Opinion
No. 2069 C.D. 2011
11-09-2012
Daniel Del Collo, Jr.; Loretta Del Collo, Appellants v. Philadelphia Housing Authority; Redevelopment Authority of the City of Philadelphia; Uni-Penn Housing Partnership IV; Uni-Penn, LLC; Wagner Urban Development a/k/a Kline and Wagner, Inc.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Daniel Del Collo, Jr. and Loretta Del Collo (collectively, Landowners) appeal the orders of the Court of Common Pleas of Philadelphia County (trial court) denying their post-trial motion and entering judgment against them and in favor of the Philadelphia Housing Authority (PHA), the Redevelopment Authority of the City of Philadelphia (RDA), Uni-Penn Housing Partnership IV (UPHP), Uni-Penn, LLC (Uni-Penn), and Wagner Urban Development (Wagner) a/k/a Kline and Wagner, Inc. (Kline). We affirm.
I.
The facts in this case are complicated but, reduced to its simplest terms, involve whether Landowners were improperly deprived of their right to develop certain properties, whether there still exists an easement to Landowners' benefit on the property at 1118 Webster Street, and whether Landowners' actions warrant damages for tortious interference and the imposition of counsel fees. These issues arose out of series of transactions between the parties.
In 1996, Landowners purchased property located at 1119 Christian Street. The 1119 Christian Street property had been subdivided by the grantor from a parcel encompassing both that property and the adjacent property to the north located at 1118 Webster Street. (Reproduced Record (R.R). at 1022a.) While the conveyance of the combined parcel to the grantor does not mention an alleyway, see id., the deed conveying 1119 Christian Street to Landowners references "a certain 2.5' wide proposed alley" running along the common border between the properties which "communicates with a second certain 2.5 wide alley" that runs along the eastern border of the 1118 Webster Street property northward to Webster Street. (Id. at 59a-60a.) This deed created the easement at issue in this case.
Landowners were also interested in redeveloping other properties including those located at 1112-14 and 1118 Webster Street that were owned by the RDA through condemnation in 2000, and two vacant lots located at 1122-24 Webster Street that were owned by UPHP and that were under a separate redevelopment agreement with the RDA. The opportunity to develop those properties arose when UPHP determined that it needed the property located at 815 S. 12th Street, property that Landowners also owned, for a housing development known as the Martin Luther King Project IV (MLK IV).
The properties at 1112-14 Webster Street were condemned as one parcel. (Supplemental Reproduced Record (S.R.R.) at 207b-208b.)
On November 15, 2002, Landowners entered into an Agreement of Sale with UPHP to sell the 12th Street property. (R.R. at 43a-50a.) UPHP paid Landowners a purchase price of $15,000 and Landowners transferred the 12th Street property to UPHP subject to a mortgage held by Landowners. (Id. at 43a-44a.) The RDA was not a party to the agreement. Under the Agreement of Sale between Landowners and UPHP, UPHP and the RDA would transfer all of the Webster Street properties to Landowners with the proceeds of the sale of the 12th Street property, and UPHP would pay whatever additional amounts were required to purchase the RDA parcels. The agreement conditioned the sale on when and if the RDA approved Landowners as redevelopers by satisfying the RDA's disposition requirements. (R.R. at 44a, 47a-48a.) The Agreement of Sale required Landowners to use their best efforts to satisfy the RDA's disposition requirements and to be approved as a redeveloper before the closing on the financing for the MLK IV project that was set for May 31, 2003. While Landowners also retained the mortgage on the 12th Street property until they were approved by the RDA as a redeveloper, it was planned that the mortgage would be released before the closing on the financing. In the fall of 2004, with the extended closing on the financing for the MLK IV project drawing near, Landowners had still not been approved by the RDA as redevelopers for the Webster Street properties.
Specifically, the Agreement of Sale stated, in pertinent part:
[I]n order for the RDA Property to be conveyed to [Landowners], [Landowners] will need to satisfy the reasonable requirements of the RDA (the "RDA Requirements") outlined in a letter dated November 14, 2002 from Michael Koonce to Robert Totaro (the "Koonce Letter"), a copy of which is attached hereto ... and made a part hereof. [Landowners] hereby covenant[] to use [their] best efforts to satisfy all conditions for the sale of the RDA Property to [Landowners] on or before the closing of the [MLK IV] financing, which is projected to occur on or about May 31, 2003 (as such date may be extended from time to time by mutual agreement of the parties, the "MLK IV Closing").(R.R. at 47a-48a.) (emphasis in original).
In the event the RDA fails to convey the RDA Property to [Landowners] on or before the MLK IV Closing and such failure is in no way related to [Landowners'] failure to use [their] best efforts to satisfy the RDA Requirements, then such failure to convey the RDA Property shall constitute an event of default under the Mortgage (the "Mortgage") dated the date hereof by [UPHP] in favor of [Landowners]. If, however, the refusal to convey the RDA Property is in any way related to [Landowners'] failure to use [their] best efforts to satisfy the RDA Requirements, then such failure shall not constitute an event of default under the Mortgage, and [Landowners] shall be required to release the Mortgage upon demand by [UPHP] ("RDA Release Event").
[I]f, however, the RDA fails to consent to the transfer of the Uni-Penn Webster Property to [Landowners] on or before the MLK IV Closing, and such failure is in any way related to some act or omission of [Landowners], such as failing to satisfy the reasonable requirement of the RDA (similar to the RDA Requirements), then such failure shall not constitute an event of default under the Mortgage, and [Landowners] shall be required to release the Mortgage upon demand by [UPHP]....
In turn, the Koonce Letter stated the following, in pertinent part:
I am writing to convey the [RDA's] willingness to consider the disposition of [the RDA's properties at 1112-14 and 1118 Webster Street] to [Landowners]. The disposition will need to follow the [RDA]'s normal process including, execution of the [RDA]'s standard form of Redevelopment Agreement, the [RDA]'s review and approval of [their] improvement plans, [their] financial capacity to carry out those plans, and [their] track record as a developer. Approval from the [RDA]'s Board of Directors, review and approval of improvement plans by the [City's] Planning Commission, and approval by City Council would then be necessary. If the necessary approvals are secured, the two parcels can be conveyed at fair market value.(Id. at 54a.)
In a letter to the RDA's Executive Director dated November 24, 2004, UPHP's President sought to outline the terms of the Agreement of Sale, and indicated that Landowners agreed to release their mortgage on the 12th Street property in exchange for the deposit into escrow of funds sufficient to complete the transaction and some assurance from the RDA that they will be chosen as a redeveloper and that the Webster Street parcels will be conveyed to them if they meet the RDA's reasonable requirements. (Id.) The letter also stated that the RDA agreed to set the purchase price of the Webster Street parcels at $56,200, and that "[u]pon satisfaction of the RDA's requirements, the escrow will be released, the funds necessary to complete the transaction will be paid to the RDA (together with the $15,000 previously paid to Landowners), and the RDA will deliver title to the RDA Parcels to [Landowners] subject to a redevelopment agreement, and any other requirements of the RDA's normal disposition process." (Id. at 56a.)
The letter also stated that the PHA had, together with Universal Community Homes, formed a new general partner of UPHP; that UPHP intended to proceed to close on financing in the near future in order to proceed with the development of MLK IV; and that UPHP needed to obtain clear title to the 12th Street property to complete the closing. (Id.)
On December 13, 2004, Landowners entered into a Release and Escrow Agreement with UPHP and First American Title Insurance Company (First American). (R.R. at 105a-109a.) Under the agreement, Landowners released the mortgage on the 12th Street property and UPHP held title to the property free and clear. (Id. at 105a-106a.) A sale price of $56,200 for the 12th Street property was agreed to by the parties. Accordingly, under the agreement, UPHP placed $41,200 (the $56,200 sale price less the $15,000 UPHP already paid to Landowners in 2002) into an escrow account with First American that was to be released to Landowners when and if they satisfied the RDA's disposition requirements and were approved as redevelopers. (Id.)
The Release and Escrow Agreement also contained an integration clause which stated that the agreement superseded any prior agreement, constituted the entire contract among the parties, and did not "confer upon any party other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement." (R.R. at 107a.) The Release and Escrow Agreement also stated that UPHP will convey its Webster Street property if and when the RDA approved such transfer, and that if the RDA determined not to convey its property to Landowners, "[t]hen First American shall release the balance of the purchase price to [Landowners], and the payment of such purchase price shall be the full and complete compensation from UPHP [] for the acquisition of 815 S. 12th St. and any and all damage that [Landowners] may have suffered in connection herewith, with the Agreement or the transactions contemplated hereby and thereby." (Id. at 105a-106a.)
The Release and Escrow Agreement also provided that UPHP would convey its properties at 1122-24 Webster Street "[i]f and when the RDA provides its consent to such transfer under the Amended and Restated Redevelopment Agreement between the RDA and UPHP[] dated as of November 15, 2002 and that certain Memorandum of Redevelopment Agreement between the RDA and UPHP[] dated as of November 15, 2002...." (R.R. at 106a.)
The RDA's multi-step disposition process involves the completion of a series of forms including a Tax Status Certification form indicating whether or not the applicant has outstanding tax obligations to the City. On June 21, 2003, Landowners submitted the form stating that they were delinquent in City taxes or the City's school district taxes in an unknown amount, that they were delinquent in water and sewage charges in an unknown amount, and that they had been sued by the City. (R.R. at 1009a.) By letter dated October 7, 2004, the RDA informed Landowners that the tax certification had not been processed because they owed the City $81,965.47 in taxes and other charges. (Id. at 1046a-1063a.) By April 3, 2008, Landowners owed the City $100,062.88 in outstanding taxes and other charges. (S.R.R. at 54b-69b.)
The disposition process also requires a redeveloper to submit plans for redevelopment for review by the RDA and the City's Planning Commission including documentation that financing for the redevelopment plans has been obtained. On June 21, 2003, Landowners submitted a Project Questionnaire to the RDA which stated, inter alia, that they had obtained a commitment for funding by Creative Mortgage, Inc. up to $500,000. (R.R. at 1010.3a.) However, Landowners never submitted an application for funds or received a written commitment that financing had been approved for the redevelopment of the Webster Street properties. (Id. at 945a.) Accordingly, the RDA never approved Landowners as a redeveloper and, on December 28, 2008, the RDA informed Landowners that the Webster Street properties would not be conveyed to them. (Id. at 57a.)
In a letter dated April 27, 2007, the RDA informed Landowners that it had adopted a new disposition policy in 2005 under which properties valued in excess of $100,000 were publicly made available for redevelopment via a request for proposals (RFP) process. (R.R. at 1008a.) Because the properties at 1112-14 Webster Street were condemned as one parcel, they were valued in excess of $100,000. The letter informed Landowners that the RDA's Webster Street parcels would be made publicly available through the RFP process and invited Landowners to submit a proposal when the RFP was made public. (Id.)
On July 6, 2009, Kline, an RDA approved redeveloper following the disposition process, and the RDA executed a Redevelopment Agreement under which Kline would redevelop the properties at 1112, 1114 and 1118 Webster Street which Landowners had sought to redevelop. On July 27, 2009, Kline purchased these properties from the RDA for $65,000 each. Accordingly, Kline obtained building permits and hired a general contractor to rehabilitate the properties for approximately $213,825.
II.
On November 16, 2009, Landowners filed suit in the trial court with a subsequent amended complaint seeking declaratory and injunctive relief asserting:
By order dated March 9, 2010, the trial court denied Landowners' motion to further amend their complaint.
• a claim of trespass against Wagner and Kline based on the construction of a cinder block wall at the rear of 1118 Webster Street that trespassed on Landowners' easements appurtenant to the side alleyway and rear alleyway of its property at 1119 Christian Street seeking removal of the wall and compensatory damages.
• a claim against Wagner and Kline seeking to preliminarily and permanently enjoin their obstruction of Landowners' easements appurtenant to the side alleyway and rear alleyway of its property at 1119 Christian Street through removal of the wall and compensatory damages.
• a claim against the PHA, UPHP, Uni-Penn, Wagner and Kline seeking a declaration of the rights of the parties under the November 15, 2002 Agreement of Sale and the December 13, 2004 Release and Escrow Agreement, a declaration that the conveyance to Kline is void, and the costs of the suit.
• a claim against the PHA, UPHP, Uni-Penn, Wagner and Kline seeking specific performance of the November 15, 2002 Agreement of Sale by conveying the Webster Street properties to Landowners and enjoining the parties from conveying the properties to any other party.
• a claim of unjust enrichment against the RDA seeking conveyance of the RDA's Webster Street properties, enjoining the RDA from conveying the properties to any other party, and damages in the amount of the current value of the properties.
• a claim of tortious interference with contract against the RDA as third party beneficiaries to its relationship with UPHP and the PHA seeking conveyance of the RDA's Webster Street properties, enjoining the RDA from conveying the properties to any other party, and damages in the amount of the current value of the properties.
On November 19, 2009, Landowners filed three praecipes to index lis pendens for 1112, 1114 and 1118 Webster Street, asserting that they have an equitable interest in those properties. Following the filing of the lawsuit and the lis pendens, Kline stopped all rehabilitation work on the properties at 1112, 1114 and 1118 Webster Street.
A lis pendens is the jurisdiction, power or control that a court acquires over a property involved in litigation until a final judgment is rendered with respect to that property. Clairton Corporation v. Chicago Title Insurance Company, 652 A.2d 916, 921 n.2 (Pa. Super. 1995). A lis pendens notifies third parties that any interest that may be acquired in the property pending the litigation is subject to the outcome of that litigation. Id. Filing a lis pendens is inadequate to create a lien against the property and has no application between the parties to the litigation. Id.
All of the named defendants filed answers to Landowners' amended complaint with new matter and cross-claims. Kline and Wagner filed a counterclaim of tortious interference with contracts and title to real estate against Landowners, alleging that the lis pendens placed on each of the Webster Street properties interfered with their existing contracts with the RDA and New View Construction to redevelop the properties and/or to arrange financing for their redevelopment. Kline and Wagner also filed a counterclaim of abuse of process against Landowners with respect to the trespass action and the praecipes to index lis pendens that were filed. In March 2011, the trial court denied the defendants' motions for summary judgment.
UPHP, Uni-Penn, the PHA, Kline and Wagner also sought attorney fees pursuant to 42 Pa. C.S. §2503(7) and (9) which states:
The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
* * *
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
* * *
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
Landowners also argue that the trial court erred in denying their motion to amend the complaint for the third time. However, this allegation of error is not raised in the Statement of Questions Involved portion of their appellate brief. Accordingly, this claim of error has been waived for purposes of appeal. See Pa. R.A.P. 2116(a) ("[N]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby...."); In re Estate of Ryerss, 987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009) (holding that issues not stated in the statement of questions presented or fairly suggested thereby will be deemed waived by this Court under Pa. R.A.P. 2116(a)). Moreover, assuming this claim is not waived, it is without merit. While the right to amend a complaint should be liberally construed, that right is not absolute and amendment is properly refused where it appears to be a reasonable possibility that the amendment will be futile. Koresko v. Farley, 844 A.2d 607 (Pa. Cmwlth.), appeal denied, 579 Pa. 706, 857 A.2d 680 (2004). Through further amendment to the complaint, Landowners sought to add another trespass claim against Kline and Wagner with respect to purported easements in favor of Landowners' 1115 Christian Street property and appurtenant to the 1112 and 1114 Webster Street properties, and to add a promissory estoppel claim against the RDA based on a memo from 2003 and a letter from 2004. As outlined infra, the claims are meritless.
On September 26, 2011, following a nonjury trial, the trial court issued findings of fact and conclusions of law and entered an order denying all of Landowners' claims. However, it found in favor of Kline and Wagner and against Landowners in the amount of $20,000 on the counterclaim involving intentional interference with contracts and title to real estate as well and ordered Landowners to pay Uni-Penn, the PHA, Wagner and Kline reasonable costs, attorney fees and expenses based on a fee petition to be submitted by those parties. After denying Landowners' post-trial motion for judgment notwithstanding the verdict, the trial court entered judgment against Landowners and in favor of all of the defendants, and directed Landowners to pay reasonable costs and attorney fees to the PHA, Uni-Penn and UPHP in the amount of $131,962.25, and to Wagner and Kline in the amount of $14,938 for Landowners' arbitrary and vexatious conduct.
III.
A.
In this appeal, Landowners first claim that the trial court erred in determining their rights with respect to the easement in the alleyway appurtenant to the property at 1118 Webster Street because the deed conveying them the parcel at 1119 Christian Street specifically referenced the alley, and Kline and Wagner were on actual and constructive notice regarding the easement for the alley on the 1118 Webster Street parcel.
This Court's scope of review of a trial court's order denying post-trial relief is limited to determining whether the trial court abused its discretion or committed an error of law. Boro Construction, Inc. v. Ridley School District, 992 A.2d 208, 214 n.8 (Pa. Cmwlth. 2010).
However, assuming that there was an easement created when Landowners were conveyed the parcel at 1119 Christian Street, there is no indication that the RDA took less than a full fee simple in 1118 Webster Street when it was condemned or that it conveyed less than a full fee simple to Kline. (S.R.R. 137b-145b, 205b-206b, 209b-210b.) As a result, any purported easements with respect to 1118 Webster Street were extinguished when the RDA condemned that parcel. Curtis v. Redevelopment Authority of the City of Philadelphia, 482 Pa. 58, 65, 393 A.2d 377, 380-81 (1978); Captline v. County of Allegheny, 662 A.2d 691, 695-96 (Pa. Cmwlth. 1995). Accordingly, the trial court did not err in dismissing Landowners' claims against Kline and Wagner with respect to the enforcement of their easements on the property at 1118 Webster Street because there are no existing easements upon which Landowners' may base these claims.
See Section 1 of the Act of April 14, 1949, P.L. 442, 26 P.S. §201 ("When any political subdivision of this Commonwealth shall hereafter, in the exercise of the power of eminent domain, acquire by appropriation and condemnation any real estate, the title thereto which shall vest in such ... political subdivision shall be a title in fee simple, unless prohibited in the ordinance or resolution authorizing the appropriation and condemnation thereof."); Township of Cornplanter v. McGregor, 745 A.2d 725, 727 n.3 (Pa. Cmwlth. 2000) ("[T]his section has been interpreted as providing that in a condemnation proceeding, a political subdivision acquires a full fee simple estate in the condemned property unless the condemnor expressly states that it is taking a lesser estate.") (citations omitted).
B.
Landowners next claim that the trial court erred in failing to determine the parties' rights under the agreements in light of evidence demonstrating the RDA's dilatory conduct and bad faith. Landowners argue that the written agreements do not address a remedy for the RDA's failure to act timely or in good faith, and that the trial court erred in failing to find that the RDA had breached a condition precedent to the agreements requiring it to act in good faith, in an expeditious manner, and to inform the parties if Landowners were approved or denied as redevelopers. Landowners also argue that the trial court ignored and disregarded evidence of the RDA's bad faith and dilatory conduct in this regard so that the written contracts should be reformed to conform to the understanding of the parties that the Webster Street properties would be conveyed to Landowners after Landowners had conveyed the 12th Street property to UPHP. As a result, Landowners ask that we remand the matter to the trial court to make findings consistent with the facts that it ignored, find that Landowners satisfied the RDA's requirements, and direct the conveyance of the RDA's Webster Street properties or, in the alternative, award damages and direct UPHP to convey its Webster Street properties.
However, the trial court specifically found that:
The trial court, sitting as fact finder, was free to believe all, part or none of the evidence presented, to make all credibility determinations, and to resolve any conflicts in the evidence. Boro Construction, Inc., 992 A.2d at 218 n.16. The trial court was free to reject even uncontradicted evidence, and it does not abuse its discretion or commit an error of law by choosing to accept one party's evidence over the other party's evidence. Id. In short, the trial court's findings must be given the same weight and effect as a jury verdict and will not be disturbed on appeal unless they are not supported by competent evidence in the record. Merrell v. Chartiers Valley School District, 51 A.3d 286, 293 (Pa. Cmwlth. 2012).
• the December 13, 2004 Release and Escrow Agreement between Landowners, UPHP and First American superseded any prior agreements, oral or written, between Landowners and UPHP with respect to the 12thStreet parcel, and that it is the sole operative agreement between those parties.
• the Release and Escrow Agreement vested the RDA with the discretion to approve or disapprove Landowners as redevelopers, that the RDA proceeded in good faith and followed its normal disposition process with regard to Landowners' redevelopment application, and that Landowners failed to satisfy the requirements of the RDA's normal disposition process by failing to comply with the key and long-standing requirement of being tax compliant with the City.All of the foregoing findings will not be disturbed on appeal because they are amply supported by substantial evidence in the record.
• under the Release and Escrow Agreement, Landowners' exclusive remedy, and full and complete compensation for the 12th Street property, is the release of the $41,200.00 in escrow with First American and the retention of the $15,000.00 already paid by UPHP.
Because the condition precedent to the RDA's or UPHP's duty to convey the Webster Street properties in the controlling Release and Escrow Agreement never occurred, Landowners are not entitled to specific performance of that agreement or any prior superseded agreements requiring either the RDA or UPHP to convey these properties to Landowners. Moreover, because the Release and Escrow Agreement specifically provides that if the RDA determined, in accordance with its ordinary procedure, not to convey its Webster Street property to Landowners, "[t]hen First American shall release the balance of the purchase price to [Landowners], and the payment of such purchase price shall be the full and complete compensation from UPHP [] for the acquisition of 815 S. 12th St. and any and all damage that [Landowners] may have suffered in connection herewith, with the Agreement or the transactions contemplated hereby and thereby." (Id. at 105a-106a.) In short, we will not accede to Landowners' request to revisit the trial court's findings or disturb its award as dictated by the parties' written agreement.
As this Court has previously explained, "[i]f a contract contains condition precedent, that condition must be met before a duty to perform under the contract arises. Thus, where a condition precedent has not been fulfilled, the duty to perform under the contract lays dormant and no damages are due for non-performance." Boro Construction, Inc., 992 A.2d at 215. (citations omitted).
The fundamental rule in construing the provisions of a contract is to ascertain and give effect to the intention of the parties. Boro Construction, Inc., 992 A.2d at 214. The parties' intentions must be ascertained from the document itself if the contract terms are clear and unambiguous. Id. This Court should focus on what the agreement itself expressed and not on what the parties may have silently intended, and it is not appropriate to alter the terms to which the parties agreed under the guise of contract construction. Id.
C.
As to Landowners' claim that the trial court erred in dismissing their claim of unjust enrichment against the RDA, they argue that the trial court erred in determining that the statute of limitations had run before they filed their cause of action and that the RDA had not been unjustly enriched in this case.
The elements of a cause of action for unjust enrichment are: (1) benefits conferred on a defendant by a plaintiff; (2) appreciation of such benefits by the defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for the defendant to retain the benefit without the payment of value. Konidaris v. Portnoff Law Associates, Ltd., 884 A.2d 348, 355 (Pa. Cmwlth. 2005), aff'd in part and rev'd in part on other grounds, 598 Pa. 55, 953 A.2d 1231 (2008), citing Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2001). This cause of action accrues when the defendant receives and retains the benefits. Id.
42 Pa. C.S. §5525(4) states that "[t]he following actions and proceedings must be commenced within four years: ... [a]n action upon a contract implied in law."
Landowners alleged that the RDA was unjustly enriched by the conveyance of their 12th Street property to UPHP and the PHA because it completed the MLK IV project and enabled the RDA to receive the associated state and local funding and other unnamed benefits. (R.R. at 33a-34a.) Landowners also claimed that the RDA was unjustly enriched by Kline's purchase of its three Webster Street properties for $65,000 each because it would have only received $56,200 for all of the Webster Street properties under the agreements between UPHP and Landowners.
With respect to the first unjust enrichment claim, that cause of action was beyond the four-year statute of limitations because it accrued when Landowners released the mortgage on the 12th Street property in 2004 and UPHP owned the property free and clear, and Landowners did not file the cause of action until November 16, 2009. Konidaris. With respect to the second unjust enrichment claim, the trial court properly determined that the RDA had not been unjustly enriched because the evidence adduced at trial shows that the proceeds of the sale of the Webster Street properties were not retained by the RDA, but, rather, were retained by the City of Philadelphia. (R.R. at 979a, 981a, 996a.) Accordingly, the trial court did not err in dismissing Landowners' unjust enrichment claim against the RDA.
Landowners' reliance on Sevast v. Kakouras, 591 Pa. 44, 915 A.2d 1147 (2007), to extend the statute of limitations on this claim is misplaced because the cause of action in that case accrued at the time that a sales agreement between the two parties was terminated and the benefits obtained thereunder supported a finding of unjust enrichment, whereas it is undisputed that there was no agreement in this case between Landowners and the RDA at any point in time from which the benefits flowed.
D.
Landowners also argue that the trial court erred in dismissing their interference with contract claim for damages because the RDA was immune from liability under the statute commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542. Citing Meyer v. Community College of Beaver County, 606 Pa. 539, 2 A.3d 499 (2010), Landowners argue that the immunity provisions of the Tort Claims Act do not apply because their cause of action relates to a contract. However, in Meyer, the Supreme Court merely acknowledged that the Tort Claims Act confers immunity for "injury to person or property" as a reflection of "traditional tort jurisprudence," and does not extend immunity to all statutory causes of action to include causes of action grounded in contract under the Unfair Trade Practices and Consumer Protection Law. Meyer, 606 Pa. at 545-46, 2 A.3d at 502-03.
The elements of a cause of action for intentional interference with a contractual relation, whether existing or prospective, are: (1) the existence of a contractual relation or a prospective contractual relation between the complainant and a third party; (2) purposeful action on the defendant's part, specifically intended to harm the existing relation or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the defendant's part; and (4) the occasioning of actual legal damage as a result of the defendant's conduct. Strickland v. University of Scranton, 700 A.2d 979, 985 (Pa. Super. 1997).
42 Pa. C.S. §8541 states, in pertinent part, that "no local agency shall be liable for any damages on account of any injury to a person or property...."
Act of November 24, 1976, P.L. 1166, as amended, 73 P.S. §§201-1 - 201-9.3.
The cause of action asserted by Landowners in this case, intentional interference with contractual relations, is one sounding in tort that has long been recognized by the courts of this Commonwealth. Restatement (Second) of Torts §766 (intentional interference with performance of contract by third person); Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 610 Pa. 371, 20 A.3d 468 (2011); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). It is well established that the immunity provisions of the Tort Claims Act preclude liability for damages from causes of action based on intentional interference with contractual relations that are asserted against local agencies such as the RDA. E-Z Parks, Inc. v. Larson, 498 A.2d 1364, 1369 (Pa. Cmwlth. 1985), aff'd, 509 Pa. 496, 503 A.2d 931 (1986). Accordingly, the trial court did not err in dismissing Landowners' interference with contract claim for damages against the RDA.
The RDA is a local agency conferred immunity from liability for claims sounding in tort under the Tort Claims Act. Alston v. PW-Philadelphia Weekly, 980 A.2d 215, 219 (Pa. Cmwlth. 2009).
Landowners also argue that the trial court erred in dismissing the interference with contract claim for damages because it was filed beyond the two-year statute of limitations for causes of action sounding in tort under 42 Pa. C.S. §5524(7) and because Landowners failed to sustain their burden of proof with respect to the elements supporting such a cause of action. However, because the RDA was immune from liability in the first instance, as outlined above, we will not address these alternative bases for the trial court's dismissal of this claim.
E.
As to Landowners' claim that the trial court erred in awarding Kline and Wagner $20,000 on the counterclaim of tortious interference with contracts and title to real estate, they argue that in order to prevail, Kline and Wagner were required to demonstrate, inter alia, the absence of privilege or justification on Landowners' part, and that they were justified in enforcing their easements and their right to the conveyance of the Webster Street properties under their agreements with UPHP and as third party beneficiaries to the November 24, 2004 letter agreement between UPHP and the RDA.
See Strickland.
However, as outlined above, Landowners were not justified in instituting the instant claims and filing the praecipes to index lis pendens based on any purported easements with respect to 1118 Webster Street because any such easements were extinguished when the RDA condemned that parcel. Curtis; Captline. In addition, Landowners have no rights in the Webster Street properties because the controlling Release and Escrow Agreement limited their rights with respect to those properties to the release of the $41,200 in escrow with First American and the retention of the $15,000 already paid by UPHP. Accordingly, contrary to their assertion, Landowners were not justified in asserting ownership claims in the Webster Street properties and the trial court was not precluded from awarding damages on the counterclaim on this basis.
Landowners also assert that Kline and Wagner did not present sufficient evidence that the filing of the lawsuit and the praecipes to index lis pendens interfered with their financing of the purchase of the properties from the RDA. However, the trial court found in favor of Kline and Wagner and against Landowners on the counterclaim and awarded damages based on Landowners' interference with the contract between Kline and Wagner and their general contractor to rehabilitate the Webster Street properties. (See Trial Court Opinion at 27-29.) Landowners do not allege any error with regard to this basis upon which the trial court awarded damages on the counterclaim, and we will not address the sufficiency of the evidence regarding a different theory upon which the trial court did not rely in ruling on the counterclaim.
F.
Finally, Landowners claim that the trial court abused its discretion in awarding costs and attorney fees to UPHP, Uni-Penn, the PHA, Kline and Wagner pursuant to 42 Pa. C.S. §2503(7) and (9). Landowners argue that the trial court erred in awarding costs and attorney fees because their claims survived motions for summary judgment and nonsuit, contained triable issues of fact, and supported the award of $41,200 held in escrow under the Release and Escrow Agreement.
Our review of the trial court's order awarding counsel fees is limited solely to whether the trial court palpably abused its discretion in making the fee award. Lucchino v. Commonwealth, 570 Pa. 277, 284, 809 A.2d 264, 268-69 (2002). Because the provisions of 42 Pa. C.S. §2503 read in the disjunctive, the trial court needs to only find that one of the factors supporting the award of fees is present. Lundy v. Manchel, 865 A.2d 850, 856-57 (Pa. Super. 2004).
In awarding fees in this case, the trial court found that Landowners acted in an arbitrary and vexatious manner by instituting and maintaining this case in which they sought relief against UPHP that was contrary to the sole remedy clause in the controlling Release and Escrow Agreement, and against parties with which they had never had an agreement, the PHA, Uni-Penn, Kline and Wagner. See Trial Court Opinion at 18-20.
We discern no abuse of the trial court's discretion in this regard. In their Amended Complaint, Landowners alleged that they released their mortgage on the 12th Street property on December 13, 2004, based on the assurances of the RDA and UPHP that they would perform on the November 15, 2002 Agreement of Sale and the November 24, 2004 letter. (R.R. at 21a.) However, Landowners' complaint never mentioned the December 13, 2004 Release and Escrow Agreement that Landowners executed with UPHP under which they agreed to release the mortgage, and they did not attach it to their pleading. Thus, in instituting the instant litigation, Landowners failed to acknowledge the controlling agreement to which they were a party that superseded any prior agreements regarding the conveyance of the properties at issue, that limited the damages to which they were entitled from any of the parties, and that included the foregoing defendants that were not parties to the agreement. Moreover, as indicated supra, Landowners were not justified in instituting any claims or filing the praecipes to index lis pendens based on any purported easements with respect to the Webster Street properties because there were no such easements to enforce, and Mr. Del Collo did not look at the deeds to the Webster Street properties to ascertain who actually owned the properties. (S.R.R. at 45b-46b.) Such conduct clearly supports the award of fees even though there were sufficient disputed facts to survive motions for summary judgment and nonsuit, and Landowners were entitled to the $41,200 held in escrow under the Release and Escrow Agreement. See Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996) ("[A]n opponent's conduct has been deemed to be 'arbitrary' within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature....") (citations omitted).
Finally, the PHA, Uni-Penn and UPHP request the imposition of fees pursuant to Pa. R.A.P. 2744 which states that we "may award as further costs damages as may be just, including ... a reasonable counsel fee ... if [we] determine that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." An appeal is considered frivolous and warrants an award of attorney fees under Pa. R.A.P. 2744 if, either as a matter of fact or law, the appellant's contentions have no likelihood of success. Department of Commerce v. Casey, 624 A.2d 247, 256 (Pa. Cmwlth. 1993). However, an appeal is not frivolous for purposes of awarding attorney fees merely because it lacks merit. Id. Moreover, the award of fees under Pa. R.A.P. 2744 is left to the discretion of this Court and we are not required to impose sanctions. Simmons v. Delaware County Tax Claim Bureau, 796 A.2d 400, 405 (Pa. Cmwlth. 2002). While the trial court properly determined that Landowners were liable for attorney fees under 42 Pa. C.S. §2503, in the present case, we find that Landowners' appeal was neither frivolous nor taken solely for delay, dilatory, obdurate or vexatious and, therefore, deny the request for attorney fees and costs pursuant to Pa. R.A.P. 2744. --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge Judge Leadbetter did not participate in the decision in this case. ORDER
AND NOW, this 9th day of November, 2012, the order of the Court of Common Pleas of Philadelphia County, dated September 26, 2011, at November Term 2009 No. 02615, is affirmed; the request for the imposition of attorney fees pursuant to Pa. R.A.P. 2744 is denied.
/s/_________
DAN PELLEGRINI, President Judge