common Pleas of Philadelphia County, following a non

- jury trial. On

_________________ __________ ______ ____ _______ 1 LCP filed notices of appeal from both the January 31, 2022 order granting attorneys’ fees to Francis (665 EDA 2022) and the judgment entered on February 1, 2022 (666 EDA 2022). Where judgment is entered in the underlying litigation before the trial court rules on a motion for counsel fees, (Footnote Continued Next Page)J

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appeal, LCP challenges the trial court’s denial of its post

- trial motion for j udgment n ot w ithstanding the v erdict (JNOV) and a new trial, and the award of attorneys’ fees to Appel lee James M. Francis

. After review, we affirm. The gravamen of th is complain t involves the Second Omnibus Amendment 2 of a Settlement Agreement (Second Amendment) between LCP and Francis. LCP, managed by Alan Leavitt, is a corporation that administers partnerships and purchase s loans

. Pursuant to the Second Amendment , LCP extended an option to Francis for the purchase of property located at 115

- 17 North Third Street, Philadelphia, Pennsylvania 19106 (Property ). The issue on appeal involves whether LCP stalled in completing construction at the Property with the intent ion of defeating Francis’ ability to exercise his purchase option ? For context, Francis , through an entity titled O ne N orth T hird (ONT) , 3 purchased the P roperty in 2004

. N.T. Trial, 9/20/21, at 32. Following ONT’s default on two construction loans , LC P purchased loan documents related to the Property and the Property was listed for judicial sale. Id. at 38, 43

- 4 5 ;

_________________ __________ ______ ____ _______ the order on counsel fees is appealable when entered without the need for entry of judgment on it. See C armen Enterprises, Inc. v. Murpente r , LLC, 185 A.3d 380, 389 (Pa. Super. 2018), citing Miller Elec. Co. v. DeWeese , 918 A.2d 114, 114 (Pa. 2007). Here, however, the court ruled on Francis’ attorneys ’ fee request prior to the entry of judgment. The attorneys’ fee award was therefore includ ed in the judgment and, as such, the appeal at docket number 665 EDA 2022 is duplicative and is hereby quashed.

2 A First Amendment had previously been executed involving construction funds, but it is not germane to this case.

3 At all relevant times, F rancis was the owner and manager of ONT.J

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id . , 9/21/2 1 , at 78

. Thereafter, Francis , on behalf of ONT, and LCP entered
into a Settlement Agreement, 4 pursuant to which Francis would complete work at the Property , Francis would make monthly rent payments to LCP, Francis had an option to purchase the Property which could be executed any time after Property was transferred to another party at sheriff’s sa le 5 and prior to February 17, 2019 , and LCP would purchase the Property at sheriff ’s sale

— which it later di d

. 6 I d. , 9/20/21 , at 47; i d. , 9/22/21, at 153

. The following two events prompted discussion s regarding an amendment to the Settlement Agreement. First, o n April 21, 2017, the Department of License and Inspection (L&I) of the City of Philadelphia issued a stop

- work order on the Property because , inter alia , the sprinkler and fire suppression systems were no t certified. Id. , 9/ 20/21, at 54. 7 Francis testified that following a dispute between him and Benjamin Magness, the plumber and

_________________ __________ ______ ____ _______ 4 Exhibit P

- 2 (Settlement Agreement).

5 Francis, through ONT, owned the Property when the Settlement Agreement was executed.

6 Exhibit D

- 6 (Deed to Property) ; see also N.T. Trial, 9/21/21, at 144.

7 The stop

- work order also cited the need to obtain a permit for installation of heating and air

- conditioning systems

. Additionally, t he building p ermit was revoked because it was either issued in error or a condition of the permit had been violated. Further, t he plumbing permit was revoked because it was issued on the basis of false statements or misrepresentations of fact. The zoning and/or use registration permit was also revoked beca use it was issued in error. Finally , an inspection at the Property showed that the certified plans did not comply with the Philadelphia Building Construction and Occupancy Code. See Exhibit P

- 8 (Notice of Violations from City of Philadelphia).J

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sprinkler system contractor, Magness refused to return to the project to certify his work. Id

. at 51, 91. Second , Francis had defaulted on monthly rent payments to LCP . On November 30, 2017, LCP notified Francis that he owed $20,500 .00 in rent to LCP and , thus, was in default under the Settlement Agreement. Id. , 9/22/21, at 155; see Exhibit D

- 30 ( e - mail notification of default to Francis). Following these events, LCP and Francis discussed an amendment to the Settlement Agreement , pursuant to which LCP would manage construction at the Property . Francis testified that “[ LCP] said that [its] people knew [] Magness” an d “since [ LCP’s ] people are familiar with [] Magness, [ LCP and I ] came to an arrangement that [ LCP ] would finish the project [.]” Id. at 85. Francis and LCP also discussed the need for LCP to obtain a certificate of
occupancy (CO)

. N.T. Trial, 9/20/21, at 97. Francis testified that LCP “balked” at the need to obtain a CO and Francis conceded that he was prepared to purchase the Property when it was “substantially complete.” Id. The p arties executed the Second Amendment on February 14, 20 18. Exhibit P

- 46

. Pursuant to the Second Amendment , LCP would complete
construction of the Property , Francis would provide LCP with contact information for the contractors and consultants working on the Property , 8 and

_________________ __________ ______ ____ _______ 8 Franci s testified that he provided LCP with all information requested on February 2, 2017 , but t hat LCP did not use these contractors . N.T. Trial, 9/21/21, at 162 ; id. 9/23/21, at 45 (Leavitt testifying “[Francis] gave us a list of contractors he had dealt with, but [ due to ] the conditions in the building, the work was C minus at best.” ).J

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Francis had either 90 days from the date LCP received the CO for the Property ,
or , until June 30, 2018, whichever occurred first, to either exercise or assign his option. Id. , 9/20/21, 132; see also Exhibit P

- 3 (Second Amendment).
Leavitt testified that LCP did not bind itself to substantially complete the property. N.T. Trial, 9/23/21, at 35 (Leavitt testifying , “ We said we would diligently work, but we knew there was a stop[

- ]work order there. We knew the first order of business was getting it removed

. ” ); id. at 34 (Leavitt testifying, “We ex pected that we would be able to get the project back on track, at least get the sprinkler [] guys, fire suppression guys back in based on our relationship.”) ; id. at 34

- 35 ( Leavitt testifying, “[Y]ou can’t say you’ll get a CO unless you know what was in the walls. We were not there. We

ma d e it very clear we weren’t going to commit to it.”).
Leavitt also testified regarding construction at the Property

. The property needed a new roof , which could not be completed until there were appropriate weather conditions

. Id. at 44

- 45; i d. , 9/21/21, at 173 ( Leavitt testifying, “ We had a foot of water in the building leaking from the roof and the building department would only let one contractor in at a time, so it had to be the roofer first.”) . Leavitt also testified, “ T he only work we did was work that was permitted by the building department, L&I [], and it was almost all related to the sprinkler.” Id. at 156

. On June 29, 2018, Francis exercised his option and scheduled closing for July 26, 2018

. Id. , 9/22/ 21, at 171. LCP sent Francis an updated optionJ

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pr ice calculation , 9 which indicated that as of July 10, 2018 , t he total amount of money Leavitt spent on construction, including pending liabilities , was $86,520. 00 10 Id. , 9/20/21, at 185

- 86. On July 20, 2018, Francis received a C ity of Philadelphia certification showing that the stop

- work violations had not been removed. Id. at 182; see Exhibit P

- 66. LCP attended the scheduled closing and Francis did not. N.T. Trial, 9/23/21, at 54. In July 2018, Francis sued LCP for breach of contract. On September 20, 2021, the case proceeded to a non

- jury trial before the Honorable Leon Tucker

. The trial court found that LCP breached its duty of g ood faith and fair dealing and awarded Francis $966,126 .00 in damages. By separate order, the trial court awarded Francis $22 9,482.56 in attorneys’ fees and costs

. LCP’s post

- trial requests for JNOV and a new trial were denied. This timely appeal follow ed. Both the trial court and LCP have complied with Pa.R.A.P. 1925. LCP raises the following issues for review:
1. Whether the trial court erred in failing to grant LCP’s request for JNOV where Francis failed to prove: (i) an express or implied contractual duty that required LCP to complete construction within a certain timeframe; (ii) that LCP breached any contractual duty in the face of undisputed evidence establishing that delays were caused by a “stop [

- ] work” order

_________________ __________ ______ ____ _______ 9 Pursuant to the Second Amendment, the purchase price of the option was $4,311,835 .00 plus construction expenses. Id. , 10/20/21, at 133.

10 The updated option price indicated that $23,810 .00 was paid to “Roofer” and $150 .00 was paid for “Use Registration Change” to L&I. The remaining $62,560 .00 was for pending liabilities to be paid within 30 days and included “HVAC

– Roof (Completed),” “Sprinkler & Unit Plumbing,” “Sprinkler

– Electrician,” and “Fire Alarm.” See Exhibit P

- 64 and P

- 65.J

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- and/or weather and not by LCP’s condu ct; (iii) that Francis, as [the] purported non

- breaching party, fulfilled his obligations under the contract by establishing that he was ready, willing [,] and able to “close” on the Property; and (iv) damages, in light of the undisputed valuation evidence and evidence regarding the staggering substantial construction costs that remained. 2. Whether the trial court erred in awarding attorneys’ fees where [Francis] failed to prove all elements of his breach of contract claim, and thus, cannot properly be considered a “prevailing party” under the [parties] agreement? 3. Whether [Francis] erred in entering judgment in the amount of the verdict and attorneys’ fee award af ter the attorneys’ fee award had been separately entered by a different [o] rder and judgment on the award should not have been entered twice on the same award? Appellant’s Brief, at 18.
LCP first alleges that Francis failed to prove breach of contract and , thus, LCP is entitled to JNOV , or in the alternative, a new trial. When reviewing a motion for JNOV the evidence must be viewed in the light most favorable to the verdict winner, who must be given the benefit of every reasonable inference of fact. Fanning v. Davne , 795 A.2d 388, 392 (Pa. Super. 2002) (quotation omitted). Any conflict in the evidence mu st be resolved in the verdict winner ’ s favor. Id. JVOV may be entered : (1) where the moving party is entitled to judgment as a matter of law, or (2) where the evidence was such that no two reasonable minds could disagree that the outcome should have bee n in favor of the moving party. Id. at 393. On appeal of a trial court's denial of a motion for JNOV , our Court will

reverse the trial court only upon a finding of an abuse of discretion or error of law that controlled the outcome of the case. Eichman v . McKeon , 824 A.2dJ

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305, 311 (Pa. Super. 2003) (citation omitted). Additionally, where credibility and the weight to be accorded the evidence are at issue, the court will not substitute its judgment for that of the fact

- finder. Id. at 311

- 12 (citation
omi tted). The standard of review of a trial court’s grant or denial of a motion for a new trial, is, generally, whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. Ge neral Motors Corp. , 521 A.2d 413, 422 ( Pa. 1987). To reverse the trial court, this Court must consider all the evidence in the light most favorable to the non - moving party and conclude that the verdict would be different if another trial were granted. Ro bertson v. Atlantic Richfield Petroleum Products Co. , 537 A.2d 814 ( Pa. Super. 1987). LCP first argues that Francis did not prove breach of contract. “ To successfully maintain a cause of action for breach of contract the plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages .” Hart v. Arnold , 884 A.2d 316, 332 (Pa. Super. 2005)

. Additionally, Pennsylvania courts impose a requirement of good faith in performance under a contract, termed the “doctrine of necessary implication.” Somers v. Somers, 613 A.2d 1211, 1214 (Pa. Super. 1992). In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perfo rm those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and toJ

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refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contr act. D.B. Van Campen Corp. V. Building and Constr. Trades Council , 195 A.2d 134, 136

- 37 (Pa. Super. 1963). “The duty of ‘good faith’ has been defined as ‘honesty in fact in the conduct or transaction concerned.’” Somers , supra at 1213 . (Pa. Super. 1992). The obligation to act in good faith in the performance of contractual duties varies somewhat with the context, and a complete catalogue of types of bad faith is impossible, but it is possible to recognize certain strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of power to specify terms, and interference with or failure to cooperate in the other party’s performance. Id. (cit ations omitted). LCP’s first two sub

- claims allege that there was no d uty to complete construction at the property and, thus, LCP did not breach any duty. Specifically, LCP contends that the contract language in Section 6 of the Second Amendment , wherei n Francis and LCP acknowledge that LCP “ desires to complete the construction of the Property as promptly as possible , ” is merely precator y . Thus, LCP claims that this language does not create any duty on LCP to advance construction by a certain date, to obtain a CO , to spend a certain amount of money on construction, or to grant Francis’ option extension requests. Appellant’s Brief, at 25

- 2 9

. Further, LCP alleges that any delays were caused by the stop

- work order , rather than LCP’ s conduct

. Th ese claim s are unavailing

.J

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Although we agree with LCP that it was not expressly required to complete the individual prior

- mentioned tasks, the record confirms the trial court’s holding that LCP’s actual behavior demonstrated it had no intent ion to complete construction of the Property as promptly as possible despite the mandate to do so in Section 6, and, thus, LCP breached its duty of good faith. Trial Court Opinion, 12/3/21, at 4

- 5. While Francis conceded he “ was prepared to take the build ing when it was substantially complete [] , ” N.T. Trial, 9/20/21, at 97, this does not obviate LCP’s obligation to move forward with construction in good faith. Th e parties disagreed regarding LCP’s need to obtain a CO prior to Francis’ execution of his op tion. However, Francis testified that the exclusion of the CO requirement was because the parties could not control when L&I would perform inspections. See N.T. Trial , 9/ 20/21, at 97 (Francis testifying “I wanted them to have a certificate of occupancy. [LCP] balked at that, and one o f the

reasons was the amount of time it might take the City to [perform] their inspection.”). Additionally, LCP advised Francis in an e

- mail, dated January 24, 2018, see Exhibit P

- 29 , that LCP was going to “work diligently to obtain a [CO]” and that Francis would have enough time to obtain financing. See also N.T. Trial, 9/20/21, at 98 (Francis testifying e

- mail reinforced “[LCP] was going to get everything done .”).
Moreover , althoug h LCP was not required to spend a specific amount of money on construction, from the date the Second Amendment was executed , February 14, 2018 , until July 10, 2018 , LCP spent only $86,520 .00 onJ

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construction , including pending liabilities

. N.T. Trial , 9/21/21, at 202

. A comparison of the May 16, 2018 and July 10, 201 8 option price breakdown 11 illustrates that during that two

- month period LCP only moved forward with construction on the roof and fire alarm. Additionally, fire alarm work did not begin un til Ju ne 8 , 2018

. I d. , 9/23/21, at 92. Moreover, a property certification from L&I , dated July 20, 2018, show s that none of the stop

- work violations had been removed. Id. at 182 (Francis testifying “ [the July 20, 2018 City certification] had every violation that existed based on the stop [

- ]work order.”) ; Exhibit D

- 21 (Initial Notice of Violation and Order) ; Exhibit P

66 (July 20, 2018 License and Inspections Certification Statement). The record de monstrates that d elays were not only caused by the stop

work order. LCP failed to schedule weekly phone calls with Thomas Donatucci from K nickerbocker Properties 12 until two months after the Second Amendment was executed , see N.T. Trial , 9/21/21, at 175 , even though
Leavitt and Donatucci had scheduled weekly phone calls regarding other

_________________ __________ ______ ____ _______ 11 See Exhibit P

- 65 ( as of July 10, 2018 total option price $ 4,398,355.34); Exhibit P

- 55 ( as of May 16, 2018 total option price $4,376,165 .00 ).

12 Knickerbocker Properties was the general contractor at the Property. Thomas Donatucci works at Knickerbocker Properties , along with his brother, Robert Donatucci. Together they have a 4% interest in the Property but do not have any v oting power or decision

- making authority. N.T. Trial, 9/23/21, at 38

- 39.J

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properties on which they were working. 13 Further, te stimony regarding the fire alarm system indicates that LCP was sent the sprinkler and fire suppression system proposal t wice before it was approved, delaying the start of work on the system until June 8, 2018. I d. , 9/23/21, at 92. The proposal was originally sent to LCP on March 7, 2018. Id. , 9/21/21, at 170; see also Exhibit P

- 86. While L eavitt testified that LCP would have made a profit only if Francis exercised his purchase option , LCP’s conduct prevented Francis from exercising his purchase option. Id . , 9/ 21/21, at 191 (Leavitt testif ying , “ I told [Francis] three times the only way I could h ave broken even on the job was if [Francis] exercised his option .”)

. For example, LCP filed use permit changes in order to “maximize value” of the Property even though it knew L&I approval of the changes would take time and that Francis had a limited window to exercise his option. 14 Id. , 9/ 21/21, at 177. Further , LCP failed to grant Francis’ two requests for extensions of the option execution date. Id. , 9/20/21, at 175

- 76; i d. , 9/21/21, at 179; s ee Exhibit P

- 57 ( Francis requesting extension of the option contract because LCP “deliberately let the job languish to forestall [Temporary COs] being issued in

_________________ __________ ______ ____ _______ 13 Knickerbocker Properties and Leavitt are working together on other projects , such as 248 Market St. , Philadelphia, PA 19106 , and have weekly calls scheduled. N.T. Trial , 9/21/21 , at 174; i d. , 9/23/21, at 38.

14 On April 24, 2018, Leavitt filed a use permit to change zoning of the Property from 12 units to 15 units. After the changes were approved, Knickerbocker Properties emailed LCP , “I think you made some money today.” N.T. Trial, 9/23/21, 183 (emphasis added); see Exhibit P

- 118.J

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a timely manner”). Additionally, i n an e - mail denying Francis’ request for an extension, LCP stated: LCP may pursue or not pursue the rema ining construction work at the [P]roperty as it s ees fit in its sole discretion

. * * * [W]hether or not the construction work at the [P]roperty is completed, and when, if ever, it is completed, is irrelevant to [Francis’] right to exercise his option under the [Second Amendment.] Exhibit P

- 145. Indeed, the record supports the trial court’s determination that LCP’s actual behavior confirmed that LCP had no intent of moving work forward at the Property to enable Francis to exercise his purchase option. In light of the foregoing, the record confirms the trial court’s determination that LCP breached its duty of good faith under the Second Amendment

. LCP’s third sub

- claim alleges that Francis breached his duties under the
contract. Specifically, LCP claims Francis was not ready, willing and able to close on the Property because Francis did not receive funding commitments in excess of the base price amount and Francis failed to attend the set closing date. Appellant’s Brief, at 39. This claim is belied by the record. The trial court determined : “[Francis] was unable to secure financing of the Property in the then [

- ] current condition or , alternatively , was not able to assign the option in accordance with the option agreement. [] Furthermore, [LCP] refused to give [Francis] relevant documents to confirm the status of the [Property]. ” Trial Court Opinion, supra at 8.J

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Indeed, Francis had be en negotiating with Marcus and Millichap (M&M) regarding its purchase of the option

. M&M’s proposed sale price or trade price, for the Property was between $4,950,000.00 and $5,350,000 .00 ; this information was sent to L CP on April 30, 2018. N.T. Trial, 9 /21/21, at 182

- 84; Exhibit P

- 50

. Leavitt acknowledged that M&M is “one of the largest real estate brokers in the country” and that Francis “was not messing around

. ” Id. , 9/21/21, at 184. However, M&M and Francis did not mo v e forward because construction at the Property was not substantially complete, and Francis was unable to provide M&M building progress information because LCP did not provide this requested information to Francis. Id. , 9/20/21, 167 (Francis testifying, “It’s just customary, if I speak to lenders, I need to give them information [.] I need to see it also, and [LCP] refused to give that to

me. ” ) ; Exhibit P

- 53 (Francis ’ request for documents from LCP). Due to LCP’s conduct, Francis wa s unable to secure financing

. In light of the foregoing , the trial court’s determination that Francis’ inability to secure financing was due to LCP’s lack of good faith compliance with the Second Amendment is supported by the record. LCP’s fourth sub

- claim alleges that Francis failed to prove damages. Specifically, LCP argues William Connor, Francis’ damages expert, failed to consider the valuation evidence and substantial remaining construction costs on the Property

. Appellant Brief, at 4 2. LCP is entitled to no relief. The trial court adopted the expert damages proffered by Reaves Luken s , Francis ’ exper t. The trial court reasoned that Luken’s property appraisalJ

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method was consistent with the appropriate term net rentable area , 15 and was consistent with M&M’s valuation, which was performed pre

- litigation. Trial Court Opinion, supra at 10. Additionally, the trial court found LCP’s expert’s valuation analysis flawed due to his use of the lowest comparable properties sold in the 191 06 ZIP code

. Luken s determined that the Property was valued at $5,600,000.00. N.T. Trial, 9/22/21, at 116. The trial court also adopted the analysis of William Connor , Francis’ expert, who determined that the remaining construction costs would be $322, 039

. 00. Id. Connor considered the cost to complete each individual
unit , the one office unit , and various building systems , including the HVAC and fire alarm systems

. N.T. Trial, 9/22/21, at 19, 27. Connor also considered the cost to complete roofing work, the storefront, and intercom system. Id. at 27

- 28

. Francis is entitled to the profits he would have received if the Second Amendment was not breached. See Oelschlegel v. Mut. Real Estate Inv.
Trust , 633 A.2d 181, 184 (Pa. Super. 1993) (“Th e central principal of the law regarding contractual damages is that the non

- breaching party should be placed in the position he or she would have been in absent the breach.”). The

_________________ __________ ______ ____ _______ 15 The useable square f ootage of a space is the total area unique to a tenant, whereas the net ren table square footage includes the portion of the building’s common space s also available a tenant. The building’s gross square footage is the total square footage of a building. See https://aquilacommercial.com/learn ing

- center/rentable

- vs - usable

- square footage

- whats

- difference/ (last accessed on 12/22/22)

. The rentable area is the amount of space you can collect rent on or sell. Id.J

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appraised value of the property, as per Luken s , was $5,600,000.00 as of Jun e 30, 2018. Id. , 9/22/21, at 166. Pursuant to the Second Amendment, the total option price ($4,633,874.00) was the base option price ( $4,311,835.00 ) plus construction expenses ($322,039.00). Id. , 10/20/21, at 133 ; id. , 9/22/21, at 31. Damages are calculated by subtracting the total option price ($4,633,874.00) from the appraised value of the Property ($5,600,000.00), and, thus, the trial court did not abuse its discretion in ordering $966,126.00 in damages. Trial Court Opinion, supra at 11; Findings [and Order], 12/3/2021. Viewing all evidence, in the light most favorable to Francis, LCP is not entitled to a JNOV or a new trial because the trial court did not abuse its discretion.
In its second issue, LCP claims that Francis is not entitled to attorneys’ fees because there was no breach of contract and no breach of an implied duty imposed by the contract

. Appellant’s Brief, at 44. This argument is meritless. Francis is the prevailing party , and the parties included a fee

shifting agreement in Section 17 of the Settlement Agreement , 16 to which they

_________________ __________ ______ ____ _______ 16 The Second Amendment states: 17. Attorney’s Fees in the Event of Breach of this Agreement. If an action, suit or legal proceeding is brought by any Party to enforce of redress a breach of this Agreement, in addition to all other relief awarded by a court of competent jurisdiction, the substantially prevailing Party shall be entitled to an award of (Footnote Continued Next Page)J

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also stipulated in court. See N.T. Trial, 9/20/21, at 26. Mullen v. Kut z , 985 A.2d 769, 776

- 77 (Pa. Super. 2009) ( p arties may contract to provide for breaching party to pay prevailing party’s attorney s’ fees arising from actions contractual damages)

. See also Bert Co v. Turk , 257 A.3d 93 , 117 (Pa. Super. 2021) ( fee

- shifting agreements include attorneys’ fees arising f rom actions for contractual damages )

. In its third issue, LCP a rgues that under Samuel - Bassett v. Kia Motors America, Inc. , 34 A.3d 1 (Pa. 2011), the attorneys’ fees award is considered ancillary and, thus, should not have been included in the judgment
t hat was entered after post

- trial motions were decided. This argument is meritless. In Kia Motors America , our Supreme Court determined that the trial court retained jurisdiction to order attorneys ’ fees reasoning that “ a petition for attorneys’ fees is a n ancillary matter, which the trial court retains authority to decide after an entry of judgment on the verdict.” Id. at 4 8

. Kia Motors America focuses on the trial court’s jurisdiction to order attorneys’ fees following the entry of judgment once an appeal is filed , id. , but does not stand for the proposition that attorneys’ fees cannot be reduced to judgment. Finally , LCP claim s that the Prothonotary exceeded the authority permitted under the Pennsylvania Rules of Civil Procedure where it entered a

_________________ __________ ______ ____ _______ reasonable counsel fees and costs incurred in connection with such matter. Section 17 of Second Amendment (entered as Exhibit P

- 46 at trial)

.J

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judgment in excess of the verdict, and, thus, the judgment should be stricken as void ab inito. LCP is entitled to no relief.
In H&H Mfg. Co. v. Tomei , No. 1982 EDA 2020 (Pa. Super. filed November 21, 2021) (non

- precedential decision) (Table) , 17 this Court determined that there was no authority for the Prothonotary to enter an award of attorney’s fees when the attorney’s fees award was not awarded by the
court , rather it was based on an affidavit of counsel. Id. at 18. Here, the

cour t entered an order on December 3, 2021, awarding $ 966 , 126 .00 in damages and finding that Francis was entitled to seek attorney’s fees and costs as the prevailing party pursuant to the agreement in the Second Amendment. Findings , 12/3/2021. O n January 28, 2022 , unlike in H&H Mfg. Co , the court entered an order granting Francis $ 229,482 .56 in attorney’s fees. See Trial Court Order, 1/28/22. Subsequently on February 1, 2022, Francis filed a pr a ecipe to enter judgment which included the award of attorneys ’ fees previously determined by the court

. Thus, the Pro thonotary did not exceed its authority

. Order and judgment affirmed.

_________________ __________ ______ ____ _______ 17 Pursuant to Pa.R.A.P . 126, unpublished non

- precedential memorandum decisions of the Superior Court filed after May 1, 2019 may be cited for their persuasive value.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30 /2023