Universal Steel Buildings v. Reagan, P.

J-A14013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

UNIVERSAL STEEL BUILDINGS : IN THE SUPERIOR COURT OF

CORP. : PENNSYLVANIA

:

:

v. :

:

:

PAULA REAGAN :

: No. 1314 WDA 2018

Appellant

Appeal from the Judgment Entered August 16, 2018

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): Case No. AR-16-001991

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019

Paula Reagan appeals from the judgment entered on August 16, 2018,

in the Allegheny County Court of Common Pleas, in favor of Universal Steel

Buildings Corp. (“Universal”), following a non-jury trial in this breach of

contract action. On appeal, Reagan raises the following claims: (1) did

Universal violate provisions of the Pennsylvania Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”)1 by failing to provide in its agreement

with Reagan required notices of her rights to cancel; (2) was the refusal by

Reagan to accept delivery of the building an effective cancellation under the

provisions of the UTPCPL where no right to cancel was ever provided; (3) was

____________________________________________

1 73 P.S. §§ 201-1 to 201-9.3.

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a separate and express agreement required under the Pennsylvania

Electronics Transactions Act2 where the transaction was conducted

electronically in part and non-electronically in part; (4) does the evidence

support a determination that regardless of the enforceability of the underlying

agreement, Reagan ratified the contract by conduct; and (5) was there

sufficient evidence for the court to make a determination as to the

reasonableness of attorneys’ fees?3 Based on the following, we affirm in part

and vacate in part.

The trial court set forth the facts and procedural history as follows:

Using the Internet, Defendant Paula Reagan contacted Plaintiff

Universal Steel Building Corporation and requested a price quote

for the purchase of a customized steel building. In response to

Reagan’s inquiry, a sales representative from Universal contacted

Reagan, and the two discussed details of an agreement for the

sale of the building by Universal to Reagan. Using DocuSign, an

online system, Universal thereafter sent a proposed contract to

Reagan at the email she had provided. On or about January 5,

2016, Reagan sent Universal the electronically executed contract

and a $12,705.00 draft drawn on Reagan’s SLR Unlimited business

account. The contract provided, inter alia, for the delivery to

Reagan of a building pre-engineered to various particulars for the

total price of $42,350.00 ($12,705.00 having been already paid

by Reagan and $29,645.00 due on delivery of the building).

Universal’s President signed the contract on or about January 6,

2016.

Universal arranged for Steel Building Corporation (“SBC”) to

manufacture the building according to the specifications agreed

upon in the Reagan-Universal contract. SBC later contacted

Reagan and proposed a delivery date of February 21, 2016.

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2 72 P.S. § 2260.301, et seq.

3 We have reordered the fourth and fifth issues for ease of our analysis.

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Reagan then called Universal, objected to the February 21st date,

and requested a delivery date of February 1, 2016. Universal

agreed to Reagan’s request and, on or about January 14, 2016,

confirmed the February 1st delivery date by letter to Reagan. Also

on or about January 14, 2016, Universal sent Reagan various

permit drawings for the building.

In a letter dated January 19, 2016, Reagan’s lawyer, Roger

Yale, asked for written assurance from Universal that Universal

would deliver Reagan’s building on the date she requested,

namely February 1, 2016. The letter also indicated that any

failure by Universal to deliver Reagan’s building on February 1st

would constitute a breach of the parties’ contract. Universal

responded with two letters (January 19 and 21, 2016) confirming

Universal’s intention to deliver the building on the agreed-upon

date of February 1st.

In order to meet Reagan’s demand for delivery on February

1st, Universal switched the intended manufacturer from SBC to

Corle Building Systems. Universal had, however, already incurred

a fee of $1,500.00 to pay for various drawings that SBC had

prepared in anticipation of constructing and delivering the

intended steel structure.

On January 29, 2016, Universal’s attorney contacted

Reagan’s attorney (Yale) and advised Yale that the building was

being shipped to Reagan for a February delivery. Universal’s

attorney likewise sent Yale confirming emails on January 29th and

on February 1st (just prior to delivery).

On February 1, 2016, Reagan’s building, having been

constructed in accordance with the contract specifications, was

delivered to the agreed-upon address. Along with the building

came construction drawings. Reagan refused to accept delivery

of the building. The building was then shipped back at an expense

of $2,700.00 to Universal.

To mitigate its losses, Universal sold the building for

$23,100 and incurred a $1,000.00 fee necessary to facilitate the

sale. Universal could not reasonably secure a higher sale price

because the structure had been built to custom specifications

contained in the parties’ agreement. Although the contract

provided that Reagan’s deposit of $12,705.00 was not refundable,

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Reagan’s bank reversed the payment and, as such, Universal did

not retain that amount.

Universal sued Reagan in breach of contract. Reagan lodged

six counterclaims. The case proceeded to trial and this court

rendered a verdict in Universal’s favor on its claim and on all of

Reagan’s claims. The particulars of the award are specified on the

verdict slip, and they include attorneys’ fees (provided for by the

contract) in an amount this court found to be reasonable.

[Reagan] filed post-trial motions essentially claiming this

court lacked subject matter jurisdiction, there was no valid

contract, and the attorneys’ fees were excessive and otherwise

unwarranted.

Trial Court Opinion, 8/16/2018, at 2-4.

The trial court denied the post-trial motions. On August 16, 2018,

judgment was entered on the April 10, 2018, verdict in the amount of

$114,202.92, in favor of Universal and against Reagan. 4 This appeal

followed.5

In her first argument, Reagan essentially argues the UTPCPL applies to

the present matter. She first complains Universal violated the provisions of

the UTPCPL by failing to provide in its agreement with Reagan required notices

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4 The breakdown of the award is as follows: (1) $19,250.00 for unpaid sales

price; (2) $1,500.00 for drafting deposit; (3)$2,700.00 for return shipping;

(4) $1,000.00 for mitigation referral fee; (5) $167.00 for court costs; and (6)

$89,585.92 for attorneys’ fees. See Verdict, 4/10/2018, at 1.

5 On September 19, 2018, the trial court ordered Reagan to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Reagan filed a concise statement on October 9, 2018. The trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a) on October 25, 2018, relying on its

August 16, 2018 memorandum.

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of her rights to cancel, but to the contrary by providing false and misleading

information as to cancellation rights. See Reagan’s Brief at 12. Relying on

Section 201-3 of the UTPCPL,6 she states “[t]here can be no dispute but that

the transaction involved in this case involves ‘trade and commerce’ as defined

in” the UTPCPL. Id. Moreover, she asserts that pursuant to Section 201-77

of the UTPCPL,

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6 Section 201-3 provides:

Unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce as defined by

subclauses (i) through (xxi) of clause (4) of section 2 of this act

and regulations promulgated under section 3.1 of this act are

hereby declared unlawful. The provisions of this act shall not

apply to any owner, agent or employe of any radio or television

station, or to any owner, publisher, printer, agent or employe of

an Internet service provider or a newspaper or other publication,

periodical or circular, who, in good faith and without knowledge of

the falsity or deceptive character thereof, publishes, causes to be

published or takes part in the publication of such advertisement.

73 P.S. § 201-3.

7 Section 201-7 provides:

(a) Where goods or services having a sale price of twenty-five

dollars ($ 25) or more are sold or contracted to be sold to a buyer,

as a result of, or in connection with, a contact with or call on the

buyer or resident at his residence either in person or by telephone,

that consumer may avoid the contract or sale by notifying, in

writing, the seller within three full business days following the day

on which the contract or sale was made and by returning or

holding available for return to the seller, in its original condition,

any merchandise received under the contract or sale. Such notice

of rescission shall be effective upon depositing the same in the

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[t]he evidence adduced at trial showed that Paula Reagan was

contacted by telephone by Universal’s salesperson, George

Poelcher, as a result of an inquiry by Reagan on the internet

relative to the purchase of pre-fabricated steel building. Poelcher

then on January 5, 2016 sent by email a purchase order that was

returned and eventually countersigned by Universal on January 6,

2016. Any fair reading of the language of the statute ([UTPCPL])

compels the conclusion that buyer (Reagan) is entitled to the

protections of Section 201-7, including notice of cancellation

rights, a copy of the contract at the time it is signed signed [sic],

____________________________________________

United States mail or upon other service which gives the seller

notice of rescission.

(b) At the time of the sale or contract the buyer shall be provided

with:

(1)

A fully completed receipt or copy of any contract

pertaining to such sale, which is in the same language

(Spanish, English, etc.) as that principally used in the

oral sales presentation, and also in English, and which

shows the date of the transaction and contains the

name and address of the seller, and in immediate

proximity to the space reserved in the contract for the

signature of the buyer or on the front page of the

receipt if a contract is not used and in bold face type

of a minimum size of ten points, a statement in

substantially the following form:

“You, the buyer, may cancel this transaction at any time

prior to midnight of the third business day after the date of

this transaction. See the attached notice of cancellation

form for an explanation of this right.”

(2) A completed form in duplicate, captioned “Notice of

Cancellation,” which shall be attached to the contract or receipt

and easily detachable, and which shall contain in ten-point bold

face type the following information and statements in the same

language (Spanish, English, etc.) as that used in the contract[.]

73 P.S § 201-7.

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the right to cancel the transaction within three business days, and

a continuing right to cancel until actual notice of cancellation rights

are provided. []If the language as fairly construed encompasses

the buyer then the buyer must be afforded the benefits of the

statute ([UTPCPL]). Burke v Yingling, 666 A. 2d 288, __ Pa.

Super __ (Pa. Super 1991)[.]

To the contrary, the standardized agreement furnished by

Universal did not contain any notice of cancellation rights and

instead falsely advised the buyer, Reagan, that no cancellation

rights existed. In a subsequent writing dated January 14, 2016

Victor Guiterrez, again falsely led Reagan to believe no

cancellation rights existed.

Reagan’s Brief at 14-15.

Lastly, Reagan contends the court erred in failing to apply Section 201-

7 to the matter by finding that because of Reagan’s business-account

payment, the case involved a commercial transaction. Id. at 16. She asserts

this was a commercial transaction, but protected under the UTPCPL, and

points to the following: (1) the action specifically named her an individual;

(2) all subsequent allegations mentioned her only; (3) the written agreement

identified her as the buyer; and (4) the testimony concerning the deposit

check, which was drawn from SLR Unlimited’s account, failed to provide any

identity as to SLR Unlimited or any relationship by SLR Unlimited to the

transaction. Id. at 16-17. Reagan states, “The protections afforded by the

[UTPCPL] are not restricted to individuals and do not exclude other types of

entities. Commercial transactions are not precluded from coverage under the

law. To the contrary, it is logical to conclude that most transactions involving

the [UTPCPL] are, in fact, commercial.” Id. at 17.

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Reagan’s issue concerns statutory interpretation of the UTPCPL, which

is a legal question. Therefore, “our scope of review is plenary, and our

standard of review is de novo.” Gregg v. Ameriprise Fin., Inc., 195 A.3d

930, 940 (Pa. Super. 2018), appeal granted on other grounds, __ A.3d __

[490 WAL 2018] (June 27, 2019). We are also guided by the following:

The UTPCPL is Pennsylvania’s consumer protection law, which

serves the purpose of protecting the public from unfair or

deceptive business practices. The UTPCPL explicitly authorizes a

private cause of action for anyone who purchases goods primarily

for personal, family, or household purposes and “suffers any

ascertainable loss of money or property” as a result of any person

employing an unlawful method, act, or practice. 73 P.S. §201-

9.2(a).

Zajick v. Cutler Grp., Inc., 169 A.3d 677, 680 (Pa. Super. 2017) (citation

omitted). Whether a purchase is for “personal, family or household purposes”

is contingent on the “purpose of the purchase, not the type of product

purchased.” Valley Forge Towers S. Condo. v. Ron-Ike Foam

Insulators, Inc., 574 A.2d 641, 648 (Pa. Super. 1990) (italics in original)

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(“Valley Forge”), aff’d, 605 A.2d 798 (Pa. 1992).8 See also Novinger Grp.,

Inc. v. Hartford Ins., Inc., 514 F. Supp. 2d 662, 670 (M.D. Pa. 2007).9

Moreover,

[t]he statute affords the right to cancel to any consumer who

agrees to purchase goods or services with a value of $ 25 or more

“as a result of or in connection with” contact between the seller

and the consumer at the consumer’s home. The statute provides

for no exceptions.

Burke v. Yingling, 666 A.2d 288, 291 (Pa. Super. 1995).

Here, the trial court found the following:

Reagan is incorrect to argue that Section 201-7 of Pennsylvania

Unfair Trade Practices and Consumer Protection Law (“UTPCPL”)

bars Universal’s recovery. Reagan’s business-account payment

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8 The Valley Forge panel set forth the following example, illustrating the

distinction between the purpose of a purchase and the type of product

purchased:

If a laundry business were to purchase a home-use model,

department store dryer for the primary purpose of drying clothes

for the laundry business, such a purchase would be primarily for

a business purpose, despite the fact that the dryer may have been

a typical “consumer product.” On the other hand, if the parents

of twelve growing children purchased an industrial washer and

dryer from a business supplier to be used primarily to do the

family’s laundry, the purchase would be primarily for a family

purpose and come within the ambit of 73 P.S. § 201-9.2,

notwithstanding the fact that industrial washers and dryers

generally might not be considered typical "consumer products."

Valley Forge, 574 A.2d at 648 (emphasis in original).

9 We note “decisions of the federal district courts . . . are not binding on

Pennsylvania courts, even when a federal question is involved.” Kubik v.

Route 252, Inc., 762 A.2d 1119, 1124 (Pa. Super. 2000) (citation omitted).

Nevertheless, these decisions are persuasive authority and helpful in our

review of the issue presented.

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for the building in question persuaded this court that this case

involved a commercial transaction. Section 201-7 of the UTPCPL

is intended to protect residential consumers who have fallen prey

to sellers who contact those customers at their home before they

have time to reflect on the transaction. See Johnson v. Metlife

Bank, 883 F.Supp.2d 542, 551 (E.D.Pa. 2012); Burke v.

Yingling, 666 A.2d 288, 291 (Pa. Super. 1991); 73 P.S. § 201-7.

The UTPCP[L] is inapplicable.

Trial Court Opinion, 8/16/2018, at 5.

We agree with the trial court that the UTPCPL does not apply to the

present matter. As noted above, the UTPCPL provides for a private cause of

action for anyone who purchases goods “primarily for personal, family, or

household purposes” and “suffers any ascertainable loss of money or

property” as a result of any person employing an unlawful method, act, or

practice. 73 P.S. §201-9.2(a). A review of Reagan’s original answer, her four

sets of amended answers, new matters, and counterclaims, and her

preliminary objections10 reveals that Reagan failed to set forth any allegation

or point to any evidence establishing her “purpose” for the purchase. Valley

Forge, 574 A.2d at 648. Indeed, in none of those documents did Reagan

even mention that the purchase at issue was “primarily for personal, family,

or household purposes” as set forth in Section 201-9.2 of the UTPCPL. Zajick,

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10 See Defendant’s Original Answer, 6/28/2016; Amended Answer, New

Matter and Counterclaim, 1/19/2017; Second Amended Answer, New Matter

and Counterclaim, 2/27/2017; Third Amended Answer, New Matter and

Counterclaim, 4/7/2017; Amended Answer, New Matter and Counterclaim,

5/11/2017; and Defendant’s Preliminary Objections to Plaintiff’s New Matter

Raising Questions of Fact, 7/3/2017.

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169 A.3d at 680. Rather, she made general references to the UTPCPL but did

not explicitly plead why she qualified for protection under the statute. For

example, in her second Amended Answer, New Matter and Counterclaim,

Reagan sets forth the following allegations, in relevant part:

5. The averments of paragraph 5 of [Universal]’s Complaint are

denied. It is denied that Paula Reagan provided a check to

[Universal] in the amount of $12,705.00 for engineering of a

building and other preliminary work. To the contrary Paula

Reagan at no time knowingly and/or intentionally provided any

check or funds to [Universal]. By way of further response, at all

times material, [Universal] engaged in conduct intended to cause

the likelihood of confusion and misunderstanding on the part of

Paula Reagan in violation of the [UTPCPL]. [Universal] provided

false information to Paula Reagan and/or knowingly failed to

disclose material facts to Ms. Reagan including the fact that

[Universal] intended to obtain information from [Reagan] to be

used to withdraw funds from her bank accounts without her

consent or knowledge. The funds alleged to have been provided

were reversed by Ms. Reagan’s bank based on [Universal]’s

fraudulent conduct.

…

New Matter

…

17. [Universal]’s claims are barred based on [Universal]’s fraud

in execution of the alleged agreement.

18. In the course of conducting an internet search to purchase a

pre-fabricated steel building, [Reagan] came upon [Universal]’s

website. [Reagan] requested an on-line quote for the type and

size of building she required.

19. On or about January 5, 2016, [Universal]’s salesperson,

George Poelcher, contacted [Reagan] and represented to [her]

that the information [Universal] was requesting from [Reagan]

was in order to allow [Universal] to prepare a bid (quote) on the

type of building [Reagan] was shopping, when in reality it was the

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intention of [Universal] to induce [Reagan] to provide information

which would be used by [Reagan]’s software to affix [Reagan]’s

e-signature without her knowledge or consent on both an

agreement and deposit check.

20. The representations by George Poelcher were material to the

transaction, knowingly false and/or made with reckless disregard

for the truth with the intent to mislead [Reagan], who justifiably

relied upon [Universal]’s representations, suffering injuries as a

result.

21. [Universal] deceived [Reagan] into believing the information

she was providing was to allow [Universal] to prepare a bid when

in reality [Universal] intended to fraudulently obtain [Reagan]’s

electronic signature without her knowledge, agreement, consent,

or intention.

22. [Reagan] at no time formed any intent to enter an agreement

and/or to provide an electronic signature to any agreement nor

did [she] intend to provide [Universal] with an advance payment.

23. [Universal] used [Reagan]’s information to fraudulently

obtain funds without [her] knowledge or consent as there was no

mutual assent to enter any agreement.

…

27. [Universal]’s claims are barred as [its] conduct in this matter

is in violation of the requirements of the Pennsylvania Unfair Trade

Practices and Consumer Protection Law, 73 P.[S.] 201 et seq.

…

Counterclaim

…

COUNT 1-PLAINTIFF HAS VIOLATED THE UNFAIR TRADE

PRACTICES AND CONSUMER PROTECTION LAW

66. [Reagan] incorporates paragraphs 1 through 51 as though

fully set forth at length.

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67. [Reagan] brings this count and the Court has jurisdiction

pursuant to Section 201.92 of the Pennsylvania Unfair Trade

Practices and Consumer Protection Law (hereinafter UTPCPL) 73

P.S. 201-1 et seq.

68. Pursuant to 73 P.S[.] 201.92 of the UTPCPL [Reagan] avers

that the conduct by [Universal] described herein has violated the

UTPCPL Section 201-2(4) ii, iii, v, viii, ix, xi, xvii, and xxi by:

a. engaging in conduct which created a likelihood of

confusion and misunderstanding and,

b. engaging in fraudulent or deptive [sic] practices as set

forth hereinabove.

69. Pursuant to the provisions of the UTPCPL 201-9.2 (a)

[Reagan] requests three (3) times her actual damages or $100.00

plus attorney’s fees and costs.

WHEREFORE, [Reagan] requests judgment in her behalf as set

forth above plus any additional relief as deemed necessary and

proper by the Court.

Second Amended Answer, New Matter and Counterclaim, 2/27/2017, at ¶¶ 5,

17-23, 27, and 66-69.

Furthermore, even in her appellate brief, Reagan does not assert what

her purpose in acquiring the building was to support a finding that the UTPCPL

applies to this case; rather, she merely points to the fact that she, as an

individual, was the only party named in the action and the underlying

allegations, and there was no connection between her company, SLR

Unlimited, and the disputed transaction even though funds were taken from

SLR Unlimited’s business account to pay for the building. See Reagan’s Brief

at 16-17.

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Likewise, Reagan does not provide any argument regarding the

standard described in Burke, supra, in which the UTPCPL affords any

consumer the right to cancel when she agrees “to purchase goods or services

with a value of $ 25 or more ‘as a result of or in connection with’ contact

between the seller and the consumer at the consumer’s home.” Burke,

666 A.2d at 291 (emphasis added).11 Specifically, Reagan never alleged that

Universal made contact with her at her home.

Without more evidence, it does not appear that Reagan, as the buyer in

this case, has met her burden of demonstrating that she was in need of any

special protection from Universal, the seller. One can reasonably infer that

Universal’s services, constructing a customized steel building, were of a

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11 In Burke, supra, the appellant-buyer initially contacted appellee-seller,

and the parties entered into a contract whereby appellee-seller was to design

and install a customized audio/video system in appellant-buyer’s home.

“Buyer and Seller then met at Buyer’s home to discuss the transaction. The

parties continued to negotiate concerning the purchase of the system over the

next few months. At least one more meeting between the parties concerning

the transaction occurred at Buyer’s home.” Burke, 666 A.2d at 289. The

trial court “found little or no significance to the fact that Seller made repeated

contacts with Buyer at Buyer’s home[,]” and concluded that “since Buyer is a

sophisticated consumer who himself initiated contact with Seller and who

conducted lengthy negotiations over the purchase of a very expensive

product,” he was “not the type of consumer that [S]ection 201-7 s[ought] to

protect.” Id. at 290. On appeal, a panel of this Court rejected that finding,

determining “the broad language of UTPCPL does not support the trial court’s

rationale or decision.” Id. at 290-291. The panel concluded the buyer was

entitled to the benefits of the statute based on the facts of the case, the Buyer

and Seller negotiated the terms of the transaction at Buyer’s home. Burke is

distinguishable from the present matter, where the record is void of any

evidence that Universal went to Reagan’s home and discussed the terms of

the contract.

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commercial nature and were not intended to serve family, personal or

household purposes. Moreover, the building was to be delivered to an address

different from Reagan’s residence. See Complaint, 5/18/2016, at ¶¶ 2, 7

(Reagan resided in Roanoke, Texas, and the building was to be delivered to

Valley View, Texas). Therefore, the trial court acted properly in finding the

UTPCPL did not apply to the present matter. Accordingly, Reagan’s first claim

fails.

Next, Reagan argues, “Where no notice of a right to cancel was ever

provided[,] was the refusal by [] Reagan to accept the building transported to

her by Universal and effective cancellation [protected] under the [UTPCPL]?”

Reagan’s Brief at 19. Specifically, she states:

The evidence adduced at trial is that the required notice was never

provided by Universal to Reagan at the time or at any time

thereafter. Under [73 P.S. § 201-7](b)(2) … the cancellation

period never began to run. Ms. Reagan, therefore, possessed

such rights through February 1, 2016. Ms. Reagan could not

provide the written notice of cancellation detailed in the act

because she never received it. However, she clearly provided

other notice which gave the seller, Universal notice in notifying

the transport company that she did not intend to accept delivery

(exhibit 10) and in refusing to accept delivery and returning the

goods in the same condition they were delivered.

Those rights to cancel were not amenable to waiver under

§201-7 (j.1) (1) and, therefore, no prior conduct on the part of

Ms. Reagan can be deemed such a waiver.

Id. at 20.

Based on our above-provided analysis, including our agreement with the

trial court’s findings, we conclude Reagan’s second argument also fails. As

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discussed supra, the UTPCPL does not apply to the present matter because

Reagan failed to meet her burden in demonstrating that she is protected under

the statute. Accordingly, we need not address this issue further.

In her third argument, Reagan contends that because the transaction

was conducted, in part, electronically and, in part, non-electronically, a

separate and express agreement to do so was required under the

Pennsylvania Electronic Transactions Act (“PETA”).12 Relying on Subsections

2260.901 and 2260.903 of PETA, Reagan alleges there is “no evidence of any

such separate agreement upon which [Universal] can rely agreeing to conduct

the transaction (signature) by electronic means” between Universal and

Reagan. Id. at 22. She argues the testimony supports her contention and

points to the following: “The evidence [in] this case is that part of the

transaction was conducted by electronic means, the email of the purchase

order to Ms. Reagan and the return; and part of the transaction was conducted

non-electronically, the signing by Arnold Davis and the return of the

agreement to Reagan by mail.” Id. Reagan concludes,

There is no authority for the trial court’s conclusion that since the

contract was executed by both parties the [PETA] is satisfied. The

Act nowhere discusses that conclusion. Execution by both parties

may satisfy one of the requirements for a nonelectronic

transaction, but the act specifically requires the separate

agreement in a transaction such as here.

Id.

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12 73 P.S. § 2260.301, et seq.

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Subsection 2260.901 provides:

In the case of a nonelectronic consumer contract or agreement,

the contract or agreement may not contain a provision authorizing

the conducting of the transaction or any part thereof by electronic

means unless the consumer agrees to such a provision by a

separate and express acknowledgment. Such an agreement shall

specifically indicate the parts of the transaction to be conducted

by electronic means, and shall indicate the manner in which the

electronic transaction or a part thereof shall be conducted. An

agreement to conduct a consumer transaction or a part thereof

electronically may not be inferred solely from the fact that the

consumer has used electronic means to pay an account or register

a purchase or warranty.

73 P.S. § 2260.901.

Subsection 2260.903 provides:

The provisions of this chapter may not be varied by agreement of

the parties to a consumer contract or transaction.

73 P.S. § 2260.903.

The court found the following: “Reagan’s contention that there needed

to be a separate, non-electronic agreement under 73 P.S. § 2260.901 in order

to validate the electronic contract is incorrect. The instant contract was

executed by both parties and constitutes an enforceable electronic contract

under 73 P.S. § 2260.101, et seq.” Trial Court Opinion, 8/16/2018, at 5.

Keeping our standard of review regarding statutory interpretation in

mind, we agree with the court’s conclusion. Reagan misconstrues the

language in Subsection 2260.901, which provides: “In the case of a

nonelectronic consumer contract or agreement, the contract or

agreement may not contain a provision authorizing the conducting of the

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transaction or any part thereof by electronic means unless the consumer

agrees to such a provision by a separate and express acknowledgment.” 73

P.S. § 2260.901 (emphasis added). Here, this was not the case of a

non-electronic consumer contract or agreement. Rather, as noted above, this

was a commercial transaction. Moreover, Universal sent Reagan a proposed

contract via email and she electronically executed the contract. See Trial

Court Opinion, 8/16/2018, at 2. Therefore, her argument that a separate

agreement authorizing electronic means with respect to the transaction is

meritless. Accordingly, Reagan’s third argument also fails.

In her penultimate issue, Reagan claims there was insufficient evidence

to support the conclusion that she ratified the contract by her conduct

regardless the enforceability of the underlying agreement. Reagan’s Brief at

31. She points out that she did not raise this issue in her concise statement

but that the trial court “elected to[,] on its own initiative[,] to raise this

contention for the first time” in its Rule 1925(a) opinion. Id. A review of

Reagan’s concise statement confirms that she did not raise the issue of

ratification with the trial court. See Defendant’s Statement of Errors

Complained of on Appeal, 10/9/2018. Nevertheless, Reagan’s contention

warrants no relief as the trial court was merely supplementing its analysis

regarding Reagan’s UTPCPL and PETA issues, and not sua sponte addressing

a new claim. The court stated:

In any event, however, Reagan’s conduct (e.g., making a down

payment, objecting to an initially intended delivery date,

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demanding a different specific delivery date, threatening to claim

breach if Universal failed to deliver on the date she demanded,

acquiescing in and not repudiating the contract as Universal/Corle

prepared to ship and did ship the building) demonstrate plainly

that she ratified the contract in this case. Sams v. Sams, 808

A.2d 206, 212 (Pa. Super. 2002) (indicating a party ratifies a

contract by accepting benefits, remaining silent, or acquiescing

when party has an opportunity to void the contract). Reagan

cannot now avoid her responsibilities by relying on the [UTPCPL]

or 73 P.S. § 2260.901.

Trial Court Opinion, 8/16/2018, at 5. The underlying substantive issue at trial

was whether Reagan breached the contract with Universal even though she

had accepted the benefits of the agreement through ratification. The court

was merely pointing out that she cannot rely on UTPCPL and PETA to avoid

her acceptance of the contract. Accordingly, Reagan’s fourth argument fails.

Lastly, Reagan contends there was insufficient evidence to support the

court’s determination as to the reasonableness of the attorneys’ fees and the

court abused its discretion in awarding $89,585.92 in attorneys’ fees on a

$24,450.00 breach of contract dispute. Reagan’s Brief at 23. She states:

The fee award in this case operates as a windfall to Universal

and their attorneys. The case involved a simple breach of contract

complaint involving at most $24,450.00 in damages. It required

no special skill or expertise to litigate.

In support of its fee determination the trial court indicated

that it relied upon the “factors relevant” in [Holz v. Holz, 850

A.2d 751 (Pa. Super. 2004)] but failed to actually discuss any of

the factors.

Reagan’s Brief at 26. Reagan further complains that “in this case the only

factors discussed in support of the fee award were that Ms. Reagan had raised

six counterclaims involving electronic communications and that there was

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vigorous litigation by both parties.” Id. at 27. She notes the award of

attorneys’ fees is almost four times the amount of damages, and appears to

be punitive and an abuse of discretion, arguing:

There is no evidence in the record as to what efforts or services

were required of Universal’s counsel as a result of Ms. Reagan’s

counterclaims. The pleadings indicate that Universal’s first

counsel, Anthony Jeselnik, filed an Answer to the counterclaims.

No motions or objections relevant to the counterclaims were ever

filed nor discovery or depositions relevant thereto were taken and

the reality is that the counterclaims were never really litigated.

No evidence or testimony is on the record as to any efforts in that

regard.

The record also does not support the conclusion that this case

involved vigorous litigation. There was a one-half day arbitration

hearing and a one day non-jury trial. The record in this case

shows that attorney Anthony Jeselnik, was counsel of record for

Universal from the inception of the lawsuit in May 2016 through

the pre trial conference in December 2018, one month before the

non-jury trial. Without explanation or formal filing of a request to

withdraw by attorney Jeselnik, J. Alexander Hershey, Esq. of Clark

Hill, a Pittsburgh law firm, entered an appearance on behalf of

Universal on January 3, 2018, five days before trial.

Neither attorney offered into evidence a fee agreement or any

writing relative to a fee arrangement with Universal.

Id. at 27-28.

The contract between the two parties provides:

In the event that Buyer defaults or breaches any of the terms or

conditions of this Contract and Seller utilizes an attorney to

enforce or defend any of the provisions of the Contract, Buyer

shall pay to Seller, Seller’s attorneys’ fees and costs to the

maximum extent allowed by law. Seller’s attorney’s fees include

attorney time spent by its in house counsel, which shall be payable

by Buyer at the prevailing market rates of Seller’s outside

attorneys in Pittsburgh Pennsylvania.

Complaint, 5/18/2016, at Exhibit A (page 3, ¶ 20).

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“[O]ur standard of review of awards of attorneys’ fees is well-settled.

Whether to award attorneys’ fees and costs incurred in bringing an action [is]

within the discretion of the trial court, and we will not reverse a trial court’s

decision on the matter in the absence of an abuse of discretion.” Regis Ins.

Co. v. Wood, 852 A.2d 347, 349-350 (Pa. Super. 2004), citing First

Pennsylvania v. National Union, 580 A.2d 799 (Pa. Super. 1990).

Moreover, the Pennsylvania Supreme Court “has held that courts may consider

reasonableness when making a counsel fee award, regardless of the precise

verbiage of the document authorizing such award.” Law Offices of Justin

R. Lewis, PLLC v. Diven, 18 A.3d 1223, 1224 (Pa. Super. 2011), appeal

denied, 34 A.3d 831 (Pa. 2011), citing McMullen v. Kutz, 985 A.2d 769, 776-

777 (Pa. 2009) (“[W]e join the majority of our sister states in finding that

parties may contract to provide for the breaching party to pay the attorney

fees of the prevailing party in a breach of contract case, but that the trial court

may consider whether the fees claimed to have been incurred are reasonable,

and to reduce the fees claimed if appropriate.”).

This Court has previously evaluated the reasonableness of

attorneys’ fees by examining the following factors:

[T]he amount of work performed; the character of the

services rendered; the difficulty of the problems involved;

the importance of the litigation; … the degree of

responsibility incurred; whether the fund involved was

‘created’ by the attorney; the professional skill and standing

of the attorney in his profession; the results he was able to

obtain; the ability of the client to pay a reasonable fee for

the services rendered; and, very importantly, the amount of

money or the value of the property in question.

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Holz v. Holz, 2004 PA Super 181, 850 A.2d 751, 761 (Pa. Super.

2004), appeal denied, 582 Pa. 700, 871 A.2d 192 (2005) (quoting

Gilmore by Gilmore v. Dondero, 399 Pa. Super. 599, 582 A.2d

1106, 1109 (Pa. Super. 1990). “[I]n exercising its discretion, [the

trial court] must evaluate the reasonableness of time spent by

counsel in relation to the particular case.” Danks v. Government

Employees Ins. Co., 307 Pa. Super. 421, 453 A.2d 655, 656 (Pa.

Super. 1982).

Although the responsibility for setting counsel fees lies primarily

with the trial court, this Court has the power to reverse that

exercise when there is plain error. Gilmore, supra at 1108.

“Plain error is found where the award is based either on factual

findings for which there is no evidentiary support or on legal

factors other than those that are relevant to such an award.” Id.

Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38, 70 (Pa. Super. 2016).

Here, the court found the following:

[T]his court’s award of counsel fees was appropriate. This case

involved Universal’s breach of contract claim, six counterclaims

raised by Reagan, evidence involving numerous electronic

communications, and vigorous litigation by both parties. This

court reviewed the claim for counsel fees and, in light of all factors

relevant thereto, see [Holz v. Holz], 850 A.2d 751, 761 (Pa.

Super. 2004) (discussing factors relevant to award of counsel

fees), determined that the awarded amount was fair and

reasonable.

Trial Court Opinion, 8/26/2018, at 6.

Based on the specific record before us, we are constrained to disagree

with the court’s determination as we find the award of attorneys’ fees

($89,585.92), which is over three times the amount of damages

($24,617.00), facially unreasonable. Moreover, while the court generally

refers to applying the Holz reasonableness factors, it provides no detailed

explanation, including why the filing of six counterclaims could amount to such

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excessiveness for attorneys’ fees. Additionally, with respect to the Holz

reasonableness factors, we note that even though the transaction was

processed electronically, this was a standard breach of contract cause of

action, and the matter began in May of 2016 and concluded in August of 2018,

with a one-day non-jury trial. Pursuant to Holz, we are “unable to discern

from the court’s opinion exactly what factors it found relevant and on what

basis it awarded the counsel fees. Moreover, we are unable to determine the

parties’ respective financial situations[.] Holz, 850 A.2d at 761. With such a

deficient record and analysis regarding the reasonable factors, we conclude

the attorneys’ fee award in the present matter “is based either on factual

findings for which there is no evidentiary support [and] on legal factors other

than those that are relevant to such an award.” Gilmore by Gilmore, 582

A.2d at 1108. Accordingly, we are compelled to vacate the attorneys’ fees

award and remand the matter to allow the court also to reconsider the amount

of the attorneys’ fees to be awarded.

Judgment affirmed in part, vacated in part and remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/2019

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