Riverview Carpet & Flooring, Inc. v. Presbyterian

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

2023 PA Super 119

RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF

INC., A PENNSYLVANIA : PENNSYLVANIA

CORPORATION, MASCO INTERIORS, :

INC., A PENNSYLVANIA :

CORPORATION, ROLAND PASTUCHA :

ELECTRIC, INC., A PENNSYLVANIA :

CORPORATION, AND JERRY TIGANO, :

AN ADULT INDIVIDUAL, D/B/A :

TIGANO PAINTING AND : No. 670 WDA 2021

WALLCOVERING. :

:

:

v. :

:

:

PRESBYTERIAN SENIORCARE, A :

PENNSYLVANIA NON-PROFIT :

CORPORATION, LONGWOOD AT :

OAKMONT, INC., A PENNSYLVANIA :

NON-PROFIT CORPORATION, :

RICHARD G. AUFMAN, AN ADULT :

INDIVIDUAL TRADING AND DOING :

BUSINESS AS Z.G. HUNLEY CORP., :

ZADOK GRAHM HUNLEY CORP., A :

PENNSYLVANIA CORPORATION :

TRADING AND DOING BUSINESS AS :

Z.G. HUNLEY CORP., SODEXO :

OPERATIONS, LLC, A DELAWARE :

LIMITED LIABILITY COMPANY, AND :

JOHN R. MCCOLLUM, AN ADULT :

INDIVIDUAL :

:

:

APPEAL OF: ZADOK GRAHM HUNLEY :

Appeal From the Judgment Entered May 11, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 18-012048

RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF

INC., A PENNSYLVANIA : PENNSYLVANIA

CORPORATION, MASCO INTERIORS, :

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

INC., A PENNSYLVANIA :

CORPORATION, ROLAND PASTUCHA :

ELECTRIC, INC., A PENNSYLVANIA :

CORPORATION, AND JERRY TIGANO, :

AN ADULT INDIVIDUAL, D/B/A :

TIGANO PAINTING AND : No. 674 WDA 2021

WALLCOVERING. :

:

:

v. :

:

:

PRESBYTERIAN SENIORCARE, A :

PENNSYLVANIA NON-PROFIT :

CORPORATION, LONGWOOD AT :

OAKMONT, INC., A PENNSYLVANIA :

NON-PROFIT CORPORATION, :

RICHARD G. AUFMAN, AN ADULT :

INDIVIDUAL TRADING AND DOING :

BUSINESS AS Z.G. HUNLEY CORP., :

ZADOK GRAHM HUNLEY CORP., A :

PENNSYLVANIA CORPORATION :

TRADING AND DOING BUSINESS AS :

Z.G. HUNLEY CORP., SODEXO :

OPERATIONS, LLC, A DELAWARE :

LIMITED LIABILITY COMPANY, AND :

JOHN R. MCCOLLUM, AN ADULT :

INDIVIDUAL :

:

:

:

APPEAL OF: RICHARD G. AUFMAN

Appeal From the Judgment Entered May 11, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 18-012048

PRESBYTERIAN SENIORCARE AND : IN THE SUPERIOR COURT OF

LONGWOOD AT OAKMONT, INC. : PENNSYLVANIA

:

:

v. :

:

-2-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

:

RICHARD G. AUFMAN, I/T/D/B/A :

Z.G. HUNLEY CORP., ZADOK GRAHM : No. 676 WDA 2021

HUNLEY CORP.,I/T/D/B/A Z.G. :

HUNLEY CORP., JOHN R. MCCOLLUM, :

SODEXO OPERATIONS, LLC AND :

JOSEPH SEPCIC, I/T/D/B/A Z.G. :

HUNLEY CORP. :

:

:

APPEAL OF: SODEXO OPERATIONS, :

LLC :

Appeal from the Judgment Entered May 11, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 15-015968

RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF

INC., A PENNSYLVANIA : PENNSYLVANIA

CORPORATION, MASCO INTERIORS, :

INC., A PENNSYLVANIA :

CORPORATION, ROLAND PASTUCHA :

ELECTRIC, INC., A PENNSYLVANIA :

CORPORATION, AND JERRY TIGANO, :

AN ADULT INDIVIDUAL, D/B/A :

TIGANO PAINTING AND : No. 677 WDA 2021

WALLCOVERING. :

:

:

v. :

:

:

PRESBYTERIAN SENIORCARE, A :

PENNSYLVANIA NON-PROFIT :

CORPORATION, LONGWOOD AT :

OAKMONT, INC., A PENNSYLVANIA :

NON-PROFIT CORPORATION, :

RICHARD G. AUFMAN, AN ADULT :

INDIVIDUAL TRADING AND DOING :

BUSINESS AS Z.G. HUNLEY CORP., :

ZADOK GRAHM HUNLEY CORP., A :

PENNSYLVANIA CORPORATION :

TRADING AND DOING BUSINESS AS :

Z.G. HUNLEY CORP., SODEXO :

-3-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

OPERATIONS, LLC, A DELAWARE :

LIMITED LIABILITY COMPANY, AND :

JOHN R. MCCOLLUM, AN ADULT :

INDIVIDUAL :

:

:

APPEAL OF: SODEXO OPERATIONS, :

LLC :

Appeal from the Judgment Entered May 11, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 18-012048

RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF

INC., A PENNSYLVANIA : PENNSYLVANIA

CORPORATION, MASCO INTERIORS, :

INC., A PENNSYLVANIA :

CORPORATION, ROLAND PASTUCHA :

ELECTRIC, INC., A PENNSYLVANIA :

CORPORATION, AND JERRY TIGANO, :

AN ADULT INDIVIDUAL, D/B/A :

TIGANO PAINTING AND : No. 733 WDA 2021

WALLCOVERING. :

:

:

v. :

:

:

PRESBYTERIAN SENIORCARE, A :

PENNSYLVANIA NON-PROFIT :

CORPORATION, LONGWOOD AT :

OAKMONT, INC., A PENNSYLVANIA :

NON-PROFIT CORPORATION, :

RICHARD G. AUFMAN, AN ADULT :

INDIVIDUAL TRADING AND DOING :

BUSINESS AS Z.G. HUNLEY CORP., :

ZADOK GRAHM HUNLEY CORP., A :

PENNSYLVANIA CORPORATION :

TRADING AND DOING BUSINESS AS :

Z.G. HUNLEY CORP., SODEXO :

OPERATIONS, LLC, A DELAWARE :

LIMITED LIABILITY COMPANY, AND :

JOHN R. MCCOLLUM, AN ADULT :

INDIVIDUAL :

-4-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

:

:

APPEAL OF: LONGWOOD AT :

OAKMONT, INC. :

Appeal from the Judgment Entered May 11, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD-18-012048

BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.: FILED: July 10, 2023

Sodexo Operations, LLC (“Sodexo”), Richard G. Aufman, and Zadok

Grahm Hunley (“Hunley”) each appeal — at docket numbers 677 WDA 2021,

674 WDA 2021, and 670 WDA 2021, respectively — from the trial court’s May

11, 2021 judgment entered at GD 18-012048 following a non-jury trial.1

Longwood at Oakmont, Inc. (“Longwood”) cross-appeals at docket number

733 WDA 2021 from this same judgment. In addition, Sodexo appeals at

docket number 676 WDA 2021 from a separate May 11, 2021 judgment

entered at GD 15-015968.2 Upon review, we affirm in part and reverse in part

the judgment entered at GD 18-012048, and we affirm the judgment entered

at GD 15-015968.

Background

____________________________________________

1 We note that the spelling of Hunley varies throughout the record between

‘Hunley’ and ‘Hunly’. We use the spelling that is used in the caption of its

appeal in this writing, i.e., ‘Hunley’.

2 We have consolidated these cases sua sponte pursuant to Pa.R.A.P. 513.

See Pa.R.A.P. 513 (“Where there is more than one appeal from the same

order, or where the same question is involved in two or more appeals in

different cases, the appellate court may, in its discretion, order them to be

argued together in all particulars as if but a single appeal.”).

-5-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

The trial court summarized the background of this matter as follows:

I. The Parties

Presbyterian SeniorCare (“PSC”) is a Pennsylvania not-for-profit

corporation that provides continuum senior living and care

services in fifty-three (53) separate housing communities.

Longwood … is one of PSC’s retirement communities.

[Sodexo] is a multi-national, interdisciplinary service provider.

Sodexo offers food and senior living services including facilities

management. Sodexo also has a construction division. PSC and

Longwood engaged Sodexo to provide facilities management

services at each of their respective campuses.

John McCollum (“McCollum”) is an individual who spent most of

his career running his own construction company, W.F. Cody. He

was an employee of Sodexo during all times material to this

litigation. Sodexo assigned McCollum to perform its obligations at

both PSC and Longwood.

[Aufman] is a self-employed CPA. He is also a shareholder in

several corporations, and a friend and business associate of

McCollum.

Joseph Sepcic (“Sepcic”) is an architect. He is also a friend and

business associate of McCollum.

[Hunley] is a company, which Aufman incorporated on March 15,

2014, at the instruction of McCollum. Aufman owns twenty (20)

percent of Hunley’s shares. Sepcic owns the remaining shares.

Aufman operated Hunley out of his home[-]office accounting

practice.

Riverview Carpet & Flooring, Inc., Masco Interiors, Inc., Roland

Pastucha Electric, Inc.,[3] and Tigano Painting and Wallcovering

(collectively referred to hereinafter as the “Subcontractors”) are

all Pennsylvania Subcontractors. McCollum engaged the

Subcontractors on behalf of Hunley to perform construction and

finishing work on Longwood’s campus.

____________________________________________

3 The captions referred to ‘Roland Pastucha Electric, Inc.,’ as ‘Roland Patacha

Electric, Inc.’ We have amended them accordingly.

-6-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

II. Factual and Procedural Background

On December 21, 2011, Sodexo and Longwood entered into a

Facilities Management Agreement (“Longwood Management

Agreement”) with a term beginning January 16, 2012[,] and

ending January 16, 2015. The Longwood Management Agreement

required Sodexo to provide Longwood with a qualified General

Manager to function as the head of Longwood’s maintenance

department. Thereafter, on May 24, 2012, Sodexo and PSC

entered into a Facilities Management Agreement (“PSC

Management Agreement”) with a term beginning July 10, 2012[,]

and ending July 10, 2015. From 2012 to 2014, Sodexo provided

Longwood with a succession of on-site managers who did not

adequately fulfill their roles and were repeatedly replaced by

Sodexo. Meanwhile, McCollum and Sepcic discussed forming a

construction company together. During these discussions[,]

McCollum recommended that Sepcic contact Aufman.

In January of 2014, while the General Manager position at

Longwood was vacant, Sodexo assigned McCollum to assist

Longwood with a water pipe emergency. McCollum approached

Aufman and Sepcic[,] and asked them whether they were

interested in performing some work for PSC. Although, at this

time, Hunley had not yet been incorporated, McCollum

recommended Hunley to Longwood as a potential general

contractor. McCollum told Longwood that he was personally

familiar with Hunley, and that Hunley came highly recommended

by others. Hunley then submitted bids, which Longwood accepted

as a result of McCollum’s recommendations. Once the water pipes

were fixed, Longwood asked Sodexo to retain McCollum at the

Longwood campus. Sodexo agreed, hoping that McCollum would

become indispensable to Longwood, and remedy Sodexo’s

deficient performance in relation to the Longwood Management

Agreement.

In March of 2014, Paul Peterson (“Peterson”), Longwood’s new

executive director, recognizing an urgent need for renovations,

opted to establish a benchmark pricing structure for new unit

turnovers instead of obtaining multiple bids for each unit.

Peterson tasked McCollum with obtaining estimates based on work

done in the past. McCollum represented that Hunley[’s] estimates

were lower than Bill Bonura Cabinets’ estimates.1 Peterson

accepted McCollum’s representations of the estimates, and the

benchmarks were set accordingly.

-7-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

1 Bill Bonura Cabinets is a contractor Longwood engaged in

the past.

McCollum had a significant role in Longwood’s renovations.

McCollum was responsible for gathering information on both the

scope of work and the pricing for each unit renovation.

Additionally, McCollum was tasked with overseeing the

construction work. After a project was complete, McCollum

obtained the general contractor’s invoices and was responsible for

submitting these invoices to Longwood’s Accounts Payable

Department. Even though Hunley submitted bids as a general

contractor, Hunley did no actual work itself. Instead, McCollum

engaged subcontractors and monitored the subcontractors[’]

work. Hunley had no employees or expenses.

In May of 2014, Aufman and his wife incorporated a company

called Iron Bull Interiors, LLC. During this time, McCollum’s

performance at Longwood appeared to be satisfactory. McCollum

quickly established himself as an integral part of the unit turnover

process. Accordingly, Peterson deferred to McCollum, as Peterson

trusted McCollum’s construction experience, and McCollum’s

control of the invoice and capital approval process increased.

After September of 2014, McCollum’s submission of invoices

became increasingly sporadic. McCollum began withholding

invoices for long periods of time, which made it difficult for

Longwood to track costs on an ongoing basis. McCollum’s

practices also impacted Longwood’s cashflow. Eventually, for the

first time in 20 years, Longwood had to seek additional capital

from its Board of Directors. This made it extremely difficult for

Longwood to verify whether the invoices fell below or above

Longwood’s benchmarks. At the same time, Hunley hired

McCollum’s son Grahm, as an intern. Hunley listed Grahm as the

Vice President on the company’s signature card at First National

Bank. Hunley also gave Grahm check writing authority on behalf

of Hunley.

In October of 2014, several of [Longwood’s] executives received

an anonymous letter, which accused McCollum of having an

improper interest in Hunley. This letter raised questions regarding

Longwood’s process for retaining contractors. Longwood

confronted and interviewed McCollum in person about the

allegations, which McCollum denied. Longwood also directed

McCollum to respond to the allegations in writing, which McCollum

did. Longwood thereafter asked McCollum to fill out and sign

-8-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

Longwood’s conflict[-]of[-]interest statement. McCollum

completed and signed Longwood’s conflict[-]of[-]interest

statement and represented that he had no conflicts of interest.

Longwood also asked Aufman if McCollum had any interest in

Hunley. Aufman denied that McCollum had any interest

whatsoever. After Longwood concluded its investigation,

Longwood provided Sodexo with all … the aforementioned

information so that Sodexo could conduct its own review and

investigation of the matter. Based upon Longwood’s

investigation, and McCollum’s and Aufman’s assurances,

Longwood’s suspicions were mitigated, and Longwood took no

further action.

In December of 2014, Longwood discovered a large number of

delinquent Hunley invoices and thereafter informed Sodexo of

McCollum’s problematic invoice practices. A few Sodexo

executives expressed their distrust of McCollum via internal

correspondences. However, Sodexo’s executives never shared

their opinion of McCollum with Longwood. Meanwhile, Aufman

formed Fairbanks Holding Co., Inc., for McCollum, and Grahm took

ownership of Iron Bull, LLC, which was originally formed by

Aufman and Aufman’s wife. On December 9, 2014, Grahm opened

a bank account for Iron Bull, LLC. On the same day, McCollum

opened a bank account for Fairbanks Holding Co., Inc.[] The

authorized signatories for Fairbanks Holding Co., Inc., include

McCollum (as president), McCollum’s wife, Regina (as secretary),

and Grahm (as vice president).

In January of 2015, the Longwood Management Agreement was

set to automatically renew. However, Longwood sent written

notice to Sodexo that Longwood was opting out of the automatic

renewal and terminating the Longwood Management Agreement.

Nevertheless, because the PSC Management Agreement was not

set to expire until July of 2015, Longwood decided that it preferred

to end all relationships with Sodexo at the same time as PSC.

Although Sodexo offered Longwood an agreement with an

expanded scope, Longwood declined. Longwood instead

purs[u]ed a limited extension of the Longwood Management

Agreement and began negotiations with Sodexo for the same. On

January 16, 2015, Longwood and Sodexo entered into a consulting

agreement (“Longwood Consulting Agreement”). The Longwood

Consulting Agreement provided that Sodexo would continue

providing services at the Longwood campus until the end of June[]

2015. McCollum continued to manage and oversee Longwood’s

-9-

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

renovations, and Sodexo continued to provide oversight and

supervision over McCollum’s work at Longwood.

By March of 2015, McCollum began shredding excessively large

quantities of paper. McCollum discarded the shredded paper in

various trash cans around Longwood’s campus. In total,

McCollum’s shredded paper filled about five full trash cans per

day. Meanwhile, Grahm systematically wrote checks on behalf of

Hunley to Iron Bull, LLC[,] totaling $975,000.00. Grahm then

wrote checks from Iron Bull, LLC to Fairbank[s] Holding Co., Inc.,

totaling $868,000.00. Of the funds transferred via check from

Iron Bull, LLC to Fairbanks Holding Co., Inc., $111,989.50 went

to Grahm personally. Grahm also wrote a check totaling

$33,000.00 directly to himself. Iron Bull, LLC transferred another

$10,000.00 to W.F. Cody.

On April 16, 2015, McCollum had a verbal altercation with a

Longwood employee. Thereafter, on May 1, 2015, Longwood

hired John Bulger (“Bulger”) as a Facilities Director. Although

McCollum was originally supposed to help Bulger transition into

his new role, due to McCollum’s verbal altercation with a

Longwood employee, Longwood asked Sodexo to remove

McCollum from Longwood’s campus. On his own, Bulger

attempted to understand where Longwood’s renovations projects

stood in terms of cost and completion status. However, Bulger’s

mission was frustrated because Bulger could not find adequate

records. Additionally, there remained a large number of Hunley

invoices, which Hunley claimed were overdue.

On May 22, 2015, Bulger convened a meeting with Aufman and

several disgruntled Subcontractors whom Hunley had not paid.

The end result of the meeting was that Aufman agreed to provide

Bulger with additional information so that Bulger could verify

Hunley’s invoices. However, Aufman later refused to provide the

additional documentation and continued to demand payment.

While searching for Hunley’s invoices, Longwood discovered

numerous invoices that McCollum had not submitted during his

tenure at Longwood. Some of these invoices were 18[-]months

old.

While the Subcontractors complained that they were not being

paid, Hunley refused to pay them until Longwood paid Hunley.

Longwood needed to avoid delays in the renovation process so

that Longwood’s apartments were ready in time for new

occupants. Accordingly, while Bulger’s investigation of the Hunley

- 10 -

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

invoices remained ongoing, Longwood began issuing large checks

to Hunley in reliance upon Hunley’s promise to pay the

Subcontractors within seven (7) to ten (10) days. Nevertheless,

despite receiving $613,069.50 from Longwood after McCollum

left, Hunley did not pay the Subcontractors and continued to

demand more money from Longwood. In order to keep the

renovation projects moving along, Bulger assured the

Subcontractors that Longwood would “make good on Hunley’s

debt.” Based upon Bulger’s assurance, the Subcontractors

continued working.

Bulger began to suspect that Hunley severely overcharged

Longwood, as Bulger discovered that he could perform the role of

the general contractor himself without need for an outside general

contractor like Hunley. While Hunley threatened Longwood with

litigation, Longwood retained counsel and withheld any more

payments to Hunley for Hunley’s allegedly outstanding invoices.

Eventually, on September 14, 2015, PSC and Longwood initiated

the instant action. Through discovery, PSC and Longwood

discovered the extent of McCollum and Hunley’s relationship, in

addition to the extent of McCollum’s and Hunley’s overcharges and

fraud.

PSC and Longwood’s original complaint was docketed at GD 15-

015968. On March 20, 2017, PSC and Longwood[] filed their First

Amended Complaint. PSC and Longwood’s First Amended

Complaint is their final operative complaint. PSC and Longwood’s

final operative complaint alleged five counts. Counts I is for

Breach of Contract, and it alleges that Sodexo breached both the

Longwood Management Agreement and the PSC Management

Agreement. Count II is for Breach of Contract with a Demand for

Indemnification. Count II alleges that Sodexo breached the

indemnification clauses of both the Longwood Management

Agreement and the PSC Management Agreement. Count III is for

Unjust Enrichment, and it alleges that Hunley received inequitably

high sums of money in relation to the actual work that Hunley

performed. Count IV is for Fraud, and it alleges that Hunley,

Aufman, Sepcic, and McCollum were overpaid for their services as

a result of fraudulent misrepresentations. Finally, Count V is for

Conspiracy, and it alleges that Hunley, Aufman, Specic [sic],

McCollum, and Sodexo conspired to defraud both PSC and

Longwood.

On June 28, 2017, following PSC and Longwood’s First Amended

Complaint, Sodexo filed its final operative counterclaims to its

- 11 -

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

Answer, New Matter, and Counterclaims to First Amended

Complaint. In total, Sodexo asserted four counterclaims.

Counterclaim I is for Breach of Contract, and it alleges that

Longwood breached the Longwood Management Agreement by

failing to pay software licensing fees. Counterclaim II is for Unjust

Enrichment, and it alleges that Longwood was unjustly enriched

because Longwood was able to use Sodexo’s software without

paying the requisite fees. Counterclaim III is for Breach of

Contract, and it alleges th[at] PSC breach[ed] the PSC

Management Agreement for failing to pay software licensing fees.

Finally, Counterclaim IV is for Unjust Enrichment, and it alleges

that PSC was unjustly enriched because PSC was able to use

Sodexo’s software without paying the requisite fees.

On January 23, 2017, Hunley filed a complaint against PSC and

Longwood at GD 17-00195. On March 16, 2017, this [c]ourt

consolidated Hunley’s claims at GD 17-001195 with the action at

GD 15-015968. On October 3, 2017, Hunley filed its Second

Amended Complaint, which [is] its final operative complaint.

Hunley’s final operative complaint alleged three [c]ounts. Count

I is for Breach of Contract, and it alleges that … PSC and Longwood

breached various written and oral contracts with Hunley because

PSC and Longwood failed to pay Hunley for outstanding invoices

for Hunley’s services as a general contractor. Count II is for

Unjust Enrichment, and it alleges that PSC and Longwood were

unjustly enriched because they received the benefit of the

Subcontractors’ work without paying Hunley’s outstanding

invoices. Count III alleges that PSC and Longwood are liable to

Hunley pursuant to the Pennsylvania Contractor and

Subcontractor Payment Act for failing to pay Hunley’s outstanding

invoices.

On September 7, 2018, the Subcontractors filed a Complaint

against all the above-mentioned parties at GD 18-012048. Each

of the four Subcontractors alleged a separate count for Breach of

Contract against all parties for failing to pay the invoices of the

Subcontractors. Additionally, each of the four Subcontractors

alleged a separate count for Conspiracy to Commit Fraud against

Sodexo, McCollum, Aufman, and Hunley. On November 28, 2018,

this Court consolidated the Subcontractors’ claims at GD 18-

012048 with the actions at GD 17-001195 and GD 15-015968. On

February 7, 2019, the Subcontractors filed their Amended

Complaint, which is the Subcontractors’ final operative complaint.

The Subcontractors’ final operative complaint remains unchanged

with regards to the counts for breach of contract. However, the

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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

Subcontractors’ final operative complaint substituted the four

counts for Conspiracy to Commit Fraud with four counts of Unjust

Enrichment against PSC and Longwood. All of the counts for

Unjust Enrichment allege that both PSC and Longwood were

unjustly enrich[ed] because PSC and Longwood failed to provide

compensation to the Subcontractors in relation to completed

construction work.

On February 21, 2019, PSC and Longwood filed a crossclaim[,]

attempting to shift liability for the Subcontractors’ claims to

Sodexo, McCollum, Hunley, Aufman, and Sepcic. Then, on

February 27, 2019, Hunley filed its own crossclaim[,] attempting

to shift liability for the Subcontractors’ claims to PSC and

Longwood.

In [March] of 2019, this [c]ourt held a non-jury trial[,] in which

all the parties had a full and adequate opportunity to present their

respective cases. On April 9, 2020, this [c]ourt issued a

Memorandum and Non-Jury Verdict. Shortly thereafter, on April

14, 2020, this [c]ourt issued an Amended Memorandum and Non-

Jury Verdict (dated April 9, 2020), which detailed the verdicts

described below.

With regard to PSC and Longwood’s affirmative claims in their First

Amended Complaint at GD 15-015968, this [c]ourt held: (1) in

favor of PSC and Longwood and against Sodexo on Count [I]

(Breach of Contract); (2) in favor of Sodexo and against PSC and

Longwood on Count II (Demand for Indemnification); (3) in favor

of Hunley, Aufman, and Sepcic and against PSC and Longwood on

Count III (Unjust Enrichment); and (4) in favor of PSC and

Longwood and against Hunley, Aufman, Sepcic, Sodexo, and

McCollum on Count IV (Fraud) and Count V (Conspiracy). [For

these claims, the trial court determined that Longwood is entitled

to $933,220.71 from all defendants, jointly and severally.]

With regard to Sodexo’s counterclaims against PSC and Longwood

at GD 15-015968, this [c]ourt held: (1) in favor of Sodexo and

against Longwood on Sodexo’s Counterclaim I (Breach of

Contract) in the amount of $4,409.65; (2) in favor of Longwood

and against Sodexo on Sodexo’s Counterclaim II (Unjust

Enrichment); (3) in favor of Sodexo and against PSC on Sodexo’s

Counterclaim III (Breach of Contract) in the amount of

$31,666.47; and (4) in favor of PSC and against Sodexo on

Sodexo's Counterclaim IV (Unjust Enrichment).

- 13 -

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With regard to Hunley’s affirmative claims against PSC and

Longwood at GD 17-001195, this [c]ourt held: (1) in favor of PSC

and Longwood and against Hunley on Count I (Breach of Contract

for Unpaid Invoices)[;] (2) in favor of PSC and Longwood and

against Hunley on Count II (Unjust Enrichment for Unpaid

Invoices); and (3) in favor of PSC and Longwood and against

Hunley on Count III (Violation of the Pennsylvania Contractor and

Subcontractor Payment Act).

With regard to the Subcontractors’ claims against PSC and

Longwood at GD 18-012048,[4] this [c]ourt held: (1) in favor of

Riverview Carpet & Flooring, Inc., and against Longwood on Count

I (Breach of Contract) in the amount of $82,571.97; (2) in favor

of Masco Interiors, Inc., and against Longwood on Count II

(Breach of Contract) in the amount of $218,135.00; (3) in favor

of Roland Pastucha Electric, Inc., and against Longwood on Count

III (Breach of Contract) in the amount of $32,245.00; [(4)] in

favor of Tigano Painting and Wallcovering and against Longwood

on Count IV (Breach of Contract) in the amount of $86,597.00;[5,

6] [(5)] in favor of Longwood and against the Subcontractors on

Counts V-VIII (Unjust Enrichment); [(6)] in favor of Longwood

and against Hunley, Aufman, Sepcic, McCollum, and Sodexo on

Longwood’s Crossclaim;2 and [(7)] in favor of Longwood and

against Hunley on Hunley’s Crossclaim.

2 This [c]ourt ordered Hunley, Aufman, [and] Sepcic[] to

contribute to the sums that [the] Subcontractors shall

collect from Longwood by virtue of this verdict.

____________________________________________

4 At trial, the Subcontractors represented that they had withdrawn their

breach-of-contract claims against all parties except for Hunley and Longwood.

See N.T. Trial, 3/13/19, at 1747-48. As discussed infra, the trial court later

amended its verdict to include Hunley, Aufman, Sepcic, and McCollum as

parties against whom each Subcontractor was awarded damages for breach

of contract.

5 In finding that Longwood breached its contracts with the Subcontractors, the

trial court determined that Bulger’s “promises to the Subcontractors constitute

an enforceable contract of guaranty by Longwood to guarantee paying the

invoices which Hunley owed to the Subcontractors.” Trial Court Memorandum

and Non-Jury Verdict (“TCMNV”), 4/14/20, at 24.

6 The total amount due to the Subcontractors is $419,548.97.

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Following this [c]ourt’s April 14, 2020[] Amended Memorandum

and Non-Jury Verdict, the parties filed Motions for Post-Trial

Relief. On September 29, 2020, after hearing oral argument, and

after due considerations of the parties’ briefs, this [c]ourt issued

an order addressing the parties’ Motions for Post-Trial Relief. This

[c]ourt’s September 29, 2020 order denied Sodexo’s, Hunley’s,

McCollum’s, Aufman’s, and Sepcic’s Motions for Post-Trial Relief.

This [c]ourt’s September 29, 2020 order also denied PSC’s and

Longwood’s Motion for Post-Trial Relief, at least to the extent that

PSC and Longwood requested an additional award for punitive

damages, and a stay of execution pursuant to Pa.R.C[iv].P. 3121.

This [c]ourt’s September 29, 2020 order, nonetheless, granted

PSC and Longwood’s Motion for Post-Trial Relief to the extent that

PSC requested that the April 14, 2020 Amended Non-Jury Verdict

be amended further to reflect this [c]ourt’s decision as explained

in this [c]ourt’s April 14, 2020 Amended Memorandum.

Accordingly, Sections 4(a)-(d) of this [c]ourt’s Amended Non-Jury

Verdict[,] dated April 14, 2020[,] were amended to include

Hunley, Aufman, Sepcic, and McCollum as parties against whom

each Subcontractor was awarded damages [for breach of

contract]. Section 4(f) of this [c]ourt’s Amended Non-Jury

Verdict[,] dated April 14, 2020[,] was also amended to read: “In

favor of Longwood and against Hunley, Aufman, Sepcic,

McCollum, and Sodexo on Longwood’s Crossclaim. Hunley,

Aufman, Sepcic, McCollum, and Sodexo shall, jointly and

severally, indemnify Longwood for all amounts [Longwood] pays

or are otherwise collected from [Longwood] by the Subcontractors

pursuant to this Verdict.”

On May 7, 2020, the Subcontractors also filed a Motion to Mold

the Verdict to include pre-judgment and post-judgment interest.

The Subcontractors’ Motion to Mold the Verdict was heard at the

same time as the other parties’ Motions for Post-Trial Relief. In a

separate order dated September 29, 2020, but filed on October 1,

2020 (the “October 1, 2020 order”), this [c]ourt granted the

Subcontractor’s Motion to Mold the Verdict. Accordingly, this

[c]ourt’s October 1, 2020 order molded the above[-]mentioned

verdicts awarded in favor of the Subcontractors to include pre-

judgment and post-judgment interest. Specifically, the final

amounts of the verdicts awarded in favor of the Subcontractors

were molded as follows: (1) in favor of Riverview Carpet &

Flooring, Inc., and against Longwood, Hunley, Aufman, Sepcic,

and McCollum on Count I (Breach of Contract) in the amount of

$156,756.00; (2) in favor of Masco Interiors, Inc., and against

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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

Longwood, Hunley, Aufman, Specic [sic], and McCollum on Count

II (Breach of Contract) in the amount of $287,477.04; and (3) in

favor of Tigano Painting and Wallcovering and against Longwood,

Hunley, Aufman, Sepcic, and McCollum on Count IV (Breach of

Contract) in the amount of $114,531.95.

On February 2, 2021, after reviewing Longwood’s and PSC’s

Petition for Award of Attorney[s’] Fees and Litigation Expenses

Including Pre-Hearing Statement, and after a hearing on the

same, this [c]ourt issued an order granting Longwood and PSC

attorney[s’] fees and expenses totaling $1,062,053.67.

Trial Court Opinion (“TCO I”), 4/19/22, at 1-13 (some original brackets

changed to parentheses; some brackets added; spelling of Hunley modified).

On May 11, 2021, the trial court entered separate judgments on each

trial court docket (i.e., GD 15-015968, GD 17-001195, GD 18-012048).7 Each

separate judgment contained only the trial court docket number at which the

judgment was filed and related only to the claims associated with that

particular docket number.

Sodexo, Aufman, and Hunley each filed a timely notice of appeal from

the judgment entered at trial court docket GD 18-012048.8, 9 Longwood also

____________________________________________

7 Some of the parties involved in this matter had prematurely filed appeals

without judgment being entered. This Court quashed those appeals, directing

the parties to appeal after the trial court entered separate judgments at each

trial court docket. See Trial Court Judgment at GD 15-015968, 5/11/21, at

Exhibit A; Trial Court Judgment at GD 18-012048, 5/11/21, at Exhibit A.

8 In addition to the appeals addressed in this writing, there are multiple other

appeals related to this matter before our Court at docket numbers 671 WDA

2021, 672 WDA 2021, 673 WDA 2021, and 675 WDA 2021.

9 In the captions of these notices of appeal, only the trial court docket number

GD 18-012048 was listed.

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subsequently filed a timely cross-appeal at this docket.10, 11 In addition,

Sodexo filed a timely notice of appeal from the judgment entered at trial court

docket GD 15-015968.12 The trial court directed each of them to file a

Pa.R.A.P. 1925(b) concise statement for their respective appeals, and they all

timely complied. The trial court thereafter issued opinions pursuant to Rule

1925(a).13

Longwood’s Appeal at 733 WDA 2021

We commence our review with Longwood’s appeal at 733 WDA 2021.

There, Longwood presents the following questions for our consideration:

1. Whether Longwood … is liable to [the Subcontractors] for

unpaid invoices directed to [Hunley] by virtue of a purported

contract of guaranty, where such guaranty was oral, not

supported by adequate consideration, and the essential terms of

which were not defined.

____________________________________________

10 Longwood also only listed trial court docket number GD 18-012048 in its

notice of appeal.

11 See Pa.R.A.P. 903(b) (“[I]f a timely notice of appeal is filed by a party, any

other party may file a notice of appeal within 14 days of the date on which the

first notice of appeal was served, or within the time otherwise prescribed by

this rule, whichever period last expires.”).

12 Therein, Sodexo only listed trial court docket number GD 15-015968.

13 The trial court’s Rule 1925(a) opinions do not respond to all the issues raised

by the parties in their Rule 1925(b) concise statements. Nevertheless, our

review is not hampered, and a remand for the preparation of additional Rule

1925(a) opinions is not warranted. See Commonwealth v. Widger, 237

A.3d 1151, 1158 n.5 (Pa. Super. 2020) (“Although we do not approve of or

sanction the trial court’s failure to comply with its obligations under Rule

1925(a), the lack of a Rule 1925(a) opinion does not preclude this Court’s

review of the merits of [the a]ppellant’s issues based upon our review of the

record, including the notes of testimony from [the a]ppellant’s trial.”).

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2. Whether Longwood is liable to the Subcontractors for pre-

judgment interest (excluding Roland Pastucha Electric, Inc., which

did not assert a claim for pre-judgment interest) when:

(a) the Subcontractors’ oral contracts were with, and their

invoices were directed to, Hunley and not Longwood; and

(b) the total amount due by Hunley on the Subcontractors’

invoices was unknown to Longwood at the time of

Longwood’s purported guaranty; and

(c) the equities did not support an imposition of pre-

judgment interest against Longwood.

3. Whether Longwood was entitled to a stay of payment of the

judgment entered against Longwood and in favor of the

Subcontractors, when:

(a) Pa.R.Civ.P. 3121(b)(2) permits a trial court to stay

execution against a judgment debtor when justice so

requires, as it did in this case;

(b) Longwood’s liability to the Subcontractors was found to

be based upon a guaranty, and a guarantor’s payment

obligation is only triggered upon default by the principal

debtor; and

(c) Hunley, … Aufman …, and … Sepcic … are principally

liable for the underlying debt owed to the Subcontractors.

Longwood’s Brief at 733 WDA 2021 (“Longwood Brief I”) at 6-7.

Longwood’s First Issue

In Longwood’s first issue, it argues that its purported oral guaranty to

pay Hunley’s debt to the Subcontractors was not enforceable. First, it

contends that oral guaranties are barred by the Statute of Frauds. Second,

Longwood advances that there was no consideration for the purported

guaranty, as it disputes that Bulger made a promise that Longwood would pay

the Subcontractors if they agreed to keep working. It insists that “the

Subcontractors cannot, and at trial did not, point to any statement or

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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

representation from Bulger or any other person at Longwood promising

payment of Hunley’s [debt] in exchange for on-site work.” Id. at 38. Third

and finally, Longwood points out that “[a] critical aspect to the formation of

any enforceable contract is a mutual understanding of all material terms[,]”

and says that Bulger did not know the amount of Hunley’s debt to the

Subcontractors at the time he made the purported guaranty on behalf of

Longwood. Id. at 39. In addition to Bulger’s not knowing how much Hunley

owed the Subcontractors, Longwood says the Subcontractors “presented no

evidence at trial showing that they told Bulger how much they were owed by

Hunley. And because of Aufman’s refusal to provide documentation to back

up Hunley’s invoices…, the amount owed to the Subcontractors was not clear

to the parties until the time of trial….” Id. at 40 (citation omitted).

To challenges to a non-jury verdict, we apply the following standard and

scope of review:

Our standard of review in non-jury trials is to assess whether the

findings of facts by the trial court are supported by the record and

whether the trial court erred in applying the law. Upon appellate

review[,] the appellate court must consider the evidence in the

light most favorable to the verdict winner and reverse the trial

court only where the findings are not supported by the evidence

of record or are based on an error of law. Our scope of review

regarding questions of law is plenary.

Woullard v. Sanner Concrete and Supply, 241 A.3d 1200, 1207 (Pa.

Super. 2020) (citations omitted).

Statute of Frauds

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We assess Longwood’s Statute-of-Frauds argument to begin. In support

of its claim that the Statute of Frauds bars oral guaranties, Longwood relies

on 33 P.S. § 3, which provides:

No action shall be brought whereby to charge any executor or

administrator, upon any promise to answer damages out of his

own estate, or whereby to charge the defendant, upon any special

promise, to answer for the debt or default of another, unless the

agreement upon which such action shall be brought, or some

memorandum or note thereof, shall be in writing, and signed by

the party to be charged therewith, or some other person by him

authorized.

33 P.S. § 3.

With respect to Section 3, this Court has explained:

Promises to pay the debt of another must be in writing for at least

two reasons. The first is evidentiary. The second, cautionary.

Like other provisions of the [S]tatute of [F]rauds, the

suretyship provision serves an evidentiary function. Indeed,

… the circumstance that ‘the promisor has received no

benefit from the transaction … may make perjury more

likely, because while in the case of one who has received

something the circumstances themselves which are capable

of proof show probable liability, in the case of a guaranty

nothing but the promise is of evidentiary value.’

Furthermore, though in many instances the surety is paid

by the principal for his undertaking, in others the surety’s

motivation is purely gratuitous and, ‘as the lack of any

benefit received by the guarantor increases the hardship of

his being called upon to pay, it also increases the

importance of being very sure that he is justly charged.’

In addition to its evidentiary role, the provision serves a

cautionary function. By bringing home to the prospective

surety the significance of his act, it guards against ill-

considered action. Otherwise, he might lightly undertake

the engagement, unwisely assuming that there is only a

remote possibility that the principal will not perform his

duty….

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E.A. Farnsworth, Contracts § 6.3 (1982).

Thomas A. Armbruster, Inc. v. Barron, 491 A.2d 882, 883-84 (Pa. Super.

1985) (emphasis in original; original brackets omitted).

In response to Longwood’s reliance on Section 3, the Subcontractors

assert that an exception to the Statute of Frauds — specifically, the Leading

Object Rule — applies here. Subcontractors’ Brief at 11, 14-15. Under the

Leading Object Rule, “[w]henever the main purpose and object of the

promisor, is, not to answer for the debt of another, but to subserve some

pecuniary or business purpose of his own … his promise is not within the

[S]tatute of [F]rauds, although it may be in form a provision to pay the debt

of another….” Thomas A. Armbruster, Inc., 491 A.2d at 884 (citations and

original brackets omitted).14 The reason for this exception is because:

____________________________________________

14 Longwood argues that the Subcontractors waived their Leading-Object-Rule

argument because they raised it for the first time in their appellate brief. We

disagree. To start with, “it is a well-settled doctrine in this Commonwealth

that a trial court can be affirmed on any valid basis appearing of record.” See

In the Interest of T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013) (citations

omitted). “The precept may be applied even though the reason for sustaining

the judgment was not raised in the trial court, relied on by that court in

reaching its decision, or brought to the attention of the appellate courts.” Id.

(citation omitted).

Notwithstanding the foregoing, Longwood complains that the

Subcontractors did not raise the Leading Object Rule in their amended

complaint, reply to new matter, post-trial motion to mold the verdict, or in a

concise statement of errors complained of on appeal. Setting aside that we

can affirm on any basis, we are unconvinced that the Subcontractors had to

raise the Leading Object Rule at these junctures below. Longwood’s Reply

Brief at 733 WDA 2021 (“Longwood’s Reply Brief”) at 4-5. Specifically, the

Subcontractors did not have to file a concise statement of errors complained

of on appeal because they did not file an appeal, and we do not see why (nor

(Footnote Continued Next Page)

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Where the surety-promisor’s main purpose is his own primary or

business advantage, the gratuitous or sentimental element often

present in suretyship is eliminated, the likelihood of disproportion

in the values exchanged between promisor and promisee is

reduced, and the commercial context commonly provides

evidentiary safeguards. Thus[,] there is less need for cautionary

or evidentiary formality than in other cases of suretyship.

Id. (citing Restatement (Second) of Contracts § 116, cmt. a).

The Subcontractors argue that the main purpose of Bulger’s promise

was not to answer for the debts of Hunley, but instead to benefit the business

____________________________________________

does Longwood explain why) the Subcontractors would have had to raise the

Leading Object Rule in their amended complaint or post-trial motion to mold

the verdict.

As for the Subcontractors’ reply to new matter, we also would discern

no issue. In the Subcontractors’ complaint against all defendants, they

alleged various breaches of oral and written contracts that pertained to

projects at Longwood’s campus. See generally Subcontractors’ Amended

Complaint, 2/7/19. In Longwood’s new matter, it simply stated, without any

further elaboration or specificity, that “Subcontractors’ claims are barred by

the [S]tatute of [F]rauds.” See Longwood’s Answer to Subcontractors’

Amended Complaint with New Matter and Crossclaims, 2/21/19, at ¶ 73.

Longwood did not specifically set forth Section 3, mention oral guarantees, or

explain why or how the Statute of Frauds barred the Subcontractors’ claims

against all the defendants. In reply, the Subcontractors stated: “In response

to Paragraph 73, said paragraph is a conclusion of law to which no response

is required. Accordingly, said paragraph is deemed denied by operation of

law. However, to the extent that an answer may be required,

[Subcontractors’] claims are not barred by the [S]tatute of [F]rauds.”

Subcontractors’ Reply to New Matter, 2/27/19, at ¶ 6. Given the general way

in which Longwood raised the Statute of Frauds in its new matter, we deem

the Subcontractors’ reply a sufficient response. Further, based on our review

of record, it appears that Longwood did not specifically raise Section 3 of the

Statute of Frauds until its own appellate brief. Prior to that, it only generally

argued in its post-trial motion, without supporting authority, that an oral

guaranty was unenforceable. See Post-Trial Motion, 6/12/20, at 9 (asserting,

without any elaboration, that “the oral statements of … Bulger to the

Subcontractors purporting that Longwood ‘would make good on Hunley’s

invoices’ do not amount to an enforceable guaranty in that they were oral and

not supported by adequate consideration”).

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interests of Longwood, as it ensured that the Subcontractors completed the

work, allowing the units at Longwood to be sold or otherwise occupied.

Subcontractors’ Brief at 11. The Subcontractors say that “Longwood could not

stop the work if it wanted to get the residents into the apartments in time.”

Id. at 13 (citation omitted). The trial court also recognized the losses that

Longwood would incur if the Subcontractors’ work did not continue,

explaining:

Bulger’s statements that Longwood will “make good on Hunley’s

invoices” were not mere gratuities, but a binding contract of

guaranty. Those statements[,] in conjunction with his promise

during the May 22 meeting[,] show that Bulger’s reassurances

were intended to persuade the Subcontractors to continue

working on Longwood’s projects. This [c]ourt is persuaded

that the Subcontractors had no faith that Hunley would pay them;

Hunley persisted to default on its payments to the Subcontractors

even after Longwood paid Hunley a significant payment on the

promise that Hunley would pay the Subcontractors. Bulger’s

promises were the only reason the Subcontractors

continued working….

[T]he benefit that Longwood obtained for its promise to guarantee

Hunley’s debt constituted sufficient consideration. If the

Subcontractors had exercised their right to withhold

performance on their contracts with Hunley, Longwood

admittedly would have incurred significant losses.

Longwood had no means by which it could require the

Subcontractors to work, as it had no direct contract with them.

Therefore, Bulger’s promises that Longwood would make

good on Hunley’s debts were supported by sufficient

consideration and constitute an enforceable contract of

guaranty.

TCMNV at 24-25 (emphasis added).15

____________________________________________

15 Based on our review of the record, the trial court did not specifically address

the application of the Leading Object Rule to the matter at hand.

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The record supports the trial court’s factual findings. See Woullard,

supra. To begin, the importance to Longwood’s business of completing unit

renovations in a timely manner was emphasized repeatedly throughout the

trial. See N.T. Trial, 3/4/19, at 43 (PSC’s Chief Executive Officer — Paul

Winkler — stating: “So we have a period of time when a person moves out of

an apartment, they move to a higher level of care and maybe because of

death, that kind of thing, and in which we then are marketing that unit, and

so that period of time is really important that it not become too prolonged”);

id. (Winkler’s conveying that, at the time Sodexo was hired, Longwood “was

seeing … a significant increase in the number of units that were vacant and

needed renovation or refurbishment”); id. at 91 (Winkler’s agreeing that one

of the key drivers is getting people into apartments as soon as possible so

that they pay entrance fees and maintenance fees); id. at 118 (Winkler’s

sharing: “But first and foremost[,] our team closest to the work was most

concerned about anything that could cause disruption with completing those

units so that we could market them. … [T]here was a heightened urgency

around that”); id. at 194 (Winkler’s recounting that, in ending

Longwood/PSC’s relationship with Sodexo, “the biggest concern was we

needed to get these unit renovations done”); N.T. Trial, 3/5/19, at 245-46

(James Pieffer, the Senior Vice President for PSC, explaining: “[T]he successful

retirement communities really depend on strong occupancy and good expense

quality and control. So[,] without having units ready to be marketed, shown,

and sold to residents, we are at a strong disadvantage”); id. at 390 (Pieffer’s

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stating that “[o]ur marketing depends on having units available[,]” and

agreeing that Longwood is not making money if no one is living there); id. at

427 (Senior Director at Longwood, Paul Peterson, relaying: “We had

prospects, people interested in moving into the apartments, and we had

committed to them about a deadline for the project being completed so that

they could move in. They were trying to prepare and plan their life, and they

were trying to sell their home so that they could move into that apartment[,]

… so it was crucial that the timelines were being met”); N.T. Trial, 3/6/19, at

550 (Peterson’s confirming that Longwood is not making money unless people

are living in the units); id. at 629 (PSC’s Chief Financial Officer’s — Joseph

Wenger — testifying: “Census and occupancy is the whole driver of Longwood

at Oakmont’s particular type of business. You have to keep the apartments

occupied, and so census is a heightened issue, and certainly a lot of

conversation around what was being occupied and what I will say inventory

that was not renovated and could be sold [sic]”).

In addition, John Bulger testified that, when he first took the position

with PSC, he learned that Longwood was struggling with the unit-turnover

process, and that “there was some trouble with getting the apartments

renovated in time for the residents to move in.” N.T. Trial, 3/11/19, at 48.

Bulger further acknowledged that the fact that the Subcontractors were not

getting paid was causing him a problem, and that they were starting to come

to him for payment. Id. at 1359. See also id. at 1237-38 (Aufman’s

remembering that he received an email from Bulger on June 1, 2015, where

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Bulger stated: “You have a very angry group of subs, some of which may

refuse to work with us until they see some payments.”).

Further, despite beginning to believe that Hunley’s prices were higher

than normal, Bulger did not stop Hunley’s work due to his concern about

having residents move into their apartments on time:

[Sodexo’s attorney:] [W]e saw an email earlier[, dated June 9,

2015,] with [Jim] Deller who was Hunley’s superintendent, and

you were talking about other things for him to keep going on;

right?

[Bulger:] They were projects in process, yes.

[Sodexo’s attorney:] Well, you could have stopped it; right?

[Bulger:] Not if I wanted to get the residents into their apartment

in time.

[Sodexo’s attorney:] So you were pressed?

[Bulger:] Not pressed. I work by deadlines. It is a construction

business. That is what we do.

[Sodexo’s attorney:] But you could have stopped -- you are a

construction guy. You’ve got lots and lots of contacts?

[Bulger:] I do.

[Sodexo’s attorney:] There are lots of subcontractors that work in

that area that you have relationships with?

[Bulger:] Absolutely.

[Sodexo’s attorney:] So you don’t think you could have put a full

stop to any work and brought in people in a matter of days to pick

it up?

[Bulger:] That is not a fair time to give someone the chance to

give me a price to finish the project. You should give them at

least 7 to 10 days and go through the three[-]bid process.

[Sodexo’s attorney:] So between --

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[Bulger:] It is a two to three-week process to bring in another

contractor.

Id. at 1397-98.

Against this backdrop of time pressures, Bulger met with Aufman and

the unpaid Subcontractors on May 22, 2015. See TCO I at 6. Regarding that

meeting, Robert Swidorsky — an employee of Riverview Carpet & Flooring,

Inc. — testified:

[Subcontractors’ attorney:] What was the purpose of [the May 22]

meeting?

[Swidorsky:] I think the purpose of the meeting[,] essentially[,]

was for all of the subs that were involved in these projects that

were ongoing[,] and some projects that were probably already

completed that we hadn’t been paid for, which is what caused the

apprehension with us moving forward [sic]. If we hadn’t been

paid for the first, say, six or eight projects, we were kind of

nervous about the next eight to fifteen projects we were in the

middle of. If we didn’t get paid for the first ones, we needed

reassurance we were getting paid for the ones we were in the

middle of, as well as the ones we hadn’t been paid for yet.

[Subcontractors’ attorney:] Did you receive any reassurances at

that meeting?

[Swidorsky:] We did.

[Subcontractors’ attorney:] What was told to you?

[Swidorsky:] It was essentially said that, you know, we need you

guys to stick [it] out, get these jobs done, and Longwood owes

Hunley more money than Hunley owes you guys[,] and that we

would be sure that you got paid.

[Subcontractors’ attorney:] Who made this statement?

[Mr. Swidorsky:] John Bulger.

[Subcontractors’ attorney:] When he said that, who did you think

he meant … was going to make sure you got paid?

[Swidorsky:] I think we all walked away from that meeting

thinking[,] in one way or shape or form[,] that Longwood was not

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going to hang us out to dry and [it would] make sure we were

paid, whether it be with the[ir] withholding funds from Hunley to

be sure we were paid, or they would pay us directly.

[Subcontractors’ attorney:] I believe you stated that you were

going to get paid for all … the outstanding invoices?

[Swidorsky:] Correct, as well as the ones we were in the midst of.

We hadn’t completed several projects, and that was our concern,

… we needed assurance we were going to get paid if we continued

to do the work.

[Subcontractors’ attorney:] Do you know why he would have

made a statement to you that you were going to get paid for all …

your outstanding invoices?

[Swidorsky:] I would have to assume, but assuming that there

were probably a couple meetings prior to that meeting with the

group of us, that, you know, they understood what their

commitments were to their residents and incoming residents, that

they couldn’t start that process over and fulfill their deadlines. My

feeling was they wanted to give us the assurance we would be

paid so they could stay on track with the work they needed

completed.

[Subcontractors’ attorney:] They wanted assurance from you that

you were going to stay; is that correct?

[Swidorsky:] Right.

[Subcontractors’ attorney:] What would happen if you walked off

the job because you were not paid all … these outstanding

invoices?

[Swidorsky:] I would have to speculate that they would have to

start the process with new contractors that would come in the

middle of those projects, and at the end of the day[,] that is just

a tremendous amount of lost time. And you’ve got facilities tor[n]

up due to floods and things of that nature. They didn’t have time.

They needed their facility to be put back together.

[Subcontractors’ attorney:] Now, I want you to clarify something

for us. You stated earlier that -- this might not be verbatim -- but

that Mr. Bulger said money had been held back from Hunley to

pay you?

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[Swidorsky:] No. … [A]t the end of the projects that we were

either not paid for yet or the projects that we were in the middle

of, that those totals were more money than Hunley owed us for

either the projects that were completed or the projects that we

were in. Therefore, that was our assurance, that they would either

withhold money from Hunley to pay us, or they would be sure we

got paid. How exactly they were going to pay us[,] really[,] I can

only speculate on. That was the impression -- based on the

verbiage used, whether they withheld money or paid us

[them]selves, the assurance was we would be paid.

[Subcontractors’ attorney:] Either way you were led by Mr. Bulger

[to believe] that you would be paid?

[Swidorsky:] Yes. At that point[,] it was adequate. An

organization the size of [PSC], when there’s an administrative

assurance you will get paid for the work you do, in my mind that’s

enough.

N.T. Trial, 3/13/19, at 1766-69.

Bob Bierly of Riverview Carpet and Flooring, Inc., similarly testified that

“Mr. Bulger assured us, don’t worry, we will get paid, more money is owed

than we are owed…. He did ask us to finish the projects that we were currently

involved in that Hunley had assigned to us so that people could move in, or,

you know, different things like that could happen.” Id. at 1752. When asked

if he thought of leaving the project because of the money owed, Bierly

answered: “When [Bulger] assured us that we would get paid, it wasn’t a

problem. It was to the point where I was not able to carry much more. I

couldn’t expend any more money without receiving money.” Id. at 1752-53.

Bierly also relayed that Bulger “said if we didn’t get paid by Hunley, that

[Longwood] would take care of it because more money was owed, that they

would be able to make the subs whole.” Id. at 1753.

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After the May 22, 2015 meeting, and after Hunley still had not paid the

Subcontractors, Bulger sent an email, on July 30, 2015, advising an owner

from Masco Interiors, Inc., that “[e]veryone will get all the money they are

owed” and telling the owner that he would not let her down. N.T. Trial,

3/11/19, at 1414. When asked at trial if he ever had a meeting with the

Subcontractors where he guaranteed them that they would get paid, Bulger

stated, “I’m not sure I used the word guaranteed, but I had meetings with the

subs saying I thought they should be paid fairly for the work they did.” Id.

at 1420. See also id. at 1416 (Bulger’s stating that “[f]rom the very

beginning[,] I had let everybody that was involved in any discussion know

that it was my intention to pay the subs”).

Based on the foregoing, the record supports that Longwood primarily

guaranteed Hunley’s debt to serve its own business interest of having

residents move into their apartments as quickly as possible. While Bulger

may have truly empathized with the Subcontractors’ plight and felt a moral

obligation that they should be paid fairly, he also was well aware of the

importance of having residents move into their units on time and had concerns

that some of the Subcontractors may refuse to work if they were not paid,

leading Longwood to miss deadlines, lose money, and anger its prospective

residents. However, once Bulger told the Subcontractors that Longwood

would assure that they were paid, the Subcontractors continued working.

Thus, the Leading Object Rule applies, and the Statute of Frauds does not bar

Bulger’s oral guaranty.

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Consideration

Turning next to Longwood’s lack-of-consideration argument, Longwood

says “[a] contract of guaranty, like other contracts, is not enforceable unless

based on a legal consideration, and such consideration is not found in a mere

naked promise to pay the existing debt of another.” Longwood’s Brief I at 32

(quoting Harr v. Perkins, 6 A.2d 534, 536 (Pa. 1939)). It adds, “[a] moral

obligation does not support a contract of guaranty.” Id. (quoting Deeter v.

Dull Corp., 617 A.2d 336, 341 (Pa. Super. 1992)). Longwood claims that, at

the May 22, 2015 meeting, “Longwood agreed to pay Hunley in reliance on

Hunley’s promise it would pay the Subcontractors[,]” and that “there was no

promise made at the May 22 meeting, or at any other time, that Longwood

would pay the Subcontractors if they agreed to keep working.” Id. at 34.

Further, Longwood insists that, “[w]hile the Subcontractors may have

subjectively felt that the only way they were going to get paid was to keep

working, this feeling or inference is not sufficient to establish consideration for

a guaranty.” Id. at 38.

The record belies this argument. As set forth supra, Swidorsky and

Bierly both indicated that Bulger’s assurances that Longwood would make sure

they got paid led them to continue working, even though they had not been

paid for the work they already did. While Bulger may not have made finishing

the work a condition for getting paid for the outstanding invoices, it is unlikely

that the Subcontractors would have moved forward with the work, knowing

that Hunley had repeatedly failed to pay them, if Bulger had not given

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assurances.16 The fact that the Subcontractors continued working, saving

Longwood from costly delays, constituted sufficient consideration for

Longwood’s guaranty.

Mutual Understanding of Terms

Lastly, Longwood says that Bulger did not know the amount of Hunley’s

debt to the Subcontractors at the time he made the purported guaranty.

Longwood advances that “[a]n enforceable contract is not made out unless

each of its terms is shown with certainty and conciseness. Price is a material

element of a contract.” Id. at 39 (quoting Stevens v. Doylestown Bldg. &

Loans Ass’n, 183 A. 922, 922-23 (Pa. 1936)). Longwood contends that “[a]n

open-ended guaranty of an unknown amount is unenforceable, as it lacks the

basic elements of a contract; namely, clear agreement on basic terms, such

as: ‘How much?’” Id. at 40. As such, Longwood avers that, “because … Bulger

did not know what he was promising to ‘make good,’ his statements do not

constitute an enforceable guaranty.” Id. at 41.

____________________________________________

16 We recognize that Raymond Mascaro of Masco Interiors, Inc., testified that

he and the other Subcontractors did not think about leaving the job because

“[w]e felt that the only way to get paid was to stay. … No one gets paid for

half of a job. I don’t pay people to do half a job, and I don’t expect that.”

N.T. Trial, 3/13/19, at 1781. However, he also confirmed that he was led to

believe that, if he stayed, he would be paid. Id. at 1781-82. Further, the

testimony of Swidorsky and Bierly both support that they continued working

because of Bulger’s assurances, which implies that they would not have

continued working if their source of payment was only the unreliable Hunley.

See Woullard, supra (“Upon appellate review[,] the appellate court must

consider the evidence in the light most favorable to the verdict winner and

reverse the trial court only where the findings are not supported by the

evidence of record or are based on an error of law.”) (citations omitted).

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We reject Longwood’s argument, as the record supports that Bulger

knew the amount of Hunley’s debt to the Subcontractors at the time he made

the guaranty. Various Subcontractors testified that Bulger told them that

Longwood owes Hunley more money than Hunley owes the Subcontractors.

See N.T. Trial, 3/13/19, at 1752 (Bierly’s stating that Mr. Bulger “assured us,

don’t worry, we will get paid, more money is owed than we are owed…”); id.

at 1753 (Bierly: “[Bulger] said if we didn’t get paid by Hunley, that they would

take care of it because more money was owed, that they would be able to

make the subs whole. … I guess when the projects were completed, that

Longwood would owe Hunley more than enough money to pay us”); id. at

1767 (Swidorsky’s stating that Bulger told him that “Longwood owed Hunley

more money than Hunley owed you guys and that we would be sure that you

got paid”); id. at 1770 (Swidorsky’s explaining: “It was simply said that there

is enough money there for these projects and that we are assuring you that

you will be paid. [Longwood] never flat out said they would pay us. They

never said that Hunley would pay us. They just said we would be paid”); id.

at 1777 (Mascaro’s testifying that, at the May 22 meeting, “we were told that

they had held back enough money from Hunley to make us all whole and that

we would get paid”). Therefore, in making these statements, Bulger had to

know how much Hunley owed the Subcontractors and the amount he was

guaranteeing. Thus, this claim fails, and no relief is due on Longwood’s first

issue.

Longwood’s Second Issue

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In Longwood’s second issue, it argues that the Subcontractors should

not have been awarded pre-judgment interest against Longwood.17 By way

of background, following the trial court’s verdict, the Subcontractors filed a

motion to mold the verdict, requesting pre-judgment interest from the date

of their invoices to the date of the judgment. See Subcontractors’ Motion to

Mold the Verdict, 5/7/20; Subcontractors’ Supplement to Motion to Mold the

Verdict, 9/21/20; see also Subcontractors’ Trial Brief, 5/31/19, at 11 (“[T]he

[S]ubcontractors will be filing a motion to mold the verdict to include interest

from the date of their invoices to the date of the judgment, based on whatever

amount this [c]ourt awards.”). Longwood appears to have filed no response

to the Subcontractors’ motion to mold the verdict. Thereafter, the trial court

— without explanation — awarded the Subcontractors the pre-judgment

interest they requested, i.e., pre-judgment interest from the date of their

invoices to the date of the judgment.

With respect to pre-judgment interest, this Court has previously

explained:

“[A] court has discretion to award or not award pre[-]judgment

interest on some claims, but must or must not award pre[-

]judgment interest on others.” Cresci Const. Services, Inc. v.

Martin, 64 A.3d 254, 258 (Pa. Super. 2013) (quoting, in part,

Fidelity Bank v. Com. Marine and Gen. Assurance Co., 592

____________________________________________

17 While we continue referring to the Subcontractors collectively in this section

of our writing, we note that Roland Pastucha Electric, Inc., did not assert a

claim for pre-judgment interest. See Longwood’s Brief I at 41 n.10;

Subcontractors’ Brief at 7. Thus, Roland Pastucha Electric, Inc., is not entitled

to pre-judgment interest and is not included in the following analysis, despite

our ongoing use of the term ‘Subcontractors.’

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F.Supp. 513, 522 (E.D. Pa. 1984)) (internal quotations and

original brackets omitted). In accordance, Pennsylvania has

followed the Restatement (Second) of Contracts § 354, which

provides:

(1) If the breach consists of a failure to pay a definite sum

in money or to render a performance with fixed or

ascertainable monetary value, interest is recoverable from

the time for performance on the amount due less all

deductions to which the party in breach is entitled.

(2) In any other case, such interest may be allowed as

justice requires on the amount that would have been just

compensation had it been paid when performance was due.

Restatement (Second) of Contracts § 354. Further, the comments

to this section state, in pertinent part:

c. Where amount due is sufficiently definite. Under the rule

stated in Subsection (1), a party is not chargeable with

interest on a sum unless its amount is fixed by the contract

or he could have determined its amount with reasonable

certainty so that he could have made a proper tender.

Unless otherwise agreed, interest is always recoverable for

the non-payment of money once payment has become due

and there has been a breach. This rule applies to debts due

for money lent, goods sold or services performed, including

installments due on a construction contract. The fact that

the breach has spared some expense that is uncertain in

amount does not prevent the recovery of interest. The sum

due is sufficiently definite if it is ascertainable from the

terms of the contract, as where the contract fixes a price

per unit of performance, even though the number of units

performed must be proved and is subject to dispute. The

same is true, even if the contract does not of itself create a

money debt, if it fixes a money equivalent of the

performance. It is also true, even if the contract does not

fix a money equivalent of the performance, if such an

equivalent can be determined from established market

prices. The fact that the extent of the performance rendered

and the existence of the market price must be proved by

evidence extrinsic to the contract does not prevent the

application of these rules.

***

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d. Discretionary in other cases. Damages for breach of

contract include not only the value of the promised

performance but also compensation for consequential loss.

The amount to be awarded for such loss is often very difficult

to estimate in advance of trial and cannot be determined by

the party in breach with sufficient certainty to enable him to

make a proper tender. In such cases, the award of interest

is left to judicial discretion, under the rule stated in

Subsection (2), in the light of all the circumstances,

including any deficiencies in the performance of the injured

party and any unreasonableness in the demands made by

him.

Restatement (Second) of Contracts § 354 cmts. c, d….

This Court has expounded on Section 354 as follows:

[Section] 354 commands that pre[-]judgment interest is

awarded as a matter of right in four limited circumstances,

which all require an examination of the contract. In other

words, a court examines whether the contract was to pay,

or render a performance for, a monetary amount defined in

the contract; render a performance for a monetary amount

that can be calculated from standards set forth in the

contract; or render a performance for a monetary amount

calculated from the established market prices. The disputed

amount must be either specified in the contract or

ascertained from the terms of the contract such that at the

time of the breach, the breaching party can proffer a tender.

The disputed amount, in other words, must be liquidated at

the time of the breach as a prerequisite for pre[-]judgment

interest. In all other circumstances, including an award of

consequential damages, pre[-]judgment interest is awarded

as a matter of discretion.

Cresci, 64 A.3d at 264–65.

To illustrate, in Cresci, the appellant entered into a contract with

a construction company for it to build a home for the appellant for

$184,730. Id. at 256. Aside from the cost of building the home,

“the contract did not specify or refer to any monetary values,

established market prices, or other fixed standards regarding a

determination of mortgage expenses, legal expenses, inspection

fees, and the costs of maintaining two homes in the event of a

breach.” Id. After some time, the construction company filed a

complaint against the appellant, alleging that the appellant

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impeded the efforts of the construction company in completing the

contract, and claimed that the appellant owed $34,378.56 on the

balance of the contract. Id. at 256–57. In turn, the appellant

counterclaimed for, inter alia, breach of contract, asserting that

the construction company “had failed to complete several of the

contract’s required obligations.” Id. at 257. Following a jury trial,

the jury found that the construction company breached the

contract and awarded the appellant $66,000 in breach-of-contract

damages. Id. However, the trial court did not award the

appellant pre[-]judgment interest, determining that “the damages

involved in this matter are simply not of the kind envisioned by §

354(1) of the Restatement[,]” and that the appellant “was

adequately compensated by the jury’s verdict, and no further

pre[-]judgment interest was warranted.” Id. at 258 (citations

omitted).

On appeal, the appellant argued that “pre-judgment interest in a

breach of contract matter is a legal right.” Id. (citation omitted).

He averred that “he was forced to incur additional mortgage

expenses, legal expenses, inspection fees, and associated costs

with maintaining two properties since the home was

uninhabitable[,]” and “theorize[d] that because the sums he

claim[ed] [were] ascertainable, § 354(1) of the Restatement

(Second) of Contracts applie[d] and § 354(2) ... [did] not.” Id.

(internal quotation marks and citations omitted). This Court,

however, disagreed. Significantly, we observed that the appellant

did “not argue that the contract provided for the payment of

additional mortgage expenses, legal expenses, inspection fees,

and associated costs with maintaining two properties[,]” or that

“these sums constituted the reasonable costs of completing the

construction contract or correcting the defective work.” Id.

(internal quotation marks and citations omitted). Further, we

reasoned:

In the case before us, we examine the contract to determine

whether [the a]ppellant is entitled to pre[-]judgment

interest as of right. The contract specifically provided for

the performance of a construction of a home in exchange

for $184,730, a monetary amount defined by the contract.

Thus, $184,730 is a liquidated, ascertainable sum.

The contract, however, did not provide for a “performance”

of “mortgage expenses, legal expenses, inspection fees, and

associated costs with maintaining two properties.” The

contract also did not reference or permit a calculation of a

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monetary value for those items. [The construction

company], therefore[,] could not have tendered a proffer to

[the a]ppellant for those items, which necessarily required

a breach of contract to render a “performance” of those

items. [The construction company] is not charged with

interest as of right on the jury’s award of $66,000, because

that amount was not fixed by the construction contract and

[the construction company] could not have ascertained that

sum by construing the terms of the contract. Accordingly,

the jury’s non-specific award of $66,000 does not represent

a liquidated, ascertainable sum owed under the contract.

The jury’s award … “represents a loss incurred by [the

a]ppellant as a consequence” of [the construction

company’s] breach “of the promised performance” to

construct the home. Thus, contrary to [the a]ppellant’s

claim, an award of pre[-]judgment interest on consequential

damages is not awarded as a matter of right but is instead

left to the court’s discretion. [The a]ppellant, however,

elected not to order the trial transcript. Thus, this Court

cannot ascertain whether the trial court abused its discretion

in declining to award pre[-]judgment interest on an

unliquidated sum.

Cresci, 64 A.3d at 264–66 (internal citations, original brackets,

footnotes omitted…).

Krishnan v. Cutler Group, Inc., 171 A.3d 856, 873-75 (Pa. Super. 2017)

(all emphasis omitted; some brackets added).

In the case sub judice, Longwood points out that the trial court’s order

“awarding pre-judgment interest to the Subcontractors is silent as to the legal

basis for the award; that is, the [t]rial [c]ourt does not say whether its award

of pre-judgment interest is made as a matter of law (i.e., mandatory), or if it

is made in the court’s discretion.” Longwood’s Brief I at 42 (citation omitted).

According to Longwood, “[i]n either case, the Subcontractors’ claim for pre-

judgment interest should have failed.” Id.

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Considering first if the Subcontractors had a right to pre-judgment

interest under Section 354(1), Longwood argues that “the relevant contract

for examination is the oral contract of guaranty purportedly made with the

Subcontractors by … Bulger on behalf of Longwood.” Id. at 44.18 It says that

“the [t]rial [c]ourt found that the contract of guaranty between Longwood and

the Subcontractors was as follows: if the Subcontractors kept working and did

not walk off the job, Longwood would pay the Subcontractors all the money

that Hunley owed them.” Id. (citation omitted). Longwood contends that

“[t]here were no other terms or details to be found in that purported contract

— no amounts, no performance standard, no mathematical or value standards

— just simply: keep working, and we will ‘make good’ on Hunley’s debt.” Id.

at 44-45 (citation omitted). Longwood maintains that such a contract was not

for a definite sum of money because, “[a]t the time of Longwood’s purported

guaranty, no one knew what the sum was, and rather such sum was only

clearly adduced for the first time at the trial itself.” Id. at 45 (citation

omitted). As a result, it insists that “Longwood could not have proffered a

tender — how would it have determined what to tender without knowing what

was claimed to be owed to the Subcontractors?” Id. According to Longwood,

“[i]n such circumstances, where a party cannot tender payment due to

uncertainty as to the amount which is alleged to be owed, the imposition of

____________________________________________

18 The Subcontractors do not dispute this assertion.

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pre[-]judgment interest is unwarranted and inequitable.” Id. at 45-46

(footnote omitted).

At the outset, Longwood has waived this argument, as it does not

appear that Longwood raised these specific objections below. Pa.R.A.P.

302(a) (“Issues not raised in the trial court are waived and cannot be raised

for the first time on appeal.”). Longwood claims that it preserved the issue of

whether it is liable to the Subcontractors for pre-judgment interest in its

Answer, New Matter, and Crossclaims to the Subcontractors’ Amended

Complaint, and in its concise statement of errors complained of on appeal.

See Longwood’s Brief I at 24. However, we see none of the above-stated

arguments against awarding the Subcontractors pre-judgment interest in

Longwood’s Answer, New Matter, and Crossclaims.19 Furthermore, regarding

Longwood’s concise statement, it is well-established that “[a]n issue raised

for the first time in a concise statement is waived.” Carlino East

____________________________________________

19 Longwood also does not point us to exactly where in its Answer, New Matter,

and Cross Claims it allegedly raised these claims. See Pa.R.A.P. 2117(c)(4)

(“Where under the applicable law an issue is not reviewable on appeal unless

raised or preserved below, the statement of the case shall also specify …

[s]uch pertinent quotations of specific portions of the record, or summary

thereof, with specific reference to the places in the record where the

matter appears (e.g. ruling or exception thereto, etc.) as will show that the

question was timely and properly raised below so as to preserve the question

on appeal.”) (emphasis added); Pa.R.A.P. 2119(e) (“Where under the

applicable law an issue is not reviewable on appeal unless raised or preserved

below, the argument must set forth, in immediate connection therewith or in

a footnote thereto, either a specific cross-reference to the page or pages of

the statement of the case which set forth the information relating thereto as

required by Pa.R.A.P. 2117(c), or substantially the same information.”).

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Brandywine, L.P. v. Brandywine Village Association, 197 A.3d 1189,

1207 (Pa. Super. 2018) (citation omitted). We also reiterate that Longwood

appears to have filed no response in opposition to the Subcontractors’ motion

to mold the verdict.

Nevertheless, even if not waived, we would reject Longwood’s

argument, as we have already determined that Bulger knew how much Hunley

owed the Subcontractors and the amount he was guaranteeing. See

Longwood’s First Issue, supra. We restate that multiple Subcontractors

testified that Bulger told them that Longwood owes Hunley more money than

Hunley owes them, which means that Bulger knew how much the

Subcontractors were owed at the time he made the guaranty. Id. In addition,

Bulger acknowledged that the Subcontractors were bringing their unpaid

invoices to him:

[Longwood/PSC’s attorney:] At some point[,] did you start going

to [the S]ubcontractors directly to try and get copies of their

invoices associated with their work on unit turnovers at

Longwood?

[Bulger:] I didn’t go to them. They came to me with their invoices.

[Longwood/PSC’s attorney:] So they came to you and said what

exactly?

[Bulger:] They said we haven’t been paid, and they must have

talked amongst themselves, and they said we haven’t been paid,

and they started bringing me stacks of invoices.

[Longwood/PSC’s attorney:] Could you name some of the

contractors that presented unpaid invoices to you?

[Bulger:] Masco Construction, Riverview Flooring, Pastucha

Electric. Let’s see, I know there were a couple others. Tigano

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Painting. I can’t remember any others right now, but I think there

were others.

[Longwood/PSC’s attorney:] Were all these unpaid subcontractor

invoices related to projects that were undertaken at Hunley’s

direction?

[Bulger:] Yes.

N.T. Trial, 3/11/19, at 1363-64.

Bulger also revealed that he wanted to pay the Subcontractors directly,

which corroborates that he knew how much they were owed, but he was

ultimately discouraged from doing so:

[Sodexo’s attorney:] [Y]ou believe that [the Subcontractors]

should be paid?

[Bulger:] I do believe they should be paid.

[Sodexo’s attorney:] Because they did good work at a fair price;

right?

[Bulger:] Yes.

[Sodexo’s attorney:] Now, who stopped you from paying the

[S]ubcontractors?

[Bulger:] Who stopped me from paying the contractors? I asked

our attorneys if I could pay the contractors from the monies that

were owed to Aufman at the time and --

[The court]: Did your attorneys give you some advice or

direction?

[Bulger]: They did.

[The court]: We’re done. That is the end of that topic.

[Sodexo’s attorney:] And to be clear, besides the lawyers, I don’t

want to know, did you have discussions with any of your superiors

at Longwood that told you -- and not that they got from their

lawyers, but themselves [sic] -- to stop, to not issue checks to

any of the [S]ubcontractors?

[Bulger:] No.

- 42 -

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

[Sodexo’s attorney:] And that was contrary to your opinion; right?

You believed that checks should be sent to the [S]ubcontractors;

right?

[Bulger:] That’s correct.

Id. at 1382-83.

Thus, even if not waived, we would determine that the record supports

that Longwood knew how much it was guaranteeing, making the guaranty

sufficiently definite for pre-judgment interest purposes. As such, we would

reject Longwood’s argument that “Longwood did not breach a contract to pay

a definite sum of money, because Longwood did not know what that sum was.”

Longwood’s Brief I at 45.20

____________________________________________

20 Longwood raises for the first time in its reply brief that the Subcontractors

failed to establish the time at which Longwood improperly withheld payment,

and therefore, the date on which pre-judgment interest should have begun to

run is unclear. It therefore argues that “pre-judgment interest cannot be

awarded, because the [c]ourt cannot properly determine when it would begin

to run.” Longwood’s Reply Brief at 21. We deem this issue waived because,

in addition to not raising this claim below, Longwood presented it for the first

time in its reply brief. Commonwealth v. Otero, 860 A.2d 1052, 1054 (Pa.

Super. 2004) (“Issues presented before this [C]ourt for the first time in a reply

brief are waived.”) (citation omitted). As our Supreme Court has explained:

The opportunity for, and the extent of, a reply brief is limited. The

Pennsylvania Rules of Appellate Procedure make clear that an

“appellant may file a brief in reply to matters raised by [the]

appellee’s brief not previously raised in appellant’s brief.”

Pa.R.A.P. 2113(a). Thus, an appellant is prohibited from raising

new issues in a reply brief. Moreover, a reply brief cannot be a

vehicle to argue issues raised but inadequately developed in

appellant’s original brief. When an appellant uses a reply brief to

raise new issues or remedy deficient discussions in an initial brief,

the appellate court may suppress the non-complying portions.

(Footnote Continued Next Page)

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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

Further, assuming arguendo that the trial court should not have

awarded the Subcontractors pre-judgment interest as a matter of right under

Section 354(1), we would still discern no abuse of discretion by the trial court

in awarding them pre-judgment interest under Section 354(2). As mentioned

supra, if interest is not awarded as a matter of right, the trial court may use

its discretion to award it “in … light of all the circumstances, including any

deficiencies in the performance of the injured party and any unreasonableness

in the demands made by him.” Restatement (Second) of Contracts § 354 cmt.

d.

Longwood argues that “the fault of nonpayment rests not with

Longwood, but rather with Hunley and its co-conspirators, and the

Subcontractors, themselves.” Longwood’s Brief I at 49 (emphasis in

original). It elaborates:

[T]he Subcontractors did not come to court with clean hands. The

Subcontractors agreed to perform work for Hunley, a general

contractor with no experience, reputation, or presence at the job

site. Those agreements were entirely oral and no pre-work

documentation, such as estimates, work orders, or work

authorizations between Hunley and the Subcontractors were

produced at trial. Longwood had no direct contract with the

Subcontractors — Longwood engaged Hunley, who then engaged

the Subcontractors under undefined, amorphous terms. The

Subcontractors, themselves, were in the best position to limit their

____________________________________________

Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999) (most citations

omitted).

Here, neither Longwood in its original brief, nor the Subcontractors in

their responsive brief, raised the specific issue of when pre-judgment interest

should have begun to run in this matter. As such, this claim is also waived on

this basis.

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loss exposure: they are the ones who allowed their invoices to

Hunley to accumulate, unpaid, over the course of months. Some

of their invoices were so old that the time for filing of mechanic’s

liens had lapsed by the time they approached Bulger at the May

22, 2015 meeting. Even though the quality of the Subcontractors

work was not an issue, their business and recordkeeping practices

were, at best, unprofessional, and certainly contributed to the

confusion and chaos that concealed Hunley’s fraud. Those

practices also exposed the Subcontractors to an enormous

receivable owed by an uncreditworthy counterparty (i.e., Hunley).

As noted by the [t]rial [c]ourt, Longwood was the victim of a

fraudulent conspiracy by and among Hunley, Aufman, Sepcic,

McCollum, and Sodexo, whereby Longwood was defrauded out of

hundreds of thousands of dollars. It was Hunley and its co-

conspirators who engaged the Subcontractors to perform work at

Longwood; then, Hunley charged Longwood for the work at a

markup of nearly 130%. An integral part of that scheme was the

concealment of the amounts the Subcontractors were actually

charging Hunley for the work. This concealment persisted

throughout, and well beyond, the time that … Bulger made his

purported guaranty to the Subcontractors to pay the amounts

Hunley owed them. The actual amounts owed to the

Subcontractors were not made clear until this litigation ensued.

By that time, Hunley had already extracted over $1.9 million from

Longwood, and, despite Aufman’s promises, failed to pay the

required amounts through to the Subcontractors. Simply stated,

it is not Longwood’s fault that the Subcontractors have not yet

been paid — it is the fault of Hunley and its co-conspirators.

Longwood’s Brief I at 49-51 (internal citations omitted).

Longwood’s argument fails to persuade us that the trial court would

have abused its discretion by awarding the Subcontractors pre-judgment

interest against Longwood under Section 354(2). To start, while the

Subcontractors may have agreed to perform work for the unfamiliar Hunley,

Longwood similarly went into business with Hunley without seemingly

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conducting any research on the company.21 Moreover, unlike the

Subcontractors, Longwood even chose to continue its relationship with Hunley

despite receiving an anonymous letter in October of 2014, accusing McCollum

of having an improper interest in Hunley. Though Longwood investigated this

letter, it wrongly concluded that no improper interest existed and took no

further action, which permitted Hunley to continue conducting its fraudulent

scheme at Longwood. Furthermore, although Longwood criticizes the

Subcontractor’s recordkeeping and business practices, Longwood’s practices

seem equally as poor, given that it allowed McCollum to withhold invoices for

long periods of time and grossly overpaid for Hunley’s services over the course

of nearly a year while Hunley performed no actual work. Finally, to the extent

that Longwood argues that the Subcontractors are to blame for permitting

their invoices to go unpaid and accumulate, we point out that the

Subcontractors considered stopping work at Longwood due to this non-

payment but continued working after the meeting with Bulger in May of 2015,

where he guaranteed that Longwood would make sure that the Subcontractors

were paid. The Subcontractors trusted his word and moved forward with the

work, enabling Longwood to meet its deadlines and have residents move into

their units, and yet the Subcontractors have gone years without seeing any

payment from Longwood. Thus, given the circumstances of this case, we

____________________________________________

21 According to the trial court, Longwood first hired Hunley to assist with a

water pipe emergency in January of 2014, even though Hunley was not

incorporated at that time. TCO I at 2-3.

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would conclude that the trial court would not have abused its discretion by

awarding the Subcontractors pre-judgment interest against Longwood under

Section 354(2). No relief is due on Longwood’s second issue.

Longwood’s Third Issue

In Longwood’s third and final issue, it asserts that its obligation to pay

the Subcontractors’ judgment should be stayed pending Longwood’s receipt

of all amounts awarded to it from Hunley, Aufman, Sepcic, McCollum, and

Sodexo. To begin, it says Pennsylvania Rule of Civil Procedure 3121(b)(2)

permits a trial court to stay execution of judgment when justice so requires.

Rule 3121(b)(2) provides:

(b) Execution may be stayed by the court as to all or any part of

the property of the defendant upon its own motion or application

of any party in interest showing

…

(2) any other legal or equitable ground therefor.

Pa.R.Civ.P. 3121(b)(2).

Relying on Rule 3121(b)(2), Longwood says that “equity and the

interests of justice favor requiring the [d]efendants [(i.e., Hunley, Aufman,

Sepcic, McCollum, and Sodexo)] to first pay Longwood its gross amount due

of $1,352,769.68 (representing $933,220.71 in direct damages plus

$419,548.97 for indemnification), before Longwood has to pay the

Subcontractors and before the Subcontractors can initiate collection

proceedings against Longwood.” Longwood’s Brief I at 53 (emphasis omitted;

citation omitted). Longwood emphasizes that it is a defrauded non-profit

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organization, and that the Subcontractors are not blameless for the situation

in which they now find themselves due to their purportedly poor business

practices discussed supra. Id. at 54, 55. To Longwood, “allowing the

Subcontractors to collect from Longwood would mean that Longwood, once

again, would be making an outlay of cash, at its own expense and the expense

of its residents, falling deeper into the financial hole created by McCollum and

Hunley’s fraudulent conspiracy.” Longwood’s Reply Brief at 26-27.

In addition to the interests of justice, Longwood advances that, as a

guarantor, its obligation to pay the Subcontractors is triggered only upon

default by the principal debtors, namely, Hunley, Aufman, Sepcic, and

McCollum. Longwood’s Brief I at 56-57. See also McIntyre Square

Associates v. Evans, 827 A.2d 446, 451 n.7 (Pa. Super. 2003) (“While both

guaranty and surety agreements are agreements to be liable for the debt of

another, the principal difference is that the creditor may look to the surety for

immediate payment upon the debtor’s default, without first attempting to

collect the debt from the debtor, whereas the creditor must first seek payment

from the debtor before going after a guarantor.”) (citations omitted). As such,

it also argues that the Subcontractors “should not be permitted to attempt to

execute on their judgment against Longwood unless and until they exhaust

collection efforts against Hunley, Aufman, Sepcic, and McCollum.” Longwood’s

Brief I at 57.

“The grant of a stay of execution is within the sound discretion of the

trial court and its decision will not be disturbed absent a clear abuse of that

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discretion.” In re Upset Sale, Tax Claim Bureau of Berks County, 479

A.2d 940, 946 (Pa. 1984) (citations omitted). Here, we discern no clear abuse

of discretion by the trial court.22 Initially, with respect to Longwood’s claim

that justice requires a stay of execution, we point out that the Subcontractors

have also faced great financial difficulties as a result of not being paid for their

work in this case. See N.T. Trial, 3/13/19, at 1782 (Mascaro’s testifying that

“I had to extend my line of credit a hundred thousand dollars. I was two

weeks from being out of business”); id. at 1786 (Jerry Tigano of Tigano

Painting and Wallcovering stating that, as a result of this matter, he “ha[s] no

savings, it’s all gone. … My Visa and MasterCard [are] at the max. I’m just

surviving. It’s a shame. I’m getting upset”); id. at 1790 (Roland Pastucha of

Roland Pastucha Electric, Inc., confirming that he had to borrow additional

money to make it through this time). While Longwood again says that the

____________________________________________

22 Based on our review of the record, it does not appear that the trial court

specifically explained why it denied Longwood’s request for a stay of

execution. However, Longwood does not argue that the trial court abused its

discretion by failing to provide reasons for its decision, nor does Longwood

ask us to remand this matter for preparation of an additional Rule 1925(a)

opinion by the trial court. Further, based on our review of the record, we are

able to glean why the trial court denied Longwood’s request. See N.T. Trial,

3/13/19, at 1782, 1785-86, 1790 (trial court’s asking multiple Subcontractors

if they had to borrow additional monies to make it through this ordeal); TCMNV

at 25 (finding that “Bulger’s promises were the only reason the Subcontractors

continued working”); see also Widger, 237 A.3d at 1158 n.5 (“Although we

do not approve of or sanction the trial court’s failure to comply with its

obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion does not

preclude this Court’s review of the merits of [the a]ppellant’s issues based

upon our review of the record, including the notes of testimony from [the

a]ppellant’s trial.”).

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Subcontractors’ business practices enabled the fraud to transpire, we do not

view the Subcontractors as any more at fault than Longwood for having let

the fraud occur. See Longwood’s Second Issue, supra. Further, as the

Subcontractors aptly recognize, “Bulger’s promises were the only reason [the]

Subcontractors continued working[,]” and the work they performed allowed

Longwood to continue turning over units and making money. See

Subcontractors’ Brief at 24. As such, it would be unfair to grant Longwood a

stay of execution at the Subcontractors’ expense. For these reasons, we reject

Longwood’s argument that the trial court abused its discretion in denying

Longwood’s request for a stay of execution based on the interests of justice.

Additionally, with respect to Longwood’s argument that it is a guarantor

and that the Subcontractors must first seek payment from Hunley, Aufman,

Sepcic, and McCollum, Longwood provides no authority that a trial court must

grant a stay of execution in such circumstances. See In re S.T.S., Jr., 76

A.3d 24, 42 (Pa. Super. 2013) (“[M]ere issue spotting without analysis or legal

citation to support an assertion precludes our appellate review of a matter.”)

(citations omitted). We also point out that Longwood itself recognizes that

Hunley, Aufman, Sepcic, and McCollum are unlikely to pay, see Longwood’s

Brief I at 53, and, in fact, have not paid on the unpaid invoices to date. And,

again, we emphasize that the Subcontractors continued working, despite not

getting paid, because Bulger assured them that Longwood would make good

on Hunley’s debt, which still has not happened. As the Subcontractors should

not face any more delays in receiving their money, we discern no clear abuse

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of discretion by the trial court in denying a stay of execution to Longwood on

this basis either.

Overall, none of Longwood’s issues in its appeal at 733 WDA 2021

warrant relief. We therefore affirm the judgment entered at GD 18-012048

with respect to Longwood.

Sodexo’s Appeals at 676 WDA 2021 and 677 WDA 2021

We turn next to Sodexo’s appeals at 676 WDA 2021 and 677 WDA

2021.23 In its appeals, Sodexo raises two questions for our review:

1. Whether Longwood was entitled to common-law

indemnification from Sodexo for the $419,548.97 that the [t]rial

[c]ourt found Longwood owed by contract to the [S]ubcontractors,

despite that (a) Longwood’s common-law indemnification rights

were superseded by a contractual indemnification provision, which

the [t]rial [c]ourt correctly held was not satisfied; (b) Longwood’s

liability to the [S]ubcontractors sounded in contract, not tort; and

(c) Longwood had already recovered as damages the amounts

unpaid to the [S]ubcontractors.

2. Whether Longwood was “the prevailing party” under the

Longwood Management Agreement, such that Longwood was

entitled to $1,062,053.67 in attorney[s’] fees and expenses,

despite that both Longwood and Sodexo obtained judgments in

their favor.

Sodexo’s Brief at 3-4.

Sodexo’s First Issue

In Sodexo’s first issue, it challenges the trial court’s determination that

Sodexo — along with Hunley, McCollum, Aufman, and Sepcic — must

____________________________________________

23 Sodexo filed a consolidated brief for its appeals at 676 WDA 2021 and 677

WDA 2021.

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indemnify Longwood for all sums paid by Longwood to the Subcontractors.24

In making this ruling, without providing any legal authority in support, the

trial court conveyed in its memorandum and amended non-jury verdict that:

Hunley, Aufman, Sepcic, McCollum, and Sodexo must indemnify

Longwood for any amounts it pays to the Subcontractors pursuant

to this [v]erdict because this [c]ourt grants Longwood’s

crossclaim.

Longwood would not have been liable to the Subcontractors but

for the [c]ontract of [g]uaranty made by … Bulger. The true

culprits are Hunley represented by Aufman, Sepcic, and McCollum

who conducted the fraudulent scheme and extracted the funds

from Hunley, causing it to default on its debt to the

Subcontractors. This [c]ourt has already pierced Hunley’s …

corporate veil, therefore Aufman, Sepcic, and McCollum are also

personally liable under the crossclaim. This [c]ourt has

additionally found Sodexo vicariously liable for McCollum’s

actions. Therefore, Hunley, Aufman, Sepcic, McCollum, and

Sodexo must indemnify Longwood for any amounts it pays to the

Subcontractors by virtue of this [v]erdict.

TCMNV at 25.

Later, in its Rule 1925(a) opinion, the trial court provided a legal basis

for its determination for the first time, explaining:

“The right to indemnity arises by operation of law and will be

allowed where necessary to prevent an[] unjust result.” City of

Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89, 92 (Pa.

Cmwlth. 2002). Indemnity is an equitable remedy available at

common law, which “shifts the entire responsibility for damages

from a party who, without any fault, has been required to pay

because of a legal relationship to the party at fault.” Id. The

Commonwealth Court clarified that indemnity[] “is a fault-shifting

____________________________________________

24 See Trial Court Judgment at GD 18-012048, 5/11/21, at 2-3 (“Hunley,

McCollum, Aufman, Sepcic, and Sodexo shall, jointly and severally, indemnify

Longwood for all sums paid by Longwood to [the Subcontractors], or any of

them, and all sums collected from Longwood by [the Subcontractors], or any

of them[.]”).

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mechanism that comes into play when a [party] held liable by

operation of law seeks to recover from a defendant whose conduct

actually caused the loss.” Id.

Although this [c]ourt[] determined that Longwood was not entitled

to indemnity pursuant to the Longwood Management Agreement,

indemnity via a specific contractual obligation was only one

avenue available to Longwood.[25] Longwood may also obtain

common law indemnity as an equitable remedy in relation to

Longwood’s [c]rossclaim.

As this [c]ourt explained in its April 14, 2020 … Memorandum and

Non-Jury Verdict, absent the … breach of contract and fraud,

Longwood would not have overpaid Hunley for over $900,000.00

and Longwood would not be getting back-charged for over

$400,000.00 in Subcontractor invoices, which should have been

paid by Hunley. This is because it was Hunley, Aufman, Sepcic,

McCollum, and Sodexo who took part in a fraudulent scheme and

extracted funds from Hunley, which caused Hunley to default on

its debt to the Subcontractors. Despite the fact that Longwood

had already overpaid Hunley for the work Longwood expected to

be completed, Hunley’s default on its debt to the Subcontractors

forced Longwood to guaranty the Subcontractors payment in

order for the Subcontractors to continue working, and for

Longwood to avoid significant additional losses.

Accordingly, while this [c]ourt found that Longwood was liable to

the Subcontractors based upon Longwood’s [c]ontract of

[g]uaranty, this [c]ourt correctly determined that Sodexo,

McCollum, Hunley, Aufman, and Sepcic must indemnify Longwood

for any payment made by Longwood to the Subcontractors…. This

makes sense because the judgment on the Subcontractors’ unpaid

invoices is a debt that Longwood would not have incurred but for

Sodexo’s breach of contract and Hunley’s, Aufman’s, Sepcic’s, and

McCollum’s fraud, for which, again, Sodexo was vicariously liable.

Sodexo again complains that this [c]ourt’s determination

regarding indemnity was sua sponte action, which deprived

____________________________________________

25 The Longwood Management Agreement contained an indemnity provision,

which the trial court determined did not require Sodexo to indemnify

Longwood for reasons discussed infra.

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Sodexo of its due process rights.[26] However, as mentioned

previously, there is ample precedent that permits this [c]ourt to

amend pleadings to conform with the evidence presented at trial,

at least where such an amendment will not result in unfair surprise

or prejudice. See Sutton v. Miller, 592 A.2d 83, 89 [(Pa. Super.

1991)] (holding that, in the absence of any prejudice, given the

well-settled principle that amendment is available at any stage of

the proceedings, a court may sua sponte amend the pleadings on

its own initiative).

Here, Sodexo, McCollum, Aufman, and Sepcic were, at all times,

aware of Longwood’s claim that Sodexo, McCollum, Hunley,

Aufman, and Sepcic should be the parties ultimately responsible

for paying the Subcontractors, or indemnifying Longwood after

Longwood paid the Subcontractors. Whether this occurred via

contractual indemnity or common law indemnity is of little

moment. The substance of Longwood’s claims put Sodexo on

notice with regard to both, and this [c]ourt acted appropriately in

amending said claims in the interest of justice. Thus, Sodexo’s

argument that this [c]ourt’s decision deprived Sodexo of its due

process rights is without merit.

Trial Court Opinion (“TCO II”), 8/2/21, at 38-40 (emphasis in original).

On appeal, Sodexo wages a three-prong argument as to why the trial

court’s indemnification award should be reversed. First, it advances that the

Longwood Management Agreement’s contractual indemnification clause

precluded any common-law indemnification. It asserts that our Supreme

Court “has long held that common-law indemnification is ‘not apposite where,

as here, there is a written contract setting forth the rights and duties of the

parties.’” Sodexo’s Brief at 14 (citing Eazor Exp., Inc. v. Barkley, 272 A.2d

____________________________________________

26 For context, in Sodexo’s Rule 1925(b) concise statement, Sodexo

complained, inter alia, that Longwood’s crossclaim only sought contractual

indemnification from Sodexo related to the Subcontractors’ claims, and that

the trial court improperly raised the issue of whether Sodexo had a common

law duty to indemnify Longwood sua sponte.

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893, 895 (Pa. 1971)). Second, Sodexo avers that “a party can be indemnified

under the common law only for liability that sounds in tort, not contract.” Id.

at 17-18 (emphasis in original). It explains that “[t]he party seeking common-

law indemnification must be a ‘tortfeasor’ liable to a third-party ‘tort victim.’”

Id. at 18 (quoting City of Wilkes-Barre, 804 A.2d at 92 (Pa. Cmwlth. 2002)).

In contrast, Sodexo says that, here, “Longwood’s liability to the

[S]ubcontractors undoubtedly sounded in contract, not tort. The non-jury

verdict specifically states that Longwood owed these amounts to the

[S]ubcontractors for ‘Breach of Contract.’ And the opinion further clarifies

that Longwood breached an ‘enforceable contract of guaranty.’” Id. (citations

omitted). Finally, Sodexo contends that, although the two, above-stated

errors are independent and sufficient reasons to reverse the indemnity award,

the trial court’s indemnification ruling also should be reversed because it

compensated Longwood twice for the same loss. According to Sodexo, “[t]he

indemnity award was a double-recovery because the damages award (for

breach of contract and fraud) had already compensated Longwood for the

same thing: money still owed to the [S]ubcontractors.” Id. at 19 (emphasis

in original).

Common-Law Indemnification Precluded by Contract

For multiple reasons, we agree with Sodexo that the trial court erred

and/or abused its discretion in determining that Longwood was entitled to

common-law indemnification from Sodexo. To begin, in the Longwood

Management Agreement, Sodexo and Longwood specifically contemplated

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indemnification only in certain circumstances. In that contract, they agreed

that:

Except as otherwise expressly provided in this Agreement, Sodexo

and Client shall defend, Indemnify and hold each other harmless

from and against all claims, liability, loss and expenses, including

reasonable costs, collection expenses and attorneys’ fees, which

may arise because of the sole negligence, misconduct, or other

fault of the Indemnifying party, its agents or employees in the

performance of its obligations under this Agreement.

See also Longwood’s Exhibit P-2 (“Longwood Management Agreement”) at

7.27

____________________________________________

27 None of the trial exhibits were transmitted to us with the certified record.

Despite an informal inquiry with the trial court, we were unable to obtain them.

“Ultimate responsibility for a complete record rests with the party raising an

issue that requires appellate court access to record materials.” Note to

Pa.R.A.P. 1921. Generally, “[a]n appellate court may consider only the facts

which have been duly certified in the record on appeal.” Id. However,

“[p]arties may rely on the list of documents transmitted to the appellate court

and served on the parties. … If the list shows that the record transmitted is

complete, but it is not, the omission shall not be a basis for the appellate court

to find waiver.” Id. “This principle is consistent with the Supreme Court’s

determination in Commonwealth v. Brown, … 52 A.3d 1139, 1145 n.4 ([Pa.]

2012)[,] that where the accuracy of a pertinent document is undisputed, the

Court could consider that document if it was in the Reproduced Record, even

though it was not in the record that had been transmitted to the Court.” Id.

Here, in the list of documents transmitted to this Court for Sodexo’s

appeals at docket numbers 676 WDA 2021 and 677 WDA 2021, ‘Exhibits’ are

listed. However, it appears that those ‘Exhibits’ are exhibits from Longwood’s

response in opposition to summary judgment, filed on December 21, 2018,

and do not include the exhibits admitted at trial. Though we usually may not

consider documents that are not in the certified record, no party disputes the

accuracy of the Longwood Management Agreement, or the report of

Longwood’s expert, which we discuss infra, that are contained in Sodexo’s

reproduced record. Therefore, we will consider both documents in our review

despite the fact that they are not included in the certified record.

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The trial court ascertained that this contractual provision did not require

Sodexo to indemnify Longwood for its losses in this case, opining:

This [c]ourt finds that Longwood’s damages fall outside the scope

of the Longwood Management Agreement’s Indemnity

[p]rovision. This provision allows recovery for losses which may

arise because of the “sole negligence, misconduct, or other fault

of the indemnifying party….” The language is unambiguous, the

word “sole” modifies all adjectives in the list. The provision is not

triggered when the misconduct involves the contribution of third

parties. In the case at hand, the misconduct involved Hunley,

Aufman, and Sepcic[,] thereby making the misconduct outside the

scope of the provision.2

2 Longwood’s arguments that such interpretation violates

public policy and that it encourages fraud are unpersuasive.

Indemnity provisions are the product of party autonomy and

may be tailored as the parties deem fit. The main purpose

of indemnity provisions is to contractually alter the default

allocation of risk under the law. If parties decide to only

alter the allocation of risk in instances involving a sole

negligence or misconduct, that is their prerogative and it

does not violate public policy. Any losses for misconduct

falling outside the scope of the provision are recoverable

through the remedies provided by the law.

TCMNV at 14 (citations omitted).

Despite the parties’ agreement for when indemnification would occur,

the trial court disregarded the contract and ordered Sodexo to indemnify

Longwood for the Subcontractors’ claims under the common law. This was

improper.

As Sodexo discerns, our Supreme Court has cautioned that, when a

contract sets forth the rights and duties of the parties, the terms of that

contract must govern. To illustrate, in Eazor, Eazor — a common carrier by

motor vehicle — leased a tractor-trailer from Barkley. Eazor, 272 A.2d at

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894. Under the lease agreement, Barkley also supplied a driver, Matil. Id.

While transporting cargo owned and shipped by Continental, an accident

occurred, damaging the cargo. Id. Continental recovered a judgment against

Eazor in federal court, which Eazor paid. Id. Eazor then sought to recover

from Barkley and Matil the amount of the judgment it had paid to Continental.

Id. After Eazor sued, the trial court determined that Eazor could not recover

under a claim of either an express or implied contract of indemnity, and

granted Barkley and Matil’s preliminary objections in the nature of a demurrer.

Id. On appeal, our Supreme Court upheld the trial court’s decision. Id. In

doing so, the Court initially noted that it could not find in the lease any express

agreement by Barkley to be responsible for any damage to any cargo. Id. In

addition, the Court also rejected Eazor’s argument that the Court, in previous

cases, had recognized an implied contract of indemnity in favor of a person

who, without active fault on his part, was legally obliged to pay damages

caused by the negligence of another. Id. at 895.28 The Eazor Court deemed

such cases to be inapposite “where, as here, there is a written contract setting

forth the rights and duties of the parties. The contract must then govern. As

____________________________________________

28 “Quasi-contracts, or contracts implied in law, are to be distinguished from

express contracts or contracts implied in fact.” Sevast v. Kakouras, 915

A.2d 1147, 1153 n.7 (Pa. 2007) (citation omitted). “Unlike true contracts,

quasi-contracts are not based on the apparent intention of the parties to

undertake the performances in question, nor are they promises. They are

obligations created by law for reasons of justice.” Id. (citation and bracket

omitted).

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we have already observed, the instant contract does not support [Eazor’s]

claim.” Id.

Eazor is instructive to the matter at hand. The Longwood Management

Agreement specifically addresses indemnity and requires Sodexo to indemnify

Longwood in certain instances. As Eazor suggests, Longwood cannot

circumvent this provision, which it agreed to, by seeking common-law

indemnity. Instead, the contract must govern. Thus, we agree with Sodexo

that the contractual indemnification clause in the Longwood Management

Agreement precluded any common-law indemnification in this matter.29, 30

____________________________________________

29 We recognize that, in City of Wilkes-Barre, claims for both common-law

indemnification and contractual indemnification were permitted to be

advanced. However, “decisions rendered by the Commonwealth Court are not

binding on this Court.” See Beaston v. Ebersole, 986 A.2d 876, 882 (Pa.

Super. 2009) (en banc) (citation omitted). In addition, it appears that, in that

case, no one raised the argument that common-law indemnity claims are

precluded where a contract setting forth the rights and duties of the parties

exists.

30 In response to Sodexo’s argument, Longwood claims that the

indemnification award constitutes “damages flowing proximately from the

fraud committed by Sodexo[,]” and that “[a] person who makes a fraudulent

misrepresentation of material fact to another person is responsible for all

injuries resulting from that other person’s reliance on the fraudulent

misrepresentation.” Longwood’s Brief at 676 WDA 2021 and 677 WDA 2021

(“Longwood’s Brief II”) at 38 (citation omitted). Longwood goes on to

purportedly distinguish Eazor and related cases on the basis that “they stand

for the indeed well-accepted principle that when the parties’ relationship is

predominantly contractual, tort claims and associated tort theories of

damages are barred. The [t]rial [c]ourt specifically ruled that this was not the

case here.” Id. at 43; see also TCMNV at 20-21 (determining that the gist-

of-the-action doctrine did not bar Longwood’s tort claims against Sodexo).

(Footnote Continued Next Page)

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Longwood’s Liability to the Subcontractors Arose Through a Contract of

Guaranty

Nevertheless, even if the Longwood Management Agreement did not

preclude Longwood’s common-law indemnification claim in this matter, we

would agree with Sodexo that common-law indemnification does not apply

here because Longwood’s liability to the Subcontractors arose through a

contract of guaranty. With respect to common-law indemnity, our Supreme

Court has explained:

The right of indemnity rests upon a difference between the

primary and the secondary liability of two persons each of whom

is made responsible by the law to an injured party. It is a right

which enures to a person who, without active fault on his

own part, has been compelled, by reason of some legal

obligation, to pay damages occasioned by the initial

negligence of another, and for which he himself is only

secondarily liable. The difference between primary and

secondary liability is not based on a difference in degrees of

negligence or on any doctrine of comparative negligence, — a

doctrine which, indeed, is not recognized by the common law. It

depends on a difference in the character or kind of the wrongs

which cause the injury and in the nature of the legal obligation

owed by each of the wrongdoers to the injured person. Secondary

liability exists, for example, where there is a relation of employer

and employee, or principal and agent; if a tort is committed by

the employee or the agent recovery may be had against the

employer or the principal on the theory of respondeat superior,

but the person primarily liable is the employee or agent who

committed the tort, and the employer or principal may recover

indemnity from him for the damages which he has been obliged

to pay. Another example, and perhaps the most familiar one, is

____________________________________________

We are unpersuaded by Longwood’s argument. Even though Longwood

succeeded on its fraud claim in addition to its breach-of-contract claim against

Sodexo, that does not negate the fact that the parties had an express contract

that does not allow for indemnification in this matter.

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when a pedestrian is injured by falling in a hole in the pavement

of a street; in such a case the abutting property owner is primarily

liable because of his failure to maintain the pavement in proper

condition, but the municipality is secondarily liable because of its

having neglected to perform its duty of policing the streets and

seeing to it that the property owners keep them in repair; if

therefore the injured person chooses to bring suit against the

municipality[,] the latter can recover indemnity from the property

owner for the damages which it has been called upon to pay.

Many other illustrations might, of course, be given, as, for

example, where a person injured by the leakage of gas from a

defective pipe recovered damages from the gas company which

maintained the pipe, the gas company was held entitled to recover

indemnity from a street railway company whose negligent

excavation in the street had caused the pipe to break. So likewise,

where there was an explosion in one of the mains of a gas

company causing the collapse of a vault under the sidewalk and

injuring two persons on the pavement, and the latter brought suit

and recovered judgment against the property owner for failure to

maintain the pavement in a safe condition as required by law, the

property owner, having paid the judgment, was allowed recovery

of indemnity from the gas company which had negligently created

the condition. So, where the owners of a store property who

maintained an opening in their sidewalk were obliged to pay

damages for injuries received by a pedestrian who fell into the

opening and was injured, recovery of indemnity was allowed from

a contractor employed by them to take waste material from the

premises, and who, in the course of the work, removed the iron

grills above the opening and did not properly guard it; obviously

the contractor’s was the primary, the property owners’ the

secondary liability for the injury which occurred….

Without multiplying instances, it is clear that the right of a person

vicariously or secondarily liable for a tort to recover from one

primarily liable has been universally recognized. But the

important point to be noted in all the cases is that

secondary as distinguished from primary liability rests

upon a fault that is imputed or constructive only, being

based on some legal relation between the parties, or

arising from some positive rule of common or statutory law

or because of a failure to discover or correct a defect or

remedy a dangerous condition caused by the act of the one

primarily responsible. In the case of concurrent or joint

tortfeasors, having no legal relation to one another, each of them

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owing the same duty to the injured party, and involved in an

accident in which the injury occurs, there is complete unanimity

among the authorities everywhere that no right of indemnity

exists on behalf of either against the other; in such a case, there

is only a common liability and not a primary and secondary one,

even though one may have been very much more negligent than

the other. The universal rule is that when two or more contribute

by their wrongdoing to the injury of another, the injured party

may recover from all of them in a joint action or he may pursue

any one of them and recover from him, in which case the latter is

not entitled to indemnity from those who with him caused the

injury.

Builders Supply Co. v. McCabe, 77 A.2d 368, 370-71 (Pa. 1951) (internal

citations omitted; emphasis added).

In the case sub judice, Longwood’s liability to the Subcontractors did

not arise due to some imputed or constructive fault it had for a tort. Instead,

as Sodexo points out, Longwood’s liability to the Subcontractors sounded in

contract, as the trial court found that Longwood made an enforceable contract

of guaranty with the Subcontractors and then breached it. Sodexo’s Brief at

18. Consequently, because Longwood’s liability to the Subcontractors

stemmed from a contract of guaranty and not from some responsibility it had

under the law to the Subcontractors for their tort damages despite being itself

blameless, Longwood would not be entitled to common-law indemnification

for this reason as well.31

____________________________________________

31 Longwood argues that “the reason that Longwood defaulted on its oral

guaranty to the Subcontractors (and, ostensibly, made that guaranty in the

first place) is because of the fraud perpetrated by Hunley, Aufman, Sepcic,

McCollum, and Sodexo.” Longwood’s Brief II at 27-28. Yet, as Sodexo

observes, “it is Longwood’s liability (as Longwood is the party seeking

indemnification) that must sound in tort. And Longwood does not — and could

(Footnote Continued Next Page)

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Double Recovery

Finally, on top of the two above-stated, independent reasons for

reversing the trial court’s indemnification ruling, the trial court’s

indemnification award compensated Longwood twice for the same loss, as

Sodexo claims.32 In calculating Longwood’s damages, Longwood’s damages

expert — Brian Kassalen, CPA, CFF — first calculated the amount of revenue

____________________________________________

not — dispute that its liability to the [S]ubcontractors sounds in contract.”

Sodexo’s Reply Brief at 6 (citations omitted; emphasis in original). Further, if

Longwood thought that the fraud caused it to incur the debt with the

Subcontractors, it should have sought as damages in its fraud action the

amount of money it owed to the Subcontractors. As discussed infra,

Longwood did, in fact, seek such damages, and received them, in its fraud

action against Sodexo, McCollum, Hunley, Aufman, and Sepcic.

32 Sodexo did not raise this specific issue of double-recovery in its Rule

1925(b) concise statement. Nevertheless, we decline to deem it waived

because, as Sodexo observes in its reply brief, the trial court did not provide

a legal basis for why it was ordering indemnification until its Rule 1925(a)

opinion. See Sodexo’s Reply Brief at 10 n.5 (“[T]he [t]rial [c]ourt initially

offered no justification for its sua sponte indemnification ruling, and only later

explained, in its [Rule] 1925[(a)] opinion, that it was invoking ‘equitable’

authority to reach a result that it thought ‘makes sense.’ … Sodexo’s double-

recovery argument is a direct response to this late-arriving assertion of

fairness.”) (citations omitted); Sodexo’s Post-Trial Motion, 6/12/20, at 53

(indicating that the trial court’s basis for awarding indemnification in its non-

jury verdict and memorandum is unclear, and was made “without any legal or

factual citations”); see also Commonwealth v. Evans, 2021 WL 4352310,

at *3 n.4 (Pa. Super. Sept. 24, 2021) (declining to find that the appellant

waived an issue by not raising it in his Rule 1925(b) statement where the trial

court discussed the issue for the first time in its Rule 1925(a) opinion);

Pa.R.A.P. 126(b) (unpublished non-precedential memorandum of the Superior

Court filed after May 1, 2019, may be cited for persuasive value). We note

that Sodexo did complain in its post-trial motion that Longwood received a

windfall, and specifically pointed out that the trial court’s indemnification

award of $419,549.97, was already included by Longwood as part of its loss

in its damages calculation. Sodexo’s Post-Trial Motion at 2.

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recognized by Hunley (as shown on Hunley’s financial statements that were

prepared by Aufman) and paid by Longwood, which amounted to

$1,902,165.15. See Longwood’s Exhibit 17 (“Kassalen’s Expert Report”) at

8, 9.33, 34 Kassalen then analyzed Hunley’s contract costs (i.e., all direct costs,

such as material, labor, and subcontracting costs). Id. at 11.35 In

ascertaining Hunley’s total net contract costs, Kassalen did not include

$443,623.60 in amounts that Hunley did not actually pay to its subcontractors.

Id. at 8, 12.36 Thus, he determined that Hunley’s total net contract costs that

Hunley actually paid amounted to $843,293.68. Id. at 8. He then multiplied

$843,293.68 by the industry gross average profit percentage for general

contractors in the commercial sector during the relevant time period, which

was 14.9%. Id. at 8, 13. By multiplying them together, Kassalen discerned

____________________________________________

33 “CPA” stands for Certified Public Accountant, and “CFF” stands for “Certified

in Financial Forensics.” Kassalen’s Expert Report at 15.

34 Sodexo’s reproduced record identifies Kassalen’s expert report as

Longwood’s Exhibit 180. Based on our review of the trial transcripts, however,

we believe it was admitted at trial as Longwood’s Exhibit 17. N.T. Trial,

3/8/19, at 1065, 1075-76, 1090, 1101, 1130.

35 At trial, Kassalen elaborated on the meaning of ‘contract costs,’ saying that

“[w]ith respect to Hunley, it is all of the subcontractor costs that [it] would

have incurred for the subcontractors that bid the work for them, either drywall

work, carpet work, painting work, electrical work, whatever they be.” N.T.

Trial, 3/8/19, at 1120.

36 The $443,623.60 figure was comprised of $218,135.00 owed to Masco

Interiors, Inc.; $32,005.00 owed to Roland Pastucha Electric, Inc.;

$85,219.57 owed to Riverview Carpet & Flooring, Inc.; $86,597.00 owed to

Tigano Painting & Wallcovering; and $24,514.63 owed to Renaissance Paint &

Flooring and Bluefrog Plumbing. See Kassalen’s Expert Report at Exhibit 34.

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that a reasonable profit for Hunley would have been $125,650.76, and that

therefore, the amount of money that Longwood should have paid to Hunley

was $968,944.44 (in other words, the sum of $843,293.68 and $125,650.76).

Id. at 8. He then subtracted $968,944.44 from the contract income

recognized by Hunley and paid by Longwood ($1,902,165.15) to conclude that

the net loss suffered by Longwood due to overinflated payments was

$933,220.71. Id. The trial court awarded Longwood this exact amount in

damages in Longwood’s action against Sodexo, McCollum, Hunley, Aufman,

and Sepcic. See Trial Court Judgment at GD 15-015968, 5/11/21.

At trial, Kassalen confirmed that he excluded the amounts unpaid to

subcontractors from Hunley’s contract costs, testifying:

[Sodexo’s attorney:] Let’s turn back to the calculation for a couple

minutes, page 8 of your report again. Looking at this calculation,

I see that you’ve calculated a net loss suffered by Longwood of

$933,000; correct?

[Kassalen:] Yes.

[Sodexo’s attorney:] And change. If you add that back into --

looking two lines up from that, the amounts unpaid to

subcontractors of $443,000; correct?

[Kassalen:] Yes.

[Sodexo’s attorney:] Do you include those amounts unpaid to

subcontractors in the net loss suffered by Longwood?

[Kassalen:] My calculation takes A, which is the contract income

recognized by Hunley and paid by Longwood, and subtracts out

the Item C[,] which is the net amount that should have been paid

to Hunley which excludes the $443,000.

[Sodexo’s attorney:] So you attribute damages in the amount of

unpaid subcontractor bills to Longwood’s loss?

[Kassalen:] Yes.

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[Sodexo’s attorney:] So it is your position that those amounts

unpaid to subcontractors are actually amounts that should be paid

to Longwood?

[Kassalen:] The $993,000 is the amount I say should be paid to

Longwood.[37]

[Sodexo’s attorney:] And that includes that $443,000 that is owed

to the subcontractors?

[Kassalen:] Yes.

[Sodexo’s attorney:] So it is your position that under your

analysis[,] it is not the subcontractors that are owed that money,

it is Longwood?

[Kassalen:] The subcontractors haven’t been paid.

[Sodexo’s attorney:] Right, but this analysis doesn’t factor in that

that will go to the subcontractors. This analysis sends that to

Longwood; is that correct?

[Kassalen:] That is correct.

N.T. Trial, 3/8/19, at 1171-72.

In addition, Sodexo points out that:

The duplication is glaringly apparent when the two awards —

indemnity and damages — are broken down on a subcontractor-

by-subcontractor basis. A simple comparison shows that the

indemnification award and the damages award compensate

Longwood for the same [l]osses. Compare, e.g., [Trial Court

Judgment at GD 18-012048, 5/11/21, at 2-3] (requiring Sodexo

to indemnify Longwood for “$218,135.00” owed to Masco

Interiors, Inc.) with [Kassalen’s Expert Report at Exhibit 34]

(requiring Sodexo to pay damages for “$218,135.00” owed to

Masco Interiors, Inc.); and [Trial Court Judgment at GD 18-

012048, 5/11/21, at 2-3] (requiring Sodexo to indemnify

Longwood for “$86,597.00” owed to Tigano Painting and

Wallcovering) with [Kassalen’s Expert Report at Exhibit 34]

____________________________________________

37 Based on our review of Kassalen’s expert report, we believe he meant to

say $933,220.71, or roughly $933,000. Kassalen’s Expert Report at 14 (“I

conclude that Longwood suffered a loss of $933,220.71 … as a result of the

work performed by Hunley.”).

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(requiring Sodexo to pay damages for “$86,597.00” owed to

Tigano Painting and Wallcovering).

This comparison also explained why the total amount awarded a

second time by indemnification ($419,548.97) is very slightly

lower than the “amount[] unpaid to subcontractors” in the

damages award ($443,623.60). The former only includes

amounts owed to those subcontractors that elected to sue

Longwood. In contrast, the damages award includes amounts

owed to all subcontractors: the entire indemnity award plus

amounts unpaid to subcontractors that elected not to sue (likely

because they did not have as much to collect). See [Kassalen’s

Expert Report at Exhibit 34] (listing invoices from subcontractors

that were not parties below).

Sodexo’s Brief at 20-21 (emphasis in original; some citations omitted).

In response, Longwood counters that allowing it to recover its principal

damages and be indemnified for the Subcontractors’ award does not result in

a double recovery. It insists that “[t]his is not a double recovery because the

acts of Sodexo and its co-conspirators are the but-for cause of Longwood[’s]

incurring the debt to the Subcontractors in the first place.” Longwood’s Brief

II at 36.

We wholly reject Longwood’s argument. The trial court’s indemnification

award results in a double recovery for Longwood. Such a result is unfair and

inequitable, and the trial court abused its discretion in ordering common-law

indemnification as an equitable remedy on this basis, too.

Therefore, for the foregoing reasons, we reverse the part of the trial

court’s May 11, 2021 judgment at GD 18-012048, requiring Sodexo to, jointly

and severally, indemnify Longwood for all sums paid by Longwood to the

Subcontractors, or any of them, and all sums collected from Longwood by the

Subcontractors, or any of them. This award was improper.

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Sodexo’s Second Issue

In Sodexo’s second issue, it argues that the trial court erred in awarding

attorneys’ fees and litigation expenses to Longwood under the Longwood

Management Agreement. Here, the relevant provision of the Longwood

Management Agreement sets forth that:

In the event that any action or proceeding is brought to enforce

any term, covenant, or condition of this Agreement, the prevailing

party shall be entitled to recover reasonable attorneys’ fees, court

costs, and related expenses.

Longwood Management Agreement at 9.

In awarding attorneys’ fees to Longwood in this litigation, and not

Sodexo, the trial court opined:

Both the Longwood Management Agreement and the PSC

Management Agreement contained a clause that provided that, in

an action to enforce a term or condition of the agreement, the

“prevailing party” shall be entitled to attorneys’ fees, costs, and

expenses. Interpreting a contract is a question of law. Profit

Wize Marketing v. Wiest, 812 A.2d 1270, 1275 (Pa. Super.

2002). Because both agreements do not define the term

“prevailing party,” this [c]ourt must look to the plain and ordinary

meaning of the term “prevail” in order to discern the contractual

intent of the parties. Id. “In common parlance, to prevail means

to gain ascendency through strength or superiority: TRIUMPH.”

Id. [(]citing Merriam Webster’s Collegiate Dictionary, 7th [e]d. at

924[)]. Black’s Law Dictionary further defines the term prevail to

mean “to obtain the relief sought in an action; to win a lawsuit.”

Id. [(]citing Black’s Law Dictionary, 7th [e]d. at 1206[)].

In this case, Longwood brought duplicative claims under both the

Longwood Management Agreement and the PSC Management

Agreement in order to cover its bases. Although this [c]ourt

determined that Longwood only incurred damages in relation to

the Longwood Management Agreement, and that Sodexo was

entitled to damages with regard to its counterclaims for software

license fees, Sodexo is not necessarily the “prevailing party.” With

regard to Sodexo’s counterclaims for software license fees, this

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[c]ourt declared that Sodexo was entitled to $4,409.65 from

Longwood and $31,666.47 from PSC. In contrast, with regard to

Longwood’s claims for breach of contract and fraud, this [c]ourt

held that Sodexo was liable to Longwood for damages in excess

of $900,000.00. Additionally, this [c]ourt determined that Sodexo

must indemnify Longwood for any payments Longwood makes to

the Subcontractors, and those payments are in excess of another

$400,000.00.[38] Given that the common definition of the term

prevail is to gain ascendency through strength or superiority, or

to triumph, this [c]ourt determined that Longwood and not

Sodexo was actually the “prevailing party” in this litigation….

TCO II at 40-41. Accordingly, the trial court awarded Longwood

$1,062,053.67 in attorneys’ fees and litigation expenses, and awarded Sodexo

no attorneys’ fees or litigation expenses.

It is well-established that “[t]he general rule within this Commonwealth

is that each side is responsible for the payment of its own costs and counsel

fees absent bad faith or vexatious conduct.” McMullen v. Kutz, 985 A.2d

769, 775 (Pa. 2009) (citation omitted). “This so-called ‘American Rule’ holds

true unless there is express statutory authorization, a clear agreement of the

parties or some other established exception.” Id. (citation and some internal

quotation marks omitted). It has been recognized that “a primary purpose of

contractual fee-shifting clauses is to discourage litigation by creating an

incentive for the parties to satisfy their contractual obligations and to think

twice before filing long-shot claims or contesting valid claims.” See Kevin P.

Allen, CONTRACTUAL FEE-SHIFTING CLAUSES — HOW TO DETERMINE

____________________________________________

38As set forth supra, we have reversed this common-law indemnification

award.

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“PREVAILING PARTY” STATUS, 74 Pa.B.A.Q. 178, 179-80 (Oct. 2003)

(footnote omitted).

As the trial court observed, “the interpretation of a contract is a question

of law[,]” and “our standard of review is plenary.” Profit Wize, 812 A.2d at

1274 (citations omitted). Further,

[w]hen interpreting the language of a contract, the intention of

the parties is a paramount consideration. In determining the

intent of the parties to a written agreement, the court looks to

what they have clearly expressed, for the law does not assume

that the language of the contract was chosen carelessly.

When interpreting agreements containing clear and unambiguous

terms, we need only examine the writing itself to give effect to

the parties’ intent. The language of a contract is unambiguous if

we can determine its meaning without any guide other than a

knowledge of the simple facts on which, from the nature of the

language in general, its meaning depends. When terms in a

contract are not defined, we must construe the words in

accordance with their natural, plain, and ordinary meaning. As

the parties have the right to make their own contract, we will not

modify the plain meaning of the words under the guise of

interpretation or give the language a construction in conflict with

the accepted meaning of the language used.

On the contrary, the terms of a contract are ambiguous if the

terms are reasonably or fairly susceptible of different

constructions and are capable of being understood in more than

one sense. Additionally, we will determine that the language is

ambiguous if the language is obscure in meaning through

indefiniteness of expression or has a double meaning. Where the

language of the contract is ambiguous, the provision is to be

construed against the drafter.

Id. at 1274-75 (cleaned up).

Here, Sodexo contests the trial court’s award, arguing that “[n]o party

was ‘the prevailing party’ in this litigation[,]” as “[t]he verdict here was mixed

— both Longwood and Sodexo received judgments in their favor.” Sodexo’s

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Brief at 22, 23 (emphasis omitted). Sodexo points out that, while Longwood

was successful on some of its affirmative claims, Sodexo prevailed on some

of its counterclaims as well as all of PSC’s claims, and successfully defended

against Longwood’s claims for contractual indemnification and punitive

damages. Id. at 24-25. Sodexo says that, generally, under the American

Rule, each side is responsible for paying its own attorneys’ fees and costs. Id.

at 23. In order to obtain fees, Sodexo asserts that “Longwood had to show

that the parties had reached a ‘clear agreement’ to set aside the American

Rule and award them ‘in the present situation[,]’” and that, in the Longwood

Management Agreement, “[t]he term ‘the prevailing party’ refers clearly to a

circumstance where only one party has won a judgment.” Id. at 22, 24 (citing

Trizechahn Gateway, LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009) (framing

issue as whether there was a clear agreement of the parties to award fees in

the present situation)). Quoting Profit Wize, Sodexo advances that

“‘prevailing party’ is ‘[c]ommonly defined as a party in whose favor a judgment

is rendered, regardless of the amount of damages awarded.’” Id. at 24

(quoting Profit Wize, 812 A.2d at 1275)).39 It also states that, “importantly,

the phrase here is ‘the prevailing party.’ That term is singular, meaning this

provision contemplates one prevailing party.” Id. (citation omitted; emphasis

in original). As such, Sodexo claims that “this provision does not apply when

____________________________________________

39The trial court only provided Profit Wize’s definition of ‘prevail’ in its

above-stated analysis. It failed to mention that the Profit Wize Court

specifically set forth a definition for ‘prevailing party’ in its opinion.

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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22

multiple parties received judgments in their favor, and it should not have been

applied here. Both Longwood and Sodexo won judgments.” Id. According

to Sodexo, “[n]either was ‘the prevailing party’ within the meaning of the

contract, and the [t]rial [c]ourt should simply have applied the default

American Rule.” Id. at 25.

In Sodexo’s argument, it underscores that it prevailed on some of its

counterclaims relating to software licensing fees and all of PSC’s claims against

it, and successfully defended against Longwood’s claims for contractual

indemnification and punitive damages. However, Sodexo fails to convince us

that any of these victories should prevent Longwood from receiving attorneys’

fees under the contract.

First, with respect to Sodexo’s counterclaims pertaining to software

licensing fees, Sodexo fails to explain why its counterclaims should not be

treated as a separate, independent ‘action or proceeding’ from Longwood’s

‘action or proceeding.’ See Longwood Management Agreement at 9 (“In the

event that any action or proceeding is brought to enforce any term,

covenant, or condition of this Agreement, the prevailing party shall be

entitled to recover reasonable attorneys’ fees, court costs, and related

expenses.”) (emphasis added). Though filed at the same docket number,

Sodexo’s counterclaims do not appear to relate to Longwood’s action in any

way. Furthermore, our High Court has characterized counterc

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