HomeMy WebLinkAbout2010-4356
SANDRA S. KING, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
DAVID E. WINSTON, D/B/A :
INTERLINK SUPPLY AND :
PROFESSIONAL SOLUTIONS, INC.:
DEFENDANTS : NO. 10-4356 CIVIL
IN RE: NON-JURY TRIAL
ORDER OF COURT
th
AND NOW
, this 28 day of August, 2012, after a non-jury trial in the above-
captioned matter, the verdict of the Court is as follows:
1. On Sandra S. King’s claim of Breach of Contract (Plaintiff’s Complaint, Count
I) the Court finds in favor of Sandra A. King and against David E. Winston and
1
awards her the sum of $36,297.65 together with late charges from
2
December 2008, totaling $3,629.00. The entire award is $39,926.65 together
with interest at the legal rate from the date of this Order.
a. Sandra S. King’s second requested relief that this Court issue
DENIED
an Order evicting Defendant from the premises is . The Plaintiff must
proceed in an action of ejectment under the “Landlord Tenant Act of 1951” 68
P.S. § 250.101. The Court holds that the Defendant is a hold over tenant
obligated to pay rent at $3,500.00 a month until a new lease is presented to him
1
Between January 2009, and the present, August 2012, the Defendant has paid $2,747.83 a month. He should
have been paying $3,500.00 a month. The difference is $33,095.48. In December of 2008, the Defendant paid
$297.83. The difference is $3,202.17. The sum of $33,095.48 and $3,202.17 is $36,297.65. This amount does not
include late fees.
2
The October 2005 Agreement of Lease states a 10% late fee. The Plaintiff calculated the late fee as 10% of the
difference of the amount paid and the amount owed. In December of 2008, the late fee is calculated at $320.20.
Every month thereafter, the late fee is $75.20.
pursuant to Reading Ter. Mech. Ass’n v. S. Rappaport Assoc., 456 A.2d 552
(Pa. Super. 1983).
b. Sandra S. King’s third requested relief that the recorded Option
Letter be terminated as an encumbrance to Plaintiff’s title to the premises is
GRANTED
.
c. Sandra S. King’s fourth requested relief that she be awarded
DENIED
attorney’s fees and costs is .
2. On Sandra S. King’s claim of unjust enrichment (Plaintiff’s Complaint, Count
II) the Court having found a breach of contract at Count I, the request for relief
for Unjust Enrichment is deemed moot.
3. On David E. Winston’s claims of (1) Quiet Title (Defendant’s Counterclaim,
Count I), (2) Breach of Contract (Defendant’s Counterclaim, Count II), and (3)
Declaratory Judgment (Defendant’s Counterclaim, Count III), the Court finds in
favor of Sandra A. King and against David E. Winston.
By the Court,
_________________________
M. L. Ebert, Jr., J.
William L. Adler, Esquire
Attorney for Plaintiff
Charles T. Young, Jr., Esquire
Attorney for Defendant
2
3
SANDRA S. KING, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
DAVID E. WINSTON, D/B/A :
INTERLINK SUPPLY AND :
PROFESSIONAL SOLUTIONS, INC.:
DEFENDANTS : NO. 10-4356 CIVIL
IN RE: NON-JURY TRIAL
OPINION and ORDER OF COURT
Ebert, J., August 28, 2012
PROCEDURAL HISTORY
On July 1, 2010, Plaintiff, Sandra S. King, filed a Complaint alleging breach of
3
contract and unjust enrichment. The Plaintiff alleged that the Defendant breached the
“Agreement of Lease” entered on October 24, 2005, by continuing to occupy the
premises at 4609 Gettysburg Road, Mechanicsburg, Cumberland County,
Pennsylvania. The Plaintiff also alleged that the Defendant has been unjustly enriched
by occupying the premises beyond the term of the “Agreement of Lease”.
The Plaintiff is seeking damages in the amount of $17,990.22, plus continuing
accrued lost rent and late fees; the eviction of the Defendant; termination of the Option
Letter; and attorney’s fees.
3
King v. Winston, 10-4356 Civil, Complaint, filed July 2, 2010
4
On September 13, 2010, Defendant filed an Answer with New Matter. The
Defendant counterclaimed with count I, quiet title, count II, breach of contract and a
count III, declaratory judgment. The Defendant alleged that he and the Plaintiff entered
into a sales agreement for the purchase of said property, and Plaintiff has breached the
terms of the sales agreement by failing and refusing to execute a deed and provide title
to the property.
The Defendant is seeking title to the property in dispute and requesting the Court
to characterize the continuing payments made to the Plaintiff as installment payments
on a purchase money mortgage.
On February 9, 2012, a non-jury trial was held. A transcript of the trial was
prepared, and both parties filed briefs.
FINDINGS OF FACT
1. The Plaintiff owns the property at 4609 Gettysburg Road Mechanicsburg, Pa
5
17055.
6
2. There are two buildings on said property.
3. On October 24, 2005, the Plaintiff and the Defendant entered into a lease
agreement for the Defendant to lease 8237 square feet of gross floor space and 391
7
square feet of overhead storage in the “Main Building” on said property.
4
King v. Winston, 10-4356 Civil, Defendant’s Answer with New Matter and Counterclaims to the Complaint, filed
September 13, 2010
5
King v. Winston, 10-4356 Civil, In Re:Non-Jury Trial, February 9, 2012, Ebert, Jr., J (hereinafter “N.T.__”) N.T. 8
6
N.T. 15
2
4. The lease was for 36 months beginning November 1, 2005, at $3,500.00 per
8
month.
5. Paragraph 4 of the “Agreement of Lease” indicates that “Lessee had expressed
9
an interest in possibly purchasing the property … at the end of this lease term.”
6. Paragraph 20 of the “Agreement of Lease” gives the Lessee a right of first refusal
10
for the purchase of the property.
7. Paragraph 7 of the “Agreement of Lease” states that Lessee agrees to give
notice of his intentions to renew or not renew the lease or purchase the property 90
days prior to the termination of this lease period. The Lease expired on October 31,
11
2008.
8. Paragraph 5 of the “Agreement of Lease” states that the Lessee has permission
12
to make changes to the building at his expense.
9. Subsequent to the “Agreement of Lease”, the Plaintiff drafted an agreement for
an “Offer of Terms for Property Purchase”, dated October 31, 2005. The terms agreed
upon by the parties were that 1) if the Defendant opted to purchase the property, he
would receive a credit of $36,000.00 toward the $600,000.00 purchase price; 2) the
Plaintiff agreed to a mortgage rate of 5%; and 3) if the Defendant chose not to purchase
7
King v. Winston, 10-4356 Civil, In Re: Non-Jury Trial, February 9, 2012, Ebert, Jr., J, Plaintiff’s trial exhibits
(hereinafter “Plaintiff Exhibit _”), Plaintiff Exhibit #1
8
Plaintiff Exhibit #1
9
Plaintiff Exhibit #1
10
Plaintiff Exhibit #1
11
Plaintiff Exhibit #1
12
Plaintiff Exhibit #1
3
the property, he could negotiate a new lease, vacate the premises or negotiate terms of
13
the sale for a future date.
10. Pursuant to the “Agreement of Lease”, on June 11, 2008, the Defendant wrote a
letter to the Plaintiff stating his intent to purchase the property located at 4609 and
14
4609A.
11. On August 1, 2008, the Plaintiff sent a letter to the Defendant detailing the terms
15
of a Sales Agreement. The letter reiterated the selling price and the interest rate, as
listed in the “Offer of Terms for Property Purchase”. The letter detailed additional terms:
a down payment; monthly payments; the balance of the mortgage; who was financing
the mortgage; the settlement cost; payment of taxes; insurance; maintenance; property
inspection; terms if Plaintiff becomes disabled; and a condition that “Buyer and Seller
16
will split the cost of an attorney to complete this arrangement.”
12. Following the June and August letters, the Defendant never contacted the
17
Plaintiff.
13. On September 30, 2008, the Plaintiff sent the Defendant a letter stating that she
had not received written notification from him regarding the terms she detailed in her
st18th
August 1 letter. This September 30 letter informed the Defendant that if the Plaintiff
did not receive “notification” from him by November 1, 2008, the sale was void.
Furthermore, she stated that if he wants to pursue a sales agreement, she needed a
13
Plaintiff Exhibit #2
14
Plaintiff Exhibit #5
15
Plaintiff Exhibit #6
16
Plaintiff Exhibit #6
17
N.T. 19, 20
18
Plaintiff Exhibit #8
4
letter from his financial institution approving the funds for the down payment.
19
Additionally, the letter set forth the new rental fee, effective November 1, 2008.
14. A letter dated October 17, 2008, was drafted by the Defendant’s attorney and
sent to the Plaintiff. The letter indicated the Defendant’s willingness to purchase the
property. It sets forth additional details of a 20 year mortgage and a suggested “balloon
20
payment”. The letter did not mention a down payment.
15. On October 20, 2008, the Plaintiff wrote back to defense counsel that she wanted
a 15 year financing agreement and proof that the Defendant can pay the $188,000.00
21
down payment.
th
16. Up until October 20, the Plaintiff had received no correspondence, written or
otherwise, from the Defendant on whether he accepted the condition of a down
22
payment.
th
17. Between October 20 and October 31, 2008, the Plaintiff spoke with defense
counsel about the down payment. Defense counsel assured the Plaintiff that the
23
Defendant had the money for the down payment. In a letter dated October 31, 2008,
24
the Plaintiff reduced the down payment amount to $141,000.00.
19
N.T. 25-26, Plaintiff Exhibit #8
20
Plaintiff Exhibit #10
21
Plaintiff Exhibit #11
22
N.T. 28
23
N.T. 29, 30
24
N.T. 29, Plaintiff’s Exhibit #12
5
18. The Plaintiff never received the written assurance she was seeking that the
25
Defendant had actually secured the requested down payment.
19. Defense counsel and Plaintiff were negotiating a sales agreement, as evidence
by counsel’s fax dated November 3, 2008, that contained a 9 page “Installment Sales
26
Agreement”.
20. In a letter dated November 1, 2008, the Plaintiff told defense counsel not to
27
proceed with preparing a sales agreement. In a letter dated November 3, 2008, the
Plaintiff told defense counsel, “[B]ottom line is this, I will not do a Sales Agreement with
28
him.”
21. On November 3, 2008, the Plaintiff prepared a new Lease and sent it certified
29
mail to the Defendant. The Plaintiff received notification that the Defendant received
30
the Lease, but the Lease was never signed or returned to the Plaintiff.
22. It is clear from the Plaintiff’s testimony that from the beginning, in October of
2005, she intended to give the Defendant the first opportunity to purchase the property;
whether he had the ability or means to purchase the property would become clearer at
31
the end of the 3 year lease.
25
N.T. 30, 32, 33
26
Plaintiff Exhibit #17
27
Plaintiff Exhibit #14
28
Plaintiff Exhibit #16
29
N.T. 26, Plaintiff Exhibit #16
30
N.T. 26, 42
31
N.T. 75, 84, 85
6
23. The “Offerof Terms for Property Purchase” that was signed on October 31, 2005,
32
guaranteed the purchase price and the 5% interest rate. It was not a guarantee that
33
the Defendant could purchase the property.
24. At the time of the “Agreement of Lease”, the Defendant had in his possession a
letter dated October 11, 2005, from the Plaintiff. This letter indicated a lease payment
of $3,500.00 per month to be locked in for 2 or 3 years. Additionally, it stated that if the
Defendant were interested in purchasing the property at the end of the 3-year lease, the
34
purchase price would be $564,000.00, with a 5% rate.
25. After the lease was signed on October 24, 2005, containing no details about
purchase price or interest rate, on October 27, 2005, the Defendant wrote a letter to the
35
Plaintiff asking that the terms be included in the lease.
26. There is no mention of a 20 year mortgage term either in the October 11, 2005,
letter, the October 27, 2005, letter, or the October 31, 2005, “Offer of Terms for Property
Purchase”. Contrary to the Defendant’s testimony that he believed the mortgage term
was part of the “sales agreement”, the first documented request for a 20-year mortgage
was in defense counsel’s letter dated October 17, 2008. Moreover, the Defendant
36
admitted that he never discussed a 20-year mortgage with the Plaintiff.
32
N.T. 75, 76
33
N.T. 77
34
King v. Winston, 10-4356 Civil, In Re: Non-Jury Trial, February 9, 2012, Ebert, Jr., J, Defendant’s trial exhibits
(hereinafter “Defendant Exhibit _”), Defendant Exhibit #17
35
Defendant Exhibit #20
36
N.T. 147
7
27. The Defendant made improvements or changes to the “Main Building” at 4906,
as indicated in the “Agreement of Lease”. Furthermore, the Lease stated these
37
improvements would be at the cost of the Lessee.
28. The Defendant claims that as a result of a parking spot issue, the Plaintiff told
38
him he could no longer buy the property. However, on February 19, 2008, the Plaintiff
wrote to the Defendant about resolving the parking spot problem. Nowhere in that
2 ½-page letter did the Plaintiff threaten to prevent the Defendant from purchasing the
39
property. Moreover, after a thorough reading of the written correspondence between
the parties, and of cross examination of the Plaintiff, this Court finds that the Plaintiff is
forthcoming with her feelings. If the Plaintiff had told the Defendant that she is no
longer willing to sell the property to him, she would have recorded it in a letter.
29. The Defendant never produced verification that a deposit could be made
40
because his financial supporter withdrew.
30. Following the expiration of the October 24, 2005, “Agreement of Lease”, the
Defendant continued to make monthly payments. For the month of November 2008, the
41
Defendant paid $3,850.00, which was the rent stated in the new lease. For the
42
months thereafter, the Defendant paid $2,747.83 a month. Knowing the Plaintiff was
not going to sell him the property, the Defendant calculated what he believed his
37
Plaintiff Exhibit #1
38
N.T. 117
39
Plaintiff Exhibit #4
40
N.T. 149-50
41
N.T. 125
42
N.T. 122
8
mortgage payments would be, and submitted those payments instead of the $3,500.00
43
per the old lease and the $3,850.00 per the new lease.
DISCUSSION
I. THE OCTOBER 31, 2005, DOCUMENT IS NOT ENFORCEABLE.
The Defendant’s principal contention is that the written agreement between him
and the Plaintiff constituted a specifically enforceable contract for the sale and purchase
of the property described. “[S]pecific performance is an equitable remedy for breach of
contract permitting the court ‘to compel performance of a contract when there exists in
the contract an agreement between the parties as to the nature of the performance.’”
Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006) (quoting Geisinger Clinic v.
DiCuccio, 606 A.2d 509, 521 (Pa. Super. 1992)) (emphasis omitted). Giordano v.
Claudio, 714 F. Supp. 2d 508, 532 (E.D. Pa. 2010). However, where the performance
under a contract is uncertain, the court will not write the contract for the parties.
Lackner, supra (citing Turner v. Hostetler, 518 A.2d 833, 836 (Pa. Super. 1986).
“As a basis for a decree of specific performance, it is essential that there be a
definite present agreement in writing, every requisite element whereof is clearly and
fully set forth therein”. Gettemy v. Homestead Ass’n of Westmoreland, 52 A.2d 325,
326-27 (Pa. 1947) (citing Brown v. Hughes, 90 A. 651 (Pa. 1914). “Stated otherwise,
the writing must definitely and conclusively evidence a meeting of the minds of the
parties on all requisite terms of the agreement[;] nothing can be left to the future except
actual performance”. Id. (citing Agnew v. Southern Avenue Land Co. 53 A. 752 (Pa.
43
N.T. 126, 127
9
th
1902) (Kopp v. Tubies 4 Pa. D. & C. 5 69 (Pa.Cm.Pl. 2008)). A meeting of the minds
requires the concurrence of both parties to the agreement, or they have failed to
execute an enforceable contract. Dep't of Transp. v. Pa. Indus. for Blind &
Handicapped, 886 A.2d 706 (Pa. Cmwlth. 2005). Further, there must be a meeting of
the minds on all terms of the contract. Id. City of Erie v. Fraternal Order of Police,
Lodge 7, 977 A.2d 3, 12 (Pa. Cmwlth. 2009).
Furthermore, “[a] buyer seeking specific performance of a contract for the sale of
real property has the burden of both pleading and proving that he was ready, willing and
able to perform the contract.” Am-Cal Investment Company v. Sharlyn Estates, Inc.,
255 Cal. App. 2d 526, 539, 63 Cal. Rptr. 518, 527 (1967) (emphasis added). “A
purchaser without funds of his own may show that he was ready and able to pay the
purchase price because he had made arrangements to borrow the required funds from
a lending institution or from a third party, but if he relies upon the negotiation of a loan
from a third party, the buyer must prove: (1) That the third party was legally bound by
contract to advance the funds … and (2) that the party offering to advance the
(purchase price) has the financial ability so to do.” (citations omitted). Id. 255 Cal.App.
2d at 539-40.
In the present case, this Court finds that while there was an agreed upon
purchase price in the “Offer of Terms for Property Purchase”, there were too many
uncertainties. These uncertainties will not be written into the contract by the Court. The
“Offer of Terms for Property Purchase” failed to state 1) the terms of a down payment;
2) the length of the mortgage; 3) the monthly mortgage payments; 4) the payment of
taxes; 5) the payment of insurance; 6) the terms of a default, and other terms upon
10
which the parties were still negotiating years after the “Offer of Terms for Property
Purchase” was signed.
The evidence supports a finding that the parties did not have a “meeting of the
minds” back on October 31, 2005. The record is replete with numerous
communications between the parties beginning August 2008 attempting to negotiate the
terms of a sales contract and never reaching an agreement. There were several written
communications between the Plaintiff and defense counsel where the parties were
negotiating specific terms of a sales agreement. Specifically, on November 3, 2008,
defense counsel submitted for the Plaintiff’s review, an “Installment Sales Agreement”.
However, the Plaintiff testified that throughout the negotiations she refused to accept a
20-year mortgage and insisted upon proof that the Defendant had the funds for a down
payment. There were no communications regarding the enforcement of the October 31,
2005, “Offer of Terms for Property Purchase” until the Plaintiff informed counsel that she
was no longer interested in a sales agreement. Therefore, this Court finds there was no
meeting of the minds on October 31, 2005, when the parties signed the “Offer of Terms
for Property Purchase.”
Moreover, the Defendant has not proven that he was able to perform the
contract. There was testimony that the Defendant had a financial backer, but at some
point the finances were no longer available. Since the writing did not definitively and
conclusively evidence a meeting of the minds of the parties on all requisite terms of the
agreement, and since the defendant did not provide evidence that he was able to
perform the contract, the “Offer of Terms for Property Purchase” is not enforceable.
11
II. THE PLAINTIFF IS ENTITLED TO DAMAGES FOR ARREARAGES OF
RENTAL FEES.
The Plaintiff seeks relief in the amount of $17,990.22 to cover the insufficient
monthly lease fees. The applicable law is “[w]hen a tenant remains in possession after
the termination of a lease, the landlord has the choice of treating such a tenant as a
trespasser, subject to summary ejectment; as a tenant by suffrance; or as a tenant
holding over.” Reading Ter. Mech. Ass’n v. S. Rappaport Assoc., 456 A.2d 552, 556
(Pa. Super. 1983) (hereinafter Reading Terminal) citing Witmer v. Exxon Corporation,
434 A.2d 1222 (Pa. 1981). For a tenancy to result from a holding over, the landlord
must exercise his election, indicating his consent to the tenancy. Usually this consent
will be manifest by accepting rent. American Law of Property, § 3.33.
The law is clear that when a tenant is in possession under a lease and continues
as a hold over tenant, the law implies a new lease on the same terms and subject to the
same covenants and conditions as those contained in the original lease. Reading
Terminal, 456 A.2d at 556 citing Pfingstl v. Chenot, 67 A.2d 649 (Pa. Super. 1949).
However, if the hold over tenant continues to remain on the property after receiving
notice of a change in the terms of the lease, the holding over is construed as
acceptance of the new terms. Id. citing Worrell v. Rosenberry, 74 Pa.Super. 152
(1920). If the lessor gives written notice of intent to change the terms and the lessee
does not give notice of intent to vacate, the lessee is subject to the terms and conditions
of the notice. Id. citing Diamond v. Drucker, 110 A.2d 820 (Pa. Super. 1955). “Were it
otherwise, lessees could hold lessors hostage by the simple expedient of remaining in
possession, thus effectively preventing landlords from modifying any terms of a lease
12
for an indefinite period of time. Tenants would be legally able to obtain a perpetual lease
on the former terms, subject only to the Landlord's right to bring an action in ejectment.”
Id.
In Reading Terminal, 456 A.2d 552 (Pa.Super. 1983) under the terms of their
original lease, the Reading Terminal Merchants were responsible for the payment of
electricity actually consumed. However, the landlord only ever collected a flat rate; well
below the amount actually consumed. Furthermore, the lease was silent as to the
lessees’ responsibility of real estate taxes. In September 1976, prior to the expiration of
the lease, the landlord sent a notice of termination, stating that during lease negotiations
the tenants would be considered tenants at will. Additionally, the landlord sent a new
forty-page lease agreement. The new agreement increased the base rent. It also
required payment for individual consumption of electricity as measured by separate
meters, and it required each lessee to pay its proportionate share of real estate taxes
based on the square footage of the tenancy. The provisions of the new lease were
reiterated and explained orally to each lessee. The tenants objected to the new clauses
and refused either to sign the new lease or to pay the increases associated only with
the electricity and/or real estate taxes. Id at 557. However, they paid the increase in
rental fees.
In May 1978, the landlord demanded retroactive lump sum payments of
electricity actually consumed and threatened that if it was not paid by December 1978,
the landlord would terminate electrical service. Interestingly, the landlord never filed for
eviction of the tenants.
13
The tenants argued that since the landlord accepted payment under the old lease
the landlord cannot collect on arrearages where the tenants did not agree to the terms
of the new lease. The Court found that the landlord did not acquiesce in the
nonpayment of the disputed charges but has acted vigorously to assert his claims. Id.
at 557. Furthermore, while the landlord did not seek ejectment of the tenants, the
landlord acted promptly and unequivocally to make his demands clear by sending the
notification letter along with the new lease and subsequently orally explaining the new
lease conditions with each tenant. Id. at 557.
The facts of the present case are distinguishable from the facts in Reading
Terminal. In the present case, the “Agreement of Lease” expired on October 31, 2008.
On September 30, 2008, prior to the expiration of the lease, the Plaintiff sent the
44
Defendant a letter which included notice of a 10% rental increase In a November 3,
2008, letter addressed to defense counsel, Plaintiff informed counsel that she notified
45
the Defendant of a rental increase. A new 2-year lease was sent to and received by
the Defendant on November 3, 2008. The Defendant never signed the new lease which
increased rental fees from $3,500.00 to $3,850.00. However, the Defendant paid the
$3,850.00 for the month of November.
To the contrary, in Plaintiff’s Complaint, ¶¶ 18 - 22, she avers that the Defendant
is a hold over tenant and owed her $3,500.00 from November 1, 2008, through June 1,
46
2010. Furthermore, in a June 29, 2009, letter from Plaintiff’s counsel to Defendant’s
counsel, Defendant was made aware that he was default of the October 2005 Lease
44
Plaintiff Exhibit #8
45
Plaintiff Exhibit #16
46
Plaintiff’s Complaint, filed July 1, 2010
14
47
Agreement. Most significant is Plaintiff’s Exhibit #31, her late fee calculations. In her
own calculations, she charted the rent the Defendant owed her from November 2008
through February 2011 as $3,500.00. Further, she calculated the late fees based on
the difference of $3,500 and the $2,747.83, the Defendant’s actual payments.
Moreover, she credited the Defendant $350.00 for the month of November 2008 where
he actually paid the new rental fee of $3,850.00. It appears that the Plaintiff considered
the Defendant a hold over tenant and not subject to the new lease.
The Defendant was not evicted from the premises, nor did the Plaintiff file for
eviction of the Defendant. Instead, the Plaintiff accepted payments in the amount of
$2747.83. Although it is clear that the Plaintiff accepted this monthly payment as partial
payments of the rent, she never considered them mortgage payments.
The Plaintiff did not act vigorously to assert her claim under the new lease
agreement as the Plaintiff did in Reading Terminal, supra. Wherefore, this Court finds
that the Defendant was a hold over tenant who continued to owe the Plaintiff $3,500.00
a month.
III. PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES
Plaintiff has requested relief that she be awarded attorney’s fees. “[P]arties are
generally not entitled to an award of counsel fees from an adverse party in the absence
of express statutory authorization, a clear agreement between the parties, or the
application of a clear exception.” James Corp. v. North Allegheny School Dist., 938
A.2d 474, 490 (Pa. Cmwlth. 2007). Defendant did not file his counterclaims in these
47
In Plaintiff’s Exhibit 25, the caption is titled “Re: Lease Agreement dated October 24, 2005”. The letter advises
defense counsel that the Defendant “is currently in default of this Lease Agreement”. The October 2005, Lease
Agreement had expired on October 31, 2008.
15
proceedings for any improper purpose. This suit was litigated by both parties in good
faith to resolve a legal problem between them which was somewhat complex and
subject to differing good faith interpretations. No contractual agreement existed
between the parties regarding attorney’s fees. There is no express statutory
authorization, nor any exception entitling Plaintiff to the award of attorney’s fees.
Plaintiff’s requested relief seeking an award of attorney’s fees is denied. Gall v.
Crawford, 982 A.2d 541 (Pa. Super. 2009) appeal denied 12 A.3d 752 (Pa. 2010).
Accordingly, the following order will be entered:
th
AND NOW
, this 27 day of August, 2012, after a non-jury trial in the above-
captioned matter, the verdict of the Court is as follows:
1. On Sandra S. King’s claim of Breach of Contract (Plaintiff’s Complaint, Count
I) the Court finds in favor of Sandra A. King and against David E. Winston and
48
awards her the sum of $36,297.65 together with late charges from
49
December 2008, totaling $3,629.00. The entire award is $39,926.65 together
with interest at the legal rate from the date of this Order.
a. Sandra S. King’s second requested relief that this Court issue
DENIED
an Order evicting Defendant from the premises is . The Plaintiff must
proceed in an action of ejectment under the “Landlord Tenant Act of 1951” 68
P.S. § 250.101. The Court holds that the Defendant is a hold over tenant
obligated to pay rent at $3,500.00 a month until a new lease is presented to him
48
Between January 2009, and the present, August 2012, the Defendant has paid $2,747.83 a month. He should
have been paying $3,500.00 a month. The difference is $33,095.48. In December of 2008, the Defendant paid
$297.83. The difference is $3,202.17. The sum of $33,095.48 and $3,202.17 is $36,297.65. This amount does not
include late fees.
49
The October 2005 Agreement of Lease states a 10% late fee. The Plaintiff calculated the late fee as 10% of the
difference of the amount paid and the amount owed. In December of 2008, the late fee is calculated at $320.20.
Every month thereafter, the late fee is $75.20.
16
pursuant to Reading Ter. Mech. Ass’n v. S. Rappaport Assoc., 456 A.2d 552
(Pa. Super. 1983).
b. Sandra S. King’s third requested relief that the recorded Option
Letter be terminated as an encumbrance to Plaintiff’s title to the premises is
GRANTED
.
c. Sandra S. King’s fourth requested relief that she be awarded
DENIED
attorney’s fees and costs is .
2. On Sandra S. King’s claim of unjust enrichment (Plaintiff’s Complaint, Count
II) the Court having found a breach of contract at Count I, the request for relief
for Unjust Enrichment is deemed moot.
3. On David E. Winston’s claims of (1) Quiet Title (Defendant’s Counterclaim,
Count I), (2) Breach of Contract (Defendant’s Counterclaim, Count II), and (3)
Declaratory Judgment (Defendant’s Counterclaim, Count III), the Court finds in
favor of Sandra A. King and against David E. Winston.
By the Court,
_________________________
M. L. Ebert, Jr., J.
William L. Adler, Esquire
Attorney for Plaintiff
Charles T. Young, Jr., Esquire
Attorney for Defendant
17