Full Opinion

J-A20017-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 BJ'S WHOLESALE CLUB, INC. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PACIFICA MECHANICSBURG LLC : No. 10 MDA 2026 Appeal from the Order Entered December 1, 2025 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 2024-10866 BEFORE: LAZARUS, P.J., STEVENS, P.J.E.*, and BENDER, P.J.E. MEMORANDUM BY LAZARUS, P.J.: FILED: OCTOBER 27, 2026 BJ’s Wholesale Club, Inc. (BJ’s), appeals from the order, entered in the Court of Common Pleas of Cumberland County, granting Appellee Pacifica Mechanicsburg LLC’s (Pacifica) petition for reasonable attorneys’ fees and costs in the amount of $276,158.62. After careful consideration, we reverse. On October 14, 2022, BJ’s entered into a 20-year lease agreement (Lease)1 with Pacifica to have Pacifica prepare a building site and building pad for the construction of a new BJ’s Wholesale Club. Pacifica is the developer and landowner of the shopping center, Beltway Town Center, the site of the new BJ’s club location. The new BJ’s club was being built to replace another ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 On March 6, 2024, the parties amended the Lease (First Amendment) fixing the building pad completion date as June 3, 2024. J-A20017-26 local BJ’s in Camp Hill that was outdated and no longer suitable for BJ’s needs. The Camp Hill store’s lease expired on August 31, 2025. See N.T. Preliminary Injunction Hearing, 10/22/24, at 4. BJ’s plan was to have the new store completed before the option date on the Camp Hill store required that its lease be renewed in February 2025. Id. at 4, 19. The Lease sets forth a construction timeline for the completion of the phases of Pacifica’s work. See Lease, 10/14/22, at Article IV, § 4.1B. Section 27.3(d)(i) of the Lease provides, in pertinent part, that if Pacifica defaults “in the timely completion” of its construction responsibilities and does not cure the default within 10 days after notice by BJ’s, BJ’s has the right to “perform, at [Pacifica’s] sole cost and expense, all or any part of [Pacifica’s] work.” Id. at Article XVII, § 27.3.(d)(i). Additionally, [i]f and to the extent [BJ’s] exercises its rights hereunder, [Pacifica] agrees to cooperate in good faith and provide [BJ’s] with reasonable assistance so that [BJ’s] can complete such portions of [Pacifica’s] work. [Pacifica] grants to [BJ’s] the right, as its agent, to directly contact and contract with [Pacifica’s] contractors, on behalf of [Pacifica], to complete the work, all at [Pacifica’s] cost and expense. Id. The Lease also includes a provision for the recovery of “reasonable attorneys’ fees and costs” by the “prevailing party” in “any action at law . . . [or] in equity [that] is necessary to enforce or interpret the terms of this -2- J-A20017-26 Lease.” Id., at Article XXX, § 30.13.2 The Lease does not define the term “prevailing party.” When issues arose regarding whether Pacifica was timely completing Phase II site work, BJ’s filed a complaint, on October 15, 2024, against Pacifica raising a breach of contract claim and seeking declaratory and injunctive relief. See Complaint, 10/15/24, at 1. Specifically, BJ’s sought money damages for breach of the Lease and a preliminary injunction prohibiting Pacifica from interfering with BJ’s exercise [of] self-help under the Lease[3] at its own risk and expense, and transferring the government permits necessary to self-help from Pacifica to BJ’s, while deferring to a plenary decision on the merits [as to] whether and to what extent BJ’s is entitled to reimbursement from Pacifica for the cost incurred in carrying out its right to self-help. Id. at 2-3. On October 16, 2024, BJ’s filed a motion seeking a preliminary injunction to have Pacifica enjoined from interfering with its self-help remedies ____________________________________________ 2 Subsection 30.13 states: Prevailing Party. If any action at law is necessary to enforce or interpret the terms of this Lease and the amount in controversy or the value of the relief sought shall exceed $25,000.00, the prevailing party shall be entitled to reasonable attorneys’ fees and costs of the proceeding in addition to any other relief to which it may be entitled. If any action in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which it may be entitled. Id. 3 See supra at 2, citing Article XXVII, § 27.3 (Tenant Default provision). -3- J-A20017-26 under the Lease and also seeking that Pacifica immediately transfer to BJ’s all permits and approvals necessary for BJ’s to commence and complete the Phase II site work and off-site work.4 See Motion for Preliminary Injunction, 10/16/24, at 1-2. Specifically, BJ’s averred that, without a preliminary injunction, “BJ’s will be irreparably harmed from being denied the use of its leasehold interest, cancellation of memberships[,] and damage to its reputation and good will.” Id. at 10. Pacifica filed a counter-motion to strike BJ’s motion for a preliminary injunction, claiming that BJ’s failed to sufficiently allege irreparable and immediate harm for which the court is capable of granting relief and that BJ’s is actually requesting permanent relief that cannot be decided by a preliminary injunction hearing because it would impair the rights of numerous third parties and require extensive court supervision for enforcement. See Counter-Motion to Strike Motion for Preliminary Injunction, 10/21/24, at 1. Additionally, Pacifica argued that BJ’s expressly waived all consequential and indirect damages under the Lease by agreeing that any delay on Pacifica’s part would be compensated solely by liquidated damages.5 See id. at 5; see also Lease, ____________________________________________ 4 Off-site work was explained by a BJ’s witness as work that is on PennDOT’s right-of-way. See N.T. Preliminary Injunction Hearing, 10/22/24, at 24. 5 After the instant action was discontinued, Pacifica instituted an action in the United States District Court for the Middle District of Pennsylvania claiming BJ’s breached the Lease and demanding a declaratory judgment that BJ’s has no right to receive approximately $4 million in rent abatement as liquated damages. -4- J-A20017-26 10/14/22, at Article IV, § 4.2(d); id. at Article XXVII § 27.3(d)(ii); id. at Article XXX, § 30.4. On October 22, 2024, and November 8, 2024, the court held hearings on BJ’s motion for a preliminary injunction. BJ’s witnesses testified at the October 2024 hearing that Pacifica had not yet hired a contractor for the on- site work, which prevented BJ’s from moving forward with completing the building of the warehouse, stocking the club, and opening it. See N.T. Preliminary Injunction Hearing, 10/22/24, at 25-27. Pacifica witnesses testified that it had three different contractors ready to start building the site in December 2024 and that they agreed they could be finished by May 1, 2025, but that they had yet to sign any contracts with those proposed contractors. See id. at 79-80. At the conclusion of the hearing, after calling counsel to chambers, the judge reconvened the hearing, stating, on the record, “Based upon our discussions in chambers, it’s my understanding that the parties feel confident they can reach a stipulated order in the next week or so. Is that a fair statement?” Id. at 80. Counsel answered, “Yes, Your Honor.” Id. At that point, the judge continued the matter to November 1 st, unless the parties reached a stipulated order. Id. at 81. See also id. (judge stating to counsel, “Good luck. I hope you can—this sounds like it should be resolved. If you can’t resolve it, I will.”). The parties did not reach a stipulation so a further hearing was scheduled for November. At the November 8, 2024 hearing, Pacifica presented contracts that it had entered into with on- and off-site work contractors to complete the scope -5- J-A20017-26 of the site work within the timeframe (5/22/25) set by BJ’s and the judge at the prior hearing in October. See N.T. Preliminary Injunction Hearing, 11/8/24, at 4-5. In an effort to prevent the entry of a preliminary injunction, a defense witness testified that, in addition to start and end dates, Pacifica had added “milestones” into the contract—to show its construction progress for Phase II. Id. at 8-9. Plaintiff’s witness, however, testified that the contracts presented by Pacifica are missing tasks that were required under the Lease. Id. at 16. In particular, the contracts did not contain the date utilities would be certified and fully operational, id. at 16, and did not list the fire protection line, free-standing signs, or loading dock. Id. at 16-17. Without these required items, BJ’s would be delayed in constructing the building. Id. at 17. Pacifica rebutted this testimony by claiming that the missing items were all related to Phase I site work, not Phase II site work. Id. at 26-27. At the conclusion of the November 8, 2024 hearing, the court ordered the parties to submit post-hearing briefs by November 12, 2024, in support of their respective positions and to specifically reference to the relevant portions of the exhibits that they wanted the court to review. See Order, 11/8/24. Notably, in its post-hearing brief, BJ’s stated that, in the alternative to granting a preliminary injunction, “the [c]ourt [should] oversee Pacifica’s performance by retaining jurisdiction, ordering Pacifica to meet the task requirements and milestones in the Revised Construction timetable, adjourning BJ’s motion until further notice, and authorizing BJ’s to renew the -6- J-A20017-26 motion and request an emergency hearing on 48 hours’ notice.” Plaintiff’s Post-Hearing Brief, 11/12/24, at 2. Following the hearings and the submission of post-hearing briefs, the court denied, without prejudice, injunctive relief “for numerous reasons,” but retained jurisdiction in the matter, noting that it would “schedule another hearing if [Pacifica’s] contractor falls substantially behind in the progress of the work.” Order, 11/19/24.6 On April 3, 2025, BJ’s filed another motion for a preliminary injunction, claiming that since the denial of its first motion, “Pacifica has fallen substantially behind the schedule prepared by its chosen construction ____________________________________________ 6 The order denying injunctive relief states as follows: AND NOW, this 18th day of November, 2024, after hearing and having reviewed the briefs filed by the parties in support of their respective positions, it is clear that a preliminary injunction is not warranted at this time for numerous reasons.1 Plaintiff’s request is DENIED without prejudice. We will retain jurisdiction in this matter and schedule another hearing if [Pacifica’s] contractor falls substantially behind in the progress of the work. ' The most straightforward reason is that [BJ’s] has failed to show that the requested injunction is reasonably suited to abate the offending action. [Pacifica] has a contract in place calling for the completion of work by May 15, 2025. While [BJ’s] has begun contract negotiations, it did not present any evidence as to a viable completion date. Order, 11/18/24 (emphasis in original and added). -7- J-A20017-26 contractor [] and cannot meet the May 15 deadline.” Motion for Preliminary Injunction, 4/3/25, at 3. Pacifica filed an answer to BJ’s motion, asserting that it “has been aggressively pushing and continues to aggressively push the project forward to meet the timetable under the [contractors’] contracts, let alone BJ’s ‘best of all worlds’ completion date of July 15, 2025.” Answer to Motion for Preliminary Injunction, 4/9/25, at 2. On April 10, 2025, the court held a hearing on BJ’s motion. At the hearing, BJ’s counsel, Mark S. Olinsky, explained to the court that the day before the hearing, it had proposed that Pacifica put commitment dates in writing so that it “might move this hearing” and put “this motion [for a preliminary injunction] in abeyance subject to see[ing] if [it] meet[s] those dates.” N.T. Preliminary Injunction Hearing, 4/10/25, at 31. After counsel’s statement, the following exchange occurred: THE COURT: All right. Let’s stop you there. We’ll proceed. I've got to break at 10 minutes to 12, because I've got a dentist appointment. So[,] we’re going to have to break until 1:30. That gives you guys an hour and a half to try to resolve this. [court proceedings resumed] MR. OLINSKY: Well, Judge, it’s been rejected, and that’s why we're moving forward, frankly. *** MR. OLINSKY: I'll finish. If you let me finish, you'll get your part, I’m sure. Judge, what we proposed is that we put those dates and dates from the mid-March schedule into the form of writing, hold the motion in abeyance, and then if they can’t meet those dates, for whatever reason, you know, we can all get back together and we can find out why. We're willing to live with that. Our concern -8- J-A20017-26 is that they’re, frankly, not going to meet those dates, and what we’ll present in the rest of our testimony, through Mr. Lords and through Mr. Netreba, is what happens to us if they don’t. THE COURT: The other hurdle that you have to—this is a preliminary injunction hearing. He’s telling me he’s got to schedule these other people, okay, so he’s got to rely on those dates. They’re fighting the preliminary injunction hearing. He’s telling me there’s no reason these can’t be done by May 15th, so he can then go ahead and schedule. If it’s not done, you will incur monetary damages for which there is a remedy. MR. OLINSKY: Well, Judge, we think we’ll incur irreparable damage, because [when] we were here in October/November, Costco[7] was kind of somewhere in the future, but we didn’t have as much specificity as we have now as to when their proposed opening date is. We need to get it opened and be campaigning for customers, to both retain the customers we have so they don’t switch and new customers to get open before them. It’s a competitive advantage. That’s what would be irreparable for us, Your Honor. THE COURT: Okay. Do you have testimony as to if you take over you can get it done by these dates? MR. OLINSKY: Judge, we can ask Mr. Lords. I think the real issue here is, since we think they’ve missed a lot of dates already—if they held their dates, we’d be okay. That’s what we would tell you. If I asked that question, I believe that’s what the answer would be. The real problem is we don’t have confidence in that. That’s why, Judge, what we’d prefer, I’ll be honest with you— whether it’s a consent order or whether it’s sort of an order that you would enter whether it's consented to or not—is to put this hearing in abeyance pending to see if they meet their dates. If they don’t, we can come back and say, what ____________________________________________ 7 BJ’s witness, Patrick Netreba, testified that a new Costco was opening “right down the street” in the fall of 2025—approximately in September—and that it “was critically important for [BJ’s] to acquire . . . members before [it] open[s].” See id. at 48-49. Netreba is BJ’s director of real estate for the northern half of the United States. See id. See also id., 10/22/24, at 36 (BJ’s witness testifying “Costco has proposed to locate down the road from us, about a mile or two down the road.”). -9- J-A20017-26 do we do now, and can we jump in to try to finish the job because they’re failing. That would satisfy us, Judge. Let me put it this way. It’s kind of like a lesser remedy than an injunction; and, therefore, we think it would be reasonable to be entered, whether by consent or by you, short of finishing the hearing, frankly. We can just say, wait a second, take the dates that are—this is the way we scoped it out, Judge. We called our adversaries late in the afternoon yesterday when we got this idea and gave them a heads-up. They acted promptly to let us know, by three hours later, that it didn’t work for them. But what we tried to do is to put things in basically three categories: those things which come out of the papers they filed yesterday, the dates they gave us; those dates that come out of the—I think it's Exhibit 5 that was sent to us in mid-March; and all, frankly, reasonable extrapolations from those things. All things we can live with. Then we’ll—we think we can barely make it, but we think we can make it. For whatever reasons they were entitled to, they’re not required to consent to that, but we think that would be a good result today for everybody, frankly, for the [c]ourt and for us, and we think, frankly, for them. We could all go home, enter an order on consent, hopefully on consent, that says meet those dates. If you’re not—if you can’t meet those dates, let’s get back into court—we can set a preliminary date to do it—and see where things stand, and see whether at that point we think it makes sense for us to jump back in or not. Frankly, we’d rather not jump in at this point. We’d rather them meet those dates. Id. at 31-34 (emphasis added). At this point in the hearing, Pacifica’s counsel interjected that BJ’s proposal to put commitment dates in writing was “completely heavy-handed [and] was just beyond anything [it] would ever agree to.” Id. at 35. The court then asked Pacifica if “further discussions would be beneficial” or if the court “shall continue with the hearing.” Id. at 35-36. Pacifica’s counsel responded, “[p]lease continue with the hearing.” Id. at 36. - 10 - J-A20017-26 BJ’s vice-president of construction and facilities, Lloyd Lords, then testified that if the utilities were hooked up by the end of April and everything else was done by May 15th, BJ’s could timely complete the project by finishing its remaining site work8 in approximately another nine weeks and its remaining vital gas/fueling station work in 12 weeks. Id. at 36-37, 41, 48. At the conclusion of the hearing, the court entered an order denying BJ’s renewed motion for a preliminary injunction, without prejudice, “based upon [Pacifica’s] assurances that utilities will be installed by the end of April.” See Order, 4/11/25 (emphasis added); see also N.T. Preliminary Injunction Hearing, 4/10/25, at 68-69. In its order, the court scheduled a supplemental hearing for May 2, 2025, in the event that the utilities were not installed by the end of April. See Order, 4/11/25; see also N.T. Preliminary Injunction Hearing, 4/10/25, at 69.9 ____________________________________________ 8 The remaining work BJ’s would have to complete to get the building up and running included, among other things, final terminations inside the building, final inspections from the township, and stock and train staff in preparation for opening. Id. at 36-37. 9 From the bench, the court noted at the conclusion of the hearing that: All right. I’m going to deny the request for a preliminary injunction. You have not met your burden. The testimony I heard was that if the timeframes are met there’s not a problem. The other testimony I heard was that there's no reason the timeframes cannot be met. I will, however—and that’s based upon the assurances that the utilities will be done by the end of the month. Id. at 68-69 (emphasis added). - 11 - J-A20017-26 On April 30, 2025, BJ’s requested the matter be continued, averring in its motion that, following an April 29th site visit, it appeared the utilities were not yet completed, and it had not yet received an updated schedule from Pacifica. Accordingly, BJ’s asked for an additional week to determine whether a supplemental hearing was necessary. On May 1, 2025, Pacifica filed an answer to BJ’s continuance motion, stating that it had not fallen “substantially behind” on any site work, that it had sent BJ’s an update confirming gas and electrical services would be installed on April 28th, and that storm and sanitary work had already been completed. See Answer to Plaintiff’s Motion for Continuance, 5/1/25, at 3; see also id. (“In short, there is nothing preventing BJ’s from finalizing preparations to open its store.”) (emphasis in original). Pacifica averred that an additional hearing on the matter would “result in a waste of th[e trial c]ourt’s time” where its utility work is completed and, thus, BJ’s request for a preliminary injunction is not only meritless[,] but also stale.” Id. at 3-4. The following day, on May 2, 2025, the court granted BJ’s motion and continued the case for a supplemental hearing to be held on May 23, 2025. On May 22, 2025, BJ’s filed another motion to continue the rescheduled supplemental hearing to June 3, 2025, or later, stating “[b]ased on information exchanged by the parties on May 21 and 22, 2025, and continued discussions between counsel, the parties have agreed to request a further postponement of the hearing.” Plaintiff’s Motion for Continuance, 5/22/25, at 2 (emphasis added). The motion also states that - 12 - J-A20017-26 “[n]otwithstanding the parties’ agreement to continue the May 23, 2025[] hearing, Pacifica [] does reserve the right to raise all defenses, including the defense that further preliminary injunction proceedings in this matter are not necessary.” Id. On May 27, 2025, the court granted BJ’s continuance, stating that it “will reschedule the hearing at the request of either party.” Order, 5/27/25. On September 18, 2025, BJ’s filed a praecipe to discontinue the case, without prejudice, against Pacifica. See Praecipe to Discontinue, 9/18/25; see also Pa.R.C.P. 229(a). On October 17, 2025, Pacifica filed a petition10 seeking attorneys’ fees and costs pursuant to the “Prevailing Party” provision of the Lease, claiming that it is “entitled to recover its attorney[s’] fees and costs incurred in defending against BJ’s failed lawsuit under the express language” of the Lease. Defendant’s Petition for Attorneys’ Fees and Costs, 10/17/25, at 1. BJ’s filed ____________________________________________ 10 Attached to its petition, Pacifica included: Saxton & Stump LLC invoices for legal fees and expenses totaling $254,994.12; Barley Snyder invoices for legal fees and expenses totaling $49,579.54; SR Duffie Consulting LLC invoices for professional services directly related to BJ’s injunction proceedings totaling $2,400.00; BL Companies invoices for fees and expenses as a result of engineering issues related to the injunction motion totaling $8,223.75; and TPD, Inc., invoices for consulting on traffic issues related to the injunction motion totaling $ 2,749.21. See Defendant’s Petition for Attorneys’ Fees and Costs, 10/17/25, at 11. BJ’s contests on appeal, among other things, that the court improperly granted Pacifica reimbursement for its consulting fees, claiming that subsection 30.13 of the Lease only permits a prevailing party to recover taxable costs—costs associated with the process of litigation—not consulting fees. See Appellant’s Brief, at 33-35. - 13 - J-A20017-26 an answer and new matter to the petition,11 alleging, among other things, that Pacifica could not be a prevailing party in the action where BJ’s complaint seeking injunctive relief, as well as the two motions it filed seeking a preliminary injunction, “compel[ed] Pacifica to take action that it had refused to take in order to avoid the issuance of an injunction [that would] turn[] control of construction over to BJ.’s.” Plaintiff’s Answer and New Matter, 11/12/25, at 8; see also id. at 12 (“[T]he threat of the [c]ourt’s intervention prodded Pacifica to take action that it should have long before[.]”). Pacifica filed a reply to BJ’s new matter, claiming that “BJ’s received exactly 0% of what it sought in its [c]omplaint and in either of the preliminary injunction motions it filed in this action” and is, in essence, asking this court to “convert an action for declaratory and injunctive relief into an action for specific performance.” Defendant’s Reply to New Matter, 11/24/25, at 2. The court conducted a hearing on the fees and costs petition on November 26, 2025, at which time Pacifica presented invoices documenting its attorneys’ fees and expenses in the matter, including consulting fees. See supra at n.10. At the beginning of the hearing, BJ’s objected, on the basis of ____________________________________________ 11 We note that in BJ’s new matter to Pacifica’s petition for attorneys’ fees and costs, BJ’s avers that it received its certificate of occupancy on August 26, 2025, and opened for business on September 1, 2025. See Plaintiff’s Answer and New Matter to Defendant’s Petition for Attorneys’ Fees and Costs, 11/12/25, at 13. See also Defendant’s Reply to Plaintiff’s Answer and New Matter to Defendant’s Petition for Attorneys’ Fees and Costs, 11/24/25, at 3 (acknowledging BJ’s “store is now open”); Appellee’s Brief, at 22 (“After Pacifica completed the project, BJ’s discontinued the litigation.”). - 14 - J-A20017-26 relevancy, to Pacifica admitting Defense Exhibits 3, 4, and 5, invoices from consultants and expert witnesses.12 See N.T. Attorneys’ Fees and Costs Hearing, 11/26/25, at 4. Specifically, BJ’s counsel argued that the exhibits contained unauthenticated hearsay evidence that did not include information relevant to costs. Id. The court overruled the objection on relevancy grounds, but stated that Pacifica would be required to provide testimony regarding the invoices for the costs having been received and paid. Id. at 5. On December 1, 2025, the Honorable Edward E. Guido issued an order, containing findings of fact and conclusions of law, that granted the petition and concluded that Pacifica was the “prevailing party” in the action.13 The court found Pacifica was entitled to reasonable fees and costs under the Lease in the amount of $276,158.62 ($262,890.66 in attorneys’ fees and $13,267.96 in costs). See In re: Findings of Fact, Conclusions of Law, and Order of Court, 12/1/25, at 1. Judge Guido’s order contains no analysis or discussion of how he came to the legal conclusion that Pacifica was the prevailing party. See ____________________________________________ 12 BJ’s counsel also objected, on the grounds of hearsay, to the admission of Defense Exhibit 6, Attorney Adler’s expert report. See id. at 5. The court reserved ruling on that objection until later in the hearing since Attorney Adler was present to testify to the report. Id. at 6. BJ’s counsel renewed the objection to Attorney Adler’s testimony on the basis of his “methodology and reliability and assistance to the [c]ourt under [Pennsylvania Rule of Evidence] 702.” Id. at 55. The court ultimately certified him as an expert and accepted his testimony over these objections. Id. 13 BJ’s preserved the prevailing party argument on appeal by raising the issue at the attorneys’ fees and costs hearing. See N.T. Attorneys’ Fees and Costs Hearing, 11/26/25, at 40-41, 43. - 15 - J-A20017-26 id. at 1 (“Conclusions of Law” section of order states “1. Defendant was the prevailing party in this action.”). See id. at 1. BJ’s filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.14 BJ’s presents the following issues for our consideration: 1. Whether the trial court committed reversible error in awarding attorneys’ fees to [] Pacifica [] as the “prevailing party” under the terms of a contract between the parties when [B.J.’s] voluntarily discontinued its case because [Pacifica] acquiesced to the relief sought in response to [B.J.’s] lawsuit and under pressure from the trial court? 2. Whether the trial court committed reversible error by concluding [Pacifica’s] fees were “reasonable” when the amount of time was not reasonably related to the volume of legal work performed, the work was duplicative, and the fees were “block- billed” so that the amount of time spent on particular tasks was indiscernible? ____________________________________________ 14 BJ’s Rule 1925(b) statement avers, in part, that because the trial court “entered its [o]rder . . . without an opinion or discussion of the grounds for the decision[,] . . . BJ’s cannot readily discern the bases for the [c]ourt’s decision and, therefore, generally asserts that the trial court erred in its conclusion that Pacifica [] is the ‘prevailing party’ entitled to recover attorneys’ fees.” Rule 1925(b) Statement, 1/27/26, at 1-2. However, the record reflects that Judge Guido retired from the bench on December 31, 2025—just thirty days after issuing his order granting Pacifica’s attorneys’ fees and costs and one day before BJ’s filed its notice of appeal. Consequently, the Honorable Alexandra E. Sacavage issued the Rule 1925(b) order and Rule 1925(a) opinion in the matter. Judge Sacavage’s opinion addressed the “prevailing party” issue by noting that Judge Guido “agreed with the Defendant that it was the ‘prevailing party’ in the underlying action.” In doing so he relied upon the holding in Friedenbloom v. Weyant, 814 A.2d 1253 (Pa. Super. 2003)[.”] Trial Court Rule 1925(a) Opinion, 2/27/26, at 3. - 16 - J-A20017-26 3. Whether the trial court committed reversible error in awarding [Pacifica’s] expert witness and consultant fees as the “prevailing party” under the terms of a contract between the parties providing for attorneys’ fees only? 4. Whether the trial court committed reversible error by admitting Exhibits 3, 4, and 5 into evidence at the November 26, 2025[] hearing when the exhibits were not authenticated, lacked foundation, and constituted hearsay? 5. Whether the trial court committed reversible error by admitting the testimony of Matthew Chabal regarding invoices, expenses, and activities of third parties at the November 26, 2025[] hearing when the testimony lacked adequate foundation and constituted hearsay? 6. Whether the trial court committed reversible error by prohibiting [B.J.’s] from entering into evidence the trial court’s off- the-record comments and instructions to [Pacifica’s] counsel, as a result of which [Pacifica] admitted it changed its legal and factual position to avoid the entry of injunctive relief, demonstrating it did not prevail in the litigation? 7. Whether the court committed reversible error in admitting the testimony of [Pacifica’s] expert witness, Theodore A. Adler, Esq[uire], because [Attorney] Adler’s testimony constituted improper legal opinion? 8. Whether the trial court committed reversible error in admitting the testimony of [Attorney] Adler because he failed to meet the requirements under [] Rule [] 702 that require a witness [to] employ reliable methodology? Appellant’s Brief, at 7-8. “Appellate review of a trial court’s order awarding attorney’s fees to a litigant is limited solely to determining whether the trial court palpably abused its discretion in making a fee award.” Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996). An abuse of discretion is not merely an error of judgment, but[,] if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result - 17 - J-A20017-26 of partiality, prejudice, bias[,] or ill-will [] as shown by the evidence of record. Review of the grant of counsel fees is limited . . . and we will reverse only upon a showing of plain error. Habjan v. Habjan, 73 A.3d 630, 642 (Pa. Super. 2013) (internal quotation marks, citations, and brackets omitted). Moreover, it is well-settled that the voluntary discontinuance of an action before trial constitutes a final judgment as a matter of law. See Levitt v. Patrick, 976 A.2d 581, 587 (Pa. Super. 2009), citing Miller v. Elec. O. v. DeWeese, 907 A.2d 1051, 1055 (Pa. 2006). Indeed, “once an action has been discontinued, no action remains pending before the court.” See Motley Crew, LLC. v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa. Super. 2014). A discontinuance places a plaintiff in the same position as if the action had never been instituted. Id. (citations omitted). B.J.’s first asserts that the trial court erred in awarding attorneys’ fees to Pacifica as the “prevailing party” under the terms of the Lease when B.J.’s voluntarily discontinued its case because Pacifica acquiesced to the relief sought in response to B.J.’s lawsuit. Specifically, BJ’s claims that “BJ’s threat of a preliminary injunction compelled Pacifica to abandon its position that it had no duty to begin Phase II Site Work, to hire a contractor, and to begin the Phase II Site Work on December 3, 2024.” Appellant’s Brief, at 15. Additionally, BJ’s claims that Pacifica “avoided [a] preliminary injunction [for the second time] by promising the trial court that it would have all utilities installed by the end of April.” Id. at 16. - 18 - J-A20017-26 Typically, Pennsylvania subscribes to the “American Rule,” which states that “parties to adversary litigation are required to pay their own counsel fees.” Petow v. Warerhime, 996 A.2d 1083, 1087 (Pa. Super. 2010). However, “courts can award counsel fees to the prevailing party when authorized by statute or rule of court, upon agreement of the parties, or pursuant to some other recognized case law exception.” Olympus Corp. v. Canady, 962 A.2d 671, 677 (Pa. Super. 2008) (emphasis added). 15 The intent of a fee-shifting provision is to deter and eventually punish the potentially breaching party. See McMullen v. Kutz, 985 A.2d 769, 776 (Pa. 2009). According to Judge Sacavage, who was not the trial judge in the instant matter, Judge Guido relied on Freidenbloom v. Weyant, 814 A.2d 1253 (Pa. Super. 2003), to support the award of attorneys’ fees and costs to Pacifica by concluding that it was the “prevailing party” under the Lease. See supra at n.14. In Freidenbloom, our Court stated: A praecipe to discontinue a case constitutes a final resolution of all issues. Sustrik v. Jones & Laughlin Steel Corp., [] 197 A.2d 44 (Pa. 1964).[16] Further, a praecipe for discontinuance has the same effect as a judgment entered in favor of the defendant. Triffin v. Janssen, [] 688 A.2d 1212, 1214 (Pa. Super. 1997). ____________________________________________ 15 This case implicates the “prevailing party” language in an agreement between parties as opposed to attorneys’ fees and costs that are awarded to prevailing parties by statute. 16 Sustrik also is procedurally distinct from the instant matter where the parties settled and discontinued their case, but the plaintiff did not praecipe to voluntarily discontinue the matter under Rule 229. - 19 - J-A20017-26 Thus, since a praecipe for discontinuance constitutes a final resolution of the case and has the effect of a final judgment, a trial court may consider a petition for fees filed within a period of 30 days after the filing of the praecipe. Id. at 1255 (emphasis added); see also Trial Court Rule 1925(a) Opinion, 2/27/26, at 3. Triffin, supra, one of the main cases relied upon in Freidenbloom, involved a trial court’s sua sponte imposition of sanctions against a plaintiff and defendant pursuant to Pa.R.C.P. 4019. On appeal and cross-appeal, the Triffin Court reversed the trial court’s sanctions order, concluding that the order was a violation of the clear language of Pa.R.C.P. 4019. Id. 1214-15. Notably, in a footnote, the Triffin Court held that an interlocutory order imposing sanctions became final for purposes of appeal when the plaintiff praeciped to discontinue the action. See Triffin, 688 A.2d at 1214 n.2. Based upon those facts, the Freidenbloom Court’s statement that Triffin determined a praecipe for discontinuance has “the same effect as a judgment entered in favor of the defendant” is, in fact, disingenuous. The Triffin Court never discussed what, if any, judicial effect a praecipe to discontinue has on the non-praeciping party or whether a voluntary discontinuance equates to a judicial determination. Rather, Triffin only addressed the finality of the order for purposes of this Court’s jurisdiction over the appeal. Thus, we do not find Freidenbloom dispositive of the issue before us today. See Miller Elec. Co. v. DeWeese, 907 A.2d 1051, 1055 (Pa. 2006) (“Freidenbloom stands for the proposition that a praecipe to discontinue constitutes a final judgment [] and that a trial court may only act on a motion - 20 - J-A20017-26 for fees that is filed within 30 days from final judgment.”); id. at 1056 (“Freidenbloom held a trial court may consider a petition for fees filed within 30 days of the entry of final judgment.”) (emphasis in original). Because the term “prevailing party” was not defined in the parties’ Lease, we look to caselaw for guidance. The seminal case interpreting the term “p