A recent Superior Court opinion illustrates the way a fight for attorney fees might transpire within the commercial real estate lease context. The nonprecedential decision in Pizzella v. Auto Buddies, (No. 522 MDA 2017), filed on June 12, is the culmination of a long-standing dispute between a landlord and tenant, relating to fairly de minimis amounts. Critically, the question of a party’s entitlement of attorney fees is bound up with the litigation, especially whether such fees can be used as an offset for owed rents and other amounts due and owing. The fee provision at issue provides as follows: “In the event that any action is filed in relation to this lease, the unsuccessful party in the action will pay to the successful party, in addition to all the sums that either party may be called upon to pay, a reasonable sum for the successful party’s attorney fees.” Note that the phrase “substantially prevailing” was not employed.

It all started when the Luzerne County Tax Bureau indicated that real estate tax payments were overdue. Auto Buddies (the appellant) had been operating an auto sales business in Plains, Pennsylvania, since early December 2010. The governing lease required Auto Buddies to pay rent, utilities, maintenance and property taxes to Carolyn Pizzella (the appellee). The governing lease also gave Auto Buddies nine options for additional one-year terms. In February 2012, the Luzerne County Tax Bureau issued a delinquency notice, which the appellant rectified within only eight days. Nevertheless, shortly thereafter, the appellee decided against renewing the lease, in spite of the appellant’s request that it be permitted to remain in possession. In October 2012, the appellee alerted Auto Buddies that it had elected to terminate the subject lease altogether, resulting in the first related piece of litigation.

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