J-A21009-22

2023 PA SUPER 39

JAMES M. FRANCIS

v.

LCP NORTH THIRD, LLC 

Appellant

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 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

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 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.

OPINION BY LAZARUS, J.: FILED MARCH 14, 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, 

the order on counsel fees is appealable when entered without the need for 

(Footnote Continued Next Page)
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appeal, LCP challenges the trial court’s denial of its post-trial motion for 

judgment notwithstanding the verdict (JNOV) and a new trial, and the award

of attorneys’ fees to Appellee James M. Francis. After review, we affirm.

The gravamen of this complaint involves the Second Omnibus 

Amendment2 of a Settlement Agreement (Second Amendment) between LCP 

and Francis. LCP, managed by Alan Leavitt, is a corporation that administers 

partnerships and purchases 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 is whether LCP stalled in completing construction at the Property 

with the intention of defeating Francis’ ability to exercise his purchase option. 

For context, Francis, through an entity titled One North Third (ONT),

3

purchased the Property in 2004. N.T. Trial, 9/20/21, at 32. Following ONT’s 

default on two construction loans, LCP purchased loan documents related to 

the Property and the Property was listed for sheriff sale. Id. at 38, 43-45;

id., 9/21/21, at 78. Thereafter, Francis, on behalf of ONT, and LCP entered

____________________________________________

entry of judgment on it. See Carmen Enterprises, Inc. v. Murpenter, 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 included 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, Francis was the owner and manager of ONT. 
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into a Settlement Agreement,4,5 pursuant to which LCP would purchase the 

Property at sheriff’s sale, Francis would complete work at the Property, and

following LCP’s purchase of the Property, Francis would make monthly rent 

payments to LCP. Francis was also given an option to purchase the Property,

which could be executed any time after the Property was transferred to 

another party, including LCP, and prior to February 17, 2019. Id., 9/20/21, 

at 47; id., 9/22/21, at 153. LCP purchased the Property at sheriff’s sale in 

August 2017. Id. at 153; Exhibit D-6 (Deed to Property). 

The following two events prompted discussions regarding an 

amendment to the Settlement Agreement. First, on 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 not certified. Id., 9/20/21, at 54.6 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 The stop-work order also cited the need to obtain a permit for installation of 

heating and air-conditioning systems. Additionally, the building permit was 

revoked because it was either issued in error or a condition of the permit had 

been violated. Further, the 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 because 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). 
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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” and “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). Id., 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 parties executed the Second Amendment on February 14, 2018. 

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,

7 and 

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7 Francis testified that he provided LCP with all information requested on 

February 2, 2017, but that 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.”). 
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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 to another buyer. Id., 9/20/21, 132; see also Exhibit P-3 (Second 

Amendment). Additionally, Section 6 of the Second Amendment states: “The 

parties acknowledge that LCP desires to complete the construction of the 

property as promptly as possible, and [Francis] shall not hinder or delay such 

prompt completion.” See Exhibit P-46 (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 expected 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 

made 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; id., 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, “The only work we did was work 
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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; see Exhibit P-63. LCP sent Francis 

an updated option price calculation,

8 which indicated that as of July 10, 2018, 

the total amount of money Leavitt spent on construction, including pending 

liabilities, was $86,520.00.

9

 Id., 9/20/21, at 185-86. On July 20, 2018, 

Francis received a City of Philadelphia certification showing that the stop-work 

violations had not been removed. Id. at 181; see Exhibit P-66. 

Francis testified that he exercised the option to keep the deal “alive” 

and that “[LCP] could not fulfill that option.” Id., 9/20/21, at 182. Francis 

also testified that on July 24, 2018, Francis informed LCP that closing was not 

going to occur because LCP did not complete construction at the property and 

Francis did not receive the “seller documents” he previously requested. Id.

at 183-84; see Exhibit P-65 (July 11, 2019 e-mail from Francis to LCP 

requesting seller documents, including building drawings, L&I permits and 

approvals, insurance certificates, schedule for completion of work, 

____________________________________________

8 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.

9 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.
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liens/liabilities, and applications for COs). 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 good faith and fair 

dealing and awarded Francis $966,126.00 in damages. By separate order, 

the trial court awarded Francis $229,482.56 in attorneys’ fees and costs. 

LCP’s post-trial requests for JNOV and a new trial were denied. This timely 

appeal followed. 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 

and/or weather and not by LCP’s conduct; (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 after 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 (emphasis in original). 
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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 must 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 been 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.2d 

305, 311 (Pa. Super. 2003) (citation omitted). Additionally, where credibility 

and the weight to be accorded the evidence are at issue, this Court will not 

substitute its judgment for that of the fact-finder. Id. at 311-12 (citation 

omitted).

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. General 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 
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would be different if another trial were granted. Robertson 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 perform 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 to 

refrain from doing anything that would destroy or injure the other 

party’s right to receive the fruits of the contract. 

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. 

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.
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Id. (citations omitted). 

LCP’s first two sub-claims allege that there was no duty 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, wherein Francis and LCP acknowledge that LCP “desires 

to complete the construction of the Property as promptly as possible,” is 

merely precatory. 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 25-29. Further, LCP alleges that any 

delays were caused by the stop-work order, rather than LCP’s conduct. These

claims are unavailing. 

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 determination that LCP’s actual behavior demonstrated it had no 

intention 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 building when it 

was substantially complete [],” N.T. Trial, 9/20/21, at 97, this does not obviate 

LCP’s good faith obligation to move forward with construction. The parties 

disagreed regarding LCP’s need to obtain a CO prior to Francis’ execution of 

his option. However, Francis testified that the exclusion of the CO requirement 
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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 of 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, that LCP was going to “work diligently to obtain a [CO]” and that 

Francis would have enough time to obtain financing. See Exhibit P-29; see 

also N.T. Trial, 9/20/21, at 98 (Francis testifying e-mail reinforced “[LCP] was 

going to get everything done.”).

Moreover, although 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 on 

construction, including pending liabilities. N.T. Trial, 9/21/21, at 202. 

Additionally, fire alarm work, which was essential to remove the stop-work 

order, did not begin until June 8, 2018, and payment for the same was still 

pending as of July 10, 2018. Id., 9/23/21, at 92; see Exhibit P-64. Moreover, 

a property certification from L&I, dated July 20, 2018, shows 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 demonstrates that delays were not only caused by the stopwork order. LCP failed to schedule weekly phone calls with Thomas Donatucci 
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from Knickerbocker Properties10 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 

properties on which they were working.11 Further, testimony regarding the 

fire alarm system indicates that LCP was first sent the sprinkler and fire 

suppression system proposal twice before it was approved, delaying the start 

of work on the system until June 8, 2018. Id., 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. 

Leavitt’s testimony that he would have made a profit only if Francis 

exercised his purchase option is belied by Leavitt’s conduct. Id., 9/21/21, at 

191 (Leavitt testifying, “I told [Francis] three times the only way I could have 

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 

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10 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 voting power or decision-making authority. N.T. Trial, 9/23/21, 

at 38-39. 

11 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; id., 9/23/21, at 38. 
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even though it knew L&I approval of the changes would take time and that 

Francis had a limited window to exercise his option.12 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; id., 9/21/21, at 179; see 

Exhibit P-57 (Francis requesting extension of the option contract because LCP 

“deliberately let the job languish to forestall [temporary COs] being issued in 

a timely manner”). Additionally, in an e-mail denying Francis’ request for an 

extension, LCP stated: 

LCP may pursue or not pursue the remaining construction work at 

the [P]roperty as it sees 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 intention 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 implied in the language 

of the Second Amendment. 

____________________________________________

12 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. 
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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.

Indeed, Francis had been 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 LCP 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 move 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 
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me.”); Exhibit P-53 (Francis’ request for documents from LCP). Due to LCP’s 

conduct, Francis was 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 42. LCP is entitled to no relief. 

The trial court adopted the expert damages proffered by Reaves Lukens, 

Francis’ expert. The trial court reasoned that Lukens’ property appraisal 

method was consistent with the appropriate term net rentable area,

13 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 19106 ZIP code. Lukens determined that the Property was valued 

at $5,600,000.00. N.T. Trial, 9/22/21, at 116. 

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13 The useable square footage of a space is the total area unique to a tenant, 

whereas the net rentable square footage includes the portion of the building’s 

common spaces also available a tenant. The building’s gross square footage

is the total square footage of a building. See 

https://aquilacommercial.com/learning-center/rentable-vs-usable-squarefootage-whats-difference/ (last accessed on 12/22/22). The rentable area is 

the amount of space you can collect rent on or sell. Id.
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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) (“The 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

appraised value of the property, as per Lukens, was $5,600,000.00 as of June 

30, 2018. Id., 9/22/21, at 116. 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. 
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Viewing all of the evidence, in the light most favorable to Francis, LCP 

is not entitled to a JNOV nor is it entitled to a new trial. Davne, supra; 

General Motors Corp, supra. 

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 of good faith 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,

14 to 

which they also stipulated in court. See N.T. Trial, 9/20/21, at 26. Mullen 

v. Kutz, 985 A.2d 769, 776-77 (Pa. Super. 2009) (parties may contract to 

provide for breaching party to pay prevailing party’s attorneys’ 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 

from actions for contractual damages). 

In its third issue, LCP argues that under Samuel-Bassett v. Kia 

Motors America, Inc., 34 A.3d 1 (Pa. 2011), the attorneys’ fees award is 

____________________________________________

14 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 

reasonable counsel fees and costs incurred in connection with 

such matter. 

Exhibit P-46 (Second Amendment, Section 17). 
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considered ancillary and, thus, should not have been included in the judgment 

that 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 an ancillary matter, which the trial court retains authority 

to decide after an entry of judgment on the verdict.” Id. at 48. 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 claims that the Prothonotary exceeded the authority 

permitted under the Pennsylvania Rules of Civil Procedure where it entered a 

judgment in excess of the verdict, and, thus, the judgment should be stricken 

as void ab inito. LCP is entitled to no relief. 

LCP cites to Mother’s Restaurant, Inc. v. Krystkiewicz, 861 A.2d 

327, 337 (Pa. Super. 2004)15 for the proposition that a claim that the 

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15 In Mother’s Restaurant, the prothonotary exceeded its authority where it 

entered a default judgment on behalf of the plaintiff after the defendant failed 

to respond to the plaintiff’s amended complaint within a timely fashion. The 

Court reasoned that the plaintiff’s amended complaint did not contain a notice 

to defend as required by Pa.R.C.P. 1511, and, thus, the defendant had no 

obligation to respond pursuant to Pa.R.C.P. 1026. Accordingly, the 

prothonotary had no authority to enter judgment and the judgment was void 

ab inito. See Rule 1511(a) (“The prothonotary, on praecipe of the plaintiff, 

shall enter a judgment by default against the defendant for failure to plead 

within the required time to a complaint which contains a notice to defend. 

(Footnote Continued Next Page)
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prothonotary exceeded its authority to enter judgment can be raised for the 

first time on appeal because the entry of judgment is void ab initio. Although 

we agree with this proposition, here, the Prothonotary did not exceed its 

authority. We find Gleit v. Nguyen, 199 A.3d 1240 (Pa. Super. 2018) 

instructive. In Gleit, this Court determined that the Prothonotary lacked 

authority to enter a contempt judgment because there was no final judicial 

determination of the contemnor’s liability. Specifically, although the court 

ordered sanctions in the amount of $1,000 per day against the contemnor, 

there was no evidence of record to support the number of days she remained 

in contempt. Id. at 1249. 

Instantly, the court 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. Additionally, on January 

28, 2022, 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 praecipe to enter judgment, which included the award 

of damages and attorneys’ fees previously determined by the court. Here, 

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In all other cases of default or of admission the judgment shall be entered by 

the court”) (emphasis added); see Rule 1026(a) (“no pleading need be filed 

unless the preceding pleading contains a notice to defend or is endorsed with 

a notice to plead”).
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unlike in Gleit, a final determination of liability was ordered and, thus, the 

Prothonotary did not exceed its authority. 

Order and judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2023