Kennedy-Smith, D. v. Milroy Hospitality, LLC

J-A09030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEBRA KENNEDY-SMITH, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MILROY HOSPITALITY, LLC,

Appellee No. 1509 MDA 2016

Appeal from the Order Entered August 16, 2016

In the Court of Common Pleas of Mifflin County

Civil Division at No(s): CP-44-CV-1171-2012

DEBRA KENNEDY-SMITH, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MILROY HOSPITALITY, LLC,

Appellant No. 1559 MDA 2016

Appeal from the Order Entered August 16, 2016

In the Court of Common Pleas of Mifflin County

Civil Division at No(s): CP-44-CV-1171-2012

BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 12, 2017

These cross appeals are from an order denying the petition of Debra

Kennedy-Smith (“Kennedy-Smith”) and granting, in part, the cross-petition

of Milroy Hospitality, LLC (“Milroy”) to enforce a settlement agreement (the

“Settlement Agreement”). We affirm in part, vacate in part, and remand.

J-A09030-17

The Settlement Agreement provides the following background:

WHEREAS, on or about June 6, 2011 Milroy entered into a

written commercial lease agreement (hereinafter “Lease”) with

Subway Real Estate, LLC for Suite 200/B of a shopping plaza

located at 15 Commerce Drive, Milroy, Mifflin County,

Pennsylvania; and

WHEREAS, in justified reliance on the terms of the Lease,

Kennedy-Smith on or about September 15, 2011 entered into a

Sublease Agreement with Subway Real Estate, LLC to operate a

Subway® restaurant at the shopping plaza at 15 Commerce

Drive, Suite 200/B, Milroy, Mifflin County, Pennsylvania; and

WHEREAS, Kennedy-Smith has been operating the

Subway® restaurant at 15 Commerce Drive, Suite 200/B, Milroy,

Mifflin County, Pennsylvania since it opened on April 20, 2012;

and

WHEREAS, the Lease contains a provision requiring Milroy

to provide Subway Real Estate, LLC with exclusivity rights to the

sale and service of ready-to-eat food within one mile of the

[L]eased [P]remises for property owned or controlled by Milroy;

and

WHEREAS, Ajit R. Smith is the sole member of [Milroy]

and also the sole member of Milroy Sports Bar, LLC, a

Pennsylvania limited liability company doing business as Smitty’s

Sportsbar & Grill (hereinafter “Smitty’s”); and

WHEREAS, on or about August 2, 2012, Smitty’s opened a

competing restaurant in Suite 500/B at 15 Commerce Drive,

Milroy, Mifflin County, Pennsylvania and began selling and

serving ready-to-eat-food; and

WHEREAS, there have been several pervasive construction

problems affecting and interfering with use and enjoyment of the

Leased Premises (including but not limited to plumbing

problems, electrical system deficiencies, inadequate parking,

lack of parking lot lighting, and an incomplete firewall) that are

Milroy’s responsibility but have not been corrected by Milroy;

and

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WHEREAS, Kennedy-Smith initiated a civil lawsuit in Mifflin

County Court of Common pleas, docketed at No. CP-44-CV-

1171-2012 against Milroy concerning issues related to the

Leased Premises; and

WHEREAS, the Mifflin County Court of Common Pleas

issued a Preliminary Injunction against Milroy as it related to

Smitty’s; and

WHEREAS, Kennedy-Smith and Milroy wish to resolve and

settle the aforesaid matter docketed at No. CP-44-CV-1171-2012

in accordance with the terms and conditions set forth herein.

Agreement, 9/3/13, at 1–2.

The parties filed a stipulation on September 4, 2013, requesting that

the trial court enter a consent order. The stipulation included as an

attachment an approved menu for Smitty’s. As requested, the trial court

entered a consent order, which provided as follows:

[Milroy] shall be prohibited from selling or serving ready-to-eat

food, as defined by 7 Pa. Code § 46.3 and in accordance with

section thirty-two of the 2011 Lease with specific, limited

exception that [Milroy] doing business as “Smitty’s” . . . is

permitted to sell and serve only those items listed on the

attached menu and only for the prices listed on the attached

menu and only for hours of operation not to begin prior to 4:00

p.m. on Mondays, Tuesdays, Wednesdays, Thursdays, and

Fridays and for hours of operation not to begin prior to 12:00

p.m. on Saturdays and Sundays.

Consent Order, 9/17/13, at ¶ 3.

On March 24, 2016, Kennedy-Smith filed a Petition to Enforce

Settlement Agreement, Stipulation and Consent Order (“the Petition”),

averring that Smitty’s was using an unapproved menu, offering unapproved

specials, and operating outside of the agreed-upon hours. Milroy filed an

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answer and cross-petition (“the Cross-petition”), averring that Kennedy-

Smith breached the Settlement Agreement by failing to act in good faith,

pay rent, and meet her responsibility for trash removal.

The trial court conducted a hearing on July 6, 2016, at which Kennedy-

Smith; the parties’ appointed certifier, Lucas A. Parkes (“Mr. Parkes”);

Kennedy-Smith’s husband, Ken Smith; and Milroy’s general manager, Dip

Smith, testified. The trial court filed an order and opinion denying the

Petition and granting, in part, the Cross-petition. Order and Opinion,

8/16/16. Although both parties requested attorneys’ fees, the trial court

declined to award them to either party. Kennedy-Smith appealed the denial

of the Petition, and Milroy cross-appealed the denial of attorneys’ fees. The

parties and the trial court have complied with Pa.R.A.P. 1925.

We begin with Kennedy-Smith’s appeal, wherein she presents the

following questions for our consideration:

1. Did the trial court err by finding that [Milroy] did not violate

Paragraph 1.c of the Settlement Agreement by using an

unapproved menu as said finding was not supported by

competent evidence given evidence presented by [Kennedy-

Smith] that she did not approve the December 17, 2014

Smitty’s menu nor the two menus admitted into evidence

from March of 2016 and the lack of evidence from [Milroy]

that the March menus were approved by [Kennedy-Smith]?

2. Did the trial court err by rewriting [P]aragraph 1.d to add a

“no harm no foul” exception to 1.d’s general rule prohibiting

Smitty’s from using promotional discounts and food specials,

and by finding that [Milroy] did not violate Paragraph 1.d as

said finding was not supported by competent evidence given

evidence presented by [Kennedy-Smith] that a discounted

food special was publicly advertised by [Milroy] and was only

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withdrawn after [Kennedy-Smith] learned of the ad and

requested that the promotion be discontinued?

3. Did the trial court err by finding that Paragraph 1.i of the

Settlement Agreement has been satisfied and that the rent

abatement is no longer in effect as of March 1, 2016, as

follows:

a. By misinterpreting Paragraph 1.i to not require that

Lucas A. Parkes of the EADS Group certify to a

reasonable degree of engineering certainty that all

construction deficiencies at [Kennedy-Smith’s] Subway

suite as required by any applicable codes and as

required by any terms of the lease have been fully

remedied;

b. By finding that Lucas Parkes “certification” satisfied

Paragraph 1.i while at the same time acknowledging

that Mr. Parkes could not give such a certification

because of his credentials;

c. By effectively relying upon and accepting into evidence

over objection a letter from an out-of-court witness

(Earl Baer from Commonwealth Code Inspection

Services) who was not subject to cross-examination and

who simply issued a permit and did not certify to a

reasonable degree of engineering certainty that all

noted Subway construction deficiencies required by any

applicable codes and as required by any terms of the

[L]ease have been fully remedied;

d. By failing to request from the current applicable local

code inspection service known as Bureau Veritas a

certification that all noted Subway construction

deficiencies required by any applicable codes have been

fully remedied; and

e. By refusing to permit [Kennedy-Smith’s] husband Ken

A. Smith to testify fully as a fact witness regarding the

extent of the longstanding construction deficiencies at

the Subway suite that Mr. Parkes ignored in his two

letters dated February 18, 2016?

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4. Did the trial court err by interpreting the parties’ Lease as

amended to place financial responsibility on [Kennedy-Smith]

for the collection and removal of all trash deposited in her

leased premises, as follows:

a. By misinterpreting Section Four of the Lease which

specifically enumerates trash removal as an “operating

cost” and provides that [Kennedy-Smith] shall not pay

operating costs and that [Milroy] shall pay all operating

costs; and

b. By misinterpreting Section Six of the Lease which

specifically lists the utilities that [Kennedy-Smith] must

pay for and does not specifically reference trash

removal as a tenant-paid utility service?

Kennedy-Smith’s Brief at 3–5.

In beginning our analysis, we note:

Our standard of review of a trial court’s grant or denial of a

motion to enforce a settlement agreement is plenary, as the

challenge is to the trial court’s conclusion of law. We are free to

draw our own inferences and reach our own conclusions from the

facts as found by the trial court. However, we are only bound by

the trial court’s findings of fact which are supported by

competent evidence.

Hannington v. Trustees of Univ. of Pennsylvania, 809 A.2d 406, 408

(Pa. Super. 2002) (citations and quotation marks omitted).

Settlement agreements are governed by contract law principles.

Lesko v. Frankford Hospital-Bucks County, 15 A.3d 337, 342 (Pa. 2011)

(citation omitted).

When a written contract is clear and

unequivocal, its meaning must be determined by its

contents alone. It speaks for itself and a meaning

cannot be given to it other than that expressed.

Where the intention of the parties is clear, there is

no need to resort to extrinsic aids or evidence.

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Hence, where language is clear and unambiguous,

the focus of interpretation is upon the terms of the

agreement as manifestly expressed, rather than as,

perhaps, silently intended.

Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (1982)

(citation and internal quotations omitted) (emphasis in original).

The meaning of an unambiguous contract presents a question of

law for which our review is de novo. Seven Springs Farm, Inc.

v. Croker, 569 Pa. 202, 801 A.2d 1212, 1215 n. 1 (2002).

“The fundamental rule in contract interpretation is to

ascertain the intent of the contracting parties. In cases of a

written contract, the intent of the parties is the writing itself.”

Insurance Adjustment Bureau[, Inc. v. Allstate Ins. Co.],

[905 A.2d 462,] 468 [Pa. 2006] (citations omitted). “In

determining the intent of the contracting parties, all provisions in

the agreement will be construed together and each will be given

effect.... This Court will not interpret one provision of a contract

in a manner which results in another portion being annulled.”

LJL Transportation, Inc. v. Pilot Air Freight Corporation,

599 Pa. 546, 962 A.2d 639, 647–48 (2009) (citations omitted).

Lesko, 15 A.3d at 342 (footnote omitted).

Kennedy-Smith first challenges the denial of the Petition based on the

trial court’s finding that Milroy did not use an unapproved menu. This issue

concerns the following provision of the Settlement Agreement:

c. Smitty’s menu items will be subject to approval from

Kennedy[-]Smith, who has absolute discretion and right to

veto a proposed menu for any reason or no reason. Smitty’s

will sell and serve only those items listed and at those prices

stated on Exhibit B attached and incorporated herein by

reference to this Agreement. If Smitty’s wishes to add any

other menu items or change prices of current menu items,

those changes must be approved by Kennedy-Smith in

writing.

Settlement Agreement, 9/3/13, at ¶ 1.c. Kennedy-Smith alleges two

instances of Milroy using menus for Smitty’s that she did not approve after

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execution of the Settlement Agreement: The first occurred in December of

2014, when Milroy sought a change of beverage vendor for Smitty’s; the

second occurred in March of 2016, when Milroy added new items to Smitty’s

menu and raised its prices. Kennedy-Smith argues that, because Milroy did

not propose these changes to her and she did not approve them, the trial

court erred in denying the Petition. Kennedy-Smith’s Brief at 25.

The trial court disposed of Kennedy-Smith’s first issue as follows:

On December 17, 2014, [Milroy] requested another revision to

the menu. This revision included a change from Coca-Cola

products to Pepsi products,[1] allowed side dishes to be priced

separately and added a $4.99 wing feature. [Kennedy-Smith]

approved this menu, but claims she was unaware of the changes

to the side dishes and the wing feature, as [Milroy] did not

specifically reference those changes. Thus, [Kennedy-Smith]

claims this menu is unapproved and in violation of the

Settlement Agreement.

* * *

[Kennedy-Smith] requests the [c]ourt find [Milroy] has violated

paragraph 1(c) of the Settlement Agreement by using an

unapproved menu. The [c]ourt declines to find [Milroy] has

violated this provision. [Kennedy-Smith] had an opportunity to

inspect the December 17, 2014 menu, prior to its issuance, and

[Kennedy-Smith] approved of its content. Therefore, [Kennedy-

Smith’s] request is denied.

Trial Court Order, 8/16/16, at 2–3.

____________________________________________

1 Regarding the proposed December 2014 menu, Kennedy-Smith

acknowledged that Milroy requested—and she approved—a change whereby

Smitty’s switched from selling Coke® products to Pepsi® products. N.T.,

7/6/16, at 23.

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Kennedy-Smith testified on direct examination as to Milroy’s request in

December of 2014:

Q. And in December of 2014 did [Milroy] request that you

change the menu so they could change from Coke to Pepsi

products?

A. Yes.

Q. And did you agree with that change?

A. Yes.

Q. At the time that change was made, were there other

things in the . . . revised menu that perhaps weren’t made clear

to you as far as what was being requested?

A. When the request was made to switch from Coke to

Pepsi products, that was the only request made at that time. I

did -- and the prices also be included with those. He then

sometime later e-mailed, sent an e-mail that said attached is

the, you know, menu, revised menu, with the soft drinks and

teas added, and at that time I looked at it and side dishes were

priced separately in reverse in the border and the back section

with wings, they had added six wings for $4.99.

Q. So these last two items you just referenced, the

wings and then the pricing along the border of the side dishes,

had not been specifically pointed out to you? That might have

been in what was sent, but it wasn’t specifically pointed out to

you?

A. There was never a request made to me.

* * *

Q. So your position is you did not approve either the

wings part or the sides being separately priced on the border?

A. No, I did not.

N.T., 7/6/16, at 23–24.

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Additionally, Kennedy-Smith testified on cross-examination, as follows:

Q. That Mr. Dip Smith did request, send you a request

to approve the new menu, which included wings and sides?

A. Which new menu are you referring to?

Q. The one that was referred to in the e-mail exchange

of March of this year.

A. March of this year?

Q. Yeah.

A. That actually came from Blue Pande [Smitty’s

assistant manager2].

Q. I believe there is also an exchange between Dip

Smith and yourself. I’ll show you the exhibit in a minute, but, in

fact, there was a request and there had been requests from

Smitty’s to you for menu approval?

A. Yes.

Q. Pursuant to the agreement?

A. Yes.

Q. And [your counsel] showed you P-9, which was the

sample menu and you did receive that, correct?

A. I did. That’s the one that Blue Pande sent to me.

Q. And the problem is it did not have prices on it?

A. There were no prices, and there were additional

menu items that I had questions about.

N.T., 7/6/16, at 59–60; Exhibits P-9, P-10.

____________________________________________

2 N.T., 7/6/16, at 146.

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Contrarily, Dip Smith, Milroy’s General Property Manager, suggested in

a March 30, 2016 e-mail that Kennedy-Smith had approved the menu

proposed on March 6, 2016, that included changes in a menu from

December of 2014:

Debra,

As I said before, the menu you approved with the Pepsi

changes had the sides listed individually. You may have

overlooked it, but you still approved what was there because I

know better than to just do as I please instead of abiding by our

agreement. The content is the same as what I sent you via

email, which you showed no objection to.

As per our agreement, we must get your approval for

changes as we asked for below so that is why. Our intention is

never to breach the contract because we are well aware of the

guidelines.

N.T., 7/6/16, at Exhibit D-4. On direct examination, Dip Smith explained

why he wrote the March 30, 2016 e-mail:

A. I wrote that because all of the sudden she kind of

found out that we had sides listed there, which were on the top

of the border of the menu. I believe it’s in one of the exhibits.

The sides were listed at the top of the menu, and it wasn’t called

out. She was unaware of it.

Q. So you moved the sides from the top of the menu to

the side of the menu?

A. No. The sides weren’t listed at all. The side salads

came with the dinners, and all it was was like you could get a

basket of French Fries or curly fries, things that we were already

serving, but as a side separately.

Q. And that was being priced separately?

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A. Priced separately, yes. And that was sent in the e-

mail, and there was a lot of communication just by phone or text

message, and that’s how it came about. . . .

N.T., 7/6/16, at 147–148. However, Dip Smith acknowledged that, as of the

July 6, 2016 hearing, Kennedy-Smith had not approved “the proposed menu

with the prices.” Id. at 153–154.

Based on the testimonial and documentary evidence, we conclude the

record does not support the trial court’s finding that Kennedy-Smith

approved the December 17, 2014 menu. Trial Court Order, 8/16/16, at 3.

The plain language of the Settlement Agreement requires approval in

writing. Settlement Agreement, 9/3/13, at ¶ 1.c. Milroy sent a request in

December of 2014 to change the beverage vendor from Coke ® to Pepsi®,

which request Kennedy-Smith admittedly approved. Although Milroy may

have sent a revised menu to Kennedy-Smith in December of 2014, it did not

request approval of any other menu changes at that time. Thereafter,

Kennedy-Smith received a menu in March of 2016 that included side dishes

and $4.99 wings. Although the record is unclear as to whether those items

were also in the December 17, 2014 menu, both Kennedy-Smith and Dip

Smith testified that the menu discussed in the March 2016 emails was not

approved.3 N.T., 7/6/16, at 23–24, 153–154. Moreover, even if the

____________________________________________

3 We note the trial court made no findings or conclusions regarding whether

Kennedy-Smith approved the menu discussed in the March 2016 emails.

Nevertheless, assuming the December 17, 2014 and March 2016 menus

(Footnote Continued Next Page)

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December 17, 2014 menu included side dishes and $4.99 wings and

Kennedy-Smith “showed no objection”4 to that menu, showing no objection

is not the equivalent of providing written approval of the menu. Indeed, the

record contains no evidence that Kennedy-Smith approved, in writing, any

menu that included side dishes and $4.99 wings. Thus, the trial court erred

in ruling that Milroy did not violate the Settlement Agreement by using an

unapproved menu. Accordingly, we vacate that portion of the trial court’s

order addressing Milroy’s use of an unapproved menu and remand for a

determination of what relief, if any, is due to Kennedy-Smith as a result of

Milroy’s violation of paragraph 1.c.

Next, Kennedy-Smith challenges the denial of the Petition based on

the trial court’s finding that Milroy did not use promotional discounts and

food specials. This issue concerns the following provision in the Settlement

Agreement:

d. Smitty’s will not use any promotional discounts such as “all

you can eat” (AYCE), “buy one, get one” (BOGO), free with

purchase of beverage, or any other discounted food special.

Settlement Agreement, 9/3/13, at ¶ 1.d. Kennedy-Smith submits that

Milroy “violated [P]aragraph 1.d by issuing a Facebook post advertising free

(Footnote Continued) _______________________

were the same, the trial court’s conclusion that Kennedy-Smith approved the

former would suggest a similar conclusion that she approved the latter.

4 N.T., 7/6/16, at Exhibit D-4 (March 30, 2016 Dip Smith email).

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one-half sized fried appetizers during halftime of the Super Bowl in 2014.”

Kennedy-Smith’s Brief at 28 (citing Exhibit P-11). According to Kennedy-

Smith, “[d]espite this evidence that [Milroy] publicly advertised a discounted

food special,” the trial court took a “no harm no foul” approach to the

violation. Id. Kennedy-Smith requests that we reverse the trial court’s

order denying her petition to enforce and “remand the matter to the trial

court to determine the appropriate sanction for [Milroy’s] violation of

[P]aragraph 1.d.” Id. at 29.

After setting forth the language of Paragraph 1.d, the trial court

addressed this issue, as follows:

[Kennedy-Smith] testified that [Milroy] advertised a free one-

half sized fried appetizers during halftime of the 2014 Super

Bowl on Facebook. [Kennedy-Smith] sent [Milroy] an email

noting the violation and [Milroy] immediately withdrew the

advertisement and told customers that this special would not be

provided. As [Milroy] did not pursue this promotion, but

immediately withdrew and rescinded the promotion, the [c]ourt

finds no violation of the Settlement Agreement.

Trial Court Opinion, 8/16/16, at 3.

Upon review, we reject Kennedy-Smith’s argument that the trial court

rewrote and/or misinterpreted Paragraph 1.d in denying the Petition.

Kennedy-Smith’s expressed complaint is that Milroy “publicly advertised a

discounted food special.” Kennedy-Smith’s Brief at 28. However, the plain

language of Paragraph 1.d precludes Milroy from “using” any promotional

discounts. Settlement Agreement, 9/3/13, at ¶ 1.d. Kennedy-Smith does

not claim—and the record does not indicate—that Milroy did, in fact, provide

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its customers with free one-half-sized fried appetizers during halftime of the

2014 Super Bowl. Rather, as Kennedy-Smith admitted, Milroy immediately

and publicly rescinded the promotion upon receipt of her email. N.T.,

7/6/16, at 61. Accordingly, we find support in the record for the trial court’s

findings, and we discern no error in its conclusion that Milroy did not violate

Paragraph 1.d of the Settlement Agreement.

Kennedy-Smith’s third issue concerns the trial court’s order directing

her to pay rent, which was based on its conclusion that Milroy satisfied the

rent abatement provision of the Settlement Agreement. That provision

reads as follows:

i. Milroy agrees that all rent charges shall be abated while

construction issues are unresolved. Milroy waives its right to

collect any rents from Subway Real Estate, LLC or Kennedy-

Smith until the first of the month following Kennedy-Smith’s

receipt of written certification from Lucas A. Parkes of the

EADS Group that all construction deficiencies as required by

any applicable codes (such as but not limited to the problems

with the plumbing system, electrical system, and firewall) and

also as required by any terms of the Lease (such as but not

limited to the installation and activation of parking lot

lighting) have been fully remedied.

Settlement Agreement, 9/3/13, at ¶ 1.i.

The trial court summarized the background of this issue and disposed

of it, as follows:

In accord with provision 1(i), [Kennedy-Smith] received a

letter from Lucas Parkes on February 18, 2016. Lucas Parkes

asserted that [Milroy] was in compliance, as concluded by Mr.

Baer of Commonwealth Code Inspection Service, Inc. (hereafter

“Commonwealth Code”). Based upon the language of the letter,

[Kennedy-Smith] refused to pay rent at that time. [Kennedy-

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Smith] requested that Mr. Parkes certify to a reasonable degree

of engineering certainty that all construction deficiencies were

corrected. On May 13, 2016, [Kennedy-Smith] received a

second letter from Mr. Parkes. Like the first letter, this letter did

not certify to a reasonable degree of engineering certainty that

all construction deficiencies were remedied, but reasserted

compliance based on the conclusions of Commonwealth Code,

using the language provided in the Settlement Agreement. Once

again, [Kennedy-Smith] refused to pay rent.

* * *

By agreement of Parties, Lucas Parkes’ verification would

initiate [Milroy’s] right to collect rent. On February 18, 2016,

Lucas Parkes informed [Kennedy-Smith] that the Leased

Premises were in compliance with the applicable building codes

and that the parking lot and associated lighting had been

installed and activated, as required by the Lease. [Milroy]

maintains an occupancy permit and is functioning properly under

verification by the Commonwealth Code and Lucas Parkes.

Therefore, the [c]ourt finds provision 1(i) has been satisfied.

[Kennedy-Smith] shall pay the rent due from March 1, 2016 to

present, and continue payments on the first day of each month

hereafter. [Milroy’s] request for rent is granted.

Trial Court Order, 8/16/16, at 5, 6.

Kennedy-Smith mounts multiple attacks on the trial court’s conclusion

that Milroy satisfied Paragraph 1.i. Kennedy-Smith’s Brief at 31, 35, 36, 42.

Kennedy-Smith first argues that the two letters written by Mr. Parkes do not

contain “the required certification language.”5 Id. at 31. The trial court

____________________________________________

5 The letters read, in relevant part, as follows:

Based upon the letter provided by Commonwealth Code

Inspection Services, dated February 17, 2016, it appears that

the structure at 15 Commerce Drive is in compliance with the

applicable building codes. Additionally, the parking lot and

(Footnote Continued Next Page)

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responded to this argument succinctly: “Written certification was never

defined in Parties’ agreement.” Trial Court Order, 8/16/16, at 5.

We reiterate, “When the terms of a contract are clear and

unambiguous, the intent of the parties is to be ascertained from the

document itself.” Lenau v. Co-eXprise, Inc., 102 A.3d 423, 429 (Pa.

Super. 2014) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004)).

In the case at hand, we discern no error of law in the trial court’s

construction of Paragraph 1.i. The plain and unambiguous language of that

paragraph provides that Kennedy-Smith was to begin paying rent on the first

day of the month “following Kennedy-Smith’s receipt of written

certification from Lucas A. Parkes . . . that all construction

(Footnote Continued) _______________________

associated lighting has been installed and is activated as

required by the tenant’s lease.

Lucas Parkes Letter, 2/18/16.

Based upon the letter provided by Commonwealth Code

Inspection Services, dated February 17, 2016:

“All Construction deficiencies as required by the applicable

codes (such as but not limited to the problems with the plumbing

system, electrical system and firewall) and also as required by

any terms of the Lease (such as but not limited to the

installation and activation of any parking lot lighting) have been

fully remedied.”

This letter is effective as of February 18, 2016.

Lucas Parkes Letter, 5/13/16.

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deficiencies as required by any applicable codes . . . and also as

required by any terms of the Lease . . . have been fully remedied.”

Settlement Agreement, 9/3/13, at ¶ 1.i (emphases supplied). Contrary to

Kennedy-Smith’s assertion, the Settlement Agreement does not specify any

standard of review or language Mr. Parkes was to provide in his written

certification. Moreover, the lack of a definition of the term “certification”

does not create an ambiguity. Rather, we give that word its ordinary

meaning. Lenau, 102 A.3d at 429. According to Merriam-Webster, to

certify means “1: to attest authoritatively... 2: to inform with certainty.”

www.merriam-wester.com/dictionary/certify at 1, 2 (September 20, 2017).

Here, Mr. Parkes sent two letters. The first, dated February 18, 2016,

was equivocal: “[I]t appears that the structure at 15 Commerce Drive is in

compliance with the applicable building codes.” N.T., 7/6/16, at Exhibit 18

(emphases supplied). However, the second letter, effective as of February

18, 2016, informed Kennedy-Smith with certainty: “[A]ll construction

deficiencies as required by the applicable codes . . . and also as required

by any terms of the Lease . . . have been fully remedied.” Id. at Exhibit

20 (emphases supplied). To the extent Kennedy-Smith required “a

certification from Lucas A. Parkes to a reasonable degree of engineering

certainty,” Kennedy-Smith’s Brief at 32, the parties did not include that

wording and standard in Paragraph 1.i. Therefore, we discern no error in

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the trial court’s conclusions that Milroy satisfied Paragraph 1.i and that

Kennedy-Smith was required to pay rent as of March 1, 2016.

Kennedy-Smith next argues, “The trial court . . . erred in . . .

concluding that Mr. Parkes ‘was not qualified to determine whether the

building satisfied all applicable codes’ while at the same time finding that

[P]aragraph 1.i has been satisfied.” Kennedy-Smith’s Brief at 35. According

to Kennedy-Smith, if Mr. Parkes was not qualified to provide the requisite

certification, then the trial court should not have concluded that the

certification was provided. Id. at 36.

We observe that Kennedy-Smith provides minimal argument and no

authority to support this averment of trial court error. Kennedy-Smith’s

Brief at 35–36. Therefore, it is waived. Pa.R.A.P. 2119(a); see In re W.H.,

25 A.3d 330, 339 (Pa. Super. 2011) (“[W]here an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails

to develop the issue in any other meaningful fashion capable of review, that

claim is waived.”). However, even if this argument were not waived, we

would conclude that no relief is due.

The trial court observed:

[Kennedy-Smith] demands a certification that Mr. Parkes

cannot legally give. Mr. Parkes testified that he was not

qualified to determine whether the building satisfied all

applicable codes. Mr. Parkes emphasized that he was not part of

the negotiations between Parties and that he did not volunteer to

be part of [the] certification. Rather, Mr. Parkes was picked by

Parties to be a neutral third party. Mr. Parkes feels as though he

complied with Parties’ request.

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Trial Court Order, 8/16/16, at 6. Indeed, the Settlement Agreement

contains no requirements or restrictions regarding the qualifications of Mr.

Parkes. Because Kennedy-Smith “contributed to the drafting of [the]

Agreement,” Settlement Agreement, 9/3/13, at ¶ 10, and participated in the

selection of Mr. Parkes as the neutral, third party who would provide an

undefined certification, N.T., 7/6/16, at 41, 64, we decline to entertain her

complaint that he was not qualified to her satisfaction.

Kennedy-Smith’s third challenge to the ruling that Milroy satisfied

Paragraph 1.i concerns the trial court’s admission of a letter by Earl Baer

(“Mr. Baer”), on which Mr. Parkes relied and to which Kennedy-Smith

objected (“Baer Letter”).6 Kennedy-Smith’s Brief at 36 (citing Exhibit D-

6(B)). According to Kennedy-Smith, the Baer Letter is inadmissible hearsay

because it “was presented . . . to prove the truth of the matter asserted—

that the outstanding code violations had been corrected,” id. at 37, and “Mr.

Baer was not present to be cross-examined at the July 6, 2016 hearing.”

Id. at 36. Kennedy-Smith also claims that no exceptions to the admission of

hearsay “apply to the facts of this case.” Id. at 37. Alternatively, Kennedy-

Smith argues that, even if the Baer Letter were admissible, it does not

satisfy the requirements of paragraph 1.i because it was not written by Mr.

____________________________________________

6 Mr. Baer worked for Commonwealth Code Inspections Services, Inc., the

local code inspection service. N.T., 7/6/16, at 100, Exhibit D-6(B).

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Parkes and it does not certify to a reasonable degree of engineering

certainty. Id. at 41.

Milroy counters that the Baer Letter was not offered for the truth of its

contents, but to serve as the foundation for Mr. Parkes’ certification, “to

show why [Mr.] Parkes provided his certification.” Milroy’s Brief at 18.

Unfortunately, the trial court did not address this argument in its Pa.R.A.P.

1925(a) opinion. However, at the hearing, counsel for Kennedy-Smith

suggested, and the trial court agreed, that admission of the Baer Letter went

“to the weight of Mr. Parkes’ testimony.” N.T., 7/6/16, at 134. The trial

court admitted the Baer Letter, stating, “I think the questioning will indicate

and the record will say that is what [Mr. Parkes] relied upon in issuing the

letter per [paragraph 1.i]. Whether that was enough in my eyes to meet the

standard that is set forth in [paragraph 1.i] that’s for me to decide.” Id.

Our standard of review of evidentiary rulings is narrow:

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. In

addition, 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.

Int’l Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261,

1267 (Pa. Super. 2012) (quoting Reott v. Asia Trend, Inc., 7 A.3d 830,

839 (Pa. Super. 2010) (citations and internal quotation marks omitted)).

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The trial court treated the Baer Letter as foundation evidence, not

hearsay, and determined that Mr. Parkes’ reliance on it was “enough in [its]

eyes to meet the standard that is set forth in paragraph 1.i.” N.T., 7/6/16,

at 134. Upon review of the record, we discern no basis for upsetting the

trial court’s ruling. Pursuant to the plain language of the Settlement

Agreement, Mr. Parkes was to inform Kennedy-Smith with certainty that the

construction deficiencies had been remedied, which he did. As discussed

above, the Settlement Agreement contains no requirements regarding the

qualifications of Mr. Parkes and the language or standard of his certification;

nor does the Settlement Agreement contain any specifics regarding the

process by which Mr. Parkes arrived at his certification. Nothing in the

Settlement Agreement required Mr. Parkes to conduct an independent

review of the construction issues or precluded him from relying on the

opinion of another, e.g., Mr. Baer, regarding the status of the construction

issues.

Additionally, we find no indication in the record that Kennedy-Smith

suffered prejudice as a result of the challenged evidentiary ruling. We

reiterate that Kennedy-Smith contributed to the drafting of the Settlement

Agreement and participated in the selection of Mr. Parkes. If Kennedy-Smith

required a more substantive certification by a more qualified third party and

a more rigorous certification process, then she should have written those

terms into the Settlement Agreement. Moreover, Kennedy-Smith was aware

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of Mr. Baer’s role through Mr. Parkes’ letters and could have discredited his

opinions through discovery or by calling him as a witness. Because she

chose not to do so, her complaints that Mr. Parkes relied on Mr. Baer’s

opinion and that the trial court gave weight to that reliance ring hollow.

Therefore, we discern no abuse of the trial court’s discretion or

misapplication of the law in admitting the Baer Letter.

Kennedy-Smith’s fourth challenge to the rent-abatement ruling is that

the trial court erred in failing to request an inspection of her Subway

property by Bureau Veritas, the local code inspection service and successor

to Commonwealth Code. Kennedy-Smith’s Brief at 42. We dispose of this

argument in short order. Our review of the record confirms that, at the

hearing, the trial court suggested it might be helpful to have the current

code inspection service visit the premises. N.T., 7/6/16, at 118–119, 132–

133. However, the trial court’s failure to pursue a visit by Bureau Veritas

was not legal error because the trial court was under no obligation to order

an updated inspection. This assignment of error is meritless.

Kennedy-Smith’s final complaint regarding Paragraph 1.i is that the

trial court refused to let her husband, Ken Smith, testify as a fact witness to

the construction deficiencies and about his concerns regarding Mr. Baer and

Commonwealth Code. Kennedy-Smith’s Brief at 43, 45. According to

Kennedy-Smith, Ken Smith had superior knowledge of the problems at her

Subway property and should have been permitted to testify because Mr.

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Parkes was not equipped to answer factual questions about the construction

deficiencies and Mr. Baer was not present for examination. Id. at 46.

We repeat, “[D]ecisions 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.” Int’l Diamond Importers, 40 A.3d at

1267. “The basic requisite for the admission of any evidence is that it be

both competent and relevant. Evidence is competent if it is material to the

issues to be determined at trial, and relevant if it tends to prove or disprove

a material fact in issue.” Sutch v. Roxborough Mem’l Hosp., 142 A.3d

38, 70–71 (Pa. Super. 2016), appeal denied, 163 A.3d 399 (Pa. 2016)

(quoting Moroney v. General Motors Corp., 850 A.2d 629, 632 (Pa.

Super. 2004)).

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

“Relevant evidence” means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.

Pa.R.E. 401; see also Pa.R.E. 402 (“All relevant evidence is admissible,

except as otherwise provided by law. Evidence that is not relevant is not

admissible.”).

Again, the trial court did not address this argument in its Pa.R.A.P.

1925(a) opinion. Nevertheless, our review of the record reveals that, in the

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Cross-petition, Milroy requested rent based on Mr. Parkes’ written

certification that all construction deficiencies had been resolved. Cross-

Petition, 4/15/16, at ¶¶ 49–51. In response, Kennedy-Smith claimed that

Mr. Parkes’ letter “does not comprise a certification that all construction

deficiencies as required by any applicable codes and by any terms of the

lease have been fully remedied.” Answer to Cross-Petition, 5/9/16, at ¶¶

49–51. In support of her defense that she did not owe rent, Kennedy-Smith

testified that certain construction deficiencies were not remedied, e.g.,

problematic toilet-flushing, insufficient water pressure, inadequate electrical

service, inefficient positioning of the electrical box, hanging insulation, and

an uninsulated water line. N.T., 7/6/16, at 39–41. In further support,

Kennedy-Smith called Ken Smith to testify about the construction

deficiencies and code requirements. Id. at 109.

According to Kennedy-Smith’s offers of proof, Ken Smith was prepared

“to discuss solely issues that kind of give background on the Lucas Parkes’

certification,” to talk about some conditions that existed at Suite 200,” and

to provide “a little factual background that might address” the “ambiguous”

language of paragraph 1.i. N.T., 7/6/16, at 79, 107. When Milroy objected

to Ken Smith’s testimony about construction deficiencies, the trial court

permitted Ken Smith “to testify specifically to his understanding of the

Settlement Agreement,” noting that he was not a code inspector,

professional contractor, or engineer. Id. at 108–111. As Ken Smith began

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to express his opinions about what construction problems existed and why,

the trial court and both counsel engaged in a lengthy discussion, after which

Kennedy-Smith moved for the admission of her exhibits, including

photographs of alleged construction deficiencies, and Milroy began its case.

Id. at 113–117, 118–134, 135–136, Exhibits P21–P25.

Based on this record, we conclude that Ken Smith’s proffered

testimony regarding construction deficiencies and code requirements was

neither competent nor relevant. A determination of whether Milroy was

entitled to rent required evidence that Mr. Parkes provided a certification

that the construction deficiencies were remedied. Settlement Agreement,

9/3/13, at ¶ 1.i. Ken Smith was a professional pilot, not a contractor, a

code inspector, or an engineer. N.T., 7/6/16, at 108. Therefore, Ken

Smith’s testimony about construction deficiencies and code requirements

was not competent because it was not material to a determination of

whether Milroy was entitled to rent based on Mr. Parkes’ letter. Moroney,

850 A.2d at 632. Similarly, Ken Smith’s testimony was not relevant because

it would not make Milroy’s entitlement to rent based on Mr. Parkes’ letter

more or less probable. Pa.R.E. 401. Accordingly, we discern no abuse of

the trial court’s discretion or misapplication of the law in precluding Ken

Smith’s proffered testimony.

In her fourth and final issue, Kennedy-Smith challenges the trial

court’s ruling that she was responsible to pay for the collection and removal

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of trash originating at her Subway restaurant. Kennedy-Smith’s Brief at 47

(citing Cross-Petition to Enforce, 4/15/16, at 11). Kennedy-Smith argues

that Sections Four and Six of the First Amendment to Lease (“Amended

Lease”) “place the responsibility for trash removal upon [Milroy,] the

Defendant Landlord.” Id. According to Kennedy-Smith, “trash removal” is

included in the list of operating costs for which Milory was responsible under

Section Four, but it is not included in the list of utilities for which she was

responsible under Section Six. Id. at 48.

The trial court disposed of this issue with the following analysis:

Under the terms of the Parties’ Lease and Amendment

thereto, [Milroy] is to pay for the Operating Costs of business.

Operating Costs are defined as, “. . . all sums paid or incurred by

Landlord for the maintenance, and operation of the Building,

including both costs allocable to the buildings and to all common

areas.” These costs included, without limitation,

“. . . the costs and expenses attributable to [the

following:] repair and maintenance of the buildings and

improvements [constituting] the Building, resurfacing,

repainting, and restriping parking areas; cleaning,

sweeping, trash removal, and other janitorial services;

policing and security services; the purchase, construction,

and maintenance of refuse receptacles; installing and

maintaining plantings and landscaping; directional signs

and other markers, car stops, and the like; the costs of

power, lighting and any other utilities furnished to the

common areas; premiums on fire, public liability, and

property damage insurance; real property taxes levied or

assessed against the Building or any portion thereof.”

[Kennedy-Smith] is responsible for all utilities furnished to her

leased premises during the Term of the Lease, “. . . including

water, electricity, gas, sewer, and telephone service.”

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Trash procured by [Kennedy-Smith’s] restaurant is not

produced due to [Milroy’s] ownership of the building and

premises, but rather due to [Kennedy-Smith’s] operation of her

business in the leased premises. Accordingly, [Kennedy-Smith]

is responsible and shall pay for the collection and removal of all

trash deposited in her leased premises.

Trial Court Order, 8/16/16, at 6–7.

We repeat, “In determining the intent of the contracting parties, all

provisions in the agreement will be construed together and each will be

given effect. Thus, we will not interpret one provision of a contract in a

manner which results in another portion being annulled.” Lesko, 15 A.3d at

342 (quoting LJL Transportation, Inc., 962 A.2d at 647–648) (internal

citation omitted).

Upon review, we disagree with the trial court’s legal conclusion that

Kennedy-Smith was required to contract individually for trash removal.

Absent any other consideration, Section Four of the Amended Lease clearly

includes “trash removal” in the list of Milroy’s obligations. Settlement

Agreement, 9/3/13, at Exhibit A (Amended Lease, 9/3/13, at ¶ II). Section

Six identifies those utilities and services that Kennedy-Smith was required to

contract for independently: water, electricity, gas, sewer, and telephone.

Trash removal is not included in that list. Id. at ¶ III.

Additionally, the language of Section Four provides that “Operating

Costs” include, “without limitation, . . . the costs and expenses attributable

to . . . cleaning, sweeping, trash removal, and other janitorial services; . .

. the purchase, construction, and maintenance of refuse receptacles[.]”

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Settlement Agreement, 9/3/13, at Exhibit A (Amended Lease, 9/3/13, at ¶¶

II, III). Clearly, Milroy’s maintenance and operation of the Building, the

buildings, and the common areas include removing trash placed in its trash

cans and dumpsters. Section Four does not limit the source of the trash,

and we discern no language prohibiting Kennedy-Smith from using Milroy’s

refuse receptacles for Subway’s trash. Common sense dictates that, as the

tenant, Kennedy-Smith would collect Subway’s daily trash and dispose of it

in trash receptacles supplied by the landlord, which she does. N.T., 7/6/16,

at 72.

Moreover, Section Four of the Original Lease provides that Kennedy-

Smith was obligated to pay each month, “as additional rent,” a

“proportionate share of [Milroy’s] estimated Total Operating Costs.” Original

Lease, 6/6/11, at Section Four. As discussed above, Milroy’s Operating

Costs include “sums paid or incurred by Milroy” for trash removal.

Settlement Agreement, 9/3/13, at Exhibit A (Amended Lease, 9/3/13, at ¶

II). Thus, Kennedy-Smith was, in fact, paying for trash removal.

Accordingly, we vacate that portion of the trial court’s order requiring

Kennedy-Smith to contract independently for trash removal.

We turn now to Milroy’s appeal of the order denying its request for

attorneys’ fees under Paragraph 11 of the Settlement Agreement.

Paragraph 11 reads, in relevant part, as follows: “In an action to enforce the

terms of this Agreement, the prevailing party shall be entitled to the

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recovery of its reasonable attorneys’ fees and costs.” Settlement

Agreement, 9/3/13, at ¶ 11. According to Milroy, it was the prevailing party

on the Petition and the substantially prevailing party on the Cross-petition

and, as such, entitled to attorneys’ fees. Milroy’s Brief at 24.

We review an order awarding attorneys’ fees under an abuse-of-

discretion standard. True Railroad Associates, L.P. v. Ames True

Temper, Inc., 152 A.3d 324, 343 (Pa. Super. 2016) (citation omitted). In

denying attorneys’ fees and costs, the trial court opined as follows:

Under Paragraph 11 of the Settlement Agreement, Parties

agreed that “in an action to enforce the terms of this Agreement,

the prevailing party shall be entitled to the recovery of its

reasonable attorneys’ fees and costs.” Both Parties have

requested attorney’s fees in this matter. However, as both

Parties [sic] Petitions are denied, in part, the [c]ourt finds

attorney’s fees are not proper in this case.

Trial Court Order, 8/16/16, at 7.

Pennsylvania subscribes to the American Rule, by which a party to

litigation is responsible for the payment of its own attorneys’ fees and costs

“unless there is express statutory authorization, a clear agreement of the

parties or some other established exception.” Mosaica Academy Charter

School v. Com. Dept. of Educ., 813 A.2d 813, 822 (Pa. 2002). Although

the Settlement Agreement includes a fee-shifting provision, Paragraph 11, it

does not define “prevailing party.” We have explained that:

[a] “prevailing party” is commonly defined as “a party in whose

favor a judgment is rendered, regardless of the amount of

damages awarded.” While this definition encompasses those

situations were a party receives less relief than was sought or

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even nominal relief, its application is still limited to those

circumstances where the fact finder declares a winner and the

court enters judgment in that party’s favor.

Zavatchen v. RHF Holdings, Inc., 907 A.2d 607, 610 (Pa. Super. 2006)

(quoting Profit Wize Mktg. v. Wiest, 812 A.2d 1270 (Pa. Super. 2002)).

Applying the above principles, we conclude that the trial court did not

abuse its discretion when it determined that Milroy was not entitled to

attorneys’ fees. With regard to Kennedy-Smith’s claims that Milroy violated

various provisions of the Settlement Agreement, the trial court found in

favor of Milroy, but it affirmed Kennedy-Smith’s “absolute discretion”

argument regarding menu changes. Petition, 3/24/16, at ¶¶ 21–30; Trial

Court Order, 8/16/16, at 2. With regard to the cross-petition, Milroy

prevailed on its rent abatement claim but again lost on its duty-of-good-faith

claim. Cross-Petition, 4/15/16, at ¶¶ 46–51; Trial Court Order, 8/16/16, at

2. In neither instance did the trial court declare Milroy a winner and enter

judgment in its favor. Zavatchen, 907 A.2d at 610. Thus, we discern no

basis to disturb the denial of Milroy’s request for attorneys’ fees and costs.

In sum, Kennedy-Smith’s unapproved-menu and trash-removal

arguments warrant relief. Accordingly, we vacate those portions of the trial

court’s order and remand for further proceedings consistent with this

Memorandum. We affirm the trial court’s order in all other respects.

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Order affirmed in part, vacated in part, and case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2017

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