J-A12023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: LIEN ASSERTED AGAINST             :    IN THE SUPERIOR COURT OF
MATTHEW HEFFRAN                          :         PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: MATTHEW HEFFRAN               :    No. 2140 EDA 2013


            Appeal from the Judgment Entered October 30, 2013,
               In the Court of Common Pleas of Pike County,
                      Civil Division, at No. 1389-2012.


BEFORE: SHOGAN, FITZGERALD* and PLATT**, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 03, 2014

      Appellant, Matthew Heffran, appeals from the judgment entered on

October 30, 2013, in the Pike County Court of Common Pleas. After review,

we vacate the judgment entered on the verdict, reverse the order granting a



remand for a new trial.

      The trial court set forth the relevant facts and procedural history of

this matter as follows:

            This case arose out of a motor vehicle accident on July 26,
      2007 in which the Appellant, Matthew Heffran, was injured. As a
      result of his work-related injuries, Appellant received workers
      compensation benefits from Eastern Alliance Insurance Group
      (herein

      compensation benefits.



      was $32,741.96. This amount consisted of $13,288.41 in wage
__________________
*Former Justice specially assigned to the Superior Court.
**Retired Senior Judge assigned to the Superior Court.
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     loss payments and $19,453.55 in medical payments. In addition,
     the Compromise and Release Agreement contained a clause
     where EAIG agreed to waive $17,000 of its subrogation lien on
     any third party claim that Appellant chose to pursue.

            On May 17, 2012, Appellant settled a related third party
     action against Charles Bolte in the amount of $100,000. As a
     result, EAIG asserted a workers compensation subrogation lien
     against Appellant. Suffice it to say, the parties had significant
     disagreement over the exact amount of the subrogation lien
     owed by the Appellant to EAIG. Appellant thereafter filed a
     Petition with this Court on July 9, 2012 requesting that the
     disputed funds be paid into the Court for adjudication.

          By Order dated August 28, 2012, this Court directed

     which was the alleged disputed amount. On September 10,
     2012, EAIG filed a Petition seeking, inter alia, reimbursement of
     its subrogation lien in the alleged amount of $60,629.59. On

     with a Counter-Claim. On March 13, 2013, this Court entered an


            EAIG thereafter filed a Motion for Summary Judgment on
     April 26, 2013. On May 28, 2013, this Court granted in part and

     granted the Motion with regards to the fact that EAIG was

     Appellant. The Motion was denied, however, regarding the
     specific amount of the lien, which remained a genuine issue of
     material fact.

            A Jury Trial was held in this matter on June 18, 2013. At
     the trial, Appellant and EAIG introduced testimony and evidence
     of the third party settlement amount of $100,000 as well as

     $33,333.34    in procuring that settlement. Further, evidence was
     presented     of indemnity and medical payments totaling
     $60,629.59    and the previously agreed upon credit of $17,000
     towards the   subrogation lien.




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            After both Appellant and EAIG had rested their cases, but
      before closing arguments, this Court determined that no genuine
      issue of material fact remained in dispute between the parties.
                        aim for relief, we determined that the amount
      of subrogation lien owed by Appellant to EAIG was $23,319.72

      expert witness,[1] James Haggerty, Esquire. This Court also
      determined that Appellant had failed to meet his burden of clear
      and convincing evidence for the fraud claims of his Counter-

      verdict was therefore granted that same day.

            Appellant filed a Motion for Post-Trial Relief on June 27,
      2013, alleging that this Court erred by finding that fraud had not
      been proven by clear and convincing evidence. The Motion also
      alleged that this Court was in error when it found there to be no
      issues of material fact for determination by the jury. This Court


Trial Court Opinion, 9/12/13, at 1-3.

      On July 16, 2013, Appellant filed an appeal to this Court. Procedurally,

the appeal was premature, as judgment had not been entered on the

verdict.   See Johnston the Florist v. TEDCO Construction Corp., 657

A.2d 511, 514 (Pa. Super. 1995) (an appeal lies from the entry of judgment

and not an order denying a post-trial motion).     Ultimately, judgment was




1
  While the trial court refers to Attorney Haggerty as an expert witness at
page three of its opinion, the trial court goes on to state that it never
formally qualified Attorney Haggerty as an expert at page six. Indeed, the
record confirms that Attorney Haggerty was not formally qualified as an
expert. However, this does not alter our ultimate conclusion. Despite the

Haggerty not testified at all, there would still be the record documents and

Exhibits 1-10, N.T., 6/18/13, at 141.


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entered on October 30, 2013. This procedural anomaly does not hamper our

appellate review, and we shall proceed with our discussion.2 Id.



consideration:

      Whether the Court of Common Pleas of Pike County erred in
      determining that Appellant had not shown fraud by clear and
      convincing evidence?

      Whether the Appellant had additional claims, outside of fraud,
      which it had proven sufficiently?

      Whether the Court of Common Pleas of Pike County erred in
      determining that no genuine issue of material fact remained on
      the issues of bad faith, fraud, bad intent, deception,
      misrepresentation,    purpose,     malice,      outrageousness,
      wantonness, oppressiveness and reckless indifference?



                            issues are interrelated and essentially seek the

same relief, we shall address them concurrently. As noted above, Appellant

claims the trial court erred in determining that Appellant had not shown

fraud by clear and convincing evidence and asserts that there was a

sufficient basis for the issue of punitive damages to be presented to the jury.




2
  This court has held that quashing a premature appeal is an unnecessary
expenditure of judicial resources where the decision on appeal is otherwise

judgment. Johnston the Florist, 657 A.2d at 514. This is true because
one of the parties would inevitably praecipe for the entry of judgment, and a
subsequent appeal would follow. Id.



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      Our standard of review when considering motions for a directed verdict



Court will revers

only when we conclude that there was an abuse of discretion or an error of

law that controlled the outcome of the case.       International Diamond

Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261, 1267 (Pa.

Super. 2012).

      Further, the standard of review for an appellate court is the
      same as that for a trial court.

            There are two bases upon which a JNOV can be
            entered: one, the movant is entitled to judgment as
            a matter of law and/or two, the evidence is such that
            no two reasonable minds could disagree that the
            outcome should have been rendered in favor of the
            movant. With the first, the court reviews the record
            and concludes that, even with all factual inferences
            decided adversely to the movant, the law
            nonetheless requires a verdict in his favor. Whereas
            with the second, the court reviews the evidentiary
            record and concludes that the evidence was such
            that a verdict for the movant was beyond
            peradventure.

International Diamond Importers, Ltd., 40 A.3d at 1267 (quoting Janis

v. AMP, Inc., 856 A.2d 140, 143-144 (Pa. Super. 2004))(internal quotation

marks and citations omitted). Additionally, it is well settled that while the

existence of fraud is a jury question, evidence of fraud must be clear and

convincing, and whether the evidence of fraud justifies its submission to the

jury is a question of law for the court. Greenwood v. Kadoich, 357 A.2d



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J-A12023-14



604, 606 (Pa. Super. 1976). In reviewing questions of law, our standard of

review is de novo and our scope of review, to the extent necessary to

resolve this question of law, is plenary. Swords v. Harleysville Insurance

Companies, 883 A.2d 562, 567 (Pa. 2005). Finally, punitive damages are

appropriate only in cases of outrageous behavior, where the d

egregious conduct shows either an evil motive or reckless indifference to the

rights of others. J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d

402, 415 (Pa. Super. 2012).     Punitive damages are appropriate when the

                      re of such an outrageous nature as to demonstrate

intentional, willful, wanton, or reckless conduct. Id. at 415-416.



                                                                      ms for



Appellant, wherein Appellee demanded from Appellant the full $60,629.59,



agreed-upon waiver of an ad

Court Opinion, 9/12/13, at 5. The trial court then cited to the testimony of

Attorney James Haggerty, who Appellant called as an expert witness. The

trial court supported its conclusion that there was no proof of fraud or



Id




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J-A12023-14



demand of the full $60,629.59 was merely a mistake.            Id.    We are

constrained to disagree.

      The trial court is correct that Attorney Haggerty testified Appellee was

owed $23,319.72. Trial Court Opinion, 9/12/13, at 3. However, that was

not the amount Appellee demanded and Attorney Haggerty never testified

that $23,319.72 was the amount demanded.        Additionally, contrary to the

                           he record reveals that Attorney Haggerty never



Rather, Attorney Haggerty testified that the email in which Appellee averred

that the total paid out on the claim was $27,000.00, as opposed to the

actual total of $60,629.59, was a mistake. N.T., 6/18/13, at 80. Attorney

Haggerty explained that if Appellee had only paid out $27,000.00, when that

number is reduced by $9,000.00 reflecting the one-



                                                                         that

would be the mistake.       Id. (emphasis added).    Attorney Haggerty then

com

claiming that he owed only $1,000.00. Id.



                                                                          ed-




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J-A12023-14



repeated claim that it was owed the full $60,629.59 remains at issue. For

this reason, we conclude that reasonable minds could disagree on the

outcome of the case and that a verdict for Appellee was not a certainty.

International Diamond Importers, Ltd., 40 A.3d at 1267.



counterclaims should not have been dismissed. As noted above, there is no

                         demand for the full amount of $60,629.59 was a

mistake; Appellee, sought to recover from Appellant an amount to which it

knew it was not entitled. N.T., 6/1/8/13, at 162-163. We conclude that this

satisfies the threshold requirement of clear and convincing evidence, and




outrageous, permitting an award of punitive damages, should also have

been considered by the jury. Greenwood, 357 A.2d at 606; J.J. DeLuca

Co., Inc., 56 A.3d at 415.3

     For the reasons set forth above, we conclude that the trial court erred

in concluding that there was no genuine issue of material fact and that

Appellant failed to support its allegation of fraud by clear and convincing


3
  Additionally, and for these same reasons, there is no indication in the
record before us that Appellee was entitled to judgment as a matter of law
                               International Diamond Importers, Ltd.,
40 A.3d at 1267.


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J-A12023-14




should also have been decided by the jury.        Therefore, we vacate the

judgment entered on the verdict and reverse the order granting a directed



remand for further proceedings.

      Judgment vacated. Order reversed. Case remanded for a new trial.

Jurisdiction relinquished.

      PLATT, J., files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/3/2014




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