Opinion
No. 15 C.D. 2013
07-09-2015
Pier 3 Condominium Association v. Ahlam Khalil v. Jason Diegidio, Anne Marie Diegidio, Jane Doe and Wentworth Property Management Appeal of: Ahlam Khalil
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ahlam Khalil (Appellant) appeals from the August 14, 2012 judgment entered against her and in favor of Pier 3 Condominium Association (Association) on the Association's claim for outstanding assessment payments and a variety of fees. On appeal, Appellant contends that the Court of Common Pleas of Philadelphia County (trial court) erred in dismissing her counterclaims against the Association and Wentworth Property Management (Wentworth) because her claims were barred under a general release agreement (Release) that was entered into during litigation of a separate but related action. Appellant also asserts that the trial court erred in submitting the issue of attorney's fees to the jury.
The relevant facts and procedural history of this case are as follows. The Association is a condominium association, subject to certain provisions of the Pennsylvania Uniform Condominium Act (Act), and is governed and operated in accordance with a Declaration of Association (Declaration) and By-Laws. On July 15, 2009, the Association filed a complaint, alleging that Appellant owned unit 318 (Unit) in the Association's condominium building located at 3 North Columbus Boulevard, Philadelphia County. The Association averred that Appellant was delinquent on her assessments and, as a result, has incurred charges and other fees. Specifically, the Association alleged that the Declaration, By-Laws, and the Act obligated Appellant to pay the Association assessments, along with late charges, fines, and the costs and expenses of collection, including attorney's fees. (Reproduced Record (R.R.) at R1, 5-8.)
68 Pa.C.S. §§3101—3414.
Section 3315(f) of the Act permits a prevailing party in an action brought under the Act to recover reasonable attorney's fees. 68 Pa.C.S. §3315(f).
Instead of designating the reproduced record in numerical, chronological fashion, followed by the letter "a," see Pa.R.A.P. 2173 (Numbering of Pages), Appellant has identified a record item and uses numbers to indicate the page number of those items. For example, "R1" is the Association's complaint and the numbers 1 through 103 reflect the page numbers of the complaint.
On January 4, 2010, Appellant filed an answer and new matter. This pleading included a counterclaim against the Association, seeking damages for a "water/mold/duct dilemma" that allegedly caused Appellant to leave the Unit and occurred as a result of the Association's negligent acts and/or omissions in failing to maintain and remedy the common elements area. (R.R. at R3, 8; R.R. at R8, 7.)
On that same date, Appellant also filed a joinder complaint against Anne Marie Diegidio, Jason Diegidio (collectively, the Diegidios), and Wentworth. In the joinder complaint, Appellant alleged that the Diegidios owned a unit above hers and created the dangerous condition. Appellant further alleged that Jason Diegidio, in his capacity as President of the Association, exerted undue influence upon the Board of Directors, ensuring that the Association would not compensate Appellant for her losses. With regard to Wentworth, Appellant averred that Wentworth is the Association's property management company and contracted with the Association to maintain the common elements areas and remedy the dangerous condition existing at the Unit. Based upon these allegations, Appellant asserted counts against the Diegidios and Wentworth for gross negligence and negligence under a theory of res ispa loquitur; a count for breach of fiduciary duty against Jason Diegidio in his official capacity; and counts against Wentworth for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law. (R.R. at R3, 1-13.)
Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§201-1—210-6.
On August 5, 2011, the trial court approved a stipulation and permitted Appellant to withdraw all claims, with prejudice, against the Diegidios. (Trial court op. at 3.)
Prior to the above legal action, Appellant filed a separate but related action against her insurance company, the Diegidios, and Travelers Property Casualty (the "Insurance Action"). In that complaint, Appellant alleged that on May 25, 2007, the Diegidios caused water to release from their unit, which damaged property in her Unit. Appellant asserted a negligence claim against the Diegidios and a breach of contract and a bad faith claim against Travelers. Appellant alleged that Travelers was the responsible insurance carrier for the Association and owed a contractual duty to cover her losses. (R.R. at R2, 3-13.)
Before the Insurance Action proceeded to trial, Appellant entered into the Release with Travelers on May 12, 2011. In pertinent part, the Release listed Appellant as the "Releasor," Travelers as the "Releasee," and the Association as the "Releasee's Insured." (R.R. at R4, 1). In exchange for monetary consideration, Appellant agreed to "forever discharge . . . Releasee of and from any and all claims . . . of whatsoever kind or nature arising from the incident occurring at [the Unit.]" Id. Appellant further agreed "to terminate all controversy and/or claims for injuries or damages against Releasee, and Releasee's Insured, and any affiliated or related people or entities, both known and unknown, including future developments thereof, in any way growing out of or connected with said incident." Id. At the conclusion of the Release, Appellant again "specifically agreed that this [Release] shall be a complete bar to all claims or suits against Releasee, Releasee's Insured, and any affiliated or related people or entities, both known and unknown, for injuries or damages of whatsoever nature resulting from or to said incident [at the Unit.]" Id. at 1-2.
Thereafter, Appellant settled her claims against the Diegidios and her insurance carrier. On May 26, 2011, the trial judge marked the Insurance Action settled. Khalil v. Diegidio, et al. (Pa. Super., No. 1019 EDA 2013, filed April 10, 2010) (unpublished memorandum, "Khalil I"), slip op. at 2.
The trial judge in the Insurance Action is a different jurist than the one who presided over the instant action.
After Appellant executed the Release in the Insurance Action, the Association and Wentworth moved for dismissal of Appellant's counterclaims against them in the instant action, contending that the Release's language operated to extinguish those claims. The trial court agreed, and, on July 17, 2012, dismissed all of Appellant's claims against the Association and Wentworth. (Trial court op. at 3.) The case then proceeded to a jury trial solely on the Association's claim against Appellant for assessments and fees.
During trial, the Association presented evidence regarding the covenants between the parties, which expressly provided that a unit owner would be liable for general common expenses irrespective of whether the unit owner resides in the unit. The Association also adduced evidence that Appellant had access to the Unit since May 25, 2007, and stopped paying her monthly assessments in August 2008. Stacia Scaduto, Wentworth's Executive Director, was questioned on direct examination regarding the items listed on a legal fee report that was submitted into evidence. Scaduto provided uncontradicted testimony that the Association paid $195 an hour for legal representation in connection with this case and that the same rate was paid in the past to other law firms for similar work. Scaduto testified that as of July 10, 2012, Appellant owed the Association $68,000.00 in legal fees and $41,000.00 in outstanding expenses for a total of $109,000.00. (Trial court op. at 2, 8-10; Notes of Testimony (N.T.), 68-72, 75-76.)
Section 16.6 of the covenants provide that: "No unit owner may exempt himself or herself from liability with respect to general common expenses or limited expenses for which he or she would otherwise be liable by waiver of the employment of the right to use any of the common elements or limited common elements pertinent to his or her unit or by the abandonment of his unit or otherwise." (Trial court op. at 10.)
In her Pa.R.A.P. 1925(b) statement, Appellant alleged that the trial court erred in not allowing her to introduce evidence of the conditions of her Unit in an attempt to excuse her nonpayment of assessments or provide a basis for a setoff. In its Pa.R.A.P. 1925(a) opinion, the trial court apparently relied on section 16.6 to conclude that such evidence was irrelevant. (Trial court op. at 78.) Appellant, however, does not renew her allegation of error before this Court in her appellate brief; therefore, this issue is waived and we may not address it sua sponte. See Pennsylvania School Boards Association, Inc. v. Public School Employees' Retirement System, 751 A.2d 1237, 1241 (Pa. Cmwlth. 2000) ("[B]ecause the Board failed to raise or develop this issue in its brief, or argue the issue before this Court, it is waived."). See also Danville Area School District v. Danville Area Education Association, 754 A.2d 1255, 1259 (Pa. 2000) (reiterating that an appellate court cannot consider an issue sua sponte).
At the close of the evidence, the trial court, although previously indicating that the issue of attorney's fees would be bifurcated, (N.T., 7/17/2012, at 21-22), decided to have the jury determine the amount of attorney's fees as part of its overall assessment of damages. Without objection from Appellant, the trial court charged the jury on how to decide the amount of attorney's fees, if any, owed to the Association and provided a comprehensive list of factors to determine the reasonableness of the fees. (N.T., 7/19/2012, at 19-23, 79-80, 88; Trial court op. at 9.)
On July 19, 2012, a jury returned a general verdict in favor of the Association in the lump-sum amount of $109,000.00. (N.T., 7/19/2012, at 91-92.) Appellant filed post-trial motions for a new trial, contending, inter alia, that the trial court erred in dismissing her claims against the Association and Wentworth pursuant to the Release without considering parol evidence; and the jury's verdict with respect to attorney's fees was unreasonable and against the clear weight of the evidence. (R.R. at R13, 13, 16-18, 23-24.) The trial court denied these post-trial motions by order dated August 7, 2012, and the prothonotary entered judgment in favor of the Association on August 14, 2012.
After Appellant filed a notice of appeal, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant filed a Rule 1925(b) statement, asserting errors that essentially mirrored the issues she raised in her post-trial motions. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding, inter alia, that it only had to examine the clear language of the Release to determine if Appellant's counterclaims were barred and did not have to resort to parol evidence; the Association's uncontroverted evidence regarding the amount of attorney's fees was sufficient to enable the jury to decide the amount and reasonableness of the fees; and the jury's award of attorney's fees was not against the weight of the evidence. (Trial court op. at 5, 10-11.)
Meanwhile, Appellant refused to accept any payments from the released and settled parties in the Insurance Action and contended, inter alia, that the Release would have a negative effect on her counterclaims in the instant action. By order dated September 30, 2011, the trial judge in the Insurance Action convened a hearing, concluded that the Release was valid, and directed the settled parties to place the full amount of the settlement, $17,500.00, into an escrow account with the court. Over a year later, Appellant's counsel in the Insurance Action filed a motion to withdraw, and the trial judge ordered the case "settled, discontinued, and ended" on January 7, 2013. Then, on February 6, 2013, Appellant filed a pro se motion for reconsideration, seeking to set aside and/or vacate the Release, which the trial judge denied by order dated March 15, 2013. Khalil I, slip op. at 4-5.
On March 19, 2012, Appellant appealed all three of the trial judge's above orders in the Insurance Action to the Superior Court, and this Court entered an order staying disposition of this appeal until the Superior Court ruled on the appeal in the Insurance Action. In an opinion filed April 10, 2014, a unanimous panel of the Superior Court quashed Appellant's appeals in the Insurance Action, noting that an appeal does not lie from an order denying reconsideration; Appellant's notice of appeals from the other orders were filed untimely; the trial judge upheld the validity of the release on September 30, 2011; and Appellant should have filed a timely appeal from that order within 30 days. Khalil I, slip op. at 4-10. Thereafter, by order dated June 16, 2014, this Court directed the Chief Clerk to list this matter for argument and disposition, but the case was later stayed pending mediation which proved unsuccessful, and the matter was again listed for argument.
In the Insurance Action, Appellant filed a petition for allowance of appeal to our Supreme Court, which was denied on September 17, 2014.
Discussion
Whether Appellant released the Association and Wentworth?
On appeal to this Court, Appellant argues that the trial court erred in determining that the Release barred her claims against the Association and Wentworth because they were not signatories to the Release and were not named in the recital of released parties. Appellant also asserts that the Release does not extinguish her claims against the Association and Wentworth because her breach of contract claim against Travelers in the Insurance Action was separate and distinct from her claims against the Association and Wentworth. According to Appellant, the Release was meant to cover the claims in the Insurance Action and was not intended to bar her claims in the instant action.
This Court's scope of review of an order of a trial court denying a motion for post-trial relief is limited to a determination of whether the trial court abused its discretion or committed an error of law. Boro Construction, Inc. v. Ridley School District, 992 A.2d 208, 214 n.8 (Pa. Cmwlth. 2010).
In its entirety, the Release states:
GENERAL RELEASE
I/We, AHLEM KHALIL a/k/a AHLAM KHALIL (Releasor), for the total and final consideration of the payment of a total of Seventeen thousand five hundred dollars ($17,500.00) (hereinafter "settlement amount"), paid to me in hand by TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, incorrectly identified as Travelers Property Casualty Company and Travelers Indemnity Company of America (Releasee), its employees, servants, agents, independent adjusters and affiliates, collectively referred to as Releasee, the receipt whereof is hereby acknowledged, have released and discharged, and by these presents do for myself, my heirs, executors, employees, successors, administrators, and assigns release and forever discharge the said Releasee, of and from any and all claims, including claims of bad faith, demands, damages, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature arising from an incident occurring at 3 North Columbus Boulevard, Philadelphia, Pennsylvania 1906, which has been reported to have occurred on or about May 25, 2007, as more fully described in Ahlem Khalil v. The Travelers Property Casualty Company of America, Philadelphia Court of Common Pleas, Docket No. 080503145. It is acknowledged that the Releasee's insured in the applicable policy of insurance is Pier 3 Condominium [the Association].
Releasor will hold Releasee and Releasee's Insured harmless and defend and indemnify Releasee and Releasee's Insured for any demands, claims or suits by any persons or entities claiming entitlement to the settlement and/or any money paid or payable in connection with the Releasor's claim against Releasee and/or Releasee's Insured, including but not limited to contractor fees, public adjuster fees and mortgage holder interests.
I understand said Releasee and Releasee's Insured, by reason of agreeing to this compromise payment, neither admit nor deny liability of any sort, and said Releasee and Releasee's Insured have made no agreement or promise to
do or omit to do any act or thing not herein set forth and I further understand that this Release is made as a compromise to avoid expense and to terminate all controversy and/or claims for injuries or damages against Releasee, and Releasee's Insured, and any affiliated or related people or entities, both known and unknown, including future developments thereof, in any way growing out of or connected with said incident.(R.R. at R4, 1) (emphasis added).
Releasor represents and warrants that no other person or entity possesses any liens or subrogation interests not discharged by this release, and that they have not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this release.
Releasor admits that no representation of fact or opinion has been made by the said Releasee, Releasee's Insured, or anyone on her, his, or their behalf to induce this compromise with respect to the extent, nature or permanency of said injuries or damages and that the sum paid is solely by way of compromise of a disputed claim, and that in determining said sum there has been taken into consideration the fact that serious or unexpected consequences might result from the present damages, known or unknown, from said incident, and it is therefore specifically agreed that this release shall be a complete bar to all claims or suits against Releasee, Releasee's Insured, and any affiliated or related people or entities, both known and unknown, for injuries or damages of whatsoever nature resulting from or to result from said incident.
It is further understood and agreed and made part hereof that neither the undersigned nor her attorneys or representatives will in any way publicize in any news or communications media, including but not limited to, newspapers, magazines, radio or television the facts or terms and conditions of this settlement. All parties to this agreement expressly agree to decline comment on any aspect of this settlement to any member of the news media or to any other person.
A release is construed according to general contract principles, and where the terms are clear and unambiguous, this Court need only examine the writing itself to give effect to the parties' understanding. Harrity v. Medical College of Pennsylvania Hospital, 653 A.2d 5, 10 (Pa. Super. 1994). When the terms of a written contract are clear, this Court will not give it a construction that is in conflict with the accepted and plain meaning of the language used, and we may not modify the plain meaning of the words under the guise of interpretation. Acme Markets, Inc. v. Federal Armored Express, Inc., 648 A.2d 1218, 1220-21 (Pa. Super. 1994).
Appellant concedes in her brief that the Release is clear and unambiguous. (Brief for Appellant at 13.)
Our Supreme Court has held that the language in a release, if broad enough, will operate to extinguish the claims that a plaintiff may have against unnamed defendants. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 735 (Pa. 1989). Further, when a release identifies a specific event or incident and includes broad language barring all claims and injuries associated with that injury, e.g., "all now known injuries ... and also any future injuries ... not known or anticipated, but which may later develop ... including all the effects and consequences thereof," then the release will extinguish all claims connected with or arising out of the specific event or incident. Brown v. Herman, 665 A.2d 504, 507-08 (Pa. Super. 1995).
The predominate reason for this rule is as follows:
If such a release can be nullified or circumvented, then every written release and every written contract or agreement of any kind no matter how clear and pertinent and all-inclusive, can be set aside whenever one of the parties has a change of mind or whenever there subsequently occurs a change of circumstances which were unforeseen, or there were after-discovered injuries, or the magnitude of a releasor's injuries was unexpectedly increased, or plaintiff made an inadequate settlement. It would make a mockery of the English language and of the law to permit this release to be circumvented or held to be nugatory.
Contrary to Appellant's contention, the Association was specifically identified in the first paragraph of the Release as the "Releasee's Insured." Although the first paragraph of the Release is devoted to releasing Travelers, and the second paragraph is an indemnity provision, the third paragraph unambiguously "terminate[d] all controversy and/or claims for injuries or damages against ... Releasee's Insured ... including future developments thereof, in any way growing out of or connected with said incident [at the Unit.]" (R.R. at R4, 1) (emphasis added.) In the fifth paragraph of the Release, Appellant "specifically agreed that this [Release] shall be a complete bar to all claims or suits against . . . Releasee's Insured . . . for injuries or damages of whatsoever nature resulting from or to said incident [at the Unit.]" Id. (emphasis added).
Moreover, and significantly, the Release is not limited to the particular claims that Appellant asserted in the Insurance Action. Rather, the Release expressly identifies the underlying "incident" in the Insurance Action as the water infiltration that occurred on May 25, 2007, and broadly extinguishes all past, present, and future claims against the Association, "of whatsoever nature," that arose or later arises out of or are in any way related to this incident. Id. In the present action, Appellant alleged that the Association, through its arrangement with Wentworth, committed tortious acts and/or omissions and contractual breaches in connection with or in relation to the May 25, 2007 incident. Therefore, by its plain terms, the Release barred Appellant's counterclaims against the Association in the instant suit.
Besides releasing the "Releasee's Insured," the Release also extinguished all claims that Appellant may have against "any affiliated or related people or entities, both known and unknown." (R.R. at R4, 1) (emphasis added.) In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that this language was broad enough to include Wentworth, the Association's property management company delegated with the task of maintaining and remediating the common elements areas. (Trial court op. at 5.) According to Black's Law Dictionary, "related" means "[s]tanding in relation; connected; allied; akin." Black's Law Dictionary 1288 (6th ed. 1990). Here, Wentworth was arguably "connected" or "allied" with the Association because the Association contracted with Wentworth to undertake and conduct the Association's management services. (R.R. at R3, 5, 7.) However, for the reasons discussed below, we need not definitively decide whether the Release's plain language released Wentworth from the instant suit.
In contrast to "related," the term "affiliate" is a legal term that implies common ownership, and shared financial and managerial control, between two businesses. See Travelers Indemnity Company v. United States, 543 F.2d 71, 76 (9th Cir. 1976). Consequently, to give effect to both contractual terms, "related" must be construed to cover situations where the two entities do not share common ownership and control.
In Pallante v. Harcourt Brace Jovanovich, Inc., 629 A.2d 146 (Pa. Super. 1993), overruled in part by Maloney v. Valley Medical Facilities, Inc., 984 A.2d 478 (Pa. 2009), the plaintiff was staying at a hotel hosted by a business company to attend a reception. The business company (the principal) had hired a bus company (the agent) to provide transportation to the reception, and the plaintiff was injured while she was on the bus. After commencing suit, the plaintiff entered into a settlement agreement and released the business company. The plaintiff's suit then proceeded against the bus company, which sought dismissal on the basis that the release with the business company precluded any further action against it. The Superior Court agreed, explaining as follows:
Regardless of which party is the contracting party to the release, a single tort for which compensation was sought is involved in the action. Once a person settles with the vicariously liable principal the injurious conduct in which the agent engaged has been compensated for. The independent negligent act of the agent is the subject of the settlement with the principal. When the principal receives a release from the injured party for claims based upon the act of the agent, the injured party has been compensated for the harm suffered as a result of that act. Any claim against the agent is thereby extinguished.Pallante, 629 A.2d at 149-50.
* * *
Because the law seeks to protect an injured party's right to payment for a single injurious act from either a vicariously liable principal or an independently liable agent, the party's decision to settle with and release one acts as a release of the other, given their non-joint tortfeasor status.
Accordingly, the Superior Court in Pallante held that "where a principal who is vicariously liable for the negligent act of its agent is released by the injured party after settlement of the claim, the release is a release of the agent as well and no suit may be maintained against the agent for its independent act of negligence." Id. at 150.
In Maloney, our Supreme Court overruled Pallante, in part, concluding that the release of a principal could not operate to release an agent where the release expressly reserved the plaintiff's right to proceed against the agent. Maloney, 984 A.2d at 487 ("In the scenario entailing a plaintiff's surrender of vicarious liability claims only and express preservation of claims against an agent, we hold that the parties to a settlement should be afforded latitude to effectuate their express intentions. To the extent the Superior Court's decision in Pallante holds to the contrary, it is disapproved."). On a more general level, the Supreme Court in Maloney did not abrogate Pallante's holding in its entirety, suggested that Pallante is still applicable to "a simple fact pattern involving a single principal, a single agent and a single event," but left for another day consideration of Pallante's application to "other settlement scenarios." Maloney, 984 A.2d at 485, 491.
Here, through agreement with the Association (the principal), Wentworth (the agent) was contractually mandated with the duty to maintain and remediate dangerous conditions in the common elements areas. Appellant's claims against the Association, therefore, sounded in vicarious liability, seeking to impute the negligent acts of Wentworth to the Association. However, unlike Maloney, there is no reservation clause in the Release preserving Appellant's claims against Wentworth.
In her counterclaim, Appellant did not assert claims against the Association for direct or independent acts of negligence, such as negligent hiring or negligent supervision of Wentworth, but, rather, sought to hold the Association liable for duties and acts/omissions delegated to and committed by its agent, Wentworth. See Travelers Cas. & Sur. Co. v. Castegnaro, 772 A.2d 456, 460 (Pa. 2001) (concluding a principal is vicariously liable for the negligent acts and torts of its agents, as long as those acts occurred within the agent's scope of employment); Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380, 1383-84 (Pa. 1989) (stating that "absent any showing of an affirmative act, or failure to act when required to do so, by the principal . . .[a] claim of vicarious liability is inseparable from the claim against the agent since any cause of action is based on the acts of only one tortfeasor."). Further, Appellant did not aver that Wentworth committed its alleged wrongful acts or omissions while acting outside the scope of its employment.
While the rule in Pallante remains good law in this scenario, we find it particularly compelling in view of section 3311(a)(2)(i) of the Act. In effect, this statutory section is an immunity provision, by expressly prohibiting tort and contract suits against an agent of an association and instead making the association the sole responsible party subject to suit. 68 Pa.C.S. §3311(a)(2)(i) (Tort and contract liability) ("An action in tort alleging a wrong done by the association or by an agent or employee of the association, or an action arising from a contract made by or on behalf of the association, shall be brought against the association."). Section 3311(a)(2)(i) of the Act was enacted prior to the Release, and Appellant is presumed to know that under this provision, she could not maintain suit against Wentworth and must pursue all claims vicariously against the Association only. See Department of Revenue, Bureau of Corporation Taxes v. Marros, 431 A.2d 392, 394 (Pa. Cmwlth. 1981) ("Pennsylvania citizens are presumed to know the law."). See also DePaul v. Kauffman, 272 A.2d 500, 506 (Pa. 1971) ("[T]he laws in force when a contract is entered into become part of the obligation of contract with the same effect as if expressly incorporated in its terms.").
See also 13-224 Pennsylvania Transaction Guide-- Legal Forms §224.22 (stating that under section 3311(a)(2)(i) of the Act, "a plaintiff must sue the association for its torts or those of its agents or employees.")
As discussed above, Appellant clearly released the Association from all claims regarding damage to the Unit. By releasing the Association (the principal), Appellant, a fortiori, released Wentworth (the agent) because suit against Wentworth is expressly barred under section 3311(a)(2)(i) of the Act, and, furthermore, release of the Association releases Wentworth under Pallante. Therefore, via Pallante or section 3311(a)(2) of the Act, or some combination of them both, we conclude that Wentworth cannot be held liable on Appellant's claims.,
Although the trial court and the parties do not mention this ground for affirmance, this Court may affirm on any basis appearing of record. Boro Construction, Inc. v. Ridley School District, 992 A.2d 208, 214 n.9 (Pa. Cmwlth. 2010) ("It is well settled that this Court may affirm the decision of the trial court on any basis without regard to the basis upon which the trial court relied.").
In a status report to this Court, dated May 2, 2014, Appellant states that Travelers represented in its appellate brief to the Superior Court in the Insurance Action that it did not intend the Release to include or bar her counterclaims against the Association and Wentworth. However, as mentioned above, the trial judge in the Insurance Action concluded that the Release was valid, the Superior Court quashed the appeal, and our Supreme Court denied allowance of appeal on September 17, 2014. Because the Insurance Action has now been litigated to final judgment, the Release is deemed valid, and Appellant cannot now use this Court, an appellate court, as the forum to re-contest the validity of the Release on the ground of mutual mistake.
Whether the trial court erred in submitting the issue of attorney's fees to the
jury?
Next, Appellant asserts that the trial court erred in permitting the jury to determine the amount of and award the Association reasonable attorney's fees. According to Appellant, the determination of attorney's fees is for the court to decide, as opposed to the jury, and the trial court should have decided the amount of attorney's fees itself during a hearing while utilizing the Loadstar method.
However, Appellant waived this issue because she did not object to the trial court's decision to charge the jury on attorney's fees. Indeed, the record demonstrates that Appellant fully acquiesced to the trial court's decision to allow the jury to determine the amount of attorney's fees; Appellant submitted a point of charge to the trial court on the attorney's fees issue, which the trial court accepted for instruction; and Appellant stated that she did not have any objection to the trial court's instructions to the jury on attorney's fees. (N.T., 7/17/2012, at 20-22; N.T., 7/19/2012, at 20-23.) See Boyle v. Steiman, 631 A.2d 1025, 1030 (Pa. Super. 1993) (stating that it is well-settled that "[a] party may not remain silent and take his chances on the verdict then complain if it is adverse."). See also Larch v. Haverford State Hospital, 620 A.2d 37, 43 (Pa. Cmwlth. 1993); Burnhauser v. Bumberger, 745 A.2d 1256, 1259 (Pa. Super. 2000).
The pertinent dialogue was as follows:
[The Association's attorney]: . . . Now I know cases, some judges prefer to try the issue of attorney's fees. . . . So I'll query whether Your Honor wishes the jury to hear that evidence for the jury to make a calculation in the event they award [the] Association's assessment -(N.T., 7/17/2012, at 20-22.)
[The trial court]: I think that should be bifurcated.
[Appellant's attorney]: During the videotape deposition of one of [the Association's] witnesses they did set forth how much is allegedly owed by my client as far as including the amount of attorney's fees.
[The trial court]: Well, it's already in evidence. [Appellant] can present [evidence]. . . .
[Appellant's attorney]: I guess the issue we have is just about the attorney's fees. They [the jury] have to make [the] determination [and] be charged that they have to be reasonable under the circumstances.(N.T., 7/19/2012, at 20-23.)
[The trial court]: Well, there's no charge on attorney's fees.
[Appellant's attorney]: It's like 27, talks about determination of reasonable attorney's fees.
[The trial court]: I'll give that charge. . .
* * *
[The trial court]: . . . I'm going to instruct them on attorney's fees being reasonable with regard to the points that you [both parties] submitted. Pennsylvania, even if legal fees and costs should be awarded to plaintiff against defendant, the award should be just and reasonable under the circumstances. That's your charge.
[Appellant's attorney]: I thought that was just plain and simple.
[The trial court]: . . . I'll give both, 26 and his six.
* * *
[Appellant's attorney]: Maybe we'll start with my charge and your charge on 27 will explain what's considered reasonable. . .
[The trial court]: So we'll do six and 27. Any objection to any of those?
[Appellant's attorney]: I do not have any objection.
Moreover, although Appellant represented at oral argument that she raised the issue of attorney's fees in her post-trial motions, an examination of the motion itself establishes that Appellant did not assert such a claim. Consequently, her contention concerning the propriety of submitting the issue of attorney's fees to the jury is waived on this ground as well. Pa.R.C.P. No. 227.1(b)(2) (stating that post-trial relief may not be granted unless the grounds for relief "are specified in the motion. . . . Grounds not specified are deemed waived"); L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55, 56 (Pa. 1998) (concluding that Pa.R.C.P. No. 227.1 "requires parties to file post-trial motions in order to preserve issues for appeal. If an issue has not been raised in a post-trial motion, it is waived for appeal purposes.").
The statement of errors contained in the post-trial motions are as follows: "(1) [the trial court] erred in dismissing the additional claims made by Appellant against the [Association] and Wentworth based solely upon the language of the [Release] which had been entered into by way of unilateral mistake, mutual mistake, and/or fraud; (2) [the trial court] erred in dismissing the additional claims being made by [Appellant] against the [Association] and Wentworth even though such legal argument had been summarily dismissed by way of the previous denial of the Summary Judgment Motion; (3) [the trial court] erred in prohibiting the introduction of as well as chilling the attempted introduction of evidence entitling [Appellant] to a set-off or excuse of non-payment of the monthly assessments being charged against her Unit; (4) [the trial court] erred by [admitting into evidence] the exhibit containing the legal fees and costs sought by the [Association] at trial because that exhibit was not provided to [Appellant] prior to trial; (5) the jury's verdict was against the clear weight of evidence in that the [Association] was, for all intents and purposes, allowed to charge [Appellant] for a Unit to which she has not had actual or constructive access to since May 25, 2007; and (6) the jury's verdict was against the clear weight of evidence in that the legal fees and costs included within the verdict are unreasonable under the circumstances." (R.R. at R13, 13.)
In her statement of the questions involved section of his brief, Appellant claims that the jury's verdict as to the amount of the attorney's fees was against the clear weight of the evidence. Appellant does not address this issue in the argument section of his brief; accordingly, it is abandoned and waived. Estate of Lakatosh, 656 A.2d 1378, 1381-82 (Pa. Super. 1995) (concluding that "all of those issues set forth within his statement of questions involved, which are not addressed in the argument section of his brief, are waived."). See Pennsylvania School Boards, 751 A.2d at 1241. --------
For these reasons, we conclude that Appellant has waived her argument that the trial court erred in submitting the issue of attorney's fees to the jury.
Conclusion
Because the terms of the Release and governing decisional and statutory law compel the conclusion that Appellant's claims against the Association and Wentworth were barred, and because Appellant waived any challenge that she may have had to the trial court's decision to submit the issue of attorney's fees to the jury, we find no basis upon which to disturb the verdict and judgment entered in favor of the Association.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of July, 2015, the August 14, 2012 judgment of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Buttermore, 561 A.2d at 735 (citation omitted).