author: ZULICK, J.,

text:
    Pino v. Pocono Medical Center

      C.P. of Monroe County,
    No.7159 CV 2009

      Joel J. Feller, for plaintiffs.

      Steven D. Costello and Michael P. Perry, for defendants.
    November 7, 2013 —
   ZULICK, J.,

This is a medical malpractice claim involving the treatment and care of Joseph A. Pino, Jr. Mr. Pino was taken to Pocono Medical Center (PMC) after experiencing shortness of breath on October 4, 2008. Mr. Pino’s condition worsened after he was admitted to the emergency department. He was intubated by the attending emergency room doctor, Matthew Nelson, D.O. but unfortunately suffered cardiac arrest shortly thereafter, which eventually led to his death on October 17, 2008. Mrs. Linda Pino sued Dr. Nelson, PMC, the hospital’s parent company, Pocono Health System, and the practice group Doctor Nelson worked in, Pocono Emergency Physicians, alleging that Dr. Nelson committed medical malpractice in his treatment of Mr. Pino. Mrs. Pino asserted that Dr. Nelson failed to take necessary action, including intubation, soon enough to improve Mr. Pino’s respiratory condition. Dr. Nelson denied liability, and argued that he acted within the standard of care. Before trial, Mrs. Pino reached a settlement with the hospital and its parent company.

The case was tried before a jury on April 22-29, 2013. The trial concluded with a verdict in favor of Dr. Nelson and Pocono Emergency Physicians. Mrs. Pino filed atimely post-sentence motion, challenging numerous rulings during the trial, seeking both a new trial and a judgment notwithstanding the jury verdict. The issues raised by Mrs. Pino include: (1) a new trial should be granted because the “Two Schools of Thought Doctrine” (hereafter TSTD) instruction was inappropriate as it was unsupported by the evidence and in contravention of Pennsylvania law, (2) a new trial should be granted because the plaintiff was not informed of the pending TSTD instruction before it was given, preventing her from having the chance to object, (3) a new trial should be granted because defense counsel made repeated references to Mr. Pino’s prior hospitalizations, in contravention of court orders forbidding such references, (4) a new trial should be granted because defense counsel repeatedly referenced the “vast majority” of patients with a condition similar to Mr. Pino in order to establish the standard of care, (5) a new trial should be granted because defense counsel made repeated arguments and inferences that the nursing staff violated the standard of care, despite defendants having no claim against the hospital or its staff, (6) a new trial should be granted due to bias or an appearance of bias on behalf of the court, (7) a new trial should be granted because the verdict was against the weight of the evidence, and (8) the plaintiff should be granted judgment notwithstanding the verdict because the evidence at trial required a finding in favor of the plaintiff.

Defendants answered, supporting the verdict, and both parties filed briefs in support of their position. The matter was argued before the court on August 26, 2013.

DISCUSSION

Mrs. Pino she seeks the remedy of a new trial. “Trial courts have broad discretion to grant or deny a new trial.” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). “The grant of a new trial is an effective instrumentality for seeking and achieving justice in those instances where the original trial, because of taint, unfairness or error, produces something other than a just and fair result, which, after all, is the primary goal of all legal proceedings.” Domon v. McCarthy, 195 A.2d 520, 522 (Pa. 1963).

Each review of a challenge to a new trial order must begin with an analysis of the underlying conduct or omission by the trial court that formed the basis for the motion. There is a two-step process that a trial court must follow when responding to a request for new trial. First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.

Harman, 756 A.2d at 1122 (internal citations omitted).

Ms. Pino’s first argument is that the court improperly issued a TSTD instruction at the end of the trial. While the TSTD doctrine has existed in Pennsylvania since the 1920’s, the modem iteration of the doctrine was announced by the Supreme Court in Jones v. Chidester, 610 A.2d 964 (Pa. 1992). In Jones, a defense verdict followed a TSTD instmction. The Supreme Court decided to review the case to clear up confusion about the applicable standard for when a TSTD instmction is appropriate. The Court stated:

We, therefore, provide the following as a correct statement of the law:

Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.

Jones, 610 A.2d at 969. Further,

In recognizing this doctrine, we do not attempt to place a numerical certainty on what constitutes a “considerable number.” The burden of proving that there are two schools of thought falls to the defendant. The burden, however, should not prove burdensome. The proper use of expert witnesses should supply the answers. Once the expert states the factual reasons to support his claim that there are a considerable number of professionals who agree with the treatment employed by the defendant, there is sufficient evidence to warrant an instruction to the jury on the two “schools of thought.” It then becomes a question for the jury to determine whether they believe that there are two legitimate schools of thought such that the defendant should be insulated from liability.

Id. While there have been several cases involving TSTD instructions since Jones, they have not materially altered the Jones standard.

In the present case, Mrs. Pino argues that the factual posture of the case should have precluded a TSTD instruction. Additionally, she argues that even were such an instruction appropriate based on the factual underpinnings of the case, the defendant failed to make the requisite showing such that a TSTD instruction could be properly given.

Plaintiff first argues that the TSTD instruction was inappropriate because there was no agreed-upon diagnosis of Mr. Pino’s condition. “The [two schools of thought doctrine] is applicable only where there is more than one accepted method of treatment or procedure.” Choma v. Iyer, 871 A.2d 238, 241 (Pa. Super. 2005). In other words, “where...the dispute is not to the course of treatment, but rather to a question of fact regarding plaintiff’s condition, the “two schools of thought” doctrine is inapplicable.” Id. Plaintiff has attempted to characterize this case as one of misdiagnosis. Plaintiff contends that Dr. Nelson failed to adequately diagnose the dire respiratory crisis of Mr. Pino and act accordingly.

There was substantial evidence before the jury to allow them to find otherwise. All parties agreed that Mr. Pino was suffering from a respiratory crisis caused by congestive heart failure (CHF). Dr. Nelson testified that Mr. Pino was in respiratory distress caused by his CHF. NT, Vol. II at 169. Most importantly, plaintiff’s expert witness on the standard of care, Dr. Corboy, stated both that Mr. Pino had congestive heart failure and that every person involved with Mr. Pino’s care recognized he was in respiratory crisis. I N.T. Vol. III at 9-10, 57. There was a difference of expert opinion on the appropriate treatment of a CHF patient in respiratory distress, but not on the diagnosis of CHF.

Plaintiff next objects that Dr. Nelson did not establish the factual basis to support a TSTD instruction. The factual basis to support such an instruction was articulated in Jones, supra. An expert witness must supply the factual basis for his contention that a considerable number of professionals support the method of treatment used. Jones, 610 A.2d at 969. While the burden is on the defendant, the burden should not be “burdensome.” Id.

The testimony supporting the TSTD instruction was supplied by Dr. Karras, defendant’s standard of care expert. The following exchanges formed the factual basis for the TSTD instruction.

Q: Dr. Nelson, at that point, based upon his own history, and physical exam, sir, considered intubating the patient at that time, correct?
A: That’s what he said in his deposition testimony.
Q: Right. And that would have been an appropriate consideration, correct?
A: Absolutely.

N.T. of Dr. Karras at 131-32.

Q: And your opinion is that based upon Nelson’s documentation and testimony, it was entirely reasonable to defer intubation for a few minutes to assess Mr. Pino’s response to medical therapy to see if he failed to respond to the oxygen, correct?
A: And to the medications, yes.

N.T. of Dr. Karras at 132-33.

Q: So when you put this package together, when a patient had not responded for the 19 minutes or so that he’s there before he leaves the patient’s bedside in this crisis, which we’ll talk about in a minute, there were other options for respiratory support, correct?
A: Yes.
Q: And Dr. Nelson testified about a concern he had for intubating him at that point. And we can talk about that, but to the extent he had any concern about intubating a patient that he was considering a problem at the time, there are even other methods to attempt to improve oxygenation and ventilation, especially for a patient who has an underlying condition of congestive heart failure, correct?
A: Yes.
Q: What interventions are available to you, even if you, for whatever reason, don’t want to intubate? What’s available to you?
A: Positive pressure ventilation is available.

N.T. of Dr. Karras at 140-41.

Q: And Dr. Nelson considered intubation as a means of intervening for the — for the respiratory condition, correct?
A: Yes.
Q: And had he done it at that time, based upon what he’s told us, he saw, based upon his own history and physical, it would have been appropriate for him to do that at that time, correct?
A: Yes.
Q: And that would have been within the standard of care to intubate him at his initial visit, based upon his history and physical, correct?
A: Yes.

N.T. of Dr. Karras at 143.

This testimony from Dr. Karras clearly states his opinion that there were at least two appropriate methods to treat Mr. Pino, given his presentation. According to Dr. Karras, Dr. Nelson could have undertaken the course of treatment he did, namely monitor the patient and treat with medicines and non-pressurized oxygen. He could have also intubated the patient immediately, or he could have used positive pressure ventilation. While Dr. Karras did not specifically state that a given number of other medical professionals would agree with the course of treatment prescribed by Dr. Nelson, the lack of such a rote statement should not prevent a TSTD instruction, by itself. Dr. Karras is a well-qualified expert in emergency medicine, who frequently gives lectures and also teaches medical students and residents. His testimony that there are multiple acceptable methods to treat a patient in Mr. Pino’s condition supplies the factual basis for the TSTD instruction.

This conclusion is further buttressed by a reading of Wetzel v. Shaffer, 75 Pa. D. & C.4th 263 (Pa. Com. Pl. 2005) aff’d. Wetzel v. Shaffer, 919 A.2d 985 (Pa. Super. Jan 08, 2007) (Table, No. 1966 MDA 2005). In Wetzel, a TSTD instruction was upheld on very similar facts to the case at bar. There, the defense expert merely stated that in the “vast majority” of cases, the treatment chosen by the treating physician would have cured the patient’s ailment. Id. at 270. The case at bar is similar to Wetzel in that the evidence supporting the TSTD instruction was not formulaic. However, considering the Jones holding that the evidentiary support for the instruction should not be burdensome, the court finds that here, as in Wetzel, that burden has been met and a TSTD instruction was properly given.

As the court has determined that there was a sufficient evidential basis for the TSTD instruction, Mrs. Pino’s contentions that said instruction severely prejudiced her are without merit. Likewise, plaintiff’s contention that the court did not disclose the intent to give the instruction at the charge conference must fail. The TSTD instruction was included in the written proposed instructions presented to the court by Dr. Nelson at the time of the pretrial conference. See Proposed Points for Charge of Defendants Matthew Nelson, D.O. and Pocono Emergency Physicians at 17. Both parties were aware that the instruction was requested. Plaintiff had the opportunity at the conference to object to the instruction before the conference concluded, which plaintiff did not do.

Mrs. Pino next objects to defense counsel’s references to Mr. Pino’s past hospitalizations. Defendant’s counsel referenced those visits in two different ways. First, counsel referenced them in some instances to attempt to show that Mr. Pino had been treated successfully using methods similar to those employed by Dr. Nelson in his prior hospitalizations. Plaintiff’s counsel objected to the introduction of this evidence, and was sustained. Plaintiff did not move for a mistrial. Without a request for a mistrial, the request for a new trial now comes too late. See McMillen v. 84 Lumber, 649 A.2d 932 (Pa. 1994) (request for new trial is waived if successful objection is not coupled with request for a mistrial). Even were the issue not waived, the court does not find that the prejudice was of the level that would require a new trial be granted.

Defense counsel also referenced Mr. Pino’s prior hospitalizations when discussing damages. Defendant’s expert attempted to show that there was a correlation between the number of hospital visits a CHF patient experiences and that patient’s life expectancy. Defendant’s expert testified that after a certain number of hospital visits, the survival rate of CHF patients decreased markedly. Testimony of Dr. Walinsky, N.T. Vol. V at 39. This medical evidence was offered by the defendant contradict the life expectancy determinations of plaintiff’s experts.

The references made by defense counsel to Mr. Pino’s prior hospitalizations were limited, and were only permitted for the purpose of addressing damages. In those circumstances where defense counsel otherwise alluded to those hospitalizations, plaintiff’s objections were sustained. Therefore, the court cannot say that plaintiff was prejudiced by defense counsel’s references to Mr. Pino’s prior hospitalizations. No motion for mistrial was made. A new trial will not be granted on that basis.

Mrs. Pino contends that a new trial should be awarded based on defense counsel’s repeated references to the “vast majority” of CHF patients, and how they respond to certain treatments. Specifically, Dr. Karras, an expert witness for the defendant, stated that the “vast majority” of patients with CHF respond favorably to the type of treatment rendered by Dr. Nelson.

Plaintiff’s argument must fail for two reasons. First, doctors do not, and cannot, treat each new patient in a vacuum. Prior experiences do and must inform their decision making. Therefore, some reference to what appears to be a standard treatment for CHF patients is appropriate. Second, these references cannot be said to prejudice the plaintiff to the point that a new trial is appropriate. Defendant never argued that just because the “vast majority” responds well to a treatment, that fact alone absolves Dr. Nelson of responsibility. Defendant’ witnesses clearly stated numerous times throughout the trial that each patient is an individual, who needs individual care and attention based upon their particular presentation. Further, plaintiffs continually asserted that Mr. Pino’s presentation upon arriving at PMC on October 4, 2008 was quite different, and more severe, than the “vast majority” of cases. As the sporadic references by the defense to the “vast majority” of cases did not prejudice the plaintiff, a new trial will not be awarded on that basis.

Plaintiff’s next objection is that defense counsel contended that the nursing staff was negligent in. their care of Mr. Pino. This argument lacks merit. A review of the record does not disclose any circumstances where defense counsel challenged the conduct of the nursing staff. Defense counsel did reference, both in remarks and during questioning of the nursing staff members, a “team approach” undertaken by doctors and nurses. However, it would be odd indeed if doctors and nurses did not work together in the treatment of a patient. Beyond those innocuous remarks, there is no evidence that defendant impermissibly attacked the actions of the nurses. As such, there is no error, and this will not be the basis for a new trial. Plaintiff makes no reference in her brief to an objection that was not sustained or a request for mistrial on this basis.

Plaintiff requests a new trial as she contends that extraneous factors improperly influenced the jury. Plaintiff contends that the court was biased, or appeared so, in its administration of the trial. However, as both plaintiff’s and defendant’s briefs aptly note, numerous important objections were sustained in plaintiff’s favor throughout the trial. Further, without any concrete and specific examples of this claimed bias, it I am not able to respond in a meaningful way other than to say that I am not aware of such a bias for or against either party at any point during the proceedings. Plaintiff’s objection will be denied.

Next, Mrs. Pino requests a new trial because the verdict was against the weight of the evidence. “A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one’s sense of justice.” Betz v. Erie Ins. Exchange, 957 A.2d 1244, 1252 (Pa. Super. 2008) (quoting Thomas Jefferson University v. Wapner, 903 A.2d 565, 576 (Pa. Super.2006)). Here, aside from the fact that Mr. Pino entered the hospital at 6:05 P.M. in respiratory distress while suffering from apparent congestive heart failure, other material facts were in dispute. The plaintiff presented credible expert testimony that Dr. Nelson was negligent in failing to intubate Mr. Pino earlier. The defendant presented credible expert testimony to the effect that the course of treatment undertaken by Dr. Nelson was proper and within the standard of care. The juiy was free to believe either party’s explanation of the case. That they chose to believe Dr. Nelson and his experts does not shock the court’s sense of justice. Therefore the verdict was not against the weight of the evidence.

Finally, Mrs. Pino seeks judgment notwithstanding the verdict.

A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/ or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing atrial court’s denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basis exists upon which the [court] could have properly made its award, then we must affirm the trial court’s denial of the motion for JNOV. A JNOV should be entered only in a clear case.

V-Tech Services Inc. v. Street, 72 A.3d 270, 275 (Pa. Super. 2013) (quoting O’Kelly v. Dawson, 62 A.3d 414, 419 (Pa. Super. 2013)). Here, considering the conflicting nature of the evidence, the court cannot say there was no basis for the jury verdict. Viewing the record in the light most favorable to Dr. Nelson, there was sufficient evidence to support a jury verdict in his favor. Accordingly, plaintiff’s request for judgment notwithstanding the verdict is denied.

ORDER

And now, this 7th day of November, 2013, upon consideration of plaintiff’s post-trial motion, and the arguments and briefs of both parties, it is ordered that the post-trial motion is denied.

      . Q: Sir, in this case eveiy person who laid a hand on Mr. Pino, they all recognized he was in a respiratory emergency, was hypoxic, and in respiratory distress based on your review?
      Dr. Corboy: Yes, based on my review of Dr. Nelson’s notes and Nurse Roland’s and Nurse Oliva’s testimony, everyone, and the record itself, everyone acknowledged he was in respiratory crisis.
      N.T. Vol. Ill at 9-10.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Herold v. Janus

      C.P. of Lawrence County,
    No. 10177 of 2013

      Leo M. Stepanian, for plaintiff.

      George M. Freed, for defendant.
    December 3, 2013 —
   COX, J.,

Before the court for disposition is the motion to dismiss filed on behalf of the defendant Debra Janus, which argues that the plaintiff’s claims should be dismissed as they were filed after the expiration of the applicable statutes of limitations.

On May 29, 1991, the plaintiff Jennifer Herold was injured while riding as a passenger in an automobile driven by Ronald J. Pell. At the time of the accident, the Plaintiff was nine years old as she was bom on June 8, 1981. The defendant, who is the plaintiff’s mother, who was unrepresented by counsel, negotiated a settlement with State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) on the plaintiff’s behalf, which resulted in State Farm paying $7,500.00. Due to the plaintiff’s young age, court approval was necessary and was granted on March 13, 1992. The order of court approving the settlement stated, “it is further ordered that the settlement in the sum of $7,500.00 shall be deposited in Dollar Savings & Loan Association in the name of Jennifer Lynch in a restricted account and shall not be withdrawn until the minor reaches the age of 18 or until further order of court.”

The defendant did not petition to have any of the funds withdrawn, yet the plaintiff did not receive any of those funds upon reaching the age of 18. The plaintiff now alleges that the defendant converted those funds for her own personal use in violation of the order of court dated March 13, 1992. As a result, the plaintiff filed suit on February 26, 2013, asserting claims of conversion and civil contempt. The defendant filed preliminary objections under Pa.R.C.P. Rule No. 1028, which were denied by President Judge Dominick Motto on August 13, 2013. The defendant subsequently filed an answer to plaintiff’s complaint and new matter on August 29, 2013, which raised several affirmative defenses, including the defense of statute of limitations.

On September 26,2013, the defendant filed a motion to dismiss asserting that the plaintiff’s claims are barred by the applicable statutes of limitations. This court scheduled a hearing for November 5, 2013. At that hearing, the plaintiff, the defendant and Karen Cwynar, the defendant’s sister, testified. The plaintiff testified that she remembered going to court as a child, but did not become aware of the settlement until 2009, when she was instructed by the Pell family to get a copy of the order of court concerning the settlement. In addition, the plaintiff explained that she entered into an article of agreement to purchase a residence from the defendant; however, in 2009, she got into an argument with the defendant because the defendant obtained a mortgage on that residence. In a strongly worded letter, the plaintiff informed the defendant that she was aware of the settlement and that the defendant kept the funds instead of placing them in an account for the plaintiff. Conversely, the defendant testified that she was not informed that the settlement funds were to be placed in a separate account for the plaintiff, so she utilized that money to purchase an automobile. The defendant also stated her belief that she received the letter from the plaintiff in 2008, as the defendant had recently paid an overdue electric bill on the plaintiff’s behalf in October of 2008, and the letter was received shortly thereafter. Karen Cwynar testified that the defendant informed her that she purchased a vehicle with the money received from the plaintiff’s settlement.

The dourt must now address whether the claims filed by the plaintiff for conversion and civil contempt should be dismissed for failure to file suit prior to the expiration of the applicable statutes of limitations.

Although, the defendant has filed a motion to dismiss, the court will treat the same as a motion for summary judgment. The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summaiy judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspaper, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)).

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspaper, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the Court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

The plaintiff has filed claims for conversion and civil contempt. A two-year statute of limitations applies to “Any...proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortuous conduct or any other action or proceeding sounding in trespass, including deceit or fraud.” 42 Pa.C.S.A. §5524(7). In addition, a six-year statute of limitations applies to “Any civil action or proceeding which is neither subject to another limitation specified in this subchapter.” 42 Pa.C.S.A. §5527(b).

The general rule for computing time is the statutory period commences from the time the cause of action accrued. 42 Pa.C.S.A. §5502(a). Typically, the statute of limitations begins tolling when the injury is inflicted or the right to institute and maintain the suit arises. Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005) (citing Kapil v. Association of Pa. State College and Univ. Faculties, 504 Pa. 92, 470 A.2d 482, 485 (1983); Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983)). However, the discovery rule alters this concept in cases where the injury or its causes were not known or reasonably knowable. Fine, 582 Pa. at 266, 870 A.2d at 858 (citing Lewey v. H.C. Frick Coke Co., 166 Pa. 536, 31 A.261 (1895)). “The purpose of the discovery rule has been to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury.” Id. (citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040, 1043 (1992)). The discovery rule halts the commencement of the statute of limitations period until the discovery of the injury is reasonably possible. Dalrymple v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997) (citing Hayward, 530 Pa. at 325, 608 A.2d at 1043). That is an equitable rule that excludes the period of time during which the injured party is reasonably unaware that the injury has been sustained. Id. “As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Pocono International Raceway, Inc., 503 Pa. at 84, 468 A.2d at 471 (citing Walters v. Ditzler, 424 Pa. 445, 450-451, 227 A.2d 833, 835 (1967); Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981); Med-Mar, Inc. v. Dilworth, 214 Pa. Super. 402, 257 A.2d 910 (1969)). “A court presented with an assertion of applicability of the ‘discovery rule’ must, before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Id., 503 Pa. at 85, 468 A.2d at 471.

In the case sub judice, the plaintiff received a monetary award in a settlement on March 13, 1992, arising from a car accident that occurred on May 29, 1991, while she was a passenger in a vehicle driven by Ronald J. Pell. At the time of the settlement, the plaintiff was nine years old as she was bom on June 8, 1981. The defendant negotiated the settlement with State Farm on behalf of the plaintiff and the defendant received the settlement check for $7,500.00 after being granted court approval, which was necessary due to the plaintiffs age at the time. The order of court granting approval stated, “it is further ordered that the settlement in the sum of $7,500.00 shall be deposited in Dollar Savings & Loan Association in the name of Jennifer Lynch in a restricted account and shall not be withdrawn until the minor reaches the age of 18 or until further order of court.” The defendant did not petition to have any of the funds withdrawn, yet the plaintiff did not receive any of those funds upon reaching the age of 18.

The plaintiff has filed claims for conversion and civil contempt on February 26, 2013. Conversion is an intentional tort that is constrained to a two-year statute of limitations in accordance with 42 Pa.C.S.A. §5524(7). Civil contempt is subject to a six-year statute of limitations as governed by 42 Pa.C.S.A. §5527(b) because it is a civil action that is not governed by any other statute of limitations. See Bullock v. Bullock, 432 Pa. Super. 643, 649, 639 A.2d 826, 829 (1994). The court held a hearing to determine whether the plaintiff violated those statutes of limitations by failing to timely file her claims. The plaintiff testified that she remembered going to court as a child, but was not aware of the settlement until 2009 when she was instructed by members of the Pell family to retrieve a copy of the order of court. In addition, the plaintiff explained that she entered into an article of agreement to purchase a residence from the defendant; however, in 2009, she got into an argument with the defendant because the defendant obtained a mortgage on that residence. At that time, according to the plaintiff, she wrote a strongly worded letter informing the defendant that she was aware of the settlement and that the defendant kept the funds instead of placing them in an account for the plaintiff. Conversely, the defendant testified that she was not informed that the settlement funds were to be placed in a separate account for the plaintiff, so she utilized that money to purchase an automobile. The defendant also stated that she believes she received the letter from the plaintiff in 2008, as the defendant had recently paid an overdue electric bill on the plaintiff’s behalf in October of 2008, and the letter was received shortly thereafter. Karen Cwynar testified that the defendant informed her that she purchased a vehicle with the money received from the plaintiff’s settlement.

The court must first note that the statute of limitations did not commence upon the defendant utilizing the settlement money to purchase a vehicle because the plaintiff was an unemancipated minor, who had to assert a claim against her parent. According to 42 Pa.C.S.A. §5533(b), the period of minority is excluded from the time period for calculating the expiration of the statute of limitations. For the time subsequent to the plaintiff reaching the age of 18, it is apparent that the discovery rule applies as the defendant received the settlement on behalf the plaintiff, who was not aware of its existence. As such, the statute of limitations period did not commence until the plaintiff became aware or reasonably could have become aware of the settlement with the exercise of due diligence. According to the plaintiff’s testimony, she was aware of the settlement in 2009 when she was informed by the Pell family that the settlement existed and that she should obtain a copy of the order of court approving the same. It must be noted that the defendant stated the plaintiff became aware of the settlement in 2008 as that is when the plaintiff sent her the strongly worded letter. The court is required to decide this matter based upon the plaintiff’s testimony in accordance with the aforementioned standards for determining a motion for summary judgment. In addition, the discrepancy in their testimony does not alter the court’s decision in this matter as this case was not filed until February 26, 2013. According to the plaintiff’s testimony at the hearing concerning this motion to dismiss, the statute of limitations expired in 2011 for the plaintiff’s conversion claim. Clearly, the two-year statute of limitations for the plaintiff’s conversion claim expired prior to suit being filed on February 26, 2013, and the same must be dismissed. Conversely, the six-year statute of limitations period for civil contempt claim did not elapse prior to the filing of the plaintiff’s complaint on February 26,2013, as the expiration date for that statute of limitations period, if the plaintiff’s testimony is accepted as true, would have been some time in 2015.

For the reasons set forth in this opinion, the defendant’s motion to dismiss is granted in part and denied in part. The plaintiff’s claim for conversion is dismissed as it violates the statute of limitations, however, the plaintiff has timely filed her claim for civil contempt.

ORDER OF COURT

Now this 3rd day of December, 2013, this case being before the court on November 5, 2013, for ahearing on the motion to dismiss filed by the defendant, with both parties appearing, the plaintiff Jennifer Herold, represented by counsel, Leo M. Stepanian, II, Esquire and the defendant Debra Janus, represented by counsel, George M. Freed, Esquire and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion to dismiss count I-conversion of the complaint is hereby granted.

2. Count I-conversion of the complaint is hereby dismissed with prejudice.

3. In accordance with the attached opinion, the motion to dismiss regarding count Il-civil contempt is hereby denied.

4. The prothonotary is directed to serve a copy of this order of court and opinion upon counsel of record, Leo M. Stepanian, II, Esquire and George M. Freed, Esquire.


text:
    Rohner v. Middle Smithfield Township
    C.P. of Monroe County,
    No. 5111 CV 2013

      Cletus P Lyman, for appellant.

      Michael A. Gaul, for appellee.
    December 9, 2013 —
   ZULICK, J.,

This matter is before the court on Middle Smithfield Township’s Petition to Quash Appellant Wayne Rohner’s Local Agency Appeal following Mr. Rohner’s dismissal as the Middle Smithfield Township Zoning Officer on May 23, 2013. Mr. Rohner’s appeal was timely filed on June 24, 2013. The township filed a petition to quash the appeal on August 1, 2013. A rule was issued to file an answer to the petition. Mr. Rohner filed an answer to the petition on September 5, 2013. The township then filed a motion for hearing which was scheduled for November 19, 2013.

The parties filed briefs and appeared for a hearing on November 19, 2013, where testimony was presented.

FINDINGS OF FACT

1. Wayne Rohner was the zoning officer for Middle Smithfield Township from October 13, 1995 through October 23, 2000, when he resigned, and from March 12, 2007 through May 23, 2013 when the current Board of Supervisors terminated his employment.

2. Mr. Rohner was appointed by the Supervisors at their organizational meeting each year in January, including his last appointment at their January 7, 2013 organizational meeting.

3. On March 4, 2013, Rohner denied the East Stroudsburg School District’s application for a certificate of compliance for a building addition the school district was constructing in the township. The school district appealed the zoning officer’s denial of the certificate to the Zoning Hearing Board.

4. The Supervisors terminated Rohner’s employment on May 23, 2013.

5. While he was zoning officer, the township obtained a publication from the Pennsylvania Department of Community and Economic Development published in 2007, entitled “The Zoning Officer, Planning Series #9.” Rohner (plaintiff’s) Exhibit 1.

6. That publication provides the following information:

Removal

The zoning officer, not the solicitor nor an elected official, is charged with administering the zoning ordinance according to its literal terms. If an elected official, for instance, directs the zoning officer to do an improper act, try to document that unusual advice. Ask for a letter or memorandum explaining the rationale. In the event the zoning officer is fired for issuing a proper permit or for denying a deficient application, the zoning officer is entitled to a hearing under the Local Agency Law for redress of the dismissal.

Rohner Exhibit 1, page 3.

7. Rohner did not have a written contract of employment with the township.

8. Rohner was not a member of a union or subject to a collective bargaining agreement with the township.

9. The Middle Smithfield Township Employee Handbook that was in effect in 2013 provides in Section 3:1:

3:1 Employment at Will

We are happy to welcome you to Middle Smithfield Township. We sincerely hope that your employment here will be a positive and rewarding experience. Employment with the Township is “at will” and will last so long as both the employee and the Township choose to continue the relationship without limitation on either party. Nothing contained in this handbook is intended to create, no creates (sic), an expressed or implied employment contract. Your employment relationship with the Township is voluntary on the party (sic) of both the Township and you, and either party may terminate that relationship with or without cause. While was ask (sic) for reasonable notice, the employee may terminate the relationship at any time, for any reason, and the township retains the same right.

Township Exhibit 5.

10. Mr. Rohner signed a “Handbook Acknowledgement Form” on January 17, 2013 in which he acknowledged that he did not have “an employment agreement with the Township for a specified period of time.” Township Exhibit 4.

DISCUSSION

The Township has petitioned to quash Mr. Rohner’s appeal, contending that he was an at-will employee who had no right to continued employment with the Township after the Supervisors terminated his position as zoning officer on May 23, 2013. Mr. Rohner defends his appeal, contending that he was not an at-will employee, but had a property interest and a personal right in his position as the township zoning officer.

Mr. Rohner was appointed as zoning officer of Middle Smithfield Township by resolution of the Supervisors adopted at their January 7, 2013 organizational meeting. The appointment was authorized by the Municipalities Planning Code, 53 P.S. §10614, which provides as follows:

§ 10614. Appointment and powers of zoning officer

For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed. The zoning officer shall meet qualifications established by the municipality and shall be able to demonstrate to the satisfaction of the municipality a working knowledge of municipal zoning. The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. Zoning officers may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of their employment.

53 P.S. § 10614.

Rohner argues that he has a property interest and a personal right in continuing his position as zoning officer, and is entitled to a hearing under the Local Agency Law before he is discharged from employment for several reasons. First, he was appointed as zoning officer by the Supervisors on January 7, 2013, for a period of one year, and he therefore had “a legitimate expectation of continued employment.” Appellant’s brief, page 4.

Secondly, Rohner argues that the Pennsylvania Department of Community and Economic Development publication entitled “The Zoning Officer, Planning Series #9” (2007) provides that he is entitled to a hearing under the Local Agency Law before his employment is terminated. The Local Agency Law provides in 53 P.S. §11304, in pertinent part:

No adjudication shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” 53 P.S. §11304 The term “adjudication” is defined in Section 2(1) of the Local Agency Law as follows:
“Adjudication” means any final order, decree, decision, determination or ruling by a local agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a court, or which involves the seizure or forfeiture or property, or which involves paroles or pardons.

Finally, Rohner contends that he has a right under the Whistleblower Law, 43 P.S. §1421 et seq. not to be terminated for reporting wrongdoing as defined by that statute.

The township responds that a zoning officer does not have a “property right” or a “personal right” or a “privilege” within the meaning of Section 2(1) of the Local Agency Law to continued employment as a zoning officer, and that the zoning officer serves at the pleasure of the Board of Supervisors of the township. The township points out that this issue has been addressed by the Pennsylvania Commonwealth Court in Hecknauer v. Coder, 379 A.2d 638 (Pa. Cmwlth. 1977).

In Hecknauer, Hecknauer was appointed as city zoning administrator of Williamsport by the mayor of the city in 1972. Hecknauer served in that position until he was orally discharged by the mayor in 1975 without a hearing. Hecknauer filed a mandamus action, seeking reinstatement and arguing that he was denied a hearing under the Local Agency Law. The trial court ruled against Hecknauer on a motion for compulsory non-suit, and Hecknauer appealed. The Commonwealth Court, citing Amesbury v. Luzerne County Institution District, 366 A.2d 631 (Pa. Cmwlth. 1976), ruled that Hecknauer’s employment as zoning officer was an at will employment which conferred no right to continued public employment. “An enforceable expectation of continued public employment can exist only if the employee, by statute or contract, has been granted some form of guarantee.” Amesbury, supra at 633. The Hecknauer court stated:

Appellant here has no guarantee of continued public employment conferred upon him either by contract or by statute. Just as in Amesbury we were unwilling to find that the interest in continued public employment was a “property right”, absent contractual or statutory guarantee, so too here are we unwilling to find that appellant’s interest in continued public employment constitutes either a “personal right” or a “privilege” with the meaning of Section 2(1) of the Local Agency Law absent the presence of either (1) a personal right or privilege created by statute and characterized as such, or (2) some constitutionally protected right or privilege, neither of which is present here.

Hecknauer, 379 A. 2d at 640-641.

Mr. Rohner does not have a written contract of employment with the township. He has acknowledged in writing that he does not have an “employment agreement for a specific period of time.” Township Exhibit 4. The “2013 Organization” minutes of the Board of Supervisors of January 7, 2013, state that Wayne Rohner was appointed Zoning Code Enforcement Officer, but do not state a particular term of appointment to that position. The Township Handbook provides in Section 3.1 that Middle Smithfield Township employees are employed at will. Township Exhibit 5.

The Second Class Township Code and the Municipalities Planning Code do not provide for tenure or a certain term of office for a zoning officer. See 53 P.S. §10614 supra. Although the Pennsylvania Department of Community and Economic Development published a pamphlet in 2007 entitled “The Zoning Officer, Planning Series #9.” Rohner (plaintiff’s) Exhibit 1 which stated that “in the event the zoning officer is fired for...denying a deficient application, the zoning officer is entitled to a hearing under the Local Agency Law for redress of the dismissal,” this does not carry the authority of law. The preface to the publication states “(n)o liability is assumed with respect to the use of information contained in this publication...Please contact your solicitor for legal advise (sic).” Rohner has not pointed the court to any authority which gives him a “property right” “personal right” or “privilege” that has been taken from him which would entitle him to a hearing under the Local Agency Law.

Rohner also argues that he has a personal right not to be discharged under the Whistleblower Law, 43 Pa.C.S.A. §1421 et seq. He states that the Township Employee Handbook provides in §20:2 that the “Township will comply with Pennsylvania’s Whistleblower Law at all times.” Appellant’s brief, page 8. The Handbook provides that the Handbook is “not a contract or a promise” on page 6.

The parties have cited no authority lending support to the theory that a claim under the Whistleblower Law, 42 P.S.§1421 et. seq may provide grounds for a local agency appeal. Mr. Rohner may have a remedy under the Whistleblower Law for discharge due to a report of wrongdoing or waste. Id. §1423. The Whistleblower Law provides that a person alleging a violation of the act “may bring a civil action in a court of competent jurisdiction for injunctive relief or damages, or both...” Id. at 1424. The Whistleblower Law itself does not suggest that it may be enforced through the Local Agency Law. As the township points out, the standard of review the court applies in a local agency appeal will be much different than the court’s fact-finding function in a non-juiy trial. I am not persuaded that an alleged violation of the Whistleblower Law gives a zoning officer a “personal right” necessary for a local agency appeal. Mr. Rohner has a forum in this court for his claims under the Whistleblower Law, and if he is successful, he may be entitled to reinstatement and damages. But a local agency appeal is not the correct vehicle for this court to address that claim.

ORDER

And now, this 9th day of December, 2013, following a hearing on Middle Smithfield Township’s Motion to Quash Appellant Wayne Rohner’s Local Agency Appeal, it is ordered that the motion is granted and the appeal is quashed.

      . This section of the employee handbook is missing from township exhibit 5.


author: SNITE, J.,

text:
    Tertyshnaya v. Standard Security Life Insurance

      C.P. of Philadelphia County,
    May Term, 2010
    No. 3803

      Robert A. Klein, for plaintiffs.

      Raymond J. Santarelli and Conlin O’Boyle, for defendants HCC Holdings, Inc., HCC Specialty Underwriters Inc. and Standard Security Life Insurance Co.

      Jeffrey Chomko and Joel Wertman, for defendants Michael Chaut & Associates and Michael S. Chaut.
    December 13, 2013 —
   SNITE, J.,

Before the court is defendants Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., and American Specialty Underwriters, Inc.’s motion for summary judgment and plaintiff’s response in opposition thereto.

PROCEDURAL HISTORY

This action was commenced by the filing of a four count complaint against Standard Security Life Insurance Company of New York, HCC Specially Underwriters, Inc., HCC Insurance Holdings, Inc., and American Specialty Underwriters, Inc. (collectively herein “Insurance Defendants”) on May 27,2010. The complaint was composed of count I (declaratory relief), count II (breach of contract), count III (quantum meruit/Unjust enrichment), and count IV (bad faith).

On December 20, 2010, this case was transferred into the Commerce Program.

On December 20, 2010 plaintiff filed a seven count amended complaint. The amended complaint was composed of count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV (bad faith), count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law), count VI (fraudulent misresentation), and count VII (negligent misrepresentation).

On January 10, 2011 Insurance Defendants filed preliminary objections to plaintiff’s amended complaint. On January 31, 2011 plaintiff filed preliminary objections to Insurance Defendants’ preliminary objections as well as a Response to Insurance Defendants’ preliminary objections. On February 22, 2011 Insurance Defendants filed a response to plaintiff’s preliminary objections to their preliminaiy objections.

On March 14, 2011, Judge Bernstein overruled plaintiff’s preliminary objections to Insurance Defendants’ preliminary objections. On December 12, 2011 Insurance Defendants’ preliminary objections were overruled in part ultimately dismissing counts VI (fraudulent misrepresentation) and VII (negligent misrepresentation) and striking plaintiff’s request for attorney’s fees. Thus, the causes of action against Insurance Defendants remained: count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV (bad faith), and count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law).

On May 18, 2012, Insurance Defendants filed their answer to plaintiff’s amended complaint with new matter. On June 6, 2012 plaintiff filed a response to Insurance Defendants’ new matter.

On September 3,2012 plaintiff filed a motion for leave to amend the amended complaint and to join additional defendants. Insurance Defendants filed an answer to the motion to amend on September 24, 2012. By order dated November 5, 2012 Judge Snite granted plaintiff’s motion for leave to amend the amended complaint and to join additional defendants.

Plaintiff’s second amended complaint added as defendants Michael S. Chaut (“Chaut”), Michael Chaut & Associates (“MCA”), Jay M. Grossman (“Grossman”), and the PuckAgency, LLC. The second amended complaint was composed of count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV against Standard Security Life, American Security Underwriters, and HCC Specialty Underwriters (bad faith), count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), count VIII (negligence), and count IX against Chaut, MCA, Grossman, and the Puck Agency (breach of contract). On December 7, 2012 defendants filed an answer to plaintiff’s second amended complaint with new matter. On February 19, 2013 plaintiff filed an answer to defendants’ new matter.

On December 21, 2012 defendants Chaut and MCA advised the prothonotary that the case was removed to the Eastern District of Pennsylvania on December 19, 2012. On January 31, 2013 the case was remanded back to the Court of Common Pleas for Philadelphia County.

On April 3, 2013 Insurance Defendants filed a motion for judgment on the pleadings based on the statute of limitations, the same issue before this court on the instant motion for summary judgment. On April 24,2013 plaintiff filed an answer to Insurance Defendants’ motion for judgment on the pleadings. On May 23, 2013 Judge Snite denied Insurance Defendants’ motion for judgment on the pleadings because discovery was not complete.

On April 10, 2013 defendants Chaut and MCA filed a motion to discontinue action. On May 22, 2013 Judge Snite granted defendants Chaut and MCA’s motion to discontinue the action.

Upon completion of numerous discovery hearings and motions for extraordinary relief, the final revised case management order was docketed on March 27,2013, with discovery to be completed by June 3, 2013, plaintiff’s expert reports to be submitted by June 3,2013, defendants’ expert reports submitted by August 5, 2013, and all pretrial motions to be filed by August 19,2013.

On August 19, 2013, Insurance Defendants filed the instant motion for summary judgment. On October 25, 2013, plaintiff filed a response in opposition. OnNovember 11, 2013, Insurance Defendants filed a reply in support of its motion for summary judgment.

FACTUAL HISTORY

This action was initiated by the plaintiff Polina Tertyshnaya individually and on behalf of her minor son Alexander Tertyshny, arising from Insurance Defendants alleged failure to pay accidental death benefits to plaintiff following her husband’s death in July 1999.

Plaintiff is the widow of Dmitri Tertyshny, who played for the Philadelphia Flyers in the National Hockey League. Plaintiff alleges that in or about March of 1999 Mr. Tertyshny and plaintiff purchased a policy of disability and accidental death and dismemberment insurance with respect to Mr. Tertyshny from Insurance Defendants. Mr. Tertyshny died on July 23, 1999 while attending a summer training camp in Canada. At no time since Mr. Tertyshny’s death has plaintiff received accidental death and dismemberment benefits.

Plaintiff alleges that Insurance Defendants “stonewalled” plaintiff’s requests for a copy of the policy to discourage, interfere with, and avoid their obligations under the policy and fraudulently or recklessly concealed the policy from plaintiff.

In May of 2010 plaintiff brought claims against the Individual defendants for failure to pay benefits under the alleged policy.

DISCUSSION

The claims against Insurance Defendants are premised on allegations that Insurance Defendants failed to pay accidental death benefits.

Once the relevant pleadings have closed, any party may move for summary judgment. Pa. R.C.P 1035.2. “Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.” Rausch v. Mike-Meyer, 783 A.2d 815, 821 (Pa. Super. 2001). Further, granting summary judgment is appropriate only when the evidentiary record shows the material facts are undisputed. McCarthy v. Dan Lepore & Sons 4 Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998). The trial court must view the record in the light most favorable to the non-moving party. Rausch, 783 A.2d at 821.

The Pennsylvania Supreme Court recognizes that “[1] imitation periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights.” “Once the prescribed statutory period for commencing a cause of action has expired, the complaining party is barred from bringing suit.” It is well settled law that “[i]t is the duty of a party asserting a cause of action to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” “Lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations.” Under Pennsylvania law “the statute of limitations begins to run as soon as the right to institute and maintain the suit arises.”

Here, in order to establish that plaintiff’s claims are not time barred by the statute of limitations, the evidence must show that plaintiff brought her causes of action within the requisite statutes of limitations.

In this case, plaintiff asserts seven causes of action against Insurance Defendants. Under Pennsylvania law, plaintiff’s count IV (bad faith), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), and count VIII (negligence) are govemedbyatwo year statute oflimitations. Additionally, under Pennsylvania law, plaintiff’s count I (declaratory relief), count II (breach of contract), and count III (quantum meruit/unjust enrichment) are governed by a four year statute of limitations. Finally, under Pennsylvania law, plaintiff’s count V (Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law) is governed by a six year statute of limitations.

In this case, plaintiff claims that she and her husband obtained a “policy of disability and accidental death and dismemberment insurance with respect to Dimitri Tertyshny”20 in March of 1999 and that she personally applied to be a beneficiary under the policy in March of 1999. Plaintiff’s husband died on July 23, 1999. Upon learning of plaintiff’s husband death, Insurance Defendants took steps to cancel Mr. Tertyshny’s disability policy. On August 30, 1999, Insurance Defendants wrote to Jay Grossman, Mr. Tertyshny’s sports agent, and included a copy of the permanent total disability policy and a refund for the unused premium for permanent total disability benefits.

As of her husband’s death on July 23, 1999 plaintiff was aware of her right of recovery under the insurance policy she alleges she purchased with her husband. Furthermore, as of Insurance Defendant’s communication with Jay Grossman on August 30, 1999, plaintiff was on notice that no death benefits were included in the policy and that no death benefits were to be issued by Insurance Defendants. Plaintiff did not submit a proof of loss or notice of claim to Insurance Defendants. Instead, plaintiff did not contact Insurance Defendants until December of2008 concerning the existence of a policy for Mr. Tertyshny providing accidental death benefits.

Barring exception, the statute of limitations began to run no later than Insurance defendants communication with Jay Grossman on August 30, 1999. Plaintiff’s count IV (bad faith), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), and count VIII (negligence) are governed by a two year statute of limitations; therefore these claims must have been brought no later than August 2001. Plaintiff’s count I (declaratory relief), count II (breach of contract), and count III (quantum meruit/unjust enrichment) are governed by a four year statute of limitations; therefore these claims must have been brought no later than August 2003. Plaintiff’s count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law) is governed by a six year statute of limitations; therefore these claims must have been brought by August 2005. Plaintiff did not contact Insurance Defendants until December of 2008 concerning the accidental death benefits policy and did not initiate the instant action until May of 2010.

The fraudulent concealment doctrine is an exception to the statute of limitations. The fraudulent concealment doctrine provides that “the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.” Fraudulent concealment may occur as a result of innocent deception or unintentional concealment and need not consist of intentional fraud. Under the application of the fraudulent concealment doctrine an “affirmative or independent act of concealment that would divert or mislead the plaintiff from discovering the injury” is sufficient to toll the statute of limitations. In this case, to toll the statute of limitations under the fraudulent concealment doctrine plaintiff must show that Insurance defendants committed some affirmative independent act of concealment upon which the plaintiff justifiably relied.

Plaintiff argues that Insurance Defendants “participated in fraud or concealment such that they should be stopped from asserting the defense of statute of limitations.” Plaintiff asserts that Insurance Defendants knew a policy was issued, lied to plaintiff about it, and issued a backdated policy for disability insurance only after receiving notice of Mr. Tertyshny’s death. Furthermore, plaintiff maintains that when both she and her attorney “inquired to [Insurance defendants] about why the death benefits were not paid, and requested a copy of any policy; the [Insurance defendants] and their agents represented that they had no record of any policy being issued in regard to plaintiff’s late husband.” Plaintiff argues that these acts of concealment caused her to relax her vigilance and not file suit.

However, none of these unsupported allegations are sufficientto showthatthe statute of limitations on plaintiff’s claims should have been tolled under the fraudulent concealment doctrine. Insurance Defendants presented evidence that they did not back-date Mr. Tertyshny’s policy as evidenced by a conditional coverage note dated March 5, 1999, before the policy was issued. More importantly, neither plaintiff nor her attorney contacted Insurance Defendants until December of2008 regarding the existence of a policy for Mr. Tertyshny providing accidental death benefits. When plaintiff contacted Insurance Defendants in December of 2008 inquiring as to why death benefits were not paid, the statute of limitations had expired for all of plaintiff’s claims.

In this case, the assertions of the doctrine of fraudulent concealment doctrine cannot revive the statute of limitations. The doctrine of fraudulent concealment does not apply in this case to toll the statute of limitations; therefore Insurance Defendants are entitled to summary judgment on all claims.

In summary, plaintiff alleges a scenario in which she was actively prohibited from discovering the true state of affairs through Insurance Defendants’ fraud and concealment. Although Insurance Defendants did contact Grossman, and stated that the disability policy was cancelled due to death, plaintiff has produced no coherent facts indicating that Insurance Defendants affirmatively concealed “a death policy.” Nor has plaintiff produced any facts to show that she made any attempt to learn of “a death policy” by August of 2005. There is also no evidence that Insurance Defendants produced a back dated policy. Furthermore, although the court is sympathetic to plaintiff’s language barrier the court cannot allow this as a sufficient excuse.

CONCLUSION

In conclusion, I am granting Insurance Defendants’ motion for summary judgment on the basis of statute of limitations. This action is dismissed.

ORDER

And now, this 13th day of December, 2013, upon consideration of defendants Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., and American Specialty Underwriters, Inc.’s motion for summary judgment on all claims because all claims are barred by the statute of limitations, and plaintiff’s response in opposition thereto, it is hereby ordered that said motion is granted.

      . By stipulation of the parties dated May 23, 2011 this defendant was dismissed.

      . Control Number 11011168.

      . Control Number 11020005.

      . Control Number 13040799.

      . Control Number 13041467. As of March 25, 2013 counsel for plaintiff agreed to stipulate to the dismissal of the Chaut defendants. Defs.’ Mot. Discontinue ¶ 3.

      . Second Am. Compl. ¶ 13.

      . Second Am. Compl. ¶ 15.

      . Second Am. Compl. ¶ 19.

      . Second Am. Compl. ¶ 23.

      . Second Am. Compl. ¶¶ 32, 37.

      . Cunningham v. Insurance Co. of North America, 530 A.2d 407, 411 (Pa. 1987).

      . Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. Ct. 2002).

      . Id.

      . Id.

      . Sevast v. Kakouras, 915 A.2d 1147, 1153 (Pa. 2007).

      . Second Am. Compl.

      . 42 Pa.C.S.A. §5524.

      . 42 Pa.C.S.A. §5525.

      . See Ash v. Cont’l Ins. Co., 932 A.2d 977, 881 (Pa. 2007) (recognizing that statute of limitations was previously held to be governed by the catchall six year statute of limitations).

      . Emphasis added.

      . Second Am. Compl. ¶ 15.

      . Second Am. Compl. ¶ 19.

      . Second Am. Compl. ¶ 22.

      . Second Am. Compl. ¶¶ 20, 29(c), 35(e).

      . Defs/’ Mot. Summ. J.

      . Second Am. Compl. ¶ 24; Moy Dep. At 128.

      . Fine v. Cheecio, 870 A.2d 850, 861 (Pa. 2005).

      . Id.

      . Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir. 1991).

      . See Kingston Coal Co. v. Felton Mining Co., 690 .2d 284, 291 (1997).

      . Pl.’s Memo Opp. Defs.’ Mot. Summ. J. p. 28.

      . Id

      . Id p. 28.

      . Id pp. 26-30.

      . See Dalrymple v. Bown, 701 A.2d 164, 171 (Pa. 1997).

      . See Guenther v. Quartucci, 1996 U.S. Dist. LEXIS 1654 (E.D. Pa.Feb. 12, 1996) (explaining “even ifthis court found that [defendant’s] acts somehow rose to the level of concealment, they could not possibly have the effect of causing plaintiffs to ‘relax vigilance or deviate from the right of inquiry.”).

      . Pl.’s Memo Op. Defs.’ Mot. Summ. J. p. 28.


author: TUNNELL, J.,

text:
    DeLage Landen Financial Services, Inc. v. Intentional Camping, Inc.

      C.P. of Chester County,
    No. 2012-13201

      Allison L. Domowitch, for plaintiff.

      Russell S. Burnside, for defendant.
    December 19, 2013—
   TUNNELL, J.,

ORDER

And now, this 19th day of December, 2013, after consideration of the parties’ briefs and following oral argument held December 4, 2013, the motion of plaintiff DeLage Landen Financial Services, Inc. for summary judgment is granted;

Judgment is entered in favor of plaintiff, DeLage Landen Financial Services, Inc., and against defendant, Intentional Camping, Inc., t/a/ Pine Grove Day Camp, as follows:

Past due/billed payments $6,708.90
Late Charges 305.00
Remaining Payments and Booked Residual 18,289.25
Value discounted at 3%
Interest Accrued at 18% from 01/20/2010 13,164.57
(Date of Default) until 12/10/2010
Attorneys’ fees 5,836.50
Court Costs 161.00
Totaling $44,465.22, with interest, until paid.

      . In this case for breach of contract, plaintiff, DeLage Landen Financial Services, Inc. (hereinafter “DLL”), has moved the court for the entry of summary judgment in its favor.
      A review of the record discloses the following undisputed facts. Pursuant to a written lease agreement, DLL financed the lease of a Toshiba photocopier which was delivered to the defendant’s premises in Wall Township, New Jersey in February 2007. The Lease Agreement was signed by “Charles Malzman, Director, Pine Grove Day Camp” (Complaint and Answer, ¶¶1-5).
      A document entitled “Delivery and Acceptance” dated March 6, 2007 was signed by “Charles Malzman, Director/Owner, Pine Grove Day Camp” (Complaint and Answer, ¶6).
      The lease called for the payment of $570.00 over 60 months (Complaint, ex. A). Defendant, Intentional Camping, Inc., t/a Pine Grove Day Camp (hereinafter “the Camp”) has admitted that it has failed to make those payments (Answer, ¶8).
      The Camp’s chief defense is that Malzman did not have the authority to enter into this lease on behalf of Intentional Camping, Inc., a fact which it is averred, “was known to plaintiff and/or plaintiff’s agents and/ or employees at the time the lease agreement was signed” (Answer — Sixth Separate Defense).
      In short, it is the Camp’s position that no valid contract between it and plaintiff arose in the first instance because Malzman had neither actual nor even apparent authority to sign the document.
      DLL moved for summary judgment on June 26, 2013. It contended that the Camp had admitted all facts necessary to hold it liable to the plaintiff under the Uniform Commercial Code, 13 Pa. C.S.A. §2A407. Indeed, there is no dispute that DLL is in possession of a signed contract, that goods were shipped and money lent under that contract, and that the goods were not rejected. DLL also contended that the Camp had “effectively ratified” the contract (Plaintiff’s Memorandum of Law, p. 2).
      The Camp filed a response to the motion for summary judgment, and an affidavit signed by its owner, director, president and treasurer, Jonathan Gold. Gold’s affidavit yields additional facts of which the following are useful. His organization operates a Pine Grove Day Camp in Wall Township, New Jersey (Affidavit of J. Gold, ¶¶1-5). Malzman was an employee there. His title was “camp director” (Id., ¶6). Malzman was not authorized to enter into any contracts for over $1,000.00 (Id., ¶7). After Gold learned about this lease agreement, in August 2007, he fired Malzman but he did not then take any steps to try to rescind the contract “based on my assumption that the copy machine was operable”

        (/¿,¶10).
      According to defendant’s memorandum of law in opposition to plaintiff’s motion for summary judgment, the Camp continued to use the photocopier until January 2010 when it notified DLL it would no longer be making payments (Defendant’s Memorandum of Law, p. 2).
      This is 29 months after Malzman was fired.
      DLL claims that it is owed damages for lease payments beginning January 20, 2010, plus interest at the contract rate of 18%, through December 10, 2012. Added to this are certain past due amounts and late charges. DLL seeks attorneys’ fees in the amount of $9,616.93, which is calculated as a 25% contingency fee. The total damages claimed are $48,245.65.
      The kind of contract involved in this case is a finance lease. As such, it is governed by the Uniform Commercial Code. Pennsylvania has adopted article 2 A of the U.C.C. The lease at issue here affirms as much in paragraph 20: “YOU agree the Lease is a Finance Lease as that term is defined in article 2A of the Uniform Commercial Code.”
      The U.C.C. at 13 Pa. C.S. §2A407(a) states, in pertinent part, that “the lessee’s promises under the lease contract become irrevocable and independent upon the lessee’s acceptance of the goods.” 13 Pa. C.S. §2A407(b) further states that the lease agreement “is not subject to cancellations, termination, modification, repudiation, excuse or substitution without the consent of the party to whom the promise runs.”
      The reason for the strict enforcement of the lessee’s promise to pay is due to the fact that in finance lease arrangements the leasing company is usually a financial institution that does not manufacture, distribute, or maintain an inventory of equipment, but merely provides the financing with which to purchase equipment which has already been selected by the lessee from an independent vendor. Nath v. Nat’l Equip. Leasing Corp., 497 Pa. 126, 132, 439 A.2d 633, 636 (1981). The comment to section 2A103 elaborates on the roles of the parties to a finance lease:
      A finance lease is the product of a three party transaction. The supplier manufactures or supplies the goods pursuant to the lessee’s specification, perhaps even pursuant to a purchase order, sales agreement or lease agreement between the supplier and the lessee. After the prospective finance lease is negotiated, a purchase order, sales agreement, or lease agreement is entered into by the lessor (as buyer or prime lessee) or an existing order, agreement or lease is assigned by the lessee to the lessor, and the lessor and the lessee then enter into a lease or sublease of the goods. Due to the limitedfunction usually performed by the lessor, the lessee looks almost entirely to the supplier for representations, covenants and warranties. If a manufacturer’s warranty carries through, the lessee may also look to that. Yet, this definition does not restrict the lessor’s function solely to the supply of funds; if the lessor undertakes or performs other functions, express warranties, covenants and the common law will protect the lessee. * * *

        Subsection (i) requires the lessor to remain outside the selection, manufacture and supply of the goods; that is the rationale for releasing the lessor from most of its traditional liability. The lessor is not prohibited from possession, maintenance or operation of the goods, as policy does not require such prohibition. To insure the lessee’s reliance on the supplier, and not on the lessor, subsection (ii) requires that the goods (where the lessor is the buyer of the goods) or that the right to possession and use of the goods (where the lessor is the prime lessee and the sublessor of the goods) be acquired in connection with the lease (or sublease) to qualify as a finance lease. 13 Pa.C.S.A. § 2A103(a) Comment (emphasis added).
      Needless to say Article 2A is not lessee-friendly.
      Neither is this lease agreement. Among its terms and conditions, in paragraph 2 is the following:
      “YOUR obligation to pay the Lease Payments and your other Lease obligations are absolute, unconditional and are not subject to cancellation, reduction, setoff or counterclaim.”
      In the finance lease industry, this provision is referred to as a “hell or high water” provision. It provides essentially that the defendant must pay the plaintiff “come hell or high water” because the plaintiff does not manufacture, sell or select the equipment but is merely providing the financing which enables the defendant to acquire use of the equipment. The validity of “hell and high water” provisions have been repeatedly upheld by the majority of courts nationwide including, but not limited to, those of Pennsylvania. See In re: First Interregional Advisers Corp., 218 B.R. 722 (Bankr. N.J. 1997); see also AT&T Credit Corp. v. Transglobal Telecom Alliance, 966 F. Supp. 299 at 302 (D. N.J. 1997); See also AT&T Credit Corp. v. Zurich Data Corp., 37 F. Supp. 2d. 367 at 371 (D. N.J. 384, 392, 375 A.2d 1216 (App. Div. 1977). The Pennsylvania Superior Court in U.S. Leasing Corp. v. Stephenson Equip. Inc., 230 Pa. Super. 181, 326 A.2d 472 (1972) upheld a “hell-or-high-water” lease provision in a suit to recover payments due under a lease. A federal court in Pennsylvania concurred when it stated that “hell-or-high-water” clauses are “essential” to the equipment leasing industry, and to deny their effect would “seriously chill business in this industry...” Philadelphia Sav. Fund Soc’y. v. Deseret Management Corp., 632 F. Supp. 129, 136 (E.D. Pa. 1985). They are as such strictly enforceable as a matter of law. Id. In New York, the court likewise upheld UCC Section 2A-407 and “hell and high water” clauses in the case of G.E. Capital Corp. v. Nat’l Tractor Trailer School, Inc., 667 N.Y.S. 2d 614, 36 U.C.C. Rep. Serv. 2d 749 (1997).
      Against this backdrop, then, the court is called upon to determine whether summary judgment is appropriate.
      Pennsylvania Rule of Civil Procedure 1035.2 provides that:
      After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.
      (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
      (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
      The rule next following, Pa. R.C.P. 1035.3 makes clear that “the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response . . . identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the fhcts essential to the cause of action or defense which the motion cites as not having been produced.
      The non-moving party can no longer merely establish the existence of a genuine issue of material fact, but rather must come forward with the evidence that would support his or her prima facie cause of action. Summary judgment should be granted when, after examining the record in favor of the non-moving party, there is no genuine issue of material fact and the moving party clearly establishes an entitlement to judgment as a matter of law. Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992).
      Here, where the main defense is that Malzman “was not authorized” and that “this information was known to plaintiff’, the Camp is attempting to negate apparent authority. The lease and its signature block looks for all the world to be ordinary and regular. An agent’s apparent authority can be negated where it is shown that the person with whom the agent dealt did not reasonably believe the agent possessed the requisite power. See Revere Press, Inc. v. Blumberg, 431 Pa. 370, 375 (1968). On this point, the Camp bears the burden of proof. The Camp has, however, done no more than to affirm the prior denials in its pleadings. The Camp has not offered any evidence to support this defense. Consequently, it appears that it has nothing from which a juiy could return a verdict in its favor. Trial would be a useless exercise and a waste of expense.
      Moreover, as DLL has argued, even if the Camp was deceived by the conduct of Mr. Malzman in signing a contract as to which he was not authorized, after Mr. Gold’s discovery of that fact, the Camp used the photocopier for some 29 months, and made payments along the way. Pennsylvania courts have endorsed the concept of ratification by a principal of conduct earlier undertaken by an agent. See, e.g., Olvier v. City of Clairton, 374 Pa. 333, 98 A.2d 47 (1953); Bell v. Scranton Trust Co., 282 Pa. 562, 128 A. 494 (1925); see also Ebasco Serv., Inc. v. Penn. Power & Light Co., 460 F. Supp. 163, 203-04 (E.D. Pa. 1978). The Pennsylvania Supreme Court has cited favorably to Section 82 of Restatement of Agency (Second). Savidge v. Metropolitan Life Ins. Co., 380 Pa. 205, 209, 110 A.2d 730 (1955). Ratification of the acts of an agent may be either expressed or implied. E.g., In re Packer Ave. Assoc.,
        1 B.R. 286, 292 (Bankr. E.D. Pa. 1979), In re Be-Fit Health & Racquet, Inc., 9731273F, 1997 WL 34726325 (Bankr. E.D. Pa. Nov. 4, 1997).
      Whether or not the employee, as agent of the Camp, had actual or apparent authority to bind the Camp is no longer decisive given the undisputed facts. The Camp ratified the finance lease even if its original execution was unauthorized. A very similar case occurred recently in our sister state of New Jersey. In an unreported position, De Lage Landen Fin. Serv. v. St. Bernard’s Episcopal Church, 2012 WL 489149 (2012), the assistant to the rector of the defendant church executed a five year lease for a photocopier. He did not have the approval of the vestry to do so. The copier was delivered and installed and was used in plain view for the church’s work for some 26 months. The church made the payments until that time. Applying Illinois law, the Superior Court of New Jersey, Appellate Division, held that an implied ratification of an agent’s unauthorized transaction can be found where the principal knows about the transaction and retains its benefits. In that case, it was determined that the church could not repudiate the contract halfway through its term. As a result, the court determined that it need not address whether the rector’s assistant had either actual or apparent authority.
      This court does not cite the New Jersey court’s opinion for any precedential effect, but merely to point out the similarity of facts. Applying Pennsylvania law, there would be no difference in the outcome in that case, and none in this.
      The Camp has not met its burden. In entering summary judgment, the court relies on no credibility determinations whatsoever, and upon no more than the undisputed facts set out above, and the applicable law. Consequently the Nanty-Glo rule is not offended. See, Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) (summary judgment may not be granted when based solely upon the oral testimony of the moving party).
      The Parties’ Lease Did Not Require DLL to Mitigate Damages.
      The Camp argues that because there is a dispute between the parties as to whether DLL mitigated its damages, summary judgment is not appropriate. Although neither party has provided the court with any Pennsylvania case law addressing the issue of mitigation in the context of a “finance lease” governed by Article 2A (as was the Lease in this case), the court, upon review of the contract terms and Pennsylvania case law on the issue of mitigation, concludes that summary judgment is appropriate.
      Pursuantto article 2AoftheU.C.C. as adopted in this Commonwealth, parties to a lease are free to agree to terms that are then binding upon them. Article 2A provides that “[ejxcept as otherwise provided in this article, a lease contract is effective and enforceable according to its terms between the parties, against purchasers of the goods, and against creditors of the parties.” U.C.C. § 2A-301, 13 Pa.C.S.A. §2A301. Paragraph 15 of the lease provides DLL with a variety of remedies upon default by the Camp. (Summ. J. Mot. at Ex. C. ¶15). It provides that in the case of default, DLL may require the Camp to return the leased equipment or if it refuses, repossess it. {Id.). The Camp’s suggestion that their letter demanding that DLL come and pick up the copier demonstrates a failure by DLL to mitigate its damages is not supported by the contract’s language. (Resp. to Summ. J. Mot. at Ex B). Under the lease, it was the Camp that was required to return the equipment in the event of default; it was never DLL’s obligation to repossess the copier. DLL obligated itself only to credit the proceeds of any sale if it sold the copier following repossession, which the lease does not require it to do. The lease by its terms makes these remedies optional, not mandatory, for DeLage. (Id.). See also General Elec. Capital Corp. v. Nat’l Tractor Trailor School, Inc., 667 N.Y.S. 2d 614 (N.Y. Sup. Ct. 1997)(holding lessor was not required to mitigate damages under terms of finance equipment lease covering copying machine).
      Even if the court were to ignore the contract’s clear language and apply common law principles of mitigation to these facts, summary judgment would still be appropriate. Pennsylvania courts, while acknowledging the concept of avoidable consequences or mitigation of damages in the appropriate context, also recognizes that both parties play a role when it comes to damages. In Pennsylvania, “an injured party ... is not obligated to mitigate damages when both it and the liable party have an equal opportunity to reduce damages.” Truserv Corp. v. Morgan’s Tool and Supply Co., 614 Pa. 549, 39 A.3d 253 (2012)(citing Sommerset Cmty. Hosp. v. Mitchell, 685 A.2d 141 (Pa. Super. 1996) (holding breaching party could have reduced the amount of contractual interest to which party was entitled by paying invoices in a timely manner). The Camp had an equal opportunity to mitigate its damages in this case but failed to do so.
      DLL Is Entitled to Reasonable Attorneys’ Fees Pursuant to the Parties’ Contract.
      “[Pennsylvania] has consistently followed the general, American rule that there can be no recovery of attorneys’ fees from an adverse party, absent an express statutory authorization,- a clear agreement by the parties or some other established exception.” DeLage Landen Fin. Serv. v. Rozentsvit, 939 A.2d 915, citing Merlino v. Del. County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999). The burden of proving entitlement to attorneys’ fees is on the party claiming such entitlement. Dep’t. of Transp. v. Smith, 145 Pa. Commw. 164, 169 (1990), petition for allowance of appeal denied, 613 A.2d 499 (Pa. 1992).
      DLL requests an award of attorneys’ fees pursuant to a fee-shifting contractual provision agreed to by the parties. (Summ. J. Mot. at ¶ 10). The lease agreement between the parties states the following in paragraph 15:
      REMEDIES: WE have the following remedies if YOU are in default of this Lease:...
      You are also required to pay (i) all expenses incurred by US in connection with the enforcement of any remedies . . . and (ii) reasonable attorneys’ fees.
      (Summ J. Mot. at Ex. C.)

        In response to DLL’s assertion that it is entitled to attorneys’ fees pursuant to the lease agreement, the Camp admits that there is a Lease agreement between the parties and simply counters that the lease “speaks for itself.” (Resp. Summ. J. Mot. at ¶ 10).
      The Lease term relating to attorneys’ fee is plain and unambiguous. Either DLL prevails on its claim of default and is entitled to reasonable attorneys’ fees, or the Camp prevails and DLL is not entitled to attorneys’ fees. An award of attorneys’ fees (including amount) is therefore an issue to be resolved on the basis of the judgment entered. DeLage Landen Fin. Serv., 939 A.2d at 924. Having found the Camp to be in default of the Lease, the court may now award DLL attorneys’ fees.
      As for the amount of those fees, DLL is entitled to “reasonable” attorneys’ fees pursuant to the contract’s terms and Pennsylvania law. See McMullen v. Kutz, 603 Pa. 602, 615 (2009). Determination of the reasonableness of an attorneys’ fee award is within the sound discretion of the trial court and is reviewed only for abuse of discretion. LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968); Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967); Kelmo Enter., Inc. v. Commercial Union Ins. Co., 426 A.2d 680 (Pa. Super. 1981). Although the court was unable to find any Pennsylvania case law involving the use of a contingent fee agreement to determine the reasonableness of a request for attorneys’ fees in this type of contractual situation, Pennsylvania has allowed the awarding of attorneys’ fees under a fee-shifting statute, even though the attorney prosecuted the action on behalf of a plaintiff free of charge pursuant to a contingent fee agreement. Krassnoski v. Rosey, 684 A2.d 635, 638 (Pa. Super. 1996). In such cases, the contingency fee between the party and counsel was seen by the court “as simply a factor to be considered by the trial court in determining the reasonableness of an award of attorneys’ fees because it can aid in demonstrating an attorney’s remunerative expectations.” Id.

      The trial court’s discretion with respect to the reasonableness of an attorney’s fees includes the authority to reduce the fee claimed and allow only such sum as the court deems reasonable. See McMullen v. Kutz, 603 Pa. 602, 985 A.2d 769 (2009) (holding that where a contractual provision provides for a breaching party to pay the attorney’s fees of the prevailing party in a breach of contract case, the trial court may consider whether the fees claimed to be incurred are reasonable and to reduce the fees claimed if appropriate); The Ridings at Whitpain Homeowners Assoc. v. Schiller, 811 A.2d 1111 (Pa. Commw. 2002) (holding that the trial court did not abuse its discretion in awarding a homeowners association only a portion of the legal expenses it incurred in an enforcement action and noting that appellate review is limited to determining whether the trial court palpably abused its discretion in making a fee award).
      In LaRocca Estate, our Supreme Court explained:
      The amount of fees to be allowed to counsel, always a subject of delicacy if not difficulty, is one peculiarly within the discretion of the court of first instance. Its opportunities of judging the exact amount of labor, skill and responsibility involved, as well as its knowledge of the rate of professional compensation usual at the time and place, are necessarily greater than ours, and its judgment should not be interfered with except for plain error. The allowance or disallowance of counsel fees rests generally in the judgment of the court of first instance and its decision will not be interfered with except for palpable error.

        LaRocca, 431 Pa. at 548-549, 246 A.2d at 340.
      The court further instructed that, in determining whether attorney’s fees are reasonable, a trial court must consider numerous factors, including the following:
      the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation;... the degree of responsibility incurred;... the professional skill and standing of the attorney in his profession; the result he was able to obtain; and, very importantly, the amount of money or the value of property in question.

        Id., at 546, 246 A.2d at 339.
      The parties, although agreeing to a fee-shifting provision in their contract, did not agree to the amount of such fees to be charged. The contract does not provide for an award of fees “incurred,” for instance, which would allow an award for any and all attorneys’ fees. Rather, it provides for an award of “reasonable” fees. DLL has submitted two fee figures to the court for consideration. First, DLL requests that the court award fees in the amount of $9,616.93, which represents fees due to its attorneys pursuant to a contingent fee agreement. (Summ J. Mot. at Ex. H). In the alternative, DLL requests fees of $5,836.50 based upon an hourly rate ($300.00) for work performed. (Summ J. Mot. at Ex. H). The court concludes that the reasonable attorneys’ fees to which DLL is entitled are $5,836.50.
      A review of the record shows the amount of attorney time expended in preparing this case for disposition on summary judgment was eighteen (18) hours. If converted to hourly billing, at a rate of $300, the total fees charged are $5,836.50. In contrast, the contingent fee arrangement of 25% of collected monies, which is presented by DLL as $9,616.93, converts to a billable rate of $534.27, almost twice the normal hourly rate for counsel. Working it from the other side, at counsel’s normal billable rate, the contingent fee agreement would convert to 32 hours of work, again nearly double. A review of the detailed billing and descriptions therein which counsel submitted reflects work on a matter that was fairly straightforward and involved issues that DLL has dealt with previously in similar litigation. Based upon the court’s review of the detailed billings and the contingent fee agreement, the court concludes that an award of reasonable fees in the amount of $5,836.50 is rightfully due to DLL.
      Plaintiff has supported the other items of claimed damage with sufficient affidavits. They will be awarded as well, as reflected in the order above.