Jackson, D. v. USAA ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEBRA JACKSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
USAA A/K/A D/B/A AND OR T/A : No. 2215 EDA 2020
GARRISON PROPERTY AND :
CASUALTY INSURANCE COMPANY :
Appeal from the Order Entered October 23, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 170600174
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 21, 2021
Appellant Debra Jackson appeals from the Order entered in the Court
of Common Pleas of Philadelphia County on October 23, 2020, denying her
“Petition for the Award of Attorney Fees for Attorney Time Spent After
1/7/2019 (Including Appeal Hours)” (hereinafter "Second Fee Petition").
Following our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
The procedural history and facts of this case have been
previously detailed in this court's I925(b) Opinion docketed at
1259 EDA 2019 (“First Trial Court Opinion”). For convenience,
they are summarily reiterated below.
On June 5, 2017, [Appellant] filed a civil complaint against
[Appellee] USAA d/b/a Garrison Property and Casualty Insurance
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* Former Justice specially assigned to the Superior Court.
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Company in relation to injuries sustained in a motor vehicle
accident on November 29, 2015. [Appellee] provided motor
vehicle coverage to the driver who struck [Appellant]. [Appellant]
sought to recover compensation of her first party medical bills
(“PIP claim”), interest, attorney fees, and treble damages under
the Pennsylvania Motor Vehicle Financial Responsibility Law
(“MVFRL”)
By the date of trial, the parties stipulated that the PIP claim
of $5,994.65 was fully paid, but that [Appellee] did not pay the
PIP claim until after suit was initiated.
The trial court thereafter held a non-jury trial on November
28, 2018, to determine whether [Appellant’s] counsel was entitled
to a reasonable attorney fee under 75 Pa.C.S.A. §§ 1716 and
1798[1] for representing a claimant in connection with a claim for
first party benefits under the MVFRL. The trial court found that
[Appellee] had no reasonable foundation for refusing to pay
[Appellant’s] PIP benefits, and that [Appellant’s] counsel was
entitled to a reasonable attorney fee.1 The trial court ordered
[Appellant’s] counsel to submit a Fee Petition (hereinafter “First
Fee Petition”).
The trial court, for the reasons set forth in the First Trial
Court Opinion, awarded [Appellant’s] counsel an attorney fee of
$34,850, and interest of $1,438.72. These amounts reflected fees
for work performed by [Appellant’s] counsel up to January 7, 2019
the date when [Appellant’s] counsel filed the First Fee Petition.
[Appellee] appealed this decision on April 11, 2019, and Superior
Court affirmed the trial court's award in a non-precedential
memorandum decision filed April 30, 2020. See Jackson v. USAA,
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1 Stating, in relevant part:
a) Basis for reasonable fee.--No attorney's fee for representing
a claimant in connection with a claim for first party benefits
provided under Subchapter B (relating to motor vehicle liability
insurance first party benefits) or a claim for catastrophic loss
benefits under Subchapter F (relating to Catastrophic Loss
Trust Fund) shall be calculated, determined or paid on a
contingent fee basis, nor shall any attorney's fees be deducted
from the benefits enumerated in this subsection which are
otherwise due such claimant. An attorney may charge a
claimant a reasonable fee based upon actual time expended.
75 Pa.C.S.A. § 1798(a) (footnotes omitted).
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236 A.3d 1139 (Pa.Super. 2020).
On June 11, 2020, [Appellee] sent [Appellant’s] counsel a
check for $40,000. See Second Fee Petition. This payment
included an overpayment of $977.02, the purpose of which is
disputed by the
parties. See id.; see also Defendant Garrison Property and
Casualty Insurance Company's Response in Opposition to Plaintiffs
Petition for the Award of Attorney’s Fees Post January 7, 2019,
filed 10/14/2020.
On September 24, 2020, [Appellant’s] counsel filed the
instant Second Fee Petition. See Second Fee Petition. In the
Second Fee Petition, [Appellant’s] counsel sought an additional
attorney fee totaling $11,597.98 pursuant to 75 Pa.C.S. §§ 1716
and 1798. See id. This amount reflected 50.3 hours of work, at
$250 per hour, for time expended between the dates of January
24, 2019 and September 24, 2020, less the overpayment. Id.
[Appellant’s] work during this period included time spent litigating
the First Fee Petition before the trial court, reviewing the trial
court's grant of the First Fee Petition, time spent on appellate
litigation over the First Fee Petition, and time spent preparing the
Second Fee Petition filed with the trial court. See Exhibit G to
Second Fee Petition. [Appellee] filed a response to the Second Fee
Petition on October 14, 2020.
The trial court denied [Appellant’s] Second Fee Petition on
October 22, 2020. [Appellant’s] counsel filed a motion for
reconsideration on November 2, 2020, which the trial court denied
on November 6, 2020. [Appellant’s] counsel thereafter timely filed
the instant notice of appeal.
On December 14, 2020, [Appellant’s] counsel filed a
Statement of Matters Complained Of On Appeal pursuant to
Pa.R.A.P. 1925(b) (“Statement”). [Appellant’s] counsel prefaced
the Statement with the following:
[Appellant’s] counsel is unsure that it can determine the
specific basis of (and/or all of the reasons for) the
[c]ourt's October 22, 2020 Order[2]/decision to deny the
award [of] attorney fees to [Appellant’s] counsel for
attorney time spent after January 7, 2019 in this matter,
Such time would not have been expended if [Appellee]
had not opposed and appealed the [c]ourt's March 12,
2019 Order and decision awarding $34,850.00 in
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2 The Order was entered on the docket on October 23, 2020.
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attorney fees to [Appellant’s] counsel for time spent
successfully litigating the case (pursuant to 75 Pa.C.S.
1716 and 1798(b)) and $1,438.72 in interest to
[Appellant] (pursuant to 75 Pa.C.S. 1716) up until
January 7, 2020. The basis and reasoning for denying
the award of post-1/7/2019 attorney fees to
[Appellant’s] counsel for[sic] are not stated by the
[c]ourt in its October 22, 2020 Order, nor in its
November 6, 2020 Order denying [Appellant’s] motion
for reconsideration of the October 22, 2020 Order.
Therefore, [Appellant] preserves, and does not waive,
[her] right to appeal issues described generally herein,
as provided for in See[sic] Pa. R.A.P. 1925(b)(4)(vi) (“If
the appellant in a civil case cannot readily discern the
basis for the judge's decision, the appellant shall preface
the Statement with an explanation as to why the
Statement has identified the errors only in general
terms. In such a case, the generality of the Statement
will not be grounds for finding waiver.”).
Statement, pp. 1-2. [Appellant’s] Statement thereafter included
the following errors:. . . .
___
1Specifically, the trial court found that [Appellant’s] claims
representative, Jack Gillaspia, denied [Appellant’s] PIP claim on
the bases that [Appellant] was related to her landlord; that
[Appellant] was covered by insurance; and that [Appellant] had
failed to submit a corrected Affidavit of No Insurance. First Trial
Court Opinion, at 5-6, 9-10. The trial court found this denial
unreasonable, as the evidence showed [Appellant] had indeed
submitted a corrected affidavit of no insurance and an affidavit
stating that [Appellant] was not related to her landlord. Id. at 9-
10.
Trial Court Opinion, filed 1/13/21 at 1-3.
In her brief, Appellant presents one issue for our review:
Did the Trial Court abuse its discretion, committing
reversible error, when it denied the award attorney fees to
plaintiff-Appellant's counsel for post-1/7/2019 time expended in
an effort to secure defendant-Appellee's payment of 75 Pa.C.S. §
1798(b) attorney fees and 75 Pa.C.S. § 1716 interest (both
awarded on 3/12/2019), because its denial was irreconcilably
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inconsistent with the prior award, and failed to uphold the
purposes of 75 Pa.C.S. § 1798(b)?
Brief for Appellant at 4.
Under Pennsylvania law, litigants cannot recover their attorney fees
from an opposing party unless there is an express statutory authorization for
an award of attorney fees, a clear agreement by the parties that attorney fees
may be recovered, or some other established exception. Trizechahn
Gateway LLC v. Titus, 601 Pa. 637, 976 A.2d 474, 482-83 (2009); Lavelle
v. Koch, 532 Pa. 631, 617 A.2d 319, 323 (1992); Bayne v. Smith, 965 A.2d
265, 267 (Pa.Super. 2009). The burden is on the party seeking attorney fees
to show that it has the right to recover such fees. Petow v. Warehime, 996
A.2d 1083, 1087 (Pa.Super. 2010); Gall v. Crawford, 982 A.2d 541, 549
(Pa.Super. 2009).
This Court stated the following when deciding Appellee’s issues raised in
the first appeal of this civil action:
“Appellate review of an order of a tribunal awarding counsel
fees to a litigant is limited solely to determining whether the
tribunal palpably abused its discretion in making the fee award.”
Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 974 (Pa. Super.
2011).
As this Court has explained,
where counsel fees are statutorily authorized in order to
promote the purposes of a particular legislative scheme,
the trial court should not determine the appropriateness
of counsel fees under the general standards applicable
in all litigation. Rather, it should consider whether an
award of fees would, in the circumstances of the
particular case under consideration, promote the
purposes of the specific statute involved.
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Krebs v. United Refining Co. of Pa., 893 A.2d 776, 788 (Pa.
Super. 2006) (quoting Krassnoski v. Rosey, 454 Pa.Super. 78,
684 A.2d 635, 639 (Pa. Super. 1996)).
Contrary to USAA's argument, the relevant consideration for
the trial court is not whether Jackson continued to have a
“material interest” in the proceedings, but whether the award of
fees “would, in the circumstances of the particular case under
consideration, promote the purposes of the specific statute
involved.” Krebs, 893 A.2d at 788. As subsection (b), by its
language, seeks to deter the unreasonable denial of claims
by the insurer, an award of fees for preparing the Fee
Petition promotes the specific purposes of the statute
involved. See Krebbs, supra.
Jackson v. USAA, 236 A.3d 1139, unpublished memorandum at *5
(Pa.Super. 2020) (emphasis added).
In the instant appeal, Appellant reasons as follows:
Had plaintiff-Appellant’s counsel not successfully spent the time
and effort challenging defendant-Appellee’s opposition to, and
appeal of, the previously-requested and Ordered payment of fees
and interest, the defendant-Appellee’s payment would not have
occurred. . .. An award of this type, for the additional attorney
time expended, also promotes the 75 Pa.C.S. § 1798(b) purpose
“to encourage potential plaintiffs to seek vindication of important
rights.” Krebs at 2006 PA Super 31, p.30, 893 A.2d 776, 788
(citing Krassnoski). To promote a such [sic] plaintiff-
encouragement, the fee-shifting provision of 75 Pa.C.S. §
1798(b), should not be limited to the time period up until payment
of benefits, but should include all attorney time expended until
payment of all awarded damages; this would include plaintiff-
Appellant counsel’s requested compensation for post-1/7/2019
attorney hours. . . . With the Superior Court’s determination that
an award of fees for the preparation of a fee petition promotes the
deterrent purpose of 75 Pa.C.S. § 1798(b), it follows that an
award of fees for fighting the opposition of that petition, and
litigating the eventual appeal of the related award also promotes
the deterrent purpose of the statute.
Brief for Appellant at 12-13, 15, 20. Appellant asks this Court to reverse the
trial court’s Order and remand for the issuance of post-1/7/2019 attorney fees
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in the amount of $11,597.98 ($12,575.00 less Appellee’s over-payment of
$977.02. Id. at 16.
Section 1798(b) provides that “[i]n the event an insurer is found to have
acted with no reasonable foundation in refusing to pay the benefits ... when
due, the insurer shall pay, in addition to the benefits owed and the interest
thereon, a reasonable attorney fee based upon actual time expended.” 75
Pa.C.S.A. § 1798(b).
As this Court previously stated, Subsection (b)’s provision for an award
of attorney’s fees to counsel who prepares a fee petition promotes the specific
purpose of the statute which seeks to deter an insurer’s unreasonable denial
of claims. Upon determining Appellee had no reasonable basis upon which to
refuse Appellant’s efforts to secure the PIP claim, we found no error or abuse
of discretion in the trial court’s granting of reasonable counsel fees expended
in securing payment pursuant to the First Fee Petition.
Significantly, no further appeal was taken by either party thereafter.
Appellee sent Appellant a payment of $40,000 in satisfaction of the judgment
on June 11, 2020. Months later, Appellant filed a Second Fee Petition for
attorney’s fees for services rendered after the filing of the First Fee Petition
under the authority of Section 1798(b).
Initially, Appellant arguably has waived her request for these fees, as
she was aware of them before the trial court issued its ruling on the First Fee
Petition on March 11, 2019, and she made no effort to supplement the petition
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to seek appellate counsel fees while it was pending, nor did she appeal this
Court’s April 30, 2020, decision. (See Pa.R.A.P. 903(a) providing a party is
required to file any appeal within 30 days of an order’s entry).
To the extent her request may be deemed preserved or she seeks
counsel fees for drafting the instant petition, as the trial court stresses in its
Rule 1925(a) Opinion, Appellant’s Second Fee Petition sought fees for services
expended in connection with Appellee’s contesting the first petition before the
trial court and through appeal, and such conduct is not that which Pa.C.S.A.
§§ 1798(b) seeks to deter. See Trial Court Opinion, filed 1/13/21, at 6. This
conclusion is in line with our previous holding, and Appellant points to no
statutory authority or caselaw to the contrary. In fact, Appellant’s reliance
upon Krassnoski v. Rosey, 684 A.2d 635 (Pa.Super. 1996) supports the trial
court’s denial of the Second Fee Petition.
In Krassnoski, the appellant’s request for appellate counsel fees and
costs of appeal was denied under Pa.R.A.P. 27443 upon this Court’s finding
that such an award was not permitted under either the specific statutory
authorization of the Protection from Abuse Act or the general provisions of the
Rules of Appellate Procedure. In doing so, we reasoned as follows:
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3 This Rule provides, in relevant part, that counsel fees may be awarded by
the appellate court “if it determined that an appeal is frivolous or taken solely
for delay or that the conduct of the participant against whom costs are to be
imposed is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744.
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Krassnoski's appeal was necessitated by the judge's ruling
denying counsel fees. It is unrelated to substantive issues
regarding Rosey's abusive conduct or to the protection from abuse
injunction itself. Thus an award of appellate counsel fees would
not further the statutory purposes of 23 Pa.C.S. § 6108(a)(8)
by deterring further abusive conduct.
In addition, we cannot find that Krassnoski is entitled to
appellate counsel fees under Pa.R.A.P. 2744. Appellee Rosey's
conduct in connection with this appeal was not dilatory, obdurate
or vexatious.
Id. at 639, 640 (footnote omitted).
In accordance with the plain language of 75 Pa.C.S.A. § 1798(b),
counsel previously was awarded a reasonable attorney fee following the trial
court’s finding that Appellee acted unreasonably in failing to pay first party
benefits. These fees were for legal work undertaken to resolve Appellant’s
PIP claim; therefore, the stated purpose of Section 1798(b) to deter the
unreasonable delay in payment of benefits enumerated in Section 1798(a)
was satisfied when the trial court granted the First Fee petition and awarded
Appellant attorney’s fees. As a result, we discern no abuse of discretion in the
trial court’s denial of Appellant’s Second Fee Petition, and affirm its October
23, 2020, Order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2021
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