Krishnan v. Cutler Group, Inc.

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J-A14014-17

J-A14015-17

2017 PA Super 312

ARUN KRISHNAN AND ARUNA ARUN IN THE SUPERIOR COURT OF

NARAYANAN, PENNSYLVANIA

Appellees

v.

THE CUTLER GROUP, INC.,

Appellant No. 2614 EDA 2016

Appeal from the Judgment Entered August 24, 2016

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2012-02209-CT

ARUN KRISHNAN AND ARUNA ARUN IN THE SUPERIOR COURT OF

NARAYANAN, PENNSYLVANIA

Appellants

v.

THE CUTLER GROUP, INC., D/B/A THE

DAVID CUTLER GROUP,

Appellee No. 2745 EDA 2016

Appeal from the Judgment Entered August 24, 2016

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2012-02209-CT

ARUN KRISHNAN AND ARUNA ARUN IN THE SUPERIOR COURT OF

NARAYANAN, PENNSYLVANIA

Appellees

v.

J-A14013-17

J-A14014-17

J-A14015-17

THE CUTLER GROUP, INC.,

Appellant No. 2613 EDA 2016

Appeal from the Judgment Entered August 24, 2016

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2012-02209-CT

ARUN KRISHNAN AND ARUNA IN THE SUPERIOR COURT OF

NARAYANAN, PENNSYLVANIA

Appellees

v.

THE CUTLER GROUP, INC., D/B/A THE

DAVID CUTLER GROUP,

Appellant No. 2828 EDA 2016

Appeal from the Judgment Entered August 24, 2016

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2012-02209-CT

BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

OPINION BY BENDER, P.J.E.: FILED OCTOBER 02, 2017

Appellant, The Cutler Group, Inc. (referred to herein as “Cutler”),

appeals and Appellees, Arun Krishnan and Aruna Arun Narayanan, cross-

appeal from the August 24, 2016 judgment entered in favor of Appellees.1

____________________________________________

1

Pursuant to Pa.R.A.P. 513, we sua sponte consolidate the parties’ pending

appeals and cross appeal. See Pa.R.A.P. 513 (providing that where there is

more than one appeal from the same order, the appellate court may, in its

discretion, order them to be consolidated). As discussed further, infra,

Cutler filed separate appeals from: (1) the trial court’s July 12, 2016 order

(Footnote Continued Next Page)

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After careful review, we affirm in part, vacate the judgment entered with

respect to attorneys’ fees, and remand.

_______________________

(Footnote Continued)

regarding Appellees’ motions for post-trial relief and the judgment entered

on August 10, 2016 (referred to herein as “First Appeal” and docketed at

2614 EDA 2016); (2) the trial court’s July 12, 2016 order denying Cutler’s

motion for post-trial relief and the judgment entered on August 10, 2016

(referred to herein as “Second Appeal” and docketed at 2613 EDA 2016);

and (3) the trial court’s July 12, 2016 order regarding Appellees’ motion for

post-trial relief, the judgment entered on August 10, 2016, and the trial

court’s August 16, 2016 order granting, in part, Appellees’ supplemental

request for attorneys’ fees and costs (referred to herein as “Third Appeal”

and docketed at 2828 EDA 2016). In addition, Appellees filed a cross-appeal

from the trial court’s July 12, 2016 order regarding Appellees’ post-trial

motions and the trial court’s August 16, 2016 order denying, in part,

Appellees’ request for additional attorneys’ fees and costs (referred to herein

as “Cross-appeal” and docketed at 2745 EDA 2016).

We note that an order denying post-trial motions is interlocutory and

generally not appealable. See Levitt v. Patrick, 976 A.2d 581, 584 n.2

(Pa. Super. 2009) (stating that appeal properly lies from the entry of

judgment, not from the order denying post-trial motions). Here, Cutler filed

a praecipe to enter judgment on August 10, 2016; however, at that point,

the trial court had not fully disposed of Appellees’ post-trial motion, as

Appellees’ request for supplemental attorneys’ fees remained outstanding.

Thus, we consider the August 10, 2016 judgment as being premature. The

trial court subsequently awarded Appellees supplemental attorneys’ fees on

August 16, 2016, and final judgment was entered on August 24, 2016, in

the total amount of $317,668.78. Therefore, we consider these appeals as

taken from the August 24, 2016 entry of final judgment, and we deem

Cutler’s appeals before that judgment as proper. See Keystone Dedicated

Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 2 n.1 (Pa. Super.

2013) (“[E]ven though [an] appeal was filed prior to the entry of judgment,

it is clear that jurisdiction in appellate courts may be perfected after an

appeal notice has been filed upon the docketing of a final judgment.”)

(quoting Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d

511, 513 (Pa. Super. 1995)).

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In the decision it issued following the jury and non-jury trials in this

matter, the trial court set forth the procedural history of this case as follows:

This matter arises from [Appellees’] purchase of a home built by

… Cutler in a development located in East Whiteland Township,

Pennsylvania[,] known as Malvern Hunt. [Appellees] allege that

… Cutler improperly constructed their home which resulted in

chronic water infiltration and damage to the home. After

learning of its construction failures, [Appellees] allege that Cutler

proceeded to engage in a series of unlawful conduct in order to

hide the home’s significant water problems and avoid its promise

and obligation to repair their home. In their complaint,

[Appellees] asserted claims for breach of contract, breach of

express warranty, breach of implied warranty of habitability,

breach of implied warranty of reasonable workmanship, and

violations of the Pennsylvania Unfair Trade Practice and

Consumer Protection Law (“UTPCPL”).

There being no right to a jury trial under the UTPCPL, the court

scheduled the jury trial on [Appellees’] common law claims to

begin on December 7, 2015. The non-jury trial on [Appellees’]

UTPCPL claims was scheduled to commence at the conclusion of

the jury trial. On December 9, 2015, after three trial days, the

jury returned a verdict in favor of [Appellees] and against

[Cutler] on all of [Appellees’] common law claims.

On January 11 and 15, 2016, the court held a bench trial on

[Appellees’] UTPCPL claims. Having already heard evidence

related to the common law claims, during the bench trial the

court simply took additional evidence specifically related to

[Appellees’] UTPCPL claims, the damages available thereunder[,]

and [Appellees’] request for attorneys’ fees and costs. At the

conclusion of the bench trial, the court requested that the parties

provide proposed findings of fact and conclusions of law as well

as written closing arguments. The parties filed the required

submissions with the court.

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Trial Court Decision (TCD), dated 2/11/2016, at 1-2.2

Ultimately, in light of the evidence set forth during the jury and non-

jury trials relating to the UTPCPL claims — along with the parties’ post-trial

submissions — the trial court found in favor of Appellees on their UTPCPL

claims and awarded damages, costs, and attorneys’ fees in the total amount

of $232,475.72 plus interest.3 In doing so, the trial court made the

following factual findings:

1. On August 24, 2002, [Appellees] entered into an

Agreement of Sale to purchase a residential home located at

31 Cameron Court, Exton, Pennsylvania (hereinafter the

“Home”) in the Ridings of Malvern Hunt, a residential

development located in East Whiteland Township,

Pennsylvania (hereinafter “Malvern Hunt”).

2. [Cutler] is the developer of Malvern Hunt and, through its

agents, constructed [Appellees’] Home.

3. On October 1, 2002, [Appellees] proceeded with settlement

and took possession of the Home.

4. In connection with the sale, [Appellees] received a written

warranty from Cutler which provided, among other things,

that (a) Cutler built the Home in accordance with the

accepted home building practices of the locality, and (b) prior

to delivery, Cutler’s trained personnel had inspected the

Home (the “Warranty”).

____________________________________________

2

Although this decision was dated February 11, 2016, it was not entered on

the docket until March 2, 2016.

3

Specifically, at the time of the trial court’s February 11, 2016 decision, the

jury’s verdict amounted to $85,980.94, and Appellees received attorneys’

fees and costs through January 1, 2016 in the amount of $121,938.51 and

$24,556.27, respectively. See Trial Court Order Awarding and Conforming

Damages From Bench Trial With Jury’s Verdict, dated 2/11/2016, at 1

(single, unnumbered page).

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5. On October 1, 2002, [Appellees] executed the Warranty.

6. Cutler’s former employee, project supervisor, and Quality

Control manager, Justin McCarty (“Mr. McCarty”), supervised

the construction of the Malvern Hunt development, including

[Appellees’] home.

7. Although he was the lead construction supervisor on site

during the construction of Cutler’s stucco-clad homes (of

which [Appellees’] home was one), Mr. McCarty had little

knowledge in 2002 of the proper application of stucco.

8. Mr. McCarty testified that he did not know what constituted

correct versus incorrect stucco practice.

9. Neither Mr. McCarty nor anyone else at Cutler performed

inspections of the Home to ensure that windows, flashing

components or stucco were installed correctly.

10. Yet, prior to 2002, Cutler had received complaints from

homeowners in at least one other Cutler-built stucco

community, Springton Woods, about water infiltration

resulting from, among other things, improper flashing,

improper window installation, improper thickness of stucco,

and other construction defects.

11. William Wheatley (“Mr. Wheatley”), an architect retained

by the homeowners of Springton Woods, testified that as a

result of those complaints window and destructive testing

took place in Springton Woods, which he attended and

observed in 2000 with Cutler’s President and CEO, David

Cutler (“Mr. Cutler”), and other professionals.

12. Mr. Wheatley testified that after that inspection, he

discussed with Mr. Cutler missing flashing components,

excessive staple patterns, improper installation of windows,

and non-code compliant stucco.

13. Mr. Wheatley testified that he advised Mr. Cutler that

these construction issues were contributing to water

infiltration in Springton Woods and suggested that Cutler

address these issues.

14. In April 2005, [Appellees] complained to Cutler’s service

department of water infiltration in their Home. [Appellees]

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first observed water infiltration in the downstairs powder

room.

15. In May 2005, Cutler sent agents to the Home to perform

repairs consisting of spackling, painting and caulking the

damaged areas in the powder room. Cutler also caulked

around a window in the upstairs bathroom and applied spray

foam insulation behind the window trim beneath the sill.

16. Following the May 2005 work, Cutler’s agents advised

[Appellee Narayanan] that the water infiltration issue had

been addressed and that no further action was necessary.

17. In September 2006, [Appellees] discovered additional

water infiltration in the same downstairs powder room as well

as in a new location – the downstairs study.

18. In response, Cutler sent agents to the Home on two

occasions – once in September 2006 and once in October

2006 – to perform repairs consisting of, among other things,

drywall repair and cutting and sealing in the windows above

the study.

19. This type of repair already had proven to be ineffective in

solving the problem.

20. Despite knowing from the first “repair” that caulking

would not solve the problem or address the source of the

water infiltration, following the September and October 2006

service, Cutler’s agents again advised [Appellee Narayanan]

that the water infiltration issue had been addressed and that

no further action was necessary.

21. Cutler failed to perform any testing or inquire further into

the source, cause, or extent of the water infiltration in

[Appellees’] Home.

22. In February 2010, [Appellees] discovered yet more water

infiltration in the downstairs powder room where Cutler’s

agents had performed repairs in 2005 and 2006.

23. Cutler initially denied [Appellees’] claims out-of-hand,

indicating that the Home was out of warranty.

24. In or around April 2010, [Appellees] began looking

themselves for answers. They engaged Craig D. Tillman (“Mr.

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Tillman”) to conduct an inspection of the Home. Mr. Tillman

thereafter prepared an inspection report.

25. Mr. Tillman’s report identified certain defective

construction conditions and practices at the Home.

26. [Appellees] provided Cutler with a copy of the report.

27. In June 2010, after receiving a copy of Mr. Tillman’s

inspection report, Cutler sent Mr. McCarty, now employed by

McCarty Home Services, LLC (“McCarty Home Services”), to

inspect the Home.

28. During his inspection, Mr. McCarty commented to

[Appellee] Krishnan, who was present, that the walls of

[Appellees’] Home were “like butter.”

29. Mr. McCarty too prepared a written report in connection

with his inspection. He recommended that certain essential

repairs be made to [Appellees’] Home.

30. [Appellees] requested a copy of Mr. McCarty’s report, but

Cutler refused to provide a copy to [Appellees] at that time.

31. In July 2010, Cutler twice promised [Appellees], in

writing, that Cutler would repair the Home.

32. Cutler represented that it had added [Appellees’] Home to

a rip-and-tear program, and that Cutler had issued a work

order to McCarty Home Services to perform the repairs.

33. With the July 29, 2010 letter, Cutler enclosed a

confidentiality agreement, demanding that [Appellees] agree

not to discuss, among other things, the construction, repair,

or conveyance of the Home by Cutler with anyone except

family members or [Appellees’] attorney(s) and

accountant(s).

34. [Appellees] signed and returned the confidentiality

agreement included with Cutler’s July 29, 2010 letter.

35. Cutler did not follow through with scheduling the repair

work, prompting [Appellee] Krishnan to contact Mr. McCarty

in September 2010.

36. Mr. McCarty indicated to [Appellee] Krishnan that Cutler

had not issued a work order to McCarty Home Services.

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37. [Appellees] again followed up with Cutler.

38. Thereafter, [Appellees] received a letter from Cutler,

dated October 4, 2010, indicating that Cutler had “developed

new methods for successful repair” of the water infiltration

“problem” in [Appellees’] Home.

39. In the October 4, 2010 letter, Cutler demanded, for the

first time, that [Appellees] provide evidence that they had

“sealed” their Home within a year of purchase. Further,

Cutler reported to have not received the first confidentiality

agreement sent to [Appellees] on July 29, 2010.

40. Cutler enclosed another, this time different, confidentiality

agreement removing the carve-out permitting [Appellees] to

speak with family members or an attorney about the repairs.

41. Cutler never did issue a work order to McCarty Home

Services to perform the repairs outlined in the July 29, 2010

letter.

42. In January and March 2011, Cutler engaged Tom Adams

Windows and Carpets, Inc. (hereinafter “Adams”), to perform

repairs to [Appellees’] Home.

43. [Appellees] believed that Cutler was sending Adams to

their Home to perform the “new methods for the successful

repair of the problems” with their Home as described in

Cutler’s October 4, 2010 letter to [Appellees].

44. Instead, Adams’s repairs at [Appellees’] Home in March

2011 for a third time consisted of the same unsuccessful

“remedy” employed by Cutler — cleaning, caulking, and

sealing around windows.

45. Cutler was billed $375 for the work.

46. Cutler employee, Christopher Heuges, referred to these

Adams repairs as the “typical service” in a January 31, 2011

email to Tom Adams’s employee, Mindy Friedmann.

47. Adams’s service manager, Bob Hertlein, indicated that

additional tests were necessary and available to diagnose the

cause of continuing water infiltration if Adams’s service work

was unsuccessful[,] including removing and inspecting the

windows for signs of improper installation or flashing.

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48. Cutler knew the same service had been unsuccessful in

dealing with [Appellees’] Home, but it failed to perform the

additional test identified by Mr. Hertlein or otherwise perform

repairs following Adams’s service.

49. Having received the “caulk and seal” service now more

than once, [Appellees] retained the services of a certified

master inspector, John Lukowski, to determine the cause of

their systemic water infiltration.

50. In August and October 2011, Mr. Lukowski performed a

visual inspection and subsequently observed destructive

testing at the Home.

51. Destructive testing revealed numerous construction

defects and evidence of significant water infiltration on all

elevations of the Home.

52. Mr. Lukowski recommended that [Appellees] remove all

stucco, repair damaged substrate materials, replace

nonconforming house wrap materials, and re-apply stucco at

the proper thickness with required flashing and drainage

components.

53. [Appellees] engaged Narvon Exteriors, LLC to do the work

for the base price of $82,000. Remediation of [Appellees’]

Home began in April 2012.

54. During the stucco removal, Mr. Lukowski documented

dozens of violations of standard construction industry practice

and the building code applicable to the construction of

[Appellees’] Home, including improper window lapping,

excessive stapling, missing flashing, improper window

installation, broken window flanges, improper roofline

flashing, use of inferior and non-compliant building materials,

and use of an underweight and improper weather resistive

barrier.

55. Cutler’s two coat stucco application was determined to be

between ¼ and ½ inch thick throughout the Home.

56. Mr. Lukowski documented substantial damage to OSB,

framing elements, insulation, and other components of the

Home. He observed massive holes, rotten insulation, OSB

that resembled “mulch,” toxic molds of varying species, and

mushrooms growing in interior wall spaces.

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57. Cutler denied liability, asserting initially that “homeowner

maintenance” was to blame for the systemic water infiltration.

58. Cutler failed to cooperate during the discovery phase of

this litigation. Between the months of February 2014 through

October 2014, the [c]ourt entered five discovery orders

related to Cutler’s incomplete document production, often

involving water infiltration claims in other Cutler-built homes.

[Appellees were] required to respond to multiple motions for

reconsideration and motions to quash filed by Cutler relative

to these same discovery matters.

59. On October 14, 2014, the court granted [Appellees’]

Motion for Sanctions and awarded [Appellees] monetary

sanctions and a conditional adverse inference charge

regarding more than a dozen homes for which Cutler provided

no information (the “October 14, 201[4] Order”).

60. By October 14, 2014 Order, the court had already

scheduled and rescheduled trial in this matter more than

once. Thereafter, the court established a firm trial date of

October 27, 2014.

61. On October 22, 2014, less than three business days

before trial, Cutler appealed the court’s October 14, 2014

Order to the Pennsylvania Superior Court. Cutler filed a

motion with this court requesting an order permitting it to

appeal the sanctions order as of right and it filed a petition

with the Superior Court under a separate docket for allowance

of appeal by permission.

62. [Appellees] had incurred significant fees and costs

preparing for trial in October 2014.

63. [Appellees] then incurred additional legal expenses during

the months of October 2014 through January 2015 defending

against Cutler’s appeals, which the Superior Court

questioned, sua sponte, and ultimately quashed in January

2015.

64. On December 7, 2015, [Appellees] proceeded to trial on

their claims for breach of contract and breach of express and

implied warranties.

65. On the afternoon of December 9, 2015, the court charged

the [j]ury.

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66. The jury returned a verdict that day in favor of

[Appellees] on all counts in the amount of $85,980.94, which

represented the cost incurred by [Appellees] to investigate

and remediate the Home.

67. The non-jury phase of the trial was to immediately follow

at the conclusion of the jury phase.

68. On December 10, 2015, Cutler submitted to the court four

“Pre-Trial Memoranda” raising numerous evidentiary and

dispositive issues. The [c]ourt continued the bench trial to

permit [Appellees] time to respond to the filings.

69. Cutler subsequently filed an omnibus Motion in Limine

and for Summary Judgment seeking to dismiss [Appellees’]

UTPCPL claim or limit evidence supporting the same.

[Appellees] responded thereto.

70. The court denied both motions by Order dated January 6,

2016.

71. On January 11 and 15, 2016, the court heard evidence on

[Appellees’] UTPCPL claim.

TCD at 2-11 (internal citations and original brackets omitted).

Following the bench trial, the trial court found in favor of Appellees on

their UTPCPL claim. Thereafter, Cutler filed a motion for post-trial relief on

March 11, 2016. On March 21, 2016, Appellees also filed a post-trial

motion. The trial court ruled on both parties’ motions on July 12, 2016.

First, with respect to Appellees’ post-trial motion, the trial court entered an

order in which it granted Appellees’ request for prejudgment interest in the

amount of $69,329.20; denied their request for an award of the full extent

of the attorneys’ fees incurred in this case; granted in part Appellees’

request for an award of attorneys’ fees and costs incurred in responding to

Cutler’s post-trial motions; directed Appellees to submit for the court’s

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consideration a statement setting forth the attorneys’ fees and costs

incurred since January 1, 2016; and, finally, denied Appellees’ request that

the court treble the jury’s award pursuant to the UTPCPL. See Trial Court

Order Regarding Appellees’ Post-Trial Motion, 7/12/2016, at 1-2

(unnumbered pages). Second, the trial court entered a separate order

denying Cutler’s post-trial motion that “contain[ed] seventy-nine …

paragraphs … purport[ing] to identify the multitude of errors that occurred

during the jury and non-jury phases of this litigation.” See Trial Court Order

Denying Cutler’s Post-Trial Motion, 7/12/2016, at 1 n.1 (unnumbered

pages).4

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4

Cutler similarly lacks brevity on appeal. This Court has pointed out that,

it has been held that when an appellant raises an extraordinary

number of issues on appeal … a presumption arises that there is

no merit to them. In United States v. Hart, 693 F.2d 286, 287

n.1 (3[d] Cir. 1982), the court had an opportunity to address

this situation:

Because of the inordinate number of meritless objections

pressed on appeal, spotting the one bona fide issue was

like finding a needle in a haystack. One of our colleagues

has recently cautioned on the danger of “loquaciousness:”

With a decade and a half of federal appellate court

experience behind me, I can say that even when we

reverse a trial court it is rare that a brief successfully

demonstrates that the trial court committed more

than one or two reversible errors. I have said in

open court that when I read an appellant’s brief that

contains ten or twelve points, a presumption arises

that there is no merit to any of them. I do not say

that this is an irrebuttable presumption, but it is a

(Footnote Continued Next Page)

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Subsequently, in conformance with the trial court’s July 12, 2016 order

directing Appellees to file a statement setting forth the attorneys’ fees and

costs incurred since January 1, 2016, Appellees filed a supplemental request

for additional attorneys’ fees and costs in the amount of $69,551.36 on July

26, 2016. See Appellees’ Supplemental Request for Attorneys’ Fees and

Costs Pursuant to July 12, 2016 Court Order, 7/26/2016, at 1-2

(unnumbered pages). While that request was pending, Cutler filed a

praecipe to enter judgment in the amount of $301,804.92 on August 10,

2016.5 The next day, on August 11, 2016, Cutler filed two notices of appeal:

first, a notice of appeal from the trial court’s July 12, 2016 order regarding

Appellees’ motion for post-trial relief and the judgment entered on August

10, 2016; and, second, a notice of appeal from the trial court’s July 12, 2016

_______________________

(Footnote Continued)

presumption nevertheless that reduces the

effectiveness of appellate advocacy. Appellate

advocacy is measured by effectiveness, not

loquaciousness.

Aldisert, The Appellate Bar: Professional Competence and

Professional Responsibility—A View From the Jaundiced Eye of

One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).

5

Cutler explained that the amount of $301,804.92 resulted from the trial

court’s February 11, 2016 order awarding $232,475.22, and its July 12,

2016 order granting Appellees’ prejudgment interest in the amount of

$69,329.20.

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order denying Cutler’s motion for post-trial relief and the judgment entered

on August 10, 2016.

On August 16, 2016, the trial court entered an order granting in part

Appellees’ Supplemental Request for Attorneys’ Fees and Costs Pursuant to

its July 12, 2016 order.6,7 On August 24, 2016, Appellees filed a praecipe to

enter final judgment in the amount of $317,668.78, to reflect these

additional amounts. Judgment was entered that day. Then, on August 25,

2016, Appellees filed a notice of cross-appeal, challenging the trial court’s

July 12, 2016 order regarding their post-trial motion and its August 16, 2016

order regarding their supplemental request for attorneys’ fees and costs.

Further, on August 26, 2016, Cutler filed an amended notice of appeal, in

which it challenged the trial court’s August 16, 2016 order regarding

Appellees’ request for supplemental attorneys’ fees.

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6

Specifically, the trial court additionally awarded attorneys’ fees to

Appellees in the amount of $13,254.00, and costs in the amount of

$2,609.86.

7

We note that under Pennsylvania Rule of Appellate Procedure 1701(b)(6),

“[a]fter an appeal is taken …, the trial court … may … [p]roceed further in

any matter in which a non-appealable interlocutory order has been entered,

notwithstanding the filing of a notice of appeal or a petition for review of the

order.” Pa.R.A.P. 1701(b)(6).

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The trial court instructed the parties to file a Pa.R.A.P. 1925(b) concise

statements of errors complained of on appeal, and they timely complied. On

appeal, Cutler presents the following nineteen issues for our review:8

A. Did the trial court commit an error of law and abuse its

discretion in awarding [Appellees] attorneys[’] fees, and/or

in not discounting the attorney[s’] fees, costs and expert

fees when case law requires the fees to be discounted?

B. Did the trial court commit an error of law and abuse its

discretion in awarding [Appellees] expert fees when the

law in Pennsylvania does not allow a party to recover

expert fees?

C. Did the trial court commit an error of law and abuse its

discretion in awarding [Appellees] pre-judgment interest

when under Pennsylvania law they were not entitled to

pre-judgment interest?

D. Did the trial court commit an error of law and abuse its

discretion in awarding [Appellees] attorney[s’] fees

pursuant to their UTPCPL claim in additional amounts for

the time period between January 1, 2016 to August 16,

2016 and/or in not discounting the attorney[s’] fees when

case law requires the fees to be discounted and when

under Pennsylvania law they are not entitled to the

additional fees?

E. Did the trial court commit an error of law and abuse its

discretion in awarding [Appellees] costs pursuant to their

UTPCPL claim in additional amounts incurred for the

litigation costs in prosecuting their claim and/or in not

discounting the costs when case law requires the costs to

be discounted and when under Pennsylvania law they are

not entitled to the additional costs?

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8

We compiled the issues presented by Cutler in each of its three briefs, but

do not repeat issues it raised in multiple briefs in the list above.

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F. Did the trial court commit an error of law and abuse its

discretion by allowing the jury to consider a claim under

the breach of the express warranty as the evidence did not

support such a claim?

G. Did the trial court commit an error of law and abuse its

discretion by finding that [Cutler] breached an express

warranty when the jury’s verdict under the claims of

breach of express warranty was against the weight of the

evidence presented at trial?

H. Did the trial court commit an error of law and abuse its

discretion in finding that [Cutler] breached an implied

warranty of habitability and reasonable workmanship

because the jury’s findings under the claims of breach of

the implied warranty of habitability and reasonable

workmanship were against the weight of the evidence?

I. Did the trial court commit an error of law and abuse its

discretion by allowing the jury to consider a claim under

the breach of implied warranty of habitability and implied

warranty of reasonable workmanship as the evidence did

not support such a claim?

J. Did the trial court commit an error of law and abuse its

discretion in finding that [Cutler] violated the [UTPCPL] by

breaching an express warranty?

K. Did the trial court commit an error of law and abuse its

discretion in refusing to dismiss [Appellees’] claims under

the [UTPCPL] when the claim was barred by the statute of

limitations?

L. Did the trial court commit an error of law and abuse its

discretion in finding that [Cutler] violated the [UTPCPL]

when [Appellees] should not have been permitted to show

reliance outside of the agreement of sale under the parol

evidence rule?

M. Did the trial court commit an error of law and abuse its

discretion in finding that [Cutler] violated the [UTPCPL]

when [Appellees] did not prove justifiable reliance?

N. Did the trial court commit an error of law and abuse its

discretion in finding that [Appellees] met their burden of

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proof under the [UTPCPL] when they did not prove fraud

by clear and convincing evidence?

O. Did the trial court commit an error of law and abuse its

discretion by finding that [Appellees] were not required to

establish the common law elements of fraud in order to

support their claims under the [UTPCPL]?

P. Did the trial court commit an error of law and abuse its

discretion in finding that [Cutler] had engaged in a practice

of deceptive conduct in violation of the [UTPCPL] when the

weight of the evidence did not support such a finding?

Q. Did the trial court commit an error of law and abuse its

discretion in not granting a mistrial when [Appellees]

submitted new evidence, ex parte, after the conclusion of

the trial?

R. Did the trial court commit an error of law and abuse its

discretion in allowing evidence of water damage in other

homes when the evidence was not probative and it was

highly prejudicial?

S. Did the trial court commit an error of law and abuse its

discretion in allowing William A. Wheatley to provide

expert testimony when he was called as a fact witness and

never qualified as an expert?

Cutler’s Brief (First Appeal) at 4-5; Cutler’s Brief (Second Appeal) at 4-7

(unnecessary capitalization and emphasis omitted).9

First, Cutler argues that “the trial court erred in awarding … Appellees

attorneys[’] fees and not discounting the fees awarded[.]” Cutler’s Brief

(First Appeal) at 14 (unnecessary capitalization and emphasis omitted). In

particular, it argues that the trial court erred in awarding Appellees

attorneys’ fees in the amount of $121,938.51, and “in failing to discount the

____________________________________________

9

We address Appellees’ cross-appeal, infra.

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fees to only the amount of time spent on the UTPCPL claim.” Id. Cutler

points out that Appellees “brought claims for breach of contract, breach of

express warranty, breach of implied warranties, and violations of the

[UTPCPL,]” and insists that “Appellees simply cannot recover all of their

attorney[s’] fees in this case, as it is clear that only time spent on the

UTPCPL is recoverable.” Id. at 15, 17. Further, Cutler challenges the

testimony of Appellees’ counsel that “there was no way for him to partition

out the claims.” Id. at 16 (citation omitted). Appellees, on the other hand,

declare that “all of [their] claims arise out of the same common core of

facts. In fact, [their] common law claims form the very basis of their

UTPCPL claim.” Appellees’ Brief (First Appeal) at 32 (citations and quotation

marks omitted).

We examine such claims for an abuse of discretion. See Boehm v.

Riversource Life Ins. Co., 117 A.3d 308, 335 (Pa. Super. 2015). By way

of background,

[t]he general purpose of the UTPCPL is to protect the public from

fraud and unfair or deceptive business practices. The UTPCPL,

by virtue of the following language, authorizes the trial judge to

grant a successful litigant an award for additional damages,

reasonable attorney fees, and costs:

Any person who purchases or leases goods or services

primarily for personal, family or household purposes and

thereby suffers any ascertainable loss of money or

property, real or personal, as a result of the use or

employment by any person of a method, act or practice

declared unlawful by section 3 of this act, may bring a

private action to recover actual damages or one hundred

dollars ($100), whichever is greater. The court may, in its

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discretion, award up to three times the actual damages

sustained, but not less than one hundred dollars ($100),

and may provide such additional relief as it deems

necessary or proper. The court may award to the

plaintiff, in addition to other relief provided in this

section, costs and reasonable attorney fees.

73 P.S. § 201-9.2(a).

Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1029-30 (Pa. Super. 2005)

(emphasis added; some citations omitted).

We have stated that “a court in awarding attorney[s’] fees under the

UTPCPL must … eliminate from the award of attorney[s’] fees the efforts of

counsel to recover on non-UTPCPL theories.” Id. at 1031-32. Simply put,

“there is no statutory authority for awarding attorney[s’] fees for the time

spent pursuing non-UTPCPL counts.” Id. at 1032 (original brackets, internal

quotation marks, and citations omitted). Notwithstanding, this Court has

also recognized the difficulty in differentiating the time spent pursuing

UTPCPL claims from non-UTPCPL claims. For instance, we have noted that

“where the plaintiffs are proceeding on multiple theories of relief, including

under the UTPCPL, it is difficult to parse out the time between the UTPCPL

claim and other causes of action.” Boehm, 117 A.3d at 335. In such

scenarios, “[m]uch of the time spent in pre-trial litigation would relate to

both UTPCPL and common law causes of action.” Id.

Here, Cutler contends that while Appellees’ counsel “would have the

[c]ourt believe all of these fees are intertwined[,] it defies logic that every

minute spent and every email sent went towards the UTPCPL claims and that

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the fees could not be reasonably reduced.” Cutler’s Brief (First Appeal) at

16. In contrast, the trial court acknowledged that Appellees “litigated

multiple theories of relief based upon similar yet complicated facts all at

once.” TCD at 26. It further explained:

[T]he parties proceeded with the jury trial on the common law

claims before proceeding to a bench trial on the UTPCPL claim.

… In arguing that the fees should have been separately billed,

[Cutler] during cross-examination of [Appellees’] counsel pointed

out as an example that at the outset of this litigation[,] [Cutler]

filed preliminary objections to the complaint’s non-UTPCPL

claims, including an objection based upon the “gist of the action”

doctrine. Having reviewed those objections again, the court is

reminded that the objections also challenged [Appellees’]

UTPCPL claims. Rather than undermining [Appellees’] position,

this example actually supports [Appellees’] assertion that a

separation of fees would be difficult in this case.

TCD at 27. Thus, the trial court reasonably concluded that the time spent by

counsel in litigating this case often encompassed both Appellees’ UTPCPL

and common law causes of action, and would be difficult to divide given the

common underlying facts. Consequently, we discern no abuse of discretion

by the trial court in not discounting the fee awards.

Second, Cutler claims that “the trial court erred in awarding …

[Appellees] expert fees.” Cutler’s Brief (First Brief) at 17 (unnecessary

emphasis and capitalization omitted). Cutler advances a two-fold argument

in support: first, it claims that “[t]here is no automatic right to expert fees

under the UTPCPL”; second, it states that “Appellees’ expert, John

Lukowski[,] only testified at the trial for breach of contract and breach of

warranties.” Id.

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With respect to the first prong of Cutler’s argument, we reiterate that

the UTPCPL provides that “[t]he court may award to the plaintiff … costs and

reasonable attorney fees” as well as “such additional relief as it deems

necessary or proper.” 73 P.S. § 201-9.2 (emphasis added). Here, the trial

court explained its decision to award expert fees, stating:

Similar to attorneys’ fees, the right to recover expert fees as

costs under the UTPCPL, although not required, does exist if

those fees are reasonable and connected to the UTPCPL claims.

See Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002)

(considering [the] plaintiffs’ request for expert fees, although

denying after determination that expert’s plan failed to lead to a

solution and thus fees deemed unreasonable); Neal, 882 A.2d at

102[9] (finding that because there was no dispute retention of

an expert who prepared a pretrial report and testified at trial was

necessary, trial judge did not abuse discretion in awarding

partial reimbursement for cost of expert[])[.] The court heard

[Appellees’] evidence on the costs incurred in this litigation and

the expert fees they incurred and the reason and purpose

thereof. It concludes that the expert services rendered to

[Appellees] ultimately assisted [them] in proving liability on the

part of [Cutler]. The court concludes those expert fees were

reasonable and appropriate and should be awarded. As the

court in McCauslin v. Reliance Fin. Co., 751 A.2d 683 (Pa.

Super. 2005), recognized with regard to attorneys’ fees, “it is far

more in keeping with the intent of the legislation that the

claimant be made whole and not have to diminish his recovery

by paying attorney[s’] fees.” The court believes the same logic

applies when considering an award of costs, including expert

fees.

TCD at 30-31 (some citations omitted). Thus, while there is no automatic

right to expert fees, the trial court reasonably exercised its discretion to

award them to Appellees.

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With respect to the second aspect of Cutler’s argument, Appellees

emphasize that they “relied on Mr. Lukowski’s testimony in support of their

UTPCPL claim.” Appellees’ Brief (First Appeal) at 40 (citation omitted). They

discuss that “[a]t the beginning of the Bench Trial [on Appellees’ UTPCPL

claim], [Appellees’] counsel stated on the record his intention to incorporate

and rely upon the testimony and evidence presented during the Jury Trial

(including Mr. Lukowski’s testimony) in support of [Appellees’] UTPCPL

claim.” Id. at 39-40 (citation omitted).

Indeed, our review of the record reveals the following exchange

between Appellees’ counsel and the trial court:

[Appellees’ Attorney:] [] As you know, your Honor, this is a

bench trial, which is a continuation of the jury trial in this

matter.

As previously indicated to the [c]ourt and opposing

counsel, it is my intention to introduce -- supplement the

record and rely upon specifically and incorporate the

testimony and evidence that was provided at the jury trial

in this matter. And I understand that the [c]ourt is in

agreement with this procedure.

[Trial Court:] Yes. I certainly don’t need to hear the same

evidence a second time. It doesn’t make sense. I was here all

throughout the jury trial, and the jury has spoken as to the

evidence, which you heard.

You may need to remind me of one point or another. But,

no. I think you’re correct on how I view it.

[Appellees’ Attorney:] Thank you, your Honor.

It would be my intention, to the extent I bring up prior

testimony, it will be brief and for the purpose of just refreshing

your Honor’s recollection of the testimony.

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N.T. Trial, 1/11/2016, at 3 (emphasis added). Thus, Appellees did rely on

Mr. Lukowski’s testimony to advance their UTPCPL claim. Accordingly, we

are unpersuaded by Cutler’s arguments, and believe the trial court

appropriately awarded expert fees to Appellees.

Third, Cutler claims that the trial court erred in awarding Appellees

prejudgment interest under the Restatement (Second) of Contracts § 354.

See Cutler’s Brief (First Appeal) at 19.10 To begin, Cutler asserts that

“parties are only entitled to prejudgment interest as a matter of law where

damages are liquidated[,]” and thereby contends that the trial court

incorrectly determined that “the damages were liquidated because the value

of remediation services could be ascertained by market value[,]” which

“circumvents the clear definition of liquidated damages.” Id. (citation and

unnecessary emphasis and capitalization omitted). In addition, Cutler avers

that the trial court also could not have properly exercised its discretion to

award prejudgment interest to Appellees because they “were never out of

pocket any monies due to the alleged breach of [Cutler].” Id. at 28. In our

view, both of these arguments are meritless.

“[A] court has discretion to award or not award prejudgment interest

on some claims, but must or must not award prejudgment interest on

____________________________________________

10

As mentioned above, the trial court awarded Appellees $69,329.20 in

prejudgment interest. Cutler does not challenge the amount of prejudgment

interest, but rather the fact that it was awarded at all.

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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 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

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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.

…

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 (emphasis added).

This Court has expounded on Section 354 as follows:

[Section] 354 commands that prejudgment 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 prejudgment interest. In all other

circumstances, including an award of consequential damages,

prejudgment interest is awarded as a matter of discretion.

Cresci, 64 A.3d at 264-65 (emphasis added; internal citations omitted).

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.

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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 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 prejudgment 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

prejudgment 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

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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 prejudgment 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 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.

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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 prejudgment

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 prejudgment interest on an

unliquidated sum.

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

omitted; some emphasis in original).

In the case sub judice, the trial court considered Cresci and found it

distinguishable in multiple ways, most notably in that Appellees’ damages

constituted the cost of correcting Cutler’s defective performance under the

parties’ contract. It reasoned:

The contract between the parties, like the contract in Cresci,

was for the construction of a home for a negotiated sum.

[Appellees] argued at trial, and in their post-trial motion, that

part and parcel of [Cutler’s] agreement to construct their home

was the agreement to build that home (as set forth in the

contract’s language) in accordance with industry practice and

standards. [Appellees] contend that they demonstrated at trial

that when it came to the stucco in particular, [Cutler] did not

fulfill its contractual, performance obligation. Thus, according

to [Appellees], the first requirement of Cresci — a

contract to render a performance for a monetary amount

— has been demonstrated.

[Cutler] counters that the amount on which [Appellees] seek

interest does not relate to a “performance” contracted for by the

parties. [Cutler] argues that “remediation work” was not part of

the contract and not part of [Cutler’s] agreed to performance.

The court agrees with [Appellees] that the damages

sought, and awarded in this case, represent the cost of

correcting the defective performance undertaken by

[Cutler]. [Appellees’] breach of contract claim was not

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based upon a contractual obligation to remediate, but

centered upon [Cutler’s] failure to perform the

construction in accordance with the contract’s terms.

[Cutler] mistakenly directs this court’s attention to the fact that

the Cresci court denied the applicant’s request for interest on

mortgage expenses, legal expenses and similar costs related to

maintaining a second property while the contracted home was

completed. Although the court did refuse to award interest on

such sums, in analyzing whether the amount requested was part

of the contract[,] the court offered the following material

distinction with regard to the appellant’s request. The Superior

Court wrote[:]

[The appellant] does not argue that the contract provided

for the payment of additional mortgage expenses, legal

expenses, inspection fees, and associated costs with

maintaining two properties ... [The appellant] also does

not argue that these sums constituted the reasonable

costs of completing the construction contract or

correcting the defective work.

[]Cresci, 64 A.3d at 258[] (emphasis added[])[.]

What [the] appellant failed to argue in Cresci, is exactly what

[Appellees] argue here. [Cutler] contracted to perform the

construction of their home in accordance with certain

standards and failed to render the contractually agreed

upon performance. The nature of the claim in this case

falls squarely within the parameters of the parties’

contract.

As for whether or not the underlying debt is a liquidated sum, as

defined in the Restatement and Cresci, the court concludes that

it is. Admittedly, the contract does not set forth a fixed amount

for each phase of construction, for example, the value of the

stucco application and material. However, damages can be

considered “ascertainable from the contract” even if the

contract is silent. In such a case, if the value of the breached

performance is “ascertainable from established market prices of

the subject matter,” prejudgment interest shall be awarded. At

trial, [Appellees] presented evidence of market proposals they

obtained and provided to [Cutler] that detailed the cost of

completing and fixing their home’s construction in order to bring

it into compliance with the contract’s terms. The evidence at

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trial also showed that [Cutler] also obtained its own proposal for

completing the necessary work. Thus, at the time

[Appellees] became aware of the breach, the amount of

the debt owed was certain and ascertainable such that

[Cutler] could have offered tender, if it had so desired.

Pre-judgment interest is thus warranted.

Trial Court Order Regarding Appellees’ Post-Trial Motion, 7/12/2016, at 1 n.1

(original brackets omitted; some emphasis in original). We agree with the

trial court’s analysis, and believe that it properly determined that

prejudgment interest was warranted as a matter of right under Section

354(1).

Nevertheless, even if not awardable as a matter of right, the trial court

would not have abused its discretion in awarding prejudgment interest to

Appellees under Section 354(2). See Trial Court Order Regarding Appellees’

Post-Trial Motion, 7/12/2016, at 1 n.1 (“[I]f … pre[]judgment interest was

not due [Appellees] as a matter of right, the court would nonetheless

exercise its discretion and award such interest to [Appellees].”). Cutler

claims that prejudgment interest awarded pursuant to the court’s discretion

is “characterized as compensation for delay of damages[,]” and is

appropriately awarded to prevent unjust enrichment and in situations where

the delay in compensation was attributable to the party opposing

prejudgment interest. Cutler’s Brief (First Appeal) at 26-27 (internal

quotation marks ad citation omitted). According to Cutler, it “did not unduly

delay or hold any property or money of … Appellees.” Id. at 28.

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We disagree. To start with, Appellees rightly assert that Cutler was

unjustly enriched because they “paid Cutler nearly one-half million dollars

for a Home built contrary to the performance Cutler promised [them] under

the Agreement and the Warranty.” Appellees’ Brief (First Appeal) at 48.

Furthermore, “[a]fter Cutler failed to fulfill its many promises to repair

[Appellees’] Home, [they] paid $85,980.94 out-of-pocket to bring their

Home in compliance with the standards and codes that Cutler fraudulently

promised to [Appellees] in the Warranty.” Id. at 48-49 (citation omitted).

We concur that “Cutler’s conduct deprived [Appellees] of the ability to use

this money for other purposes and also deprived [them] of the interest that

would have accrued on [their] money had it been saved or invested.” Id. at

49. Additionally, “[i]n 2010, Cutler acknowledged the existence of the

defects in the Home, but still failed to correct them, despite repeatedly

promising [Appellees], in writing, that Cutler would correct the defects, and

despite warranting at the time of purchase that Cutler had constructed the

Home according to industry standards and codes.” Id. (citations omitted).

The trial court also determined that Appellees did not perform

deficiently or make unreasonable demands of Cutler in a way that would

inhibit it from awarding them prejudgment interest under Section 354(2):

The court concludes that given all the circumstances, it sees no

deficiencies in the performance of [Appellees] as the injured

parties or any unreasonableness in the demands made by them

that would preclude the court from exercising its discretion. To

the contrary, having heard the evidence and testimony over the

course of the jury and non-jury portions of the case, it is clear to

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the court that [Appellees] did everything that was asked of them

by [Cutler] and provided [Cutler] multiple opportunities to

correct its deficiencies. The result of which is that [Appellees]

paid for a performance that was never rendered and should be

entitled to interest on those monies.

Trial Court Order Regarding Appellees’ Post-Trial Motion, 7/12/2016, at 1

n.1. Thus, in light of the above considerations, we discern no abuse of

discretion by the trial court in awarding prejudgment interest under Section

354(2).

Fourth and fifth, Cutler argues that “the trial court erred in awarding

Appellees additional costs and attorneys[’] fees for the time period after

January 1, 2016[.]” See Cutler’s Brief (First Appeal) at 28 (unnecessary

capitalization and emphasis omitted).11,12 This Court is “mindful that we

may not disturb a trial judge’s assessment of these amounts unless there

has been an abuse of discretion.” Richards v. Ameriprise Financial, Inc.,

152 A.3d 1027, 1038 (Pa. Super. 2016) (citation omitted).

Cutler argues that the trial court’s “award of the additional fees and

costs constitutes a windfall for … Appellees.” Cutler’s Brief (First Appeal) at

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11

We consider Cutler’s fourth and fifth issues together because Cutler has

briefed them as a single issue. See Cutler’s Brief (First Appeal) at 28-32.

12

Cutler reiterates the same arguments here that attorneys’ fees and costs

should be discounted as there is “no statutory authority for awarding

attorney[s’] fees for time spent pursing [sic] non-UTPCPL counts.” Cutler’s

Brief (First Appeal) at 30 (citation and internal quotation marks omitted).

Because we have already rejected this argument, supra, we do not duplicate

our analysis here.

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30. Specifically, Cutler claims that “[t]he time spent on the UTPCPL bench

trial and any motions or responses drafted after the trial all fall under …

Appellees’ contingent fee agreement. This agreement represents the full

attorneys’ fees in this case.” Id. at 32.13 In short, Cutler seems to claim

that the trial court improperly relied upon the UTPCPL’s fee-shifting provision

to award Appellees additional attorneys’ fees and costs, given that there was

a contingency agreement — instead of an hourly fee agreement — between

Appellees and their counsel. Id. at 31.

Cutler proffers no authority in support of this particular argument.

See id. at 30-32. As such, we determine it is waived. See Lackner v.

Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (stating that “arguments

which are not appropriately developed are waived[,]” and that “[a]rguments

not appropriately developed include those where the party has failed to cite

any authority in support of a contention”) (citations omitted).

Further, even if not waived, we would still permit Appellees to receive

attorneys’ fees and costs pursuant to their UTPCPL claim in additional

amounts for the time period between January 1, 2016 to August 16, 2016.

Cutler has not convinced us that the trial court abused its discretion because

____________________________________________

13

Cutler explains that Appellees “entered into a contingent fee agreement

on August 13, 2015. Before that time[, Appellees] had been paying their

attorneys by billed hours.” Cutler’s Brief (First Appeal) at 32 (citation

omitted).

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“Appellees never expected to pay the hourly fees or costs recorded after

August 13, 2015, and … Appellees’ attorneys never expected to collect those

fees or costs.” Cutler’s Brief (First Appeal) at 31. We have opined before

that “it would be inappropriate to apply a contingency fee agreement to

create a ceiling (or for that matter, a closed door) on the recovery of

attorneys’ fees under a fee-shifting provision of a remedial statute.” Krebs

v. United Refining Co. of Pennsylvania, 893 A.2d 776, 791 (Pa. Super.

2006). Additionally, Cutler’s underlying contention that Appellees did not

expect to pay — and their counsel did not expect to receive payment for —

costs after August 13, 2015, is not supported by the record. See Cutler’s

Brief (First Appeal) at 31. Appellees’ contingency agreement sets forth that

Appellees are “responsible for expenses[,]” which “are those costs which

relate to the investigation and prosecution of your claim[.]” See Appellees’

Exhibit 61. Therefore, Cutler’s argument would fail for this reason as well.

Sixth, Cutler asserts that “[t]he trial court erred in allowing the jury to

consider a claim under the breach of the express warranty as the evidence

did not support such a claim[.]” Cutler’s Brief (Second Appeal) at 19

(unnecessary capitalization and emphasis omitted).14 It argues that “[i]t

____________________________________________

14

“When reviewing the sufficiency of the evidence, this Court must

determine whether the evidence and all reasonable inferences therefrom,

viewed in the light most favorable to the verdict winner, was sufficient to

enable the factfinder to find against the losing party.” Bannar v. Miller,

701 A.2d 232, 238 (Pa. Super. 1997) (citation omitted). We note that, “[a]

(Footnote Continued Next Page)

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was error of law to allow the Jury to consider … Appellees’ Claim under

Breach of Express Warranty” because “[i]t had been made clear at [t]rial,

through the entry of the Warranty into evidence, and through testimony,

that the Warranty had expired well before any complaints were made by …

Appellees.” Id. at 20. To support its argument, Cutler elaborates:

[] Appellees made settlement on the home in question on

October 1, 2002. The Warranty is dated October 1, 2002, and it

was executed by the parties on the date of settlement. The

Warranty specifically states that “Seller warrants said premises

to be free of structural or mechanical defects for a period of one

year from the date of settlement.”[15] Appellee … Krishan

testified to the same during his direct testimony at trial. The

Warranty further states that[,] “During the second year after

_______________________

(Footnote Continued)

challenge to the sufficiency of the evidence in a civil case is reviewed on

appeal as a claim that the trial court erred in denying a motion for judgment

notwithstanding the verdict….” Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552,

557 (Pa. Super. 2006) (citations omitted).

15

For context, this paragraph — referred to as “Paragraph 1” — states:

1. Seller shall assign to the Buyer all manufacturer’s guarantees

and service warranties held by Seller, including but not

limited to Roof, Plumbing, Heating, and Air Conditioning, and

kitchen appliances. Seller warrants said premises to be free

of structural or mechanical defects for a period of one (1)

year from the date of settlement, and Seller shall be

responsible for the correction of such defects found at the

premises during said one (1) year period, and shall act with

reasonable promptness to repair, reconstruct or otherwise

correct at Seller’s sole discretion such defects upon receipt of

notice in writing from Buyer of any such structural or

mechanical defects, and after Seller inspects same at said

premises.

Appellees’ Exhibit 10.

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commencement date, the builder continues to warrant that the

home will be free from major construction defects and that the

plumbing, electrical, heating and cooling systems will perform

according to the approved standards, unless their failure is the

result of a defect in an appliance, fixture, or item of

equipment.”[16] Again, Appellee [Krishnan] testified to the same

during his direct examination. Apellee [sic] … Krishnan testified

that he was aware that the stucco application is warranted for

one year.

The Warranty further warrants that … “In addition, seller

specifically warrants as follows, but not in limitation of

the general warranty stated above: (a), Your home has

been constructed in accordance with the accepted home

building practices of this locality and prior to delivery has

been inspected by our trained personnel as well as the

building inspector.”[17] There is no language extending this

warranty.

Appellee [Krishnan] further testified that “the first leak that we

saw that concerned us was in 2005.” At that time[, Appellees]

experienced leaks in the windows and powder room. There is no

____________________________________________

16

This portion, referred to as “Paragraph 2,” sets forth:

2. Coverage During Second Year. During the second year after

the commencement date, the Builder continues to warrant

that the home will be free from major construction defects

and that the plumbing, electrical, heating and cooling systems

will perform according to the Approved Standards, unless

their failure is the result of a defect in an appliance, fixture,

or item of equipment. A major construction defect is actual

damage to the load-bearing portion of the home (including

damage due to subsidence, expansion, or lateral movement

of soil from causes other than flood or earthquake) which

affects its load-bearing function and which vitally affects (or is

imminently likely to produce a vital effect on) the use of the

home for residential purposes.

Appellees’ Exhibit 10 (emphasis in original).

17

This provision is referred to as “Paragraph 3(a).”

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evidence that any water infiltration occurred prior to 2005.

[Appellees] did not provide any proof that the warranty extended

past the proscribed [sic] obvious one year coverage.

Id. at 16-17 (internal citations omitted; emphasis added). Based on the

foregoing, Cutler contends that “[t]he Express Warranty had expired by two

years when … Appellees raised complaints to [Cutler]. There was nothing

presented to show that the Warranty was extended past the given one or

two years, proscribed [sic] within the four corners of the Warranty.” Id. at

20.

In response, Appellees argue that Paragraph 3(a) of the Warranty,

quoted above, is not limited in time or scope. See Appellees’ Brief (Second

Appeal) at 28. We agree. Appellees aptly discern:

The introductory language—“In addition, seller specifically

warrants as follows, but not in limitation of the general

warranty stated above”—establishes that the representations

and warranties set forth in Paragraph 3 are separate and distinct

from, and “in addition” to, those representations and warranties

included in Paragraphs 1 and 2. Thus, the representations and

warranties in Paragraph 3(a) are not dependent upon or limited

by those in the two preceding paragraphs. Further, the plain

language of Paragraph 3(a) does not temporally limit the

representations and warranties therein. Thus, the trial court

correctly held that Cutler did not temporally limit the

representations and warranties in Paragraph 3(a).13 Holding

otherwise would have required the trial court to read additional

language into the Warranty….

13

The fact that Paragraph 3(a) is not temporally limited is

logical because, unlike some other paragraphs of the

Warranty, which warrant against the failure of certain

systems in the Home for a specific period of time,

Paragraph 3(a) warrants that the Home was built as it

should have been—i.e., in accordance with applicable

standards and codes.

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Id. at 29 (internal citations; emphasis in original). In light of the language

in Paragraph 3(a), we determine that there was evidence to support

Appellees’ breach of express warranty claim. Cutler warranted that

Appellees’ home had been constructed in accordance with the accepted

home building practices of their locality and was inspected by Cutler’s

trained personnel as well as the building inspector before delivery to

Appellees. Despite Cutler’s contentions, the language of Paragraph 3(a)

simply does not reflect that this warranty was limited to one or two years,

and had expired. As a result, the trial court did not err in instructing the

jury on the breach of express warranty claim.

Seventh, Cutler relatedly maintains that “the trial court erred by

refusing to grant a new trial because the jury’s verdict under the breach of

express warranty claim was against the weight of the evidence presented at

trial[.]” Cutler’s Brief (Second Appeal) at 16 (emphasis and unnecessary

capitalization omitted). Cutler contends that “[i]n the matter at hand the

evidence is not conflicting, … Appellees admitted that the Warranty executed

on October 1, 2002, was a limited warranty, and specified that it covers

periods of one (1) year, or two (2) years dependent upon the defect.” Id. at

17. Thus, according to Cutler, “[t]he facts and evidence are clear that the

warranty had expired before there were any issues with the home. … The

stucco was clearly warranted for only one year.” Id. at 18. Consequently,

Cutler claims that “[t]he Jury’s verdict was clearly against the weight of the

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evidence as no warranty existed at the time … Appellees experienced any

water infiltration in their home.” Id.

Initially, we note that “[t]his Court’s review of a weight claim is a

review of the trial court’s exercise of discretion, not of the underlying

question of whether we believe that the verdict is against the weight of the

evidence.” Alwine v. Sugar Creek Rest, Inc., 883 A.2d 605, 611 (Pa.

Super. 2005) (citation and internal quotation marks omitted). Moreover,

“[a] new trial will be granted on the basis that the jury’s verdict is against

the weight of the evidence only when the verdict is so contrary to the

evidence as to shock one’s sense of justice. In reviewing the trial court’s

refusal to grant a new trial on this basis, this Court reviews all of the

evidence.” Id. (citations omitted).

The crux of Cutler’s weight argument is that no warranty existed at the

time water infiltrated Appellees’ home in 2005. However, as explained

above, we agree with Appellees that “the representations and warranties in

Paragraph 3(a) were unlimited in time.” Appellees’ Brief (Second Appeal)

at 31 (emphasis in original). Further, as stated by the trial court, supra,

there was evidence presented that “[d]uring the stucco removal, Mr.

Lukowski documented dozens of violations of standard construction industry

practice and the building code applicable to the construction of [Appellees’]

Home….” See TCD at 8 (emphasis added); Appellees’ Brief (Second Appeal)

at 3. Thus, given Paragraph 3(a) and that Appellees’ home had numerous

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violations in contravention of the representations and warranties made by

Cutler, we do not deem the verdict to be so contrary to the evidence as to

shock one’s sense of justice. See Alwine, 883 A.2d at 611.

Eighth, Cutler insists that “[t]he court erred in allowing the jury to

consider a claim under the breach of implied warranty of habitability and

breach of implied warranty of workmanlike construction as the evidence did

not support the claim[.]” Cutler’s Brief (Second Appeal) at 24 (unnecessary

capitalization and emphasis omitted).18 Cutler advances two arguments to

support this claim: first, it states that “Appellees failed to plead or adduce

facts that any of the alleged defects rendered their home unfit to live in”;

and, second, that “the Agreement of Sale and Express Warranty provided to

… Appellees clearly limited any other warranty, specifically implied

warranties. … [T]he implied warranties were only covered for a one year

period.” Id. at 21, 22, 24 (citations omitted). We find both of these

contentions to be unpersuasive.

With respect to whether Appellees’ home was habitable, Cutler’s main

argument is that “[t]here was simply no evidence provided at trial that …

Appellees[’] home, either as constructed or after the alleged defects were

____________________________________________

18

We restate that “[w]hen reviewing the sufficiency of the evidence, this

Court must determine whether the evidence and all reasonable inferences

therefrom, viewed in the light most favorable to the verdict winner, was

sufficient to enable the factfinder to find against the losing party.” Bannar,

701 A.2d at 238 (citation omitted).

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discovered, was uninhabitable. [] Appellees never claimed or adduced facts

that the home could not be inhabited, and in fact, they resided in the[]

home full[-]time since making settlement.” Id. at 23. Yet, Cutler proffers

very little authority in support of its contention that if Appellees were able to

live in their home, the implied warranty of habitability was not breached.

This Court has previously discussed the warranty of habitability:

The implied warranty of habitability is a warranty based in a

contract for the sale of a home. See Tyus v. Resta, [476 A.2d

427, 431 (Pa. Super. 1984)]. This implied warranty was first

recognized in Pennsylvania in Elderkin v. Gaster, … 288 A.2d

771 ([Pa.] 1972). In Elderkin the Pennsylvania Supreme Court

recognized that as warranties were rarely given in home

construction contracts, and there was a wide disparity in

knowledge between the buyer and the seller, a theory of implied

warranties was necessary to safeguard the reasonable

expectations of the buyer. The Court reasoned:

One who purchases a development home ... justifiably

relies upon the skill of the developer that the house will be

a suitable living unit ...[.] The builder-vendor impliedly

warrants that the home he has built and is selling is

constructed in a reasonably workmanlike manner and that

it is fit for the purposes intended—habitation.

Id. at … 776. Warranties of habitability and reasonable

workmanship are not created by representations of the builder-

vendor but rather are implied in law and as such exist

independent of any representations of a builder-vendor. See

Tyus[,] 476 A.2d at 433.

Ecksel v. Orleans Const. Co., 519 A.2d 1021, 1026 (Pa. Super. 1987).

In Ecksel, the builder-vendor argued that the trial court “erred in

finding that a leaky basement breached the warranty of habitability.” Id. at

1026. However, this Court upheld the trial court’s decision, explaining:

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A house is a shelter. The whole purpose of building shelter

is to protect individuals and their property from the

elements—wind, water, fire, earth, etc. A basement is

part of the overall pursuit of this protection. The

[homeowner] proved that the basement cannot be used

even for storage. A continually wet basement indicated

the owner of the resident [sic] may not rely on a part of

that residence to protect individuals from at least one of

the elements—water. The purpose of building a house is

undone by the [builder-vendor’s] improper construction

created [sic] a premises unfit for human dwelling.

Additionally, there is precedent to uphold such a finding. In

Tyus … this Court upheld a lower court finding that a leaky

crawlspace breached the warranty of habitability. We will not

overturn the lower court’s determination that the leaky

basement in this case breached both the implied

warranties of habitability and reasonable workmanship.

Ecksel, 519 A.2d at 1026-27 (citations omitted; emphasis added). See

also Davis v. Northridge Development Associates, 622 A.2d 381, 387

(Pa. Super. 1993) (determining that implied warranty of habitability was not

met where the residence had “a cracked and leaking foundation”).

Here, Appellees reasonably explain:

[T]he construction defects that [Appellees] alleged in their

Complaint and ultimately established at trial are far more serious

than the conditions found to constitute breaches of the [i]mplied

[w]arranties in Ecksel, Davis, and Tyus. Cutler’s own agent,

Mr. McCarty, told [Appellee] Krishnan the walls in the Home

were “like butter” and areas of the Home were “clearly rotten.”

[Appellees] had to use buckets to hold falling water in various

rooms of the Home and several walls became discolored due to

water infiltration. The interior walls of [Appellees’] Home were

so wet that mushrooms sprouted.

Moreover, Mr. Lukowski documented substantial damage to OSB,

framing elements, insulation, and other components of the

Home. He observed massive holes, rotten insulation, OSB

resembling “mulch,” and toxic molds. In fact, Mr. Lukowski

documented significant damage resulting from water infiltration

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on every elevation of the Home. [Appellees] incurred

$85,980.94 in costs investigating and remediating the Home—

costs far below the amount Cutler characterized as the “best

price” for such substantial work.

The above evidence supported a finding that the defects at issue

seriously detracted from the value of the Home and cost

[Appellees] nearly $100,000.00 to investigate and correct.

Thus, the jury could certainly conclude that Cutler breached the

Implied Warranties.

Appellees’ Brief (Second Appeal) at 33-34 (internal citations omitted;

emphasis in original). We agree with Appellees that the water infiltration

supported their claim for breach of implied warranties, even though

Appellees continued living in the home.

Next, to show that the trial court erred in instructing the jury on the

issue of breach of implied warranties due to insufficient evidence, Cutler

avers that the implied warranties of habitability and workmanlike

construction “had expired when … Appellees raised complaints to …

[Cutler].” Cutler’s Brief (Second Appeal) at 25. It states:

[T]he Agreement of Sale and Express Warranty provided to …

Appellees clearly limited any other warranty, specifically implied

warranties. The clear and unambiguous language of the Express

Warranty states, “Implied warranties of the builder will last only

as long as the term of this written warranty.” The Express

Warranty … is limited to a one (1) year term. [] Appellees

signed and executed the Express Warranty. It follows that the

implied warranties were only covered for a one year period.

Id. at 22 (internal citations omitted).

But, in limiting implied warranties, this Court has previously instructed

that,

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[b]ecause of the special knowledge of the builder-vendor in a

home construction situation, language purportedly creating an

express restriction or exclusion of an implied warranty must be

strictly construed against the builder-vendor. Additionally, due

to the important consumer interests protected by an implied

warranty, any attempt to disclaim such a warranty must be clear

and unambiguous. The language must also be specific and

particular to the legal rights the buyer is waiving and

their relation to their effect on specifically designated

potential latent defects. Evidence that the parties actually

negotiated the release will tend to indicate that the purchaser

made a knowing waiver of his or her rights.

Ecksel, 519 A.2d at 1025 (internal citations omitted; emphasis added).19

As Appellees observe, “the language in the Warranty does not mention

‘habitability’ or ‘reasonable workmanship.’ It simply uses the generic term

‘implied warranties.’ Thus, the language did not provide [Appellees] with

adequate notice of the specific implied warranty protections they were

purportedly waiving by signing the Warranty.” Appellees’ Brief (Second

Appeal) at 35 (citations omitted). Furthermore, Appellees point out that

“the Warranty is silent on potential defects,” and that “the supposed

‘limiting’ language in the Warranty was not negotiated by the parties; it was

part of Cutler’s boilerplate Warranty.” Id. Due to these deficiencies, we

cannot conclude that the implied warranties of habitability and reasonable

____________________________________________

19

See also Pontiere v. James Dinert, Inc., 627 A.2d 1204, 1206 (Pa.

Super. 1993) (“[A] builder-vendor may not exclude the implied warranty of

habitability absent ‘particular’ language which is designed to put the buyer

on notice of the rights he is waiving. There is nothing particular about the

contract language involved in this case. Indeed, it makes no reference at all

to the warranty of ‘habitability,’ referring only to the warranties of

merchantability and fitness for a particular purpose.”).

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workmanship were properly limited and, as a consequence, had expired. As

such, we discern no error on these grounds.

Ninth, Cutler claims that “[t]he trial court erred by refusing to grant a

new trial because the jury’s verdict under the breach of implied warranty of

habitability and implied warranty of workmanlike construction claims was

against the weight of the evidence presented at trial[.]” Cutler’s Brief

(Second Appeal) at 21 (unnecessary capitalization and emphasis omitted).

Cutler states that the verdict was against the weight of the evidence for the

same reasons discussed above: Appellees resided in the home full time since

making settlement, and “[n]o terms extended any part of the Implied

Warranties beyond the agreed upon one year provision within the Express

Warranty….” Id. at 23. Again, for the reasons stated above, we do not

conclude that the verdict is so contrary to the evidence as to shock one’s

sense of justice, see Alwine, 883 A.2d at 611, as the extensive water

infiltration made Appellees’ house uninhabitable and the implied warranties

had not expired.

Tenth, Cutler claims that the trial court “erred in finding that [Cutler]

violated the [UTPCPL] by breaching the express warranty[.]” Cutler’s Brief

(Second Appeal) at 27 (unnecessary capitalization and emphasis omitted).20

____________________________________________

20

Once again, “[w]hen reviewing the sufficiency of the evidence, this Court

must determine whether the evidence and all reasonable inferences

therefrom, viewed in the light most favorable to the verdict winner, was

(Footnote Continued Next Page)

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Cutler explains that, following the two-day bench trial on Appellees’ claims

for violations of the UTPCPL, the trial court “found that [Cutler] breached the

UTPCPL by failing to honor the written Warranty.” Id. (citation omitted).

According to Cutler, the trial court erred in this finding because “the Express

Warranty on which the Claims were based had expired at least two years

before Appellees had any alleged issues.” Id. It reiterates that “[n]o

alleged issues presented until 2005, over three years after … Appellees

purchased their home. The Express Warranty clearly and unambiguously

limits the warranties made within to one (1) year.” Id. at 31 (citations

omitted). For the reasons already addressed above, we deem that this

argument is meritless, as Paragraph 3(a) of the Warranty was not limited in

time.

Eleventh, Cutler argues that the trial court committed an error of law

and abused its discretion in refusing to dismiss Appellees’ claims under the

UTPCPL because their claim was barred under the statute of limitations. See

Cutler’s Brief (Second Appeal) at 5, 27-29. Cutler maintains that the statute

of limitations on a claim under the UTPCPL is six years, which Appellees do

not dispute. See id. at 27-28; Appellees’ Brief (Second Appeal) at 37-38.

The issue, therefore, is when the six-year statute of limitations began to run.

_______________________

(Footnote Continued)

sufficient to enable the factfinder to find against the losing party.” Bannar,

701 A.2d at 238 (citation omitted).

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Without offering any specific authority in support, Cutler claims that

“the Statute of Limitations began to run at the time that [Appellees]

allegedly sustained the required ‘ascertainable loss’ under the UTPCPL.”

Cutler’s Brief (Second Appeal) at 28. Consequently, Cutler advances that

“the date of the settlement on [Appellees’] home, October 1, 2002[,] was

the date that the Statute of Limitations began to run. Furthermore, the

[trial court] held that the breach occurred in 2002 when [Cutler] presented

Appellees with the warranty and warranted that the home was built in

accordance with accepted home building practices[,]” which the trial court

found to be “false.” Id. at 28-29. Because Appellees did not commence this

action until March 1, 2012, Cutler says that their claims are barred. Id. at

29. Moreover, Cutler states that “even if we assume, en arguendo, that the

Statute of Limitations did not begin to run until [Appellees] first noticed an

issue with water leaking, which was May 5, 2005, Appellees’ claim under the

UTPCPL would still be time barred.” Id. Again, we disagree.

Under the UTPCPL, “unfair or deceptive acts or practices” include the

following, which are also at issue in this case:

(vii) Representing that goods or services are of a particular

standard, quality or grade, or that goods are of a particular style

or model, if they are of another;

…

(xiv) Failing to comply with the terms of any written guarantee

or warranty given to the buyer at, prior to or after a contract for

the purchase of goods or services is made;

…

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(xxi) Engaging in any other fraudulent or deceptive conduct

which creates a likelihood of confusion or of misunderstanding.

73 P.S. § 201-2(4)(vii), (xiv), (xxi). As the trial court recognized, “[a]ny

failure by [Cutler] to honor its written warranty by necessity occurred after

the settlement date. It is the failure to honor the warranty, not necessarily

the issuance of the warranty that triggers liability and generates a UTPCPL

claim.” TCD at 13 (emphasis in original). Thus, the trial court explained

that “[i]t wasn’t until [Appellees] and Cutler learned of the water infiltration

caused by the construction failures, [Cutler] failed to search for and solve

the problem[,] and refused to abide by its warranty that the violation

occurred and the claim arose. Those events occurred no earlier than 2010.”

Id. at 13-14. Accordingly, we concur with the trial court that Appellees’

claims are not barred by the statute of limitations.

Twelfth, Cutler contends that the trial court committed an error of law

and abused its discretion “in finding that [Cutler] violated the [UTPCPL]

when [Appellees] should not have been permitted to show reliance outside

of the agreement of sale under the parol[] evidence rule[.]” See Cutler’s

Brief (Second Appeal) at 5, 30-31 (unnecessary emphasis and capitalization

omitted). It states that “[t]he parol[] evidence rule functions in

Pennsylvania to bar the introduction of evidence concerning alleged prior

misrepresentations when a writing is adopted by the parties as the final and

complete expression of their agreement.” Id. at 30. Therefore, Cutler

claims that “[t]he integration clause … precludes Appellees from

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demonstrating the requisite element of reliance necessary to sustain a cause

of action for violation of the UTPCPL.” Id. Additionally, Cutler says that

“Appellees[’] allegations and testimony that [Cutler] violated the UTPCPL by

making any representations outside of the Agreement of Sale cannot prove

said claim.” Id.

We recognize that a plaintiff must show, inter alia, justifiable reliance

on the defendant’s wrongful conduct to bring a private cause of action under

the UTPCPL. See Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d

425, 438 (Pa. 2004) (“To bring a private cause of action under the UTPCPL,

a plaintiff must show that he justifiably relied on the defendant’s wrongful

conduct or representation and that he suffered harm as a result of that

reliance.”) (citations omitted); Kern v. Lehigh Valley Hosp., Inc., 108

A.3d 1281, 1289-90 (Pa. Super. 2015) (“[J]ustifiable reliance is an element

of private actions under Section 201–9.2 of the UTPCPL. As such, [the

a]ppellant had to demonstrate that he … justifiably relied on [the a]ppellee’s

alleged violations of the UTPCPL and, as a result of those alleged violations,

suffered an ascertainable loss.”). Nevertheless, we believe that Cutler’s

argument invoking the parol evidence rule is misplaced.

Our Supreme Court has previously described the parol evidence rule as

follows:

Where the parties, without any fraud or mistake, have

deliberately put their engagements in writing, the law

declares the writing to be not only the best, but the only,

evidence of their agreement. All preliminary

negotiations, conversations and verbal agreements

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are merged in and superseded by the subsequent

written contract ... and unless fraud, accident or mistake

be averred, the writing constitutes the agreement between

the parties, and its terms and agreements cannot be

added to nor subtracted from by parol evidence.

Therefore, for the parol evidence rule to apply, there must be a

writing that represents the “entire contract between the parties.”

To determine whether or not a writing is the parties’ entire

contract, the writing must be looked at and “if it appears to be a

contract complete within itself, couched in such terms as import

a complete legal obligation without any uncertainty as to the

object or extent of the [parties’] engagement, it is conclusively

presumed that [the writing represents] the whole engagement of

the parties....” An integration clause which states that a writing

is meant to represent the parties’ entire agreement is also a

clear sign that the writing is meant to be just that and thereby

expresses all of the parties’ negotiations, conversations, and

agreements made prior to its execution.

Once a writing is determined to be the parties’ entire

contract, the parol evidence rule applies and evidence of

any previous oral or written negotiations or agreements

involving the same subject matter as the contract is

almost always inadmissible to explain or vary the terms of

the contract. One exception to this general rule is that parol

evidence may be introduced to vary a writing meant to be the

parties’ entire contract where a party avers that a term was

omitted from the contract because of fraud, accident, or

mistake. In addition, where a term in the parties’ contract is

ambiguous, “parol evidence is admissible to explain or clarify or

resolve the ambiguity, irrespective of whether the ambiguity is

created by the language of the instrument or by extrinsic or

collateral circumstances.”

Yocca, 854 A.2d at 436-37 (internal citations, brackets in original, and

footnote omitted; emphasis added).

In the case sub judice, the trial court rejected Cutler’s argument

because — as our Supreme Court discussed in Yocca — the parol evidence

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rule applies only to previous negotiations, conversations and verbal

agreements. It opined:

[Cutler] … argues that the integration clause in [Appellees’]

Agreement of Sale prevents [Appellees] from establishing

justifiable reliance required for a successful UTPCPL [claim]

because they cannot rely on any representations made by

[Cutler] before execution of the Agreement of Sale. Although

that may be true, this princip[le] is not applicable to [Appellees’]

UTPCPL claims. The UTPCPL violations committed by [Cutler] as

alleged by [Appellees] arose at various times at or following

settlement on their home. It is this distinction that [Cutler’s]

argument regarding the parol evidence rule overlooks.

[Appellees] are not relying on oral representations or statements

made before or at the time of the Agreement of Sale or in

promotional materials or the like. Rather, they are asserting a

claim based upon a written warranty that was expressly

referenced in the Agreement of Sale, executed by [Appellees]

and presented to them thereafter. [Appellees] justifiably relied

on Cutler’s written representations and warranties that their

home had been built according to applicable standards and

properly inspected prior to settlement. It had not been so

constructed when [Appellees] executed the written Warranty on

October 1, 2002[,] and Cutler knew it. [Appellee] Krishnan

testified that the warranty was important to him as was the

building of a quality, well-constructed home. It was clear to the

court from the testimony of [Appellees], which it found credible,

that they relied upon Cutler’s assurances that it would honor its

warranty, investigate their reported problems, solve the water

problem[,] and repair their home to bring it in accordance with

the Warranty. This proved not to be the case. Rather than

investigate the source of [Appellees’] water infiltration, [Cutler]

simply engaged in a superficial “repair” of [Appellees’] windows.

All of this conduct engaged in by Cutler resulted in water

damage to [Appellees’] home and later an exacerbation of that

problem when Cutler undertook a series of so-called repairs that

it knew would be futile in preventing additional water infiltration.

Although Cutler presented the court with expert testimony on its

behalf, the court found more credible the testimony of

[Appellees’] expert Mr. Lukowski. He testified that the cause of

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the water intrusion, included among other things, the non-

compliant thin stucco applied to [Appellees’] Home. [Appellees]

have demonstrated to the court’s satisfaction the reliance and

causal connection necessary to recover on their UTPCPL claims.

TCD at 21-22 (internal citation omitted). As such, because Appellees’ claims

are based on a written warranty clearly referenced in the sale agreement

and presented to them thereafter — as well as on Cutler’s failure to honor

the warranty following settlement — we likewise conclude that the parol

evidence rule did not bar Appellees from demonstrating reliance in this case.

Thirteenth, Cutler alleges that “[t]he lower court erred in finding that

[Appellees] proved justifiable reliance sufficient to show a violation of the

[UTPCPL.]” Cutler’s Brief (Second Appeal) at 32 (unnecessary capitalization

and emphasis omitted). As addressed above, “[t]o bring a private cause of

action under the UTPCPL, a plaintiff must show that he justifiably relied on

the defendant’s wrongful conduct or representation and that he suffered

harm as a result of that reliance.” See Yocca, 854 A.2d at 438. Here,

Cutler alleges that “Appellees did not prove that they justifiably relied upon

the Warranty, either in making the purchase or while [Cutler] was

performing work on the house after the water infiltration began.” Cutler’s

Brief (Second Appeal) at 35. Specifically, it argues:

In the matter at hand[,] the [l]ower [c]ourt found that …

Appellees justifiably relied upon [Cutler’s] actionable conduct.

However, [Appellee] Krishnan testified only that it was important

to him that the home was built by a builder who was standing

behind his work and that warranty was important to them.

Although [Appellee] Krishnan does not recall when he received

the Warranty, or when he first read it, he believes it was part of

a pre-settlement packet.

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Significantly[,] Appellees contend[,] and the [l]ower [c]ourt

found[,] that [Cutler] made representations in the warranty. []

Appellees signed the sale [agreement] on August 24, 2002.

However, Appellee [Krishnan] clearly testified that he did not

recall receiving the warranty, and that it may have been in a

pre[-]settlement packet. Accordingly[,] Appellees could not

have read the warranty prior to purchasing the home, and

therefore they could not have relied on any representations

contained therein.

He also stated that he assumed, that [Cutler] was making the

early repairs under the warranty. There is no testimony or

evidence that the repairs or alleged representations made

regarding repairs were done under or through the written

Warranty. More importantly[,] Appellees did not present any

evidence that [Cutler] made representations that the work was

being done under the warranty or that it was covered by the

warranty. Therefore, there is no evidence that … Appellees had

a justifiable belief that the repairs were being made under the

written warranty. They merely assumed it was such. No

representations were made by [Cutler] or any employee thereof

that the repairs were being made under the warranty and

therefore … Appellees could not have relied on any such

representations. An assumption is not proof, and there was no

evidence presented that any representations were made which

would lead … Appellees to believe the work was being done

pursuant to the written [w]arranty.

Id. at 33-34 (internal citations omitted; emphasis in original).

Our review of the trial transcript reveals that Appellee Krishnan

testified to the following:

[Appellees’ Attorney:] Okay. I’m going to turn your attention to

Exhibit 9 in the binder. Can you identify this document?

[Appellee Krishnan:] Yes. So this appears – this seems to be the

Homeowner Guide to Warranties and Maintenance. …

[Appellees’ Attorney:] So this is just the Homeowners Guide to

Warranties and Maintenance, before the actual signed warranty,

correct?

[Appellee Krishnan:] Yes.

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[Appellees’ Attorney:] Just turning your attention to Page 2 in

your binder, did you have an opportunity to read this prior to

closing?

[Appellee Krishnan:] Yes.

[Appellees’ Attorney:] And you considered all the things that

were in here before moving forward with the transaction,

correct?

[Appellee Krishnan:] Yes, we did.

[Appellees’ Attorney:] Okay. Just turning your attention to that

second paragraph right there where it says, “Your home has

been constructed by skilled tradesmen using both modern

methods and materials”; do you see that?

[Appellee Krishnan:] Yes, I do.

[Appellees’ Attorney:] And it says, “However, no matter how

careful we try to be, when dealing with the human element,

there are bound to be some oversights”; do you see that,

correct?

[Appellee Krishnan:] Yes. …

[Appellees’ Attorney:] What is it that you understood to be

represented to you when you read this document?

[Appellee Krishnan:] That … Cutler has skilled people and

experienced people who are building the house, and that there

might be some issues, but mostly caused by human error.

[Appellees’ Attorney:] Turning now to the next exhibit in your

binder, which would be [Appellees’] Exhibit 10. Could you

identify this document for the jury?

[Appellee Krishnan:] Yes. This is labeled as the Home Warranty

Agreement – Limited Warranty, Home Warranty Agreement.

[Appellees’ Attorney:] And this was given to you as part tof [sic]

that homeowners and maintenance package that I just showed

you in [Appellees’] Exhibit 9, correct?

[Appellee Krishnan:] Yes.

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[Appellees’ Attorney:] So the two of them together really should

be just one document that you received at the same time?

[Appellee Krishnan:] Yes.

[Appellees’ Attorney:] And you received this prior to settlement?

[Appellee Krishnan:] Yes.

[Appellees’ Attorney:] And you reviewed this document prior to

settlement?

[Appellee Krishnan:] Yes.

[Appellees’ Attorney:] Is that your signature in the middle of the

page --

[Appellee Krishnan:] Yes.

[Appellees’ Attorney:] – on the right-hand side writ [sic] says

purchasers?

[Appellee Krishnan:] Correct.

[Appellees’ Attorney:] Okay. And what you did [sic] understand

this document was doing when you looked at it?

[Appellee Krishnan:] This was giving specifics of the warranty

that’s there, and really that it’s part of the sale for the house. …

[Appellees’ Attorney:] Referring to Paragraph 3, “In addition,

seller specifically warrants as follows, but not in limitation of the

general warranty stated above: (a), Your home has been

constructed in accordance with the accepted home building

practice of this locality and prior to delivery has been inspected

by our trained personnel as well as the building inspector,” do

you see that?

[Appellee Krishnan:] Yes, I see that.

[Appellees’ Attorney:] And what is it that you understood

Cutler was guaranteeing in that portion?

[Appellee Krishnan:] That they would build a quality home,

that they are following the building norms that are there,

they are following the building codes, and they are doing

what they have to do.

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[Appellees’ Attorney:] Did you rely upon these

representations in this warranty before purchasing your

home?

[Appellee Krishnan:] Yes. We really wanted to buy from a

builder who was standing behind his work, and I think

this is what we expected, and the fact that we had such a

warranty was important to us in making the decision to

buy the house.

N.T. Jury Trial, 12/7/2015, at 61-66 (emphasis added). Furthermore, with

respect to Cutler’s response to the water infiltration in Appellees’ home,

Appellee Krishnan testified:

[Appellees’ Attorney:] What action did you take – what, if any,

action did you take as a result of experiencing the water

infiltration in 2006?

[Appellee Krishnan:] We called up the service department of

Cutler and they sent somebody to repair the issues. …

[Appellees’ Attorney:] Do you have any understanding as to

what Cutler did when they were there?

[Appellee Krishnan:] We didn’t, again, receive something that

was in writing, but we were left with the assurance that

they had come in and fixed everything.

[Appellees’ Attorney:] Okay. Now, in 2005 and 2006, both times

after Cutler sent its service technicians to perform their work,

did you perform any individual inspections on your own?

[Appellee Krishnan:] No, no, because we relied on Cutler’s

competence and they had their people to come in and fix

it…. They have built houses, 6,000 houses, they have been

building houses for many, many years, and so my assumption

was that they knew what they were doing and when they will

come in and fix something, then it was fixed.

***

[Appellees’ Attorney:] And what, if anything, did you do in

response to observing this leaking in 2010?

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[Appellee Krishnan:] So we did the usual step of calling Mr.

Cutler’s service defendant [sic].

[Appellees’ Attorney:] And what was the response that you

received?

[Appellee Krishnan:] This time we are told that it was not their

problem, that they – actually, I think they spoke to my wife and

said contact the roofing company.

[Appellees’ Attorney:] Did they indicate – let me take you back

for a moment. When they performed their repairs in 2005

and 2006, did they charge you anything for that?

[Appellee Krishnan:] No.

[Appellees’ Attorney:] Did they indicate whether that was

under the warranty service?

[Appellee Krishnan:] That is what we assumed, and that’s

why we always called them, because that was the house

that they built.

***

[Appellees’ Attorney:] Okay. And I believe you testified

yesterday that in 2005 and 2006 Cutler came to repair the

house?

[Appellee Krishnan:] Correct.

[Appellees’ Attorney:] And that you relied upon those

repairs?

[Appellee Krishnan:] Exactly, exactly. Because we had the

problems and then Cutler’s service department came and

repaired it, and we were led to believe that they had fixed

the problems of the leak.

[Appellees’ Attorney:] When did Cutler tell you that your

home was out of warranty and that they wouldn’t be

making any repairs?

[Appellee Krishnan:] I think the first time they mentioned

that was in February, March of 2010, when we called

them. And that’s when they gave us the name of the

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roofing company and said you should go and talk to them,

but that there was no more warranty on the house.

[Appellees’ Attorney:] And did Mr. McCarty come to your house

after that on behalf of Cutler?

[Appellee Krishnan:] Correct, they [sic] did.

[Appellees’ Attorney:] And did Mr. Adams – or I should say, did

the representative from Tom Adams come to your house after

that conversation?

[Appellee Krishnan:] Correct.

[Appellees’ Attorney:] And, again, as Mr. Pancio had asked

in his cross-examination, you didn’t pay for any of those

visits, correct?

[Appellee Krishnan:] Correct, we didn’t pay anything.

N.T. Jury Trial, 12/7/2015, at 70, 71-72; N.T. Jury Trial, 12/8/2015, at 24-

25 (emphasis added).

Based on the above testimony, and viewing the evidence in light most

favorable to Appellees as the verdict winner, we consider the evidence

sufficient to support the trial court’s findings that Appellees justifiably relied

on the Warranty in purchasing the home and seeking remediation from

Cutler. See Bannar, 701 A.2d at 238 (citation omitted). With respect to

the home purchase, Appellee Krishnan clearly testified that he reviewed the

Warranty before settlement, and he valued that he was buying a quality

home by which Cutler would stand.21 Moreover, the evidence supports the

____________________________________________

21

Appellees also point out that “the [sale] Agreement, which [Appellees]

signed before receiving the Warranty, allow[ed] [them] to terminate the sale

(Footnote Continued Next Page)

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trial court’s finding that Appellees justifiably relied upon Cutler’s assurances

to remediate their home pursuant to the warranty. See TCD at 22. As

Appellees persuasively remark:

[] Cutler’s argument that the trial court erred in finding that

[Appellees] proved justifiable reliance because [Appellee]

Krishnan only “assumed” that Cutler was making repairs under

the Warranty is nonsensical. Cutler repeatedly made purported

“repairs” to the Home, free of charge, and also repeatedly

assured [Appellees] that Cutler corrected the water infiltration

issue. In fact, [Appellees] communicated directly with Cutler’s

Service Department and, in particular, Cutler’s Warranty

Manager … regarding the “repairs.” In any event, it was not

until February 2010, nearly five years after Cutler performed the

first set of “repairs,” that Cutler refused to perform “repairs,”

telling [Appellees] that it would no longer do so solely because

the Warranty had purportedly expired.

Appellees’ Brief (Second Appeal) at 41-42 (internal citations omitted). We

deem the evidence and all reasonable inferences therefrom, when

viewed in the light most favorable to Appellees, sufficient to enable the trial

court to find that Appellees justifiably thought that Cutler was repairing the

house pursuant to the warranty. See Bannar, 701 A.2d at 238 (citation

omitted). Accordingly, we see no error in the trial court’s findings regarding

justifiable reliance on these grounds.

Fourteenth and fifteenth, Cutler alleges that “the trial court erred in

finding that [Cutler] violated the [UTPCPL] because Appellees did not prove

_______________________

(Footnote Continued)

prior to settlement.” Appellees’ Brief (Second Appeal) at 41 (citation

omitted).

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fraud by clear and convincing evidence[,]” and that Appellees were required

“to establish the common law elements of fraud in order to support their

claims under the [UTPCPL.]” Cutler’s Brief (Second Appeal) at 5, 35

(emphasis and unnecessary capitalization omitted).22,23 Cutler states that

“[t]he Superior Court of Pennsylvania has held that plaintiffs are required to

prove the elements of common law fraud in order to sustain a claim under

the provisions of the UTPCPL[,]” and argues that Appellees “failed to

introduce any evidence to support a finding of common law fraud sufficient

to show [Cutler] violated the UTPCPL.” Id. at 35, 36 (citing Ross v.

Foremost Ins. Co., 998 A.2d 648, 654 (Pa. Super. 2010)).24,25 We believe

this is a misstatement of the law.

____________________________________________

22

We consider these issues together because Cutler briefed them as a single

issue. See Cutler’s Brief (Second Appeal) at 35-39.

23

We note that these issues “involve statutory interpretation, raise a

question of law, and are subject to de novo and plenary review.” Bennett

v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa.

Super. 2012) (citation omitted).

24

This Court has noted that:

To state a claim for common law fraud, the plaintiff must show:

(1) a representation; (2) material to the transaction at issue; (3)

made falsely, with either knowledge or reckless disregard of its

falsity; (4) with the intent to misleading another person or

inducing justifiable reliance; and (5) an injury caused by the

reliance.

Bennett, 40 A.3d at 152 n.5 (citation omitted).

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Cutler advances its position as follows:

[I]n Fazio v. Guardian Life Ins. Co. of Am[erica], … 62 A.3d

396 (Pa. Super. 2012), the Superior Court … held that plaintiffs

are required to prove the common law elements of fraud to

support their UTPCPL claim or alternatively, deceptive conduct

for purposes of stating a catchall UTPCPL claim under the 1996

amendments. Id. Therefore, the Court has stated that plaintiffs

must prove either deceptive conduct under the catchall provision

or prove all of the elements of common law fraud under any

other provision. As the Court has acknowledged, the UTPCPL is

based in fraud, and the Catchall provision was amended to

include the term “deceptive.” According to Fazio, supra, it

follows that the lower burden of deceptive conduct does not

extend to the other provision of the UTPCPL. Id. Logically, if a

violation of a warranty, in and of itself, without the proof of

fraud, is a violation of the UTPCPL all warranties which are

violated could be also brought under the statute. This cannot be

the purpose of the legislature.

Cutler’s Brief (Second Appeal) at 37-38 (some emphasis in original).

To begin, we note that the Fazio Court was considering whether the

appellants in that case had a right to a jury trial on their UTPCPL claims.

Fazio, 62 A.3d at 400. The appellants argued, among other things, that

“even if the UTPCPL does not provide for a jury trial, claims under the

UTPCPL are grounded in common law fraud[,]” and “[b]ecause fraud was a

cause of action that existed at the time the Pennsylvania Constitution was

adopted, … they were entitled to a jury trial.” Id. at 402. In support of this

argument, the appellants relied on Toy v. Metropolitan Life, 928 A.2d 186

_______________________

(Footnote Continued)

25

As discussed further, infra, this Court has previously stated that Ross is

“not binding to the extent [it] purport[s] to interpret the post-amendment

catchall provision of the UTPCPL.” Bennett, 40 A.3d at 155.

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(Pa. 2007), “for the proposition that UTPCPL claims are solely grounded in

common law fraud.” Id. at 409. Relying on Toy, the Fazio Court

commented, in dicta, that the appellants “were required to prove the

common law elements of fraud to support their UTPCPL claim (or

alternatively, deceptive conduct for purposes of stating a catchall UTPCPL

claim under the 1996 amendments)….” Id. at 409-10.

Our Supreme Court’s decision in Toy, however, merely held that “a

plaintiff alleging violations of the Consumer Protection Law must prove the

common law fraud element of justifiable reliance[,]” not all of the

elements of common law fraud. Toy, 928 A.2d at 208 (emphasis added).

In addition, the Fazio Court ultimately concluded that the UTPCPL “did not

merely codify common law claims of fraud. The UTPCPL created a distinct

cause of action for consumer protection. While a plaintiff is required to

prove elements of common law fraud to support certain UTPCPL claims,

he/or she would still have to prove the elements of a consumer-based

transaction or relationship.” Id. at 411.

Moreover, as mentioned, supra, Appellees assert that Cutler violated

the UTPCPL under subsections 201-2(4)(vii) (“Representing that goods or

services are of a particular standard, quality or grade, or that goods are of a

particular style or model, if they are of another”); 201-2(4)(xiv) (“Failing to

comply with the terms of any written guarantee or warranty given to the

buyer at, prior to or after a contract for the purchase of goods or services is

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made); and 201-2(4)(xxi) (“Engaging in any other fraudulent or deceptive

conduct which creates a likelihood of confusion or misunderstanding”), which

is also referred to as the “catchall” provision. This Court has established

that a plaintiff does not need to prove common law fraud to state a claim

under the current catchall provision. See Bennett, 40 A.3d at 154 (“A

contrary reading that adheres to the common law fraud requirement for

cases arising under the post-amendment catchall provision ignores the

textual changes of the 1996 amendment as well as the rules of statutory

construction.”). Furthermore, Cutler has not cited any appellate authority to

support that subsections 201-2(4)(vii) and 201-2(4)(xiv) require Appellees

to prove each of the elements of common law fraud.

Finally, we find compelling the trial court’s observation that:

The UTPCPL defines the failure to comply with a written warranty

as an “unfair method of competition” and “unfair or deceptive act

or practice.” It is not defined as fraudulent conduct. Although

Pennsylvania courts require that the traditional elements of

common law fraud — justifiable reliance and causation — be

components of every UTPCPL claim, the requirement comes not

from the fact that every enumerated act is based in “fraud.”

Rather, the requirement stems from the language of the statute

itself.

As explained by the Superior Court in Kern v. Lehigh Valley

Hosp., 108 A.3d 1281 (Pa. Super. 2015), the “belief the

element of justifiable reliance only is a product of fraudulent

conduct” is incorrect. Rather,

the element of justifiable reliance under the UTPCPL is the

product of both (a) the Legislature’s intent not to do away

with traditional elements of reliance and causation under

the UTPCPL, and (b) the express provision under 201-9.2

that requires a private action plaintiff to prove an

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“ascertainable loss … as a result of the use of

employment by any person of a method, act or practice

declared unlawful” under Section 201-3 of the UTPCPL. 73

P.S. § 201-9.2(a) (emphasis added). The element of

justifiable reliance always was a part of private

actions under the statutory language of the UTPCPL.

Id. at 1289-90.

TCD at 21 (some emphasis added). Based on the foregoing reasons, the

trial court did not commit an error of law in determining that Appellees were

not required to prove all of the elements of common law fraud to support

their UTPCPL claims.

Sixteenth, Cutler purports that “the trial court erred in finding that

[Cutler] had engaged in a practice of deceptive conduct in violation of the

[UTPCPL.]” Cutler’s Brief (Second Appeal) at 39. It states that Appellees

“have not proven that [Cutler’s] actions were deceptive, only that there were

issues present in the home in question. There is no evidence that [Cutler] in

fact knew that the home was not built in accordance to applicable standards,

and that the repairs would not work.” Id. at 40. Cutler explains that it was

“under the belief that the home was inspected by the subcontractors and

that all codes were followed in their individual tasks.” Id.

At the outset, it is unclear to us whether Cutler challenges the

sufficiency of the evidence or the weight of the evidence underlying the trial

court’s finding that its conduct was deceptive. In its statement of the issues,

Cutler frames the question as, “Did the trial court commit an error of law

and abuse its discretion in finding that [Cutler] had engaged in a practice of

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deceptive conduct in violation of the [UTPCPL] when the weight of the

evidence did not support such a finding?” Id. at 6 (unnecessary emphasis

and capitalization omitted). Yet, in the argument section of its brief

addressing this issue, Cutler does not develop a weight of the evidence

argument, but rather seems to present a sufficiency argument. See, e.g.,

id. at 40. Thus, we find this issue is waived. See Lackner, 892 A.2d at 29-

30 (“[A]rguments which are not appropriately developed are waived.”)

(citations omitted).

Nevertheless, even if properly developed, we would still consider

Cutler’s challenges to the sufficiency and weight of the evidence here to be

meritless. The trial court explained why it found that Cutler’s

representations regarding the quality of the home were deceptive:

[Appellees] allege that [Cutler] warranted in October, 2002

that:

 [Appellees’] home was constructed “in accordance

with the accepted home building practice of this

locality”[]; and

 Prior to delivery, [Appellees’] Home was inspected by

trained personnel.[26]

The court finds that when [Cutler] made such representations[,]

the statements were false. At trial, [Appellees’] expert, John

Lukowski, testified credibly that the applicable building code in

effect at the time of construction required a minimum three-coat

application of stucco and 7/8 inch thickness. [Cutler’s] expert

conceded that the 1/2 inch stucco placed on [Appellees’] Home

____________________________________________

26

This is the language set forth in Paragraph 3(a), supra.

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did not meet the requirements of the building code then in

effect.

Cutler’s project supervisor and “quality control manager,” Justin

McCarty, who supervised the construction of [Appellees’] Home,

admitted during his testimony that he had little knowledge in

2002 concerning the proper application of stucco and that he did

not know what constituted correct versus incorrect practice. In

its closing arguments, in an apparent effort to distance itself

from this testimony, [Cutler] suggests that the court should

disregard Mr. McCarty’s concession regarding his lack of

knowledge of applicable stucco standards because Cutler utilized

a stucco subcontractor to construct the Home.

The court disagrees that Mr. McCarty’s testimony is not

significant or worthy of its consideration. Any issue that Cutler

may have with the quality of the work performed by one of its

sub-contractors is between those entities and does not affect

what [Appellees] were guaranteed — a home built in accordance

with applicable building standards. Cutler knew it was not in a

position to make that guarantee or later to honor it for that

matter if it had no knowledge of or understanding regarding

those standards. Without that knowledge, it could not ensure

that its agents acted in accordance therewith.

Similarly, Cutler knew it was not in a position to promise an

inspection by its “trained personnel” if in fact they had no such

personnel. Mr. McCarty testified at both phases of the trial that

neither he nor anyone else at Cutler performed inspections at

the Home to ensure that windows, flashing components, or

stucco were installed correctly. As the trial evidence

demonstrated, any inspection by Cutler’s team was not by

“trained” professionals given Mr. McCarty’s concessions that as

the lead construction supervisor onsite, he had no knowledge

regarding how to properly construct a home with a stucco

façade.

Finally, the fact that East Whiteland Township issued a

Certificate of Occupancy for the Home following its inspections,

upon which [Cutler] relies heavily in its defense, does not

change or diminish the above evidence. It simply indicates to

the court that East Whiteland Township did not uncover the code

violations, not that the violations did not exist in the first place.

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TCD at 14-16 (emphasis in original; internal citations omitted).

Further, the trial court discussed, at length, why it determined that

Cutler knew its subsequent repairs would not work based on the evidence at

trial. See id. at 16-19. The trial court found, inter alia, that Cutler

repeatedly cleaned, caulked, and sealed around windows despite knowing

that similar, previous efforts were ineffective; failed to perform any

additional investigation to determine the cause or extent of the water

infiltration; and neglected to follow through with scheduling repair work. Id.

In sum, the trial court explained:

The above history demonstrates that although Cutler may have

attempted the first time to honor its written warranty to

[Appellees], very soon thereafter it was clear to Cutler that

[Appellees’] water problems were caused by more than just a

defective window and would not be cured with “sealing.”

Although it may be true, as [Cutler] argue[s], that repairs to a

home are not a guaranteed science, it is also true that [Cutler]

guaranteed and warranted a home built in accordance with a

certain standard and when presented with evidence of problems

at [Appellees’] Home[,] it failed to determine if that in fact was

the case. Moreover, once notified of the problems, rather than

comply with the terms of the warranty it issued to [Appellees],

Cutler engaged in a series of ineffective, superficial remedies

which failed to provide [Appellees] with the Home they were

promised – one constructed in accordance with accepted home

building practices in the locality. This refusal to honor its

warranty violated the UTPCPL.

Id. at 19-20. Given the ample evidence presented at trial, we would discern

that the trial court did not err in concluding that Cutler’s conduct was

deceptive.

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Seventeenth, Cutler advances that the trial court “erred in refusing to

grant a mistrial when [Appellees] submitted new evidence, ex parte, after

the conclusion of the trial[.]” Cutler’s Brief (Second Appeal) at 45

(unnecessary emphasis and capitalization omitted). Specifically, Cutler

avers that after the close of evidence in the bench trial on the UTPCPL

claims, “Appellees’ Counsel submitted his Findings of Fact/Conclusions of

Law and attached additional documents marked as Exhibit A and Exhibit B

that were not introduced into evidence during the trial.” Id. at 45-46

(citation and emphasis omitted). Cutler states that the trial court should

have granted a new trial as a result.27

We deem this issue waived as Cutler fails to proffer any authority in

support of its argument. We reiterate that “arguments which are not

appropriately developed are waived[,]” and “[a]rguments not appropriately

developed include those where the party has failed to cite any authority in

support of a contention.” See Lackner, 892 A.2d at 29-30 (citations

omitted).

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27

“Our standard for reviewing a trial court’s denial of a mistrial is abuse of

discretion.” Stapas v. Giant Eagle, Inc., 153 A.3d 353, 367 (Pa. Super.

2016) (citation omitted). See also Commonwealth v. Lease, 703 A.2d

506, 508 (Pa. Super. 1997) (“[T]he remedy of a mistrial is an extreme

one.... It is primarily within the trial court’s discretion to determine whether

[the a]ppellant was prejudiced by the event that forms the substance of the

motion. Finally, it must be remembered that a mistrial is required only when

an incident is of such a nature that its unavoidable effect is to deprive the

appellant of a fair and impartial trial.”) (citation omitted).

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In any event though, it would be unclear to us how the evidence at

issue even affected Cutler, let alone prejudiced it. In its order striking

Exhibits A and B attached to Appellees’ Amended Proposed Findings of Fact

and Conclusions of Law and denying Cutler’s request for a mistrial, the trial

court commented:

This matter was fully and effectively litigated by the parties over

the course of five trial days (three days – jury trial; two days –

bench trial). The court does not see the need for the

introduction of new evidence, whether recently discovered or

otherwise, in order to properly decide [Appellees’] UTPCPL claim.

Moreover, the court has not been, and will not be, influenced by

the new documents attached as exhibits to [Appellees’] post-trial

submissions. Concerns about confusion of the issues, prejudice

and so forth are not present here. The court, having been

responsible for this action for years, is well aware of [Appellees’]

claims and arguments regarding water problems in “other”

homes built by [Cutler] and the significance thereof. Likewise, it

is intimately familiar with [Cutler’s] responses and defenses to

these claims. The court does not see the need to re-visit the

issue yet again.

Trial Court Order, dated 2/3/2016, at 1 n.1 (single page). Thus, we would

conclude that the trial court did not abuse its discretion in denying Cutler’s

request for a mistrial, as Cutler does not demonstrate prejudice.

Eighteenth, Cutler alleges that the trial court “committed an error of

law and abuse of discretion in allowing evidence of water damage in other

homes[.]” Cutler’s Brief (Second Appeal) at 48 (unnecessary capitalization

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and emphasis omitted).28 Cutler argues that “[t]he UTPCPL issues in this

case revolve around the sale of [Appellees’] home. The UTPCPL makes it

clear that private causes of action stem from the transaction in question.”

Id. Thus, according to Cutler, “[a]lleged water infiltration in, or repairs to,

other homes that arose many years after the sale of Appellees’ home could

have no probative value to the issue of whether the UTPCPL was violated in

this case.” Id. at 49. Cutler claims it was prejudiced by the introduction of

such evidence and the trial court erred in denying its motion for post-trial

relief on this basis. Id. at 50.

Conversely, in its July 12, 2016 order denying Cutler’s post-trial

motion, the trial court explained:

In addressing [Cutler’s] pre-trial challenge to the introduction of

evidence of “other water damage,” the court in its Order dated

January 6, 2016, wrote:

This disputed evidence is also relevant to the issue of

damages under the UTPCPL. The manner in which [Cutler]

may or may not have deceived or misled [Appellees] will

be relevant if the court finds liability on the part of

[Cutler]. Although the Supreme Court has rejected the

use of a punitive damages standard to determine whether

treble damages are warranted, it has recognized that

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28

“When we review a trial court’s ruling on admission of evidence, we must

acknowledge that decisions on admissibility are within the sound discretion

of the trial court and will not be overturned absent an abuse of discretion or

misapplication of law.” Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa.

Super. 2010) (citation omitted). Further, “for a ruling on evidence to

constitute reversible error, it must have been harmful or prejudicial to the

complaining party. A party suffers prejudice when the trial court’s error

could have affected the verdict.” Id. (citations omitted).

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“courts of original jurisdiction should focus on the presence

of intentional or reckless, wrongful conduct, as to which an

award of treble damages would be consistent with and in

furtherance of the remedial purposes of the UTPCPL.”

Schwartz v. Rockey, … 932 A.2d 885 ([Pa.] 2007).

As for [Cutler’s] claim that the evidence would be unduly

prejudicial, the court disagrees. This claim will be heard

by the court sitting non-jury. Concerns about confusion of

the issues, prejudice and so forth are not present here.

The court as the fact-finder will be able to hear the

evidence presented and will be able to weigh its probative

value and properly consider it only for the purpose for

which it is relevant and presented. See Pa.R.E. 403.

(Order, 1/6/16 at fn. 1)

[Cutler’s] argument post-trial is the same as that it previously

advanced and the court rejected.

Furthermore, although evidence of “other water damage” was

discussed during the non-jury portion of the case, the court did

not rely on such testimony in finding liability on the part of

[Cutler]. In fact, in choosing not to award [Appellees] treble

damages (that aspect of the case where such evidence could

arguably be relevant) the court stated:

Although [Cutler] failed to construct [Appellees’] home as

warranted and failed to determine the source of

[Appellees’] water infiltration as required and warranted,

the court is concerned with what happened to these

[Appellees] and their Home. It rejects [Appellees’]

suggestion that what may have occurred with other

homeowners justifies a recovery by them in form of treble

damages.

([TCD], at 32).

[Cutler] clearly was not harmed by any error in allowing such

testimony.

Trial Court Order Denying Cutler’s Post-Trial Motion, 7/12/2016, at 1 n.1

(emphasis in original).

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In light of the trial court’s explanation, it is apparent that it did not

consider alleged water damage in other homes when finding Cutler to be

liable under the UTPCPL. Instead, the trial court found such testimony

relevant with respect to determining whether it should award treble

damages to Appellees, which Cutler totally ignores in its brief. Further, we

fail to see how Cutler has suffered any prejudice, as it does not show how

the evidence in any way affected the verdict. Accordingly, Cutler has not

convinced us that the trial court abused its discretion in allowing evidence of

water damage in other homes to be admitted at trial.

Last, in its nineteenth issue, Cutler maintains that the trial court “erred

in allowing William Wheatley to provide expert testimony when he was called

as a fact witness and when he was not identified before trial[.]” Cutler’s

Brief (Second Appeal) at 51 (unnecessary emphasis and capitalization

omitted). Cutler claims “[Mr.] Wheatley was never entered as or qualified as

an expert…. He therefore should not have been permitted to testify as an

expert witness, and opine on the construction and testing on other homes

built by [Cutler].” Id. at 52. Further, it avers that “Mr. Wheatley admitted

that he had not inspected Appellees’ home and therefore, the testimony

could have no probative value.” Id.

In spite of Cutler’s assertions, the trial court insists that Mr. Wheatley

provided no expert opinion about the cause of the water infiltration. It

clarified:

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[Cutler] contends that the court erred in allowing William

Wheatley to provide expert testimony at trial when he was called

as a fact witness and never qualified as an expert. In the non-

jury trial, Mr. Wheatley testified about an encounter with Mr.

Cutler during an inspection of other homes suffering from water

damage.

[Cutler] is correct that Mr. Wheatley was called by [Appellees] as

a fact witness. [Appellees] called [Mr.] Wheatley to testify

regarding a conversation he had with Mr. Cutler about water

problems in other homes. He did not offer an expert opinion

about the cause of such problems.

Nonetheless, as noted above, despite the testimony of Mr.

Wheatley, the court made its decisions in this case based upon

what happened to [Appellees’] home and [Cutler] suffered no

harm by this alleged error of court.

Trial Court Order Denying Cutler’s Post-Trial Motion, 7/12/2016, at 1 n.1.

Likewise, Appellees point out that they “called Mr. Wheatley as a

rebuttal witness solely to impeach Mr. Cutler’s testimony that he had no

knowledge, prior to 2002, of defective construction practices in other Cutler-

built, stucco communities.” Appellees’ Brief (Second Appeal) at 71 (citations

omitted). Moreover, according to Appellees, “[a]t no point did [Appellees’]

counsel ask Mr. Wheatley to offer an opinion as to the cause of water

infiltration at Springton Woods or to state whether the items he

communicated to Mr. Cutler fell below acceptable industry standards or

practices.” Id. at 72 (citation omitted). Instead, they claim that their

counsel “asked Mr. Wheatley to testify only as to his personal observations,

and that is exactly what Mr. Wheatley did.” Id. (citation omitted).

Based on our review of the trial transcript, we agree with the trial

court and Appellees that Mr. Wheatley’s testimony consisted of personal

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observations and not expert opinions. See N.T. Trial, 1/15/2016, at 102-

129. Consequently, we discern no abuse of discretion on the part of the trial

court, as Mr. Wheatley testified as a fact witness, not an expert.

Thus, not one of Cutler’s nineteen issues is meritorious, and we affirm

the trial court’s judgment on these grounds.

We now turn to Appellees’ cross-appeal. On appeal, Appellees raise a

single issue for our review:

Did the trial court err as a matter of law and/or abuse its

discretion when it calculated the amount of attorneys’ fees

awarded to [Appellees] by reducing the amount derived from the

lodestar approach by the contingency percentage contained in

[Appellees’] fee agreement?

Appellees’ Brief (First Appeal) at 7. We evaluate this issue for an abuse of

discretion. Boehm, 117 A.3d at 335 (citations omitted). “An abuse of

discretion generally will not be found unless there is a showing of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.” Krebs, 893 A.2d at 786 (citations and

internal quotation marks omitted).

Before addressing the merits of Appellees’ issue, we must provide

further context regarding the trial court’s award of attorneys’ fees in this

matter. Appellees initially entered into an hourly fee agreement with their

counsel. However, because of high litigation costs, Appellees converted this

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hourly fee agreement into a contingency fee agreement in August 2015.29

As a result, when Appellees first requested attorneys’ fees under the UTPCPL

following the bench trial, the trial court awarded attorneys’ fees to Appellees

in the total amount of $121,938.51. This amount reflected $96,749.51 in

fees incurred by Appellees under their original hourly fee agreement with

their counsel, plus 20% of the hourly fees recorded by Appellees’ counsel

following the change in the parties’ compensation agreement through

January 1, 2016, which amounted to $25,189.38.30 See TCD at 30;

Appellees’ Post-Trial Motion, dated 3/21/2016, at 10 n.4.

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29

Appellees initially retained Fox Rothschild LLP on an hourly basis, and

agreed to pay the costs incurred with such representation. Appellees’ Brief

(First Appeal) at 21 (citations omitted). However, according to Appellees,

Cutler’s conduct … significantly drove up the cost of litigation

such that [Appellees] could not afford to continue paying Fox

Rothschild at an hourly rate. Thus, on August 13, 2015,

[Appellees] and Fox Rothschild entered into an agreement

converting the previous Hourly Agreement to a contingency

agreement (the “Contingency Agreement”). Pursuant to the

Contingency Agreement, [Appellees] agreed to pay Fox

Rothschild as compensation for the remainder of the

representation 20% of all amounts recovered by [Appellees] in

the lawsuit, as well as all costs related to the investigation

and/or prosecution of their claims against Cutler.

Id. at 21-22 (internal citations omitted). See also Cutler’s Brief (First

Appeal) at 30 (explaining that “Appellees’ counsel knowingly and willingly

entered into an agreement with … Appellees to move from an hourly fee to a

contingent fee on August 13, 2015”) (citation omitted).

30

Appellees explain that the amount of $25,189.38 represents “20% of the

total value of the legal services rendered to [Appellees] through January 1,

2016, after [Appellees] converted from the Hourly Agreement to the

(Footnote Continued Next Page)

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Subsequently, in a post-trial motion, Appellees sought supplemental

attorneys’ fees and costs incurred since January 1, 2016. See Trial Court

Order Regarding Appellees’ Post-Trial Motion, 7/12/2016, at 1 (unnumbered

pages). In response, after Appellees submitted relevant legal invoices, the

trial court awarded Appellees attorneys’ fees pursuant to their UTPCPL claim

in the additional amount of $13,254.00 on August 16, 2016. See Trial Court

Order, 8/16/2016, at 1 (unnumbered pages). It explained that it calculated

this amount using the same method as it did in its previous decision, i.e.,

awarding them 20% of the hourly fees recorded by their counsel. Id. at 1

n.2.

Now, on appeal, Appellees assert that “the trial court erred when it

calculated the amount of attorneys’ fees awarded to [Appellees] by reducing

the amount derived from the lodestar approach by the contingency

percentage in [Appellees’] fee agreement with counsel.” Appellees’ Brief

(First Appeal) at 54 (unnecessary capitalization and emphasis omitted). In

particular, Appellees contend that “the trial court’s formula for calculating

the awards of attorneys’ fees creates an inequitable result that (1) does not

further the remedial purposes of the UTPCPL, and (2) violates the settled

_______________________

(Footnote Continued)

Contingency Agreement.” Appellees’ Brief (First Appeal) at 54 (citation

omitted; emphasis in original). See also TCD at 33 (explaining that

$25,189.38 was the product of “$125,189.38 (fees recorded post-

contingency) x .20)”).

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principle that a contingency fee arrangement cannot be used to reduce a fee

award.” Id. at 54-55.31

When awarding attorneys’ fees under the UTPCPL, this Court has

stated:

In a case involving a lawsuit which include[s] claims under the

UTPCPL ... the following factors should be considered when

assessing the reasonableness of counsel fees:

(1) The time and labor required, the novelty and difficulty

of the questions involved and the skill requisite properly to

conduct the case; (2) The customary charges of the

members of the bar for similar services; (3) The amount

involved in the controversy and the benefits resulting to

the clients from the services; and (4) The contingency or

certainty of the compensation.

Boehm, 117 A.3d at 335 (internal citations omitted). Further,

(1) there should be “a sense of proportionality between an

award of damages [under the UTPCPL] and an award of

attorney[s’] fees,” and (2) whether plaintiff has pursued other

theories of recovery in addition to a UTPCPL claim “should [be]

given consideration” in arriving at an appropriate award of fees.

Id. (citations omitted; some brackets in original). We “[do] not mandate a

proportion that would be the limit of acceptability,” but instead “only

suggest[] that there be a ‘sense of proportionality’ between the two

amounts. Nor would it have been appropriate for this Court to fix a

proportionate amount that would define the limit of recoverable fees, since

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31

Cutler did not file a brief in response to Appellees’ cross-appeal.

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the General Assembly specifically chose not to include such a factor in the

statute.” Id. (citations omitted; emphasis in original).

In the case sub judice, the trial court considered the above factors in

determining the reasonableness of Appellees’ attorneys’ fees. With respect

to the first factor concerning time and labor, the trial court found — as

discussed above — that Appellees’ “UTPCPL claims were intertwined with the

non-UTPCPL claims in such a way that separation of those fees would be

difficult.” TCD at 27. Thus, the trial court determined that much of the time

spent in pre-trial litigation pertained to both Appellees’ UTPCPL and common

law claims. See id. (citing Boehm, 117 A.3d at 335). It noted that the

case involved “many complex construction issues and lengthy pretrial

discovery of documents and evidence[,]” along with “highly technical

construction issues which required much expert testimony.” Id. at 28. The

trial court relayed that “much of the complexity and difficulty in the

preparation of the case for trial stemmed from [Cutler’s] refusal to produce

documents in accordance with various orders of this court[,]” and the matter

was further complicated when Cutler “appealed the court’s discovery

sanction order on the eve of trial[.]” Id. In sum, the trial court recognized

that “[n]othing during the life of this litigation was simple. [Cutler] made it

expensive.” Id.

As for the second prong relating to the customary charges of members

of the bar for similar services, the trial court found that the fees charged by

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Appellees’ counsel were “customary and justified.” Id. Third, in terms of

the amount in controversy and the benefits resulting to the clients from the

services, the trial court stated that “

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