Barrett, A. v. M&B Medical Billing, Inc. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANGELA MARIE BARRETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M&B MEDICAL BILLING, INC. AND : No. 1442 WDA 2021
SANDRA CASEY :
Appeal from the Judgment Entered January 18, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD-17-005863
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: SEPTEMBER 19, 2022
Appellant Angela Marie Barrett appeals from the judgment awarding her
$1,000 in damages. Appellant argues that the trial court erred by allowing
co-Appellee Sandra Casey (Casey), who is not an attorney, to represent co-
Appellee M&B Medical Billing Inc. (M&B) at trial and to present evidence that
was not relevant to damages. Appellant also claims that the trial court’s
damages award is against the weight of the evidence. We affirm in part,
vacate in part, and remand for a new trial as to damages.
The trial court summarized the factual and procedural history as follows:
Appellant . . . filed a complaint against her former employers,
[M&B and Casey]. The complaint alleges that Appellees
committed defamation [per se], intentional infliction of emotional
distress, [tortious] interference with contractual relationships and
demanded both compensatory and punitive damages. [Appellant]
claimed that she had been employed as a medical coder for
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Appellees until December of 2015. After several of her paychecks
were late, she tendered her resignation on December 26, 2015.
[Appellant’s] claim is that . . . [a] prospective employer, UPMC,
sent a request for information to Appellees concerning
[Appellant’s] former employment with them, in order to determine
whether [Appellant] would be a suitable and prospective employee
of UPMC.
Appellees returned UPMC’s requested response, which included a
statement that [Appellant] took proprietary client information with
her, and disclosed that [information. Also, Appellee stated that]
contrary to [Appellant’s] representations to UPMC, [Appellant’s]
position with [Appellees] was merely as a data analyst clerk and
not a medical coder.
Thus, [Appellees] filed an answer and new matter and
counterclaim, denying [Appellant’s] allegations and noting that
[Appellant] violated her employment contract by her use of
proprietary information, when she contacted Appellee[s’] clients,
to solicit them for letters of recommendation for her job search.
Appellees informed UPMC and answered that [Appellant] was not
employed as a medical coder by the [Appellees], as her complaint
represented.
. . . Counsel for Appellee[s later] withdrew from representing
[Appellees] and [after that withdrawal, Appellees] failed to
respond to [Appellant’s] discovery [requests]. The Honorable
Robert J. Colville awarded [Appellant] $1,000.00, for sanctions
and granted a default verdict in favor of [Appellant on April 29,
2019]. Thus, Appellees were prevented from putting on a defense
at the time of this damages only trial.
Trial Ct. Op., 2/24/22, at 1-2 (unpaginated) (formatting altered).
The trial court held a non-jury trial limited to damages only on
November 3, 2021. Casey appeared for trial and stated that she was
representing both herself and M&B. N.T. Trial at 3. Appellant’s counsel
objected to Casey’s representation of M&B because a corporation must be
represented by counsel. Id. at 3-4. The trial court replied: “We’ll just start
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the [trial] and see where we go.”1 Id. at 4. At no point during the trial did
the trial court instruct Casey that she could only represent herself and not the
corporation. During the trial, Casey cross-examined Appellant and testified
on her own behalf as part of Appellees’ case. Id. at 25-63, 65-68.
That same day, the trial court entered a verdict in favor of Appellant in
the amount of $1,000. Appellant filed a timely post-trial motion2 on November
10, 2021, requesting that the trial court reassess the damages or, in the
alternative, award Appellant a new trial. In her post-trial motion, Appellant
argued, among other things, that the trial court erred in allowing Casey to
represent M&B because a corporation may appear in court only through
counsel. On November 18, 2021, the trial court denied Appellant’s post-trial
motion.
Appellant filed a notice of appeal on December 2, 2021.3 Appellant
subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement and the trial
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1 We note that the trial court asked the parties to attempt to negotiate a
settlement, and the trial commenced after the parties represented that they
were unable to settle this matter. N.T. Trial at 4, 12-15.
2Appellant captioned her motion as a “motion for reconsideration.” However,
a motion captioned as a motion for reconsideration that is filed within the ten-
day period set forth in Pa.R.C.P. 227.1(c) and seeks to modify the trial court’s
decision may be treated as a timely-filed post-trial motion. See Gemini
Equipment Company v. Pennsy Supply, Inc., 595 A.2d 1211, 1214 (Pa.
Super. 1991).
3According to the notice of appeal, Appellant purports to appeal from the trial
court’s November 3, 2021 verdict. Additionally, Appellant filed her notice of
appeal prior to the entry of judgment on that verdict. Generally, an appeal to
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court issued an opinion addressing Appellant’s claims that it erred by
considering evidence related to liability at a trial limited to damages, reducing
Appellant’s damages against M&B, and that its damages award was against
the weight of the evidence. See Trial Ct. Op. at 3-5 (unpaginated).
Appellant raises the following issues for our review, which we restate as
follows:
1. Whether the trial court erred by allowing co-Appellee Sandra
Casey, acting pro se, to represent the interests of co-Appellee
M&B, at trial?
2. Whether the trial court erred by allowing co-Appellee Sandra
Casey to introduce liability evidence at the trial limited to
damages?
3. Whether the trial court erred by reducing damages against co-
Appellee M&B when it was not represented by counsel at trial?
4. Whether the trial court’s damages award was against the weight
of properly admitted evidence?
Appellant’s Brief at 5 (formatting altered).
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this Court properly lies from the entry of judgment. See, e.g., Mackall v.
Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002). Nevertheless, a final
judgment entered during the pendency of an appeal is sufficient to perfect
appellate jurisdiction. See Drum v. Shaull Equipment and Supply Co.,
787 A.2d 1050, 1052 n.1 (Pa. Super. 2001).
On January 18, 2018, this Court issued a rule to show cause directing
Appellant’s counsel to enter judgment on the trial court docket and provide a
copy to this Court. Appellant filed a response on February 1, 2022, indicating
that she had complied. Because the trial court entered final judgment on
January 18, 2022, Appellant’s notice of appeal relates forward to January 18,
2022. See Pa.R.A.P. 905(a)(5) (stating that a notice of appeal filed after a
court’s determination but before the entry of an appealable order shall be
treated as filed after such entry and on the day thereof). Therefore, we have
jurisdiction to consider the instant appeal.
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Unauthorized Practice of Law
In her first issue, Appellant argues that the trial court erred in allowing
co-Appellee Casey, who is not a licensed attorney, to represent co-Appellee
M&B at trial. Id. at 11-12. Appellant contends that Pennsylvania law prohibits
an officer of a corporation, who is not licensed to practice law, from
representing that corporation in legal proceedings. Id. at 11-12 (citing, inter
alia, Walacavage v. Excell 2000, Inc., 480 A.2d 281, 284-85 (Pa. Super.
1984)).
In reviewing Appellant’s claim, we are guided by the following principles:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, where the issue concerns a question of law, our scope
of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.
Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017) (Bach)
(citation omitted).
The following standard of review applies to our review of the trial court’s
denial of a motion for a new trial:
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We will reverse a trial court’s decision to deny a motion for a new
trial only if the trial court abused its discretion. We must review
the court’s alleged mistake and determine whether the court erred
and, if so, whether the error resulted in prejudice necessitating a
new trial. If the alleged mistake concerned an error of law, we
will scrutinize for legal error. Once we determine whether an error
occurred, we must then determine whether the trial court abused
its discretion in ruling on the request for a new trial.
Carlini v. Glenn O. Hawbaker, Inc., 219 A.3d 629, 643 (Pa. Super. 2019)
(citation omitted).
Section 2501 of the Judicial Code guarantees an individual’s right to self-
representation in civil matters. See 42 Pa.C.S. § 2501(a) (stating that “[i]n
all civil matters before any tribunal every litigant shall have a right to be heard,
by himself and his counsel, or by either of them”); see also In re Lawrence
Cty. Tax Claim Bureau, 998 A.2d 675, 680 (Pa. Cmwlth. 2010) (discussing
the right to self-representation).4 However, it well settled that, with certain
exceptions, non-attorneys may not represent other parties before
Pennsylvania courts. See, e.g., Dauphin County Bar Ass’n v. Mazzacaro,
351 A.2d 229, 233-35 (Pa. 1976) (holding that a public adjuster may not
represent accident victims in settlement negotiations against alleged tort-
feasors or their insurers). Further, the unauthorized practice of law is
prohibited and criminalized in Pennsylvania. See 42 Pa.C.S. § 2524(a).
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4Although decisions of the Commonwealth Court are not binding on this Court,
they may provide persuasive authority. See Maryland Cas. Co. v. Odyssey,
894 A.2d 750, 756 n.2 (Pa. Super. 2006).
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Additionally, the Courts of this Commonwealth have held that artificial
entities, such as corporations, may only appear in court through counsel. See,
e.g., Skotnicki v. Ins. Dep’t, 146 A.3d 271, 284 (Pa. Cmwlth. 2016)
(explaining that “corporations may not act pro se in court, and that non-
attorneys may not represent them, regardless of the individual’s status as the
corporation’s officer, director, shareholder[] or employee” (citations and
footnote omitted)); Walacavage, 480 A.2d at 283-85 (holding that a
corporation may not appear in court and be represented by a corporate officer
and shareholder who is not an attorney); accord Norman for Est. of
Shearlds v. Temple Univ. Health Sys., 208 A.3d 1115, 1121 (Pa. Super.
2019) (concluding that a non-attorney administrator of an estate could not
represent the estate pro se), appeal denied, 223 A.3d 668 (Pa. 2020), cert.
denied, 141 S.Ct. 301 (2020).
Our Supreme Court recently held that a plaintiff who is not an attorney
may litigate a wrongful death action pro se in their individual capacity, but
that same pro se plaintiff may not represent the estate of the decedent as its
administrator. Bisher v. Lehigh Valley Health Network, 265 A.3d 383 (Pa.
2021). Additionally, in other jurisdictions, courts have held that while a
corporate officer who has been sued in his or her personal capacity may
proceed pro se, that officer cannot represent the interests of the co-defendant
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corporation if he or she is not an attorney.5 See, e.g., Alexander & Baldwin,
LLC v. Armitage, 508 P.3d 832, 843-49 (Haw. 2022) (Armitage) (holding
that an unincorporated entity, like a corporation, may not appear in court
through non-attorney agents); Flathead Bank of Bigfork v. Masonry by
Muller, Inc., 383 P.3d 215, 219 (Mont. 2016) (Flathead Bank) (affirming
the trial court’s conclusion that corporation’s president “could only represent
himself personally and could not appear on behalf of [the corporation]”);
Office of Attorney Gen., Dep’t of Legal Affairs v. Nationwide Pools,
Inc., 270 So.3d 406, 408 n.1 (Fla. Dist. Ct. App. 2019) (Nationwide Pools)
(noting that “[u]nlike the corporate defendants, an individual may defend
himself or herself without an attorney”).
Our courts have the authority to sua sponte intervene to prevent the
unauthorized practice of law. Bisher, 265 A.3d at 406; accord Armitage,
508 P.3d at 844. In Bisher, our Supreme Court held that the unauthorized
practice of law is a curable defect. See Bisher, 265 A.3d at 403-07.
Further, the Bisher Court explained:
Significantly, we stress that we decide only that the court has the
discretion to permit a remedy in . . . situations [involving the
unauthorized practice of law], not that it must do so. The default
position in such cases should be that the offending party should
be given a “reasonable opportunity” to cure. But we are not
convinced that the rule is absolute. . . . [T]here may be cases in
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5This Court may rely on the decisions of other states for persuasive authority.
See Hill v. Slippery Rock Univ., 138 A.3d 673, 679 n.3 (Pa. Super. 2016)
(noting that “the decisions of other states are not binding authority for this
Court, although they may be persuasive” (citation omitted)).
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which the unauthorized practice of law is an attempt to game the
system.
Bisher, 265 A.3d at 409; see also id. at 406 (affirming this Court’s decision
to order the appellant to retain counsel on behalf of the estate in order to
proceed with the appeal).
Likewise, in Armitage, the Supreme Court of Hawaii reversed a
judgment against an unincorporated entity known as the “Reinstated Hawaiian
Nation” because the trial court allowed two non-attorney agents of that entity,
one of whom was a co-defendant sued in his personal capacity, to represent
the entity before the trial court. Armitage, 508 P.3d at 838-40. The
Armitage Court explained that
[a]s an unincorporated entity, the Reinstated Hawaiian Nation
may only appear in court through an attorney representative.
[The agents], as non-attorneys, should not have been allowed to
represent its interests before the [trial] court. The [trial] court
should have sua sponte exercised its power to prevent the
unauthorized practice of law by preventing [the agents] from
representing the Reinstated Hawaiian Nation.
* * *
[W]hen confronted with an attempt by a layperson to represent
an entity, the court should continue the proceedings to allow the
entity to obtain counsel; if the entity fails to do so within a
reasonable period, the court should enter a default or take other
remedial action.
Armitage, 508 P.3d at 843-44 (citation omitted).
The Supreme Court of Hawaii also concluded that the unauthorized
practice of law on behalf of an entity is a curable defect in the proceedings.
Id. at 845-48 (citing, inter alia, Bisher, 265 A.3d at 408-10). With respect
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to the Reinstated Hawaiian Nation, the Armitage Court concluded that while
the unauthorized practice of law “was apparently unwitting, the pervasiveness
of the representation, and the policy goals behind [the prohibition against the
unauthorized practice of law] require vacatur here.” Id. at 848.
Here, the trial court did not address Casey’s unauthorized practice of
law on behalf of M&B in its Rule 1925(a) opinion.
Based on our review of the record, we conclude that the trial court erred
in allowing Casey to represent M&B. See Bach, 159 A.3d at 19. Although
Casey has the right to proceed pro se with respect to the claims against her
in her individual capacity, she could not represent M&B at trial because she is
not an attorney. See Skotnicki, 146 A.3d at 284; Walacavage, 480 A.2d
at 283-85; accord Armitage, 508 P.3d at 843-49; Flathead Bank, 383 P.3d
at 219; Nationwide Pools, 270 So.3d at 408 n.1.
Further, we conclude the trial court abused its discretion by denying
Appellant’s motion for a new trial. See Carlini, 219 A.3d at 643. Casey
represented M&B throughout the trial, and repeatedly raised liability issues
during a trial limited to damages over objections from Appellant’s counsel.
See N.T. Trial at 11, 12, 28, 29, 31, 54, 65-67. Further, the trial court
awarded only nominal damages against M&B. See Trial Ct. Op. at 4-5
(unpaginated). For this reason, we conclude that Casey’s unauthorized
practice of law resulted in prejudice necessitating a new trial. See Carlini,
219 A.3d at 643; accord Armitage, 508 P.3d at 848 (reversing judgement
against unincorporated entity where unauthorized practice of law by its agents
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was pervasive and reversal served the policy goals of prohibiting the
unauthorized practice of law).
Therefore, we vacate the judgment entered on the verdict with respect
to damages and remand this matter for a new trial limited to damages.6 The
trial court shall provide M&B a reasonable time period to obtain counsel. See
Bisher, 265 A.3d at 409; accord Armitage, 508 P.3d at 843-44. However,
if M&B fails to obtain counsel in a reasonable time, the trial court may proceed
to trial in the absence of M&B. See, e.g., Dublin Sportswear v. Charlett,
403 A.2d 568, 571 (Pa. 1979) (holding that pursuant to Pa.R.C.P. 218, a trial
may be held in the absence of the defendant if the defendant is absent without
satisfactory excuse); accord Armitage, 508 P.3d at 844 (noting that default
could be entered against a corporation that failed to retain counsel within a
reasonable period). In light of our disposition, we need not address
Appellant’s remaining issues.
Judgment affirmed in part and vacated in part. Case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
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6 We stress that our ruling is limited to Casey’s representation of the
corporation and nothing in our decision prevents Casey from proceeding pro
se at the new trial if she so chooses. See 42 Pa.C.S. § 2501(a); Lawrence
Cty. Tax Claim Bureau, 998 A.2d at 680.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/19/2022
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