In Re: Estate of Schaab, M., Appeal of: Schaab, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF MICHAEL SCHAAB, : IN THE SUPERIOR COURT OF
Deceased, : PENNSYLVANIA
:
:
:
:
:
APPEAL OF: MARY SCHAAB, as :
Administratrix of the Estate of Michael :
Schaab, :
:
Appellant : No. 1083 WDA 2014
Appeal from the Order entered on June 12, 2014
in the Court of Common Pleas of Allegheny County,
Orphans’ Court Division, No. 02-12-02720
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 14, 2015
Mary Schaab (“Administratrix”), as Administratrix of the Estate of
Michael Schaab (“the Estate”), appeals from the Order of the Orphans’ Court
sustaining the claim against the Estate made by the intervenor, Farrell &
Reisinger, LLC (“F&R”), and ordering the distribution of $507,836.57 in
counsel fees and expenses to F&R.1 We affirm.
On March 8, 2012, Michael Schaab (“Schaab”), an employee of
Western Psychiatric Clinic and Institute (“Western Psychiatric”), was shot
and killed during a shooting spree by John Shick (“Shick”), a patient at the
facility. Eventually, police officers shot and killed Shick. Schaab was
1
The principals of F&R are Thomas J. Farrell, Esquire, Jay K. Reisinger,
Esquire, and Tina Miller, Esquire.
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survived by his parents, Harry Schaab (“Mr. Schaab”), Administratrix (Mr.
Schaab and Administratrix collectively referred to as “the Schaabs”), and
Schaab’s fiancée, Megan Shively (“Shively”). The Orphans’ Court granted to
Administratrix Letters of Administration, and named her as administratrix of
the Estate.
The Schaabs and Shively retained F&R to investigate Schaab’s death,
and the possibility of filing civil actions against Western Psychiatric, the
University of Pittsburgh Medical Center (“UPMC”) (including its affiliates and
related entities), and others (all collectively referred to as “UPMC”). F&R’s
engagement letters for the Schaabs and Shively each contained the following
agreement regarding F&R’s fees:
[F&R] will be paid our attorneys fees for representing you in this
matter only if a recovery is actually obtained for you. Our
fees will be 35% of any recovery obtained through
litigation (after payment of costs described in Paragraph
3 below). In the event a recovery is made without formal
litigation, our fee will be 33% of any recovery.
F&R Fee Agreement at 2 (emphasis in original). The Schaabs and Shively
each signed their respective retainer letters.
The Orphans’ Court described what next transpired as follows:
Over the next couple of months, F&R conducted its own
investigation and legal research, monitored the investigation
being conducted by the District Attorney’s Office, monitored the
investigations being conducted by OSHA and the [Service
Employees International Union (“SEIU”)], conferred with other
colleagues on the possible legal theories of recovery, met with
counsel for UPMC, and met with the District Attorney regarding
possible criminal charges and changes to security. The Schaabs,
on more than one occasion, expressed sympathy for the parents
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of [] Shick and indicated that they did not want to sue them.
(N.T., 03/20-24/14, pp. 34-43, 200-218, 360-366)
In late June 2012, the option of engaging in mediation with
UPMC was discussed. Thomas Cooper, Esquire (“Attorney
Cooper”), was selected as the mediator[,] and the mediation was
scheduled for July 20, 2012. F&R met with the Schaabs, along
with other family members, at length[,] ten (10) days prior to
the mediation to discuss strategy and the mediation process.
(N.T., 03/20-24/14, pp. 44-49, 224-231)
The mediation session occurred on July 20, 2012. After an
opening statement by Attorney Cooper, Farrell made a
statement, Administratrix made a statement, and Jeffrey Romoff
(the CEO of UPMC) made a statement. The parties then split up
into separate conference rooms and Attorney Cooper began the
“shuttle diplomacy” that occurs in mediations. After some period
of time and several offers and counteroffers, the figure of
$1,500,000 was on the table. Attorney Cooper made it very
clear to the Schaabs and F&R that UPMC would not go any
higher for a number of reasons. After a thorough discussion
of the options, including the possibility of terminating the
mediation and walking out the door, the Schaabs agreed
to accept $1,500,000 from UPMC. This figure was
memorialized in a document that was handwritten on a
yellow legal pad by Attorney Cooper and signed by all
parties and counsel [“the Settlement Agreement”]. (N.T.,
03/20-24/14, pp. 51-56, 234-35, 367-68)
Shortly after the agreement was reached, F&R offered to
reduce their fee of $500,000 (i.e., 33% of the settlement
amount) to $350,000, which would have allowed the Schaabs to
accomplish their goal of providing funds to [Schaab’s] fiancée to
pay off her student loans. (N.T., 03/20-24/14, pp. 58, 236)
F&R received the first draft of a Release from UPMC[‘s]
counsel approximately a week after the settlement was reached.
F&R suggested changes to UPMC counsel, all of which were
made. The [revised] Release [“the F&R Release”] was sent to
the Schaabs for review in early September 2012. Throughout
the fall [and] into the early winter, F&R and the Schaabs
exchanged emails and spoke about the Schaabs’ requested
changes to the [F&R] Release. The Schaabs agreed to sign the
[F&R] Release, but failed to do so. This led to a meeting at the
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end of January 2013. One of the matters discussed at this
meeting was a letter that the Schaabs had received from
Attorney Mark Homyak regarding his representation of one of
the other shooting victims and his intent to sue [Shick’s] parents
and [Shick’s] estate. As F&R was not interested in pursuing
these actions on behalf of the Schaabs, they referred the
Schaabs to [] Michael O’Day[, Esquire (“Attorney O’Day”)]. At
the conclusion of the meeting, Mr. Schaab indicated that the
[F&R] Release would be signed over the weekend and returned
to F&R. (N.T., 03/20-24/14, pp. 59-66, 240-255, 370)
The next communication that F&R received from the
Schaabs was an inquiry as to what persons or entities were
being “released” under the terms of the [F&R] Release. F&R
assured the Schaabs that the only entities being released were
UPMC, [Western Psychiatric], and their affiliates and related
entities. The last communication that F&R received from the
Schaabs was a letter terminating their representation.
Trial Court Opinion, 9/19/14, at 2-5 (unnumbered) (emphasis added).
On March 28, 2013, in the Civil Division of the Court of Common Pleas
of Allegheny County (“the Civil Division”), F&R filed a Petition to Enforce the
Settlement Agreement between the Schaabs and UPMC. After a hearing, the
Civil Division denied the Petition to Enforce. On May 28, 2013, the Schaabs
executed a release prepared by Attorney O’Day (“the O’Day Release”)
settling their claims against UPMC for $1.5 million.
On July 17, 2013, Administratrix filed, in the Orphans’ Court, a Petition
to Compromise and Settle on Behalf of Estate and Approve Distribution of
Proceeds (“Petition to Compromise and Settle”). F&R filed a Motion to
Intervene in the Orphans’ Court proceeding, and a Notice of Claim against
the Estate for $514,061.91, plus interest and costs. F&R asserted that it
was entitled to a portion of the settlement proceeds as legal fees, based
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upon breach of contract or, in the alternative, the theory of quantum meruit.
F&R subsequently filed an Amended Motion to Intervene. Administratrix
filed Preliminary Objections to the Amended Motion to Intervene.
In late October and November 2013, the Orphans’ Court entered
Orders authorizing the distribution of $985,938.00 of the Estate’s settlement
proceeds to the Schaabs, and directed that the disputed portion of the
settlement proceeds be placed in escrow. After discovery and hearings, 2 on
June 12, 2014, the Orphans’ Court entered an Order and Opinion awarding
F&R $507,836.57 of the Estate’s settlement proceeds for fees and expenses.
Thereafter, Administratrix filed the instant, timely appeal, and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
Administratrix presents the following claims for our review:
1. Whether the Orphans’ Court had subject matter jurisdiction
over a breach of contract claim?
2. Whether the [F&R Release] was a general release to all claims
such that [Administratrix] would have been precluded from
any other claims?
3. Whether the doctrine of substantial performance was
available to [F&R] as a theory of recovery for [the] contested
claims?
Brief for Appellant at 4.
2
At the hearing on November 19, 2013, Administratrix challenged the
jurisdiction of the Orphans’ Court over F&R’s breach of contract claim. On
November 25, 2013, Administratrix filed, in the Civil Division, a Complaint
asserting causes of action against F&R for breach of contract and
professional negligence.
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Administratrix first claims that the Orphans’ Court lacked subject
matter jurisdiction over F&R’s breach of contract claim. Id. at 19, 33.
Administratrix contends that the Orphans’ Court should have transferred the
matter to the correct division of the court of common pleas. Id. at 23.
Administratrix further argues that the Orphans’ Court deprived the Estate of
its right to a jury trial as to its causes of action against F&R for breach of
contract and professional negligence. Id. at 33. Administratrix claims that
this result occurred “because the Orphans’ Court entered upon an inquiry in
a matter beyond its subject matter jurisdiction.” Id. Administratrix further
argues that the Orphans’ Court improperly concluded that a jury trial in this
matter would be advisory only and, therefore, unnecessary. Id. at 36.
Initially, we observe that Administratrix did not raise this claim in her
1925(b) Concise Statement of matters complained of on appeal. However,
the question of subject matter jurisdiction may be raised at any time, by any
party, or by the court sua sponte. B.J.D. v. D.L.C., 19 A.3d 1081, 1082
(Pa. Super. 2011). Our standard of review is de novo, and our scope of
review is plenary. Id.
As this Court has explained,
[j]urisdiction is the capacity to pronounce a judgment of the law
on an issue brought before the court through due process of law.
It is the right to adjudicate concerning the subject matter in a
given case …. Without such jurisdiction, there is no authority to
give judgment and one so entered is without force or effect. The
trial court has jurisdiction if it is competent to hear or determine
controversies of the general nature of the matter involved sub
judice. Jurisdiction lies if the court had power to enter upon the
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inquiry, not whether it might ultimately decide that it could not
give relief in the particular case.
Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa. Super. 2001)
(citation omitted).
By statute, the Orphans’ Court Division has mandatory and exclusive
jurisdiction over “[t]he administration and distribution of the real and
personal property of decedents’ estates.” 20 Pa.C.S.A. § 711(1). The
Orphans’ Court Division also has mandatory and exclusive jurisdiction over
[t]he appointment, control, settlement of the accounts of,
removal and discharge of, and allowance to and allocation of
compensation among, all fiduciaries of estates and trusts[.] 20
Pa.C.S.A. § 711(12). Taken together, these provisions mandate
that the Orphans’ Court Division has exclusive jurisdiction of the
administration and distribution of decedents’ estates, of the
control of estate fiduciaries, and of the settlement of their
accounts.
Estate of Ciuccarelli, 81 A.3d 953, 959 (Pa. Super. 2013) (citations and
internal quotation marks omitted).
Regarding the Estate’s settlement of its claims against UPMC, the
Probate, Estates, and Fiduciaries Code (“the Probate Code”), 20 Pa.C.S.A.
§ 101 et seq., provides that “[w]henever it shall be proposed to compromise
or settle any claim … by or against an estate … the court, on petition by the
personal representative or by any party in interest … may enter a decree
authorizing the compromise or settlement be made.” 20 Pa.C.S.A.
§ 3323(a). “Where there is no action pending, the statute requires that the
settlement be approved by the Orphans’ Court having jurisdiction of the
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decedent’s estate.” Moore v. Gates, 580 A.2d 1138, 1141 (Pa. Super.
1990).
In accordance with section 3323(a), on July 17, 2013, Administratrix
sought Orphans’ Court approval for the Estate’s settlement with UPMC, and
permission to distribute the settlement proceeds. Petition to Compromise
and Settle, 3/17/13. In her Petition to Compromise and Settle,
Administratrix averred that she had terminated F&R’s representation of the
Estate “for cause,” and sought the Orphans’ Court’s approval to pay, from
the Estate’s settlement proceeds, court costs and attorney fees to Attorney
O’Day. Id. ¶¶ 11, 15.
Administratrix’s Petition to Compromise and Settle sought the
distribution of personal property of Schaab’s Estate, a matter within the
mandatory jurisdiction of the Orphans’ Court. See 20 Pa.C.S.A. § 711
(providing for the mandatory and exclusive jurisdiction of the Orphans’ Court
over “the administration and distribution of the real and personal property of
decedent’s estates”). F&R disputed Administratrix’s proposed distribution of
any portion of the settlement proceeds to Attorney O’Day, and submitted a
claim for fees and costs incurred as a result of the settlement negotiations
with UPMC. Id. F&R’s challenges to the administration and distribution of
the personal property of Schaab’s Estate (the settlement proceeds) implicate
the mandatory and exclusive jurisdiction of the Orphans’ Court. See 20
Pa.C.S.A. § 711(1).
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Regarding Administratrix’s assertion that the Orphans’ Court
improperly deprived her of her right to a jury trial, we observe the following.
Section 777 of the Probate Code provides for a right to a jury trial, in
Orphans’ Court, under the following circumstances:
(a) Title to property.
When a substantial dispute of fact shall arise concerning the
decedent’s title to property, real or personal, any party in
interest shall be entitled to a trial of such issue by a jury. The
verdict of the jury shall have the same effect as the verdict of a
jury in a case at law.
(b) Determination of incapacity.
Any person against whom proceedings have been instituted to
establish his incapacity shall be entitled to a trial of such issue
by a jury. The verdict of the jury shall have the same effect as
the verdict of a jury in a case at law.
(c) Will contest and other matters.
When a contest shall arise concerning the validity of a writing
alleged to be testamentary, or concerning any matter other than
as provided in subsections (a) and (b) of this section, the
orphans’ court division, in its discretion at any stage of the
proceedings, may impanel a jury to decide any question of fact,
but the verdict of the jury shall be advisory only.
20 Pa.C.S.A. § 777(a)-(c). Administratrix’s claims do not implicate any of
the above circumstances.3 Accordingly, we cannot grant Administratrix relief
on her claim.
3
Although Administratrix cites cases where a jury trial is mandatory, those
cases only collaterally involved the administration and distribution of the
decedents’ real and personal property.
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Administratrix next claims that the Orphans’ Court improperly
determined that the F&R Release was not a general release. Brief for
Appellant at 37. Administratrix argues that F&R’s termination “was in large
measure the result of the failure [of F&R] to address the nature and wording
in the [F&R] Release.” Id. at 48. According to Administratrix, had she
signed the F&R Release, she would have been precluded from obtaining the
proceeds of her subsequent settlement, procured by Attorney O’Day, in
collateral litigation against Shick’s family. Id. at 46 n.13.
“In Pennsylvania, it is well settled that the effect of a release is to be
determined by the ordinary meaning of its language.” Pennsbury Vill.
Assocs., LLC v. McIntyre, 11 A.3d 906, 914 (Pa. 2011). The release is to
be read as a whole. Ford Motor Co. v. Buseman, 954 A.2d 580, 585 n.7
(Pa. Super. 2008).
[W]hen construing the effect and scope of a release, the court,
as it does with all other contracts, must try to give effect to the
intentions of the parties. Yet, the primary source of the court’s
understanding of the parties’ intent must be the document itself.
Thus, what a party now claims to have intended is not as
important as the intent that we glean from a reading of the
document itself. The parties’ intent at the time of signing as
embodied in the ordinary meaning of the words of the document
is our primary concern.
Id. at 583 (citation omitted).
“The court will adopt an interpretation that is most reasonable
and probable bearing in mind the objects which the parties
intended to accomplish through the agreement….” Harrity v.
Medical College of Pennsylvania Hospital, 439 Pa. Super.
10, 653 A.2d 5, 10 (Pa.Super. 1994) (quotation and
citations omitted). There is no requirement that all of the
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parties to be discharged from liability are specifically named
within a release if the terms of the release clearly extend to
other parties. See In re Bodnar’s Estate, 472 Pa. 383, 372
A.2d 746 (1977). The Pennsylvania Supreme Court has held
that when the terms of a release discharge all claims and
parties, the release is applicable to all tortfeasors despite the
fact that they were not specifically named and did not contribute
toward the settlement. Buttermore v. Aliquippa Hospital,
522 Pa. 325, 561 A.2d 733 (1989).
Ford Motor Co., 954 A.2d at 583.
Here, the F&R Release provided, in relevant part, as follows:
FOR AND IN CONSIDERATION of the sum of One Million Five
Hundred Thousand Dollars ($1,500,000) payable within
thirty (30) days of the execution of this Full and Final Release,
the undersigned hereby fully and forever releases, acquits and
discharges: UPMC, UPMC PRESBYTERIAN SHADYSIDE, AND
WESTERN PSYCHIATRIC INSTITUTE & CLINIC, their
trustees, members successors, affiliates, directors, officers,
employees, physicians, nurses, therapists, technicians, agents
and servants, and ANY AND ALL OTHER PERSONS,
CORPORATIONS AND/OR OTHER ENTITIES that are or
might be claimed to be liable to the undersigned whether or not
named herein, including the heirs, executors, administrators,
successors, assigns, attorneys, insurers, servants and employees
of each of them (hereafter referred to collectively as
“Releasees”), from any and all actions, causes of action, claims
or demands, of whatever kind or nature, and for any injuries,
losses or damages, including loss of companionship, allegedly
sustained by the undersigned and related in any way to any
services by and/or on the premises of any Releasee up to and
including the date of the execution of this Full and Final Release,
relating to the incident at issue which occurred on or about
March 8, 2012 and thereafter.
F&R Release, ¶ 1 (emphasis in original).
F&R argues that the scope of the F&R release included only UPMC-
related entities. Brief for Appellees at 28. According to F&R, this limited
scope is evidenced by language releasing causes of action “related in any
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way to any services by and/or on the premises of any Releasee …
relating to the incident at issue which occurred on or about March 8,
2012 and thereafter.” Id., ¶ 1 (emphasis added). By this language, F&R
argues, the release does not include non-UPMC-related entities, and, in
particular, the Shicks. Id. We disagree.
In Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989), the
plaintiff was injured as a result of an automobile accident with Frances Moser
(“Moser”). Id. at 734. The Plaintiff was taken to Aliquippa Hospital, where
he was examined and received treatment. Id. However, subsequent to the
initial treatment, it was determined that the plaintiff had sustained a fracture
of his neck as a result of the accident. Id. The plaintiff subsequently signed
a release, which provided, in part, as follows:
I/We . . . hereby remise, release, acquit and forever discharge []
Moser, et al. . . . and all other persons, associations and/or
corporations, whether known or unknown, suspected or
unsuspected, past, present and future claims, demands,
damages, actions, third party actions, causes of action, or suits
at law or in equity, indemnity of whatever nature, for or because
of any matter or thing done, omitted or suffered to be done, on
account of or arising from damage to property, bodily injury or
death resulting or to result from an accident which occurred on
or about the 3rd day of December, 1981 at or near Aliquippa,
Pennsylvania for which I/We have claimed the said Frances
Moser, et al. to be legally liable[.]
Id. at 734. Thereafter, Buttermore sued Aliquippa Hospital and others,
alleging that the treatment he received at the facility aggravated the injuries
he had sustained in the accident with Moser. Id. at 735. Ultimately, the
Pennsylvania Supreme Court held that “a release given to a particular
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individual and ‘any and all other persons . . . whether herein named or not’
[is] applicable to all tort-feasors despite the fact they were not specifically
named.” Id. (emphasis added).
Reading the F&R Release as a whole, we conclude that the F&R
Release, which similarly released “ANY AND ALL OTHER PERSONS,
CORPORATIONS AND/OR OTHER ENTITIES that are or might be claimed
to be liable to the undersigned whether or not named herein,” applies to all
tort-feasors, including the Shicks. Although the Orphans’ Court erred in its
interpretation of the F&R Release, such error does not compel an outcome
different than that reached by the Orphans’ Court. As we discuss infra, we
agree with the Orphans’ Court’s determination that F&R is entitled to its fee,
as set forth in the Fee Agreement.
Administratrix claims that the Orphans’ Court erred in concluding that
F&R had substantially performed under its Fee Agreement. Brief for
Appellant at 51. According to Adminitsratrix, F&R
failed to remedy the nature and wording of the [F&R] Release;
recurrently offered erroneous legal advice; and repeatedly
attempted to coerce or cajole [Administratrix] into taking
precipitous action by signing away her legal rights in order to
allow [F&R] to collect a fee. Indeed, this conduct manifestly
constituted bad faith and[,] when realized, ultimately caused
[Administratrix] to terminate the contract [with F&R].
Id. at 52-53. Administratrix challenges the characterization of the O’Day
Release as “merely wrap-up paperwork that was necessary to protect the
interests of both parties.” Id. at 53. Administratrix further argues that the
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Settlement Agreement did not create a “fund,” as “no monies were
exchanged until after [F&R was] terminated.” Id. at 54 (initial capitalization
omitted).
Although Administratrix correctly states that the F&R Release is a
general release, the record, however, supports the determination of the
Orphans’ Court that F&R substantially performed its obligations under the
F&R Fee Agreement.
[T]he doctrine of substantial performance has been created as
an instrument of justice intended to avoid forfeiture because of
technical, inadvertent or unimportant omissions. The doctrine is
intended for the protection and relief of those who have faithfully
and honestly endeavored to perform their contracts in all
material and substantial particulars….
Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, 558 (Pa. Super. 2006)
(citations and quotation marks omitted).
It is incumbent on him who invokes its protection to present a
case in which there has been no wilful omission or departure
from the terms of his contract. If he fails to do so, the question
of substantial performance should not be submitted to the [fact-
finder].
Ehrlich v. U.S. Fid. & Guar. Co., 51 A.2d 794, 800 (Pa. 1947) (internal
quotation marks and citations omitted).
In its Opinion, the Orphans’ Court addressed this claim as follows:
The [F&R F]ee [A]greement [] provided that F&R’s
representation would have three phases: investigation of the
matter through interviews with witnesses and the collection of
documents, investigations through contact and records requests
with UPMC …, and the preparation, filing and litigation of the
case. Based upon the testimony of the three F&R attorneys,
they conducted their own investigation[;] they performed legal
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research[;] they monitored the investigations that were being
conducted by the District Attorney’s Office, OSHA and the
SEIU[;] they conferred regularly with other colleagues on the
possible legal theories of recovery[;] they obtained records from
UPMC[;] they interviewed potential trial witnesses who were
present on the date of the incident[;] they met on several
occasions with counsel for UPMC[;] they met with the District
Attorney regarding possible criminal charges and changes to
security[;] and finally, they represented the Schaabs at a
mediation session with UPMC that resulted in a $1.5 million []
settlement. That is unquestionably substantial performance of
the contract. There really was not much more that could have
been done on behalf of the Schaabs[,] and they have never
actually articulated what else they believe should have been
done on their behalf.[4]
Orphans’ Court Opinion, 9/19/14, at 10 (unnumbered). Regardless of
whether a “fund” was created, the record supports the Orphans’ Court’s
finding that F&R substantially performed its obligations under the F&R Fee
Agreement, and its legal conclusions are sound. We therefore affirm on the
basis of the Orphans’ Court Opinion, as set forth above, with regard to this
contention. See id.
Administratrix also argues that the F&R Fee Agreement bars F&R from
recovering an hourly fee. Brief for Appellant at 57. According to
Administratrix, the F&R Fee Agreement clearly contemplated F&R’s
representation against “others” in addition to UPMC, services which F&R
declined to provide. Id. at 58. According to Administratrix, “record
4
Our review discloses that F&R procured a significant settlement, in light of
the probability that this incident could have been subject to limitations
imposed by the Workers’ Compensation Law. Further, the evidence reflects
that the Schaabs expressed to F&R their sympathy for the Shicks, and their
lack of interest in pursuing an action against them.
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evidence shows that when asked by [Administratrix] regarding further
representation, [F&R] actually declined and then referred [Administratrix]
to other counsel to pursue other possible claims.” Id. This conduct,
Administratrix contends, constituted a material breach of the F&R Fee
Agreement, relieving Administratrix of any obligation to perform under its
terms. Id.
Our review of the record discloses that Administratrix did not raise this
claim in her Pa.R.A.P. 1925(b) Concise Statement.5 Accordingly, it is
waived. See In re Estate of Boyle, 77 A.3d 674, 677 (Pa. Super. 2013)
(stating that “in order to preserve claims for appellate review, an appellant
must comply with a trial court order to file a Statement of Matters
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).”) (citation
omitted).
In her brief, Administratrix also argues that she terminated F&R’s
services before F&R had filed any lawsuit on her behalf. Brief for Appellant
at 60. Relying on paragraph 5 of the F&R Fee Agreement, Administratrix
contends that an hourly fee is only payable to F&R if F&R’s services were
terminated after a lawsuit is filed. Id. Because no lawsuit was filed,
Administratrix asserts that F&R is not entitled to hourly fees. Id. Further,
5
In her Concise Statement, Administratrix challenges the Orphans’ Court’s
determination that F&R substantially performed its obligations under the F&R
Fee Agreement, and contends that the Orphans’ Court erred in concluding
that F&R made a recovery on behalf of the Schaabs and the Estate at the
time of the UPMC mediation, therefore earning the contingency fee. Concise
Statement at ¶¶ 12-13.
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Administratrix argues that the quasi-contractual doctrine of quantum meruit
does not apply where an express agreement exists between the parties. Id.
Administratrix’s argument, premised on paragraph 5 of F&R’s Fee
Agreement, was not raised in her Pa.R.A.P. 1925(b) Concise Statement.
Accordingly, it is not preserved for our review. See In re Estate of Boyle,
77 A.3d at 677.
As Administratrix’s claims are without merit, we affirm the Order of the
Orphans’ Court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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