J-S16031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DEBRA JACKSON                              :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    USAA A/K/A, D/B/A AND/OR T/A,              :
    GARRISON PROPERTY AND                      :
    CASUALTY INSURANCE COMPANY,                :
                                               :
                       Appellants              :      No. 1259 EDA 2019

                Appeal from the Judgment entered May 22, 2019
              in the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): June Term, 2017, No. 0174

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                Filed: April 30, 2020

       USAA a/k/a, d/b/a and/or t/a Garrison Property and Casualty Insurance

Company (“USAA”), appeals from the Judgment awarding Debra Jackson

(“Jackson”) attorney’s fees in the amount of $34,850.1 We affirm.



____________________________________________


1 USAA filed its Notice of Appeal from the trial court’s March 13, 2019, Order,
which granted Jackson’s post-trial Motion requesting, inter alia, counsel fees.
An appeal properly lies from the entry of judgment, not from an order denying
post-trial motions. See Johnston the Florist, Inc. v. TEDCO Constr.
Corp., 657 A.2d 511, 516 (Pa. Super. 1995) (en banc). This Court entered
an Order directing USAA to praecipe the trial court prothonotary to enter
judgment, and USAA complied. Judgment was entered on May 22, 2019.
Thus, USAA’s Notice of Appeal relates forward to the date Judgment was
entered, and there are no procedural/jurisdictional impediments to our review.
See Hart v. Arnold, 884 A.2d 316, 325 n.2 (Pa. Super. 2005) (stating that
“[a] final judgment entered during the pendency of an appeal is sufficient to
perfect appellate jurisdiction.”). We have corrected the caption accordingly.
J-S16031-20


      The trial court summarized the relevant history underlying the instant

appeal as follows:

            On June 5, 2017, [Jackson] filed a civil [C]omplaint seeking
      payment of her first party medical bills (“PIP claim”) for injuries
      sustained in a motor vehicle accident on November 29, 2015.
      [Jackson], a pedestrian who neither owned a motor vehicle nor
      resided with anyone who had a motor vehicle, also sought
      interest, attorney[’s] fees, and treble damages from [USAA], who
      provided motor vehicle coverage to the driver who struck
      [Jackson]. The parties stipulated that [USAA] did not pay the PIP
      claim until after suit was initiated. By the date of trial, the parties
      stipulated, the PIP claim of $5,994.65 was fully paid.

Trial Court Opinion, 10/23/19, at 2.

      On November 28, 2018, a non-jury trial was held before [the trial
      court] to determine whether [Jackson’s] counsel was entitled to
      attorney[’s] fees for representing a claimant in connection with a
      claim for first[-]party benefits under the Pennsylvania Motor
      Vehicle Financial Responsibility Law (“MVFRL”). [] Jackson[],
      represented by [John Trotman, Esquire (“Attorney Trotman”), of]
      Silverman, Trotman & Schneider, LLC [], sought first[-]party
      benefits for injuries she sustained as a pedestrian in a motor
      vehicle accident. The [t]rial [c]ourt found that [] USAA …, without
      reasonable foundation, refused to pay [Jackson’s] first[-]party
      Personal Injury Protection (“PIP”) benefits, and that, pursuant to
      [75] Pa.C.S.A. [] § 1798(b), [Attorney Trotman] was entitled to a
      reasonable attorney’s fee for time expended in securing payment
      of [Jackson’s] PIP claim.

             [Attorney Trotman] submitted a Fee Petition [(the “Fee
      Petition”)] in the amount of $100,648.86 on January 7, 2019. The
      Fee Petition was broken down as follows:

         Attorney[] fees                     75,753.00
         Costs                                5,473.19
         Interest on the PIP claim            1,438.72
         Treble damages                      17,983.95

         Total                            100,648.86[FN1]




                                       -2-
J-S16031-20




      [FN1][Attorney Trotman] petitioned for an award under [75]
      Pa.C.S.A. §§ 1716, 1979(b)(4), and 1798(b), for Payment of
      Benefits, Customary Charges for Treatment, and Attorney[’s] Fees
      and Costs, respectively.


      The [t]rial [c]ourt awarded [Attorney Trotman] $34,850 in
      attorney fees and awarded [Jackson] interest in the amount of
      $1,438.72 on her PIP claim on March 11, 2018….

Id. at 1-2 (footnote and emphasis in original). USAA timely filed a Notice of

Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

      USAA presents the following claims for our review:

      1. Whether the trial court abused its discretion and/or committed
         an error of law in awarding attorney’s fees under 75 Pa.C.S.[A.]
         § 1798 because [Attorney Trotman] pursued the first-party
         benefits claim on a contingency fee basis[,] and the statute
         precludes an award of attorney’s fees in this context[,] and
         because the trial court otherwise misapplied § 1798 in
         awarding fees on this record, where [Jackson’s] counsel
         pursued the first-party claims for no fee?

      2. Whether the trial court abused its discretion and/or committed
         an error of law in awarding attorney’s fees for time incurred in
         pursuing attorney’s fees because [Jackson] had no material
         interest in the fee litigation?

Brief for Appellant at 4.

      Our review of a trial court’s decision in a non-jury case is as follows:

      [The Court is] limited to a determination of whether the findings
      of the trial court are supported by competent evidence and
      whether the trial court committed error in the application of law.
      Findings of the trial judge in a non-jury case must be given the
      same weight and effect on appeal as a verdict of a jury and will
      not be disturbed on appeal absent error of law or abuse of

                                      -3-
J-S16031-20


      discretion. When this Court reviews the findings of the trial judge,
      the evidence is viewed in the light most favorable to the victorious
      party below and all evidence and proper inferences favorable to
      that party must be taken as true and all unfavorable inferences
      rejected. “With regard to such matters, our scope of review is
      plenary as it is with any review of questions of law.”

Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005) (citations

omitted). “The [trial] court’s findings are especially binding on appeal, where

they are based upon the credibility of the witnesses, unless it appears that the

court abused its discretion[,] or that the court’s findings lack evidentiary

support[,]    or    that     the     court       capriciously   disbelieved      the

evidence.” Id. (citations omitted). “Conclusions of law, however, are not

binding on an appellate court, whose duty it is to determine whether there

was a proper application of law to fact by the lower court.”            Tagliati v.

Nationwide Ins. Co., 720 A.2d 1051, 1053 (Pa. Super. 1998).

      Similarly, “[o]ur standard of review [of an order] denying a motion for

a new trial is to decide whether the trial court committed an error of law which

controlled   the   outcome    of   the    case    or   committed   an    abuse    of

discretion.” Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa. Super. 2005).

      At issue is the trial court’s interpretation and application of a statute, 75

Pa.C.S.A. § 1798(a) and (b). When interpreting legislative enactments, we

are guided by the Statutory Construction Act, which recognizes that “[t]he

object of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a).

“When the words of a statute are clear and free from all ambiguity, the letter

                                         -4-
J-S16031-20


of it is not to be disregarded under the pretext of pursuing its spirit.” Id.

§ 1921(b). Words and phrases within a statute must be “construed according

to rules of grammar and according to their common and approved

usage,” id. § 1903(a), and must be read within the context of the remaining

statutory language. Commonwealth v. Office of Open Records, 103 A.3d

1276, 1285 (Pa. 2014). It is only when the plain language of a statute is

ambiguous that courts may resort to other tools of statutory construction in

order to ascertain the General Assembly’s intent. See 1 Pa.C.S.A. § 1921(c).

Further,

      [w]henever a general provision in a statute shall be in conflict with
      a special provision in the same or another statute, the two shall
      be construed, if possible, so that effect may be given to both. If
      the conflict between the two provisions is irreconcilable, the
      special provisions shall prevail and shall be construed as an
      exception to the general provision, unless the general provision
      shall be enacted later and it shall be the manifest intention of the
      General Assembly that such general provision shall prevail.

Id. § 1933.

      Before addressing USAA’s first claim, we set forth the plain language of

the statute at issue, to assist in understanding USAA’s argument. Section

1798 provides, in relevant part, as follows:

      (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) … 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.

                                       -5-
J-S16031-20



      (b)   Unreasonable refusal to pay benefits.—In the event an
            insurer is found to have acted with no reasonable foundation
            in refusing to pay the benefits enumerated in subsection (a)
            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(a), (b) (emphasis added).

      USAA first claims that the trial court improperly awarded Jackson

attorney’s fees, because Jackson’s counsel pursued the PIP claim on a

contingency fee basis. See Brief for Appellant at 10. USAA disputes the trial

court’s determination that “[Jackson’s] counsel’s disavowment of the

existence of a contingency fee agreement suggests that no fee was

contemplated for securing [Jackson’s] PIP benefits.” Id. at 11 (citation and

internal quotation marks omitted).       USAA directs our attention to the

statement by Attorney Trotman that he would receive no fee if Jackson was

able to secure her PIP benefits without filing a lawsuit. Id. at 12. According

to USAA, Attorney Trotman’s testimony “reflects a contingency fee in its

commonly used meaning.” Id. at 13.

      Additionally,   USAA   argues   that,   pursuant   to   section 1798,   any

reasonable attorney’s fee “is necessarily tied to the amount that counsel

actually charges the claimant in pursuit of first-party benefits.” Id. USAA

posits that subsections (a) and (b) are “inextricably” tied, and that “any award

amount under § 1798(b) is necessarily the same amount that would have

been charged to the claimant under § 1798(a).” Id. at 14. Because Attorney


                                      -6-
J-S16031-20


Trotman’s fee amount under subsection (a) is zero, USSA contends that the

zero-dollar figure must also apply with respect to any fees sought under

subsection (b). Id. at 15.

     Our review of the plain language of section 1798(a) discloses that

subsection (a) refers only to the pursuit of first-party benefits under

subchapter B of the MVFRL and catastrophic loss benefits under subchapter F

of the MVFRL.    75 Pa.C.S.A. § 1798(a).    The parties do not dispute that

Jackson’s PIP claim constituted a claim for the type of benefits contemplated

under subsection (a).   The plain language of subsection (a) provides, in

relevant part, that “[n]o attorney’s fee … shall be calculated, determined or

paid on a contingent fee basis[.]” 75 Pa.C.S.A. § 1798(a). This Court has

defined a “contingent fee” as

     an agreement express, or implied, for legal services ... under
     which compensation, contingent in whole or in part upon the
     successful accomplishment or disposition of the subject matter of
     the agreement, is to be in an amount which either is fixed or is to
     be determined under a formula....

Eckell v. Wilson, 597 A.2d 696, 699 (Pa. Super. 1991).

     By contrast, section 1798(b) expressly provides for the imposition of

attorney’s fees when an insurer has acted unreasonably in refusing to pay the

benefits enumerated in section 1798(a). See 75 Pa.C.S.A. § 1798(b).

     Here, the trial court found that USAA unreasonably refused to pay

Jackson the benefits enumerated under subsection (a).        See Trial Court

Opinion, 10/23/19, at 10.       Therefore, the trial court awarded Jackson


                                    -7-
J-S16031-20


attorney’s fees, as set forth in subsection (b). Id. at 6. In doing so, the trial

court found that Attorney Trotman did not have a contingent fee arrangement

with Jackson. Id. at 8-9. Specifically, the trial court relied upon the testimony

of Attorney Trotman, who stated the following:

      [ATTORNEY] TROTMAN: For the record, we have no contingency
      fee with [] Jackson for this particular first-party benefits matter.
      The goal was to get her medical bills paid, which they have been,
      or they almost are done.

                                *      *      *

      THE COURT: So[,] in the event that you didn’t have to file suit in
      order for [] Jackson’s PIP benefits to be paid, then you would not
      have been compensated for any efforts of your office to obtain her
      first-party benefits, is that correct?

      [ATTORNEY] TROTMAN: Correct, Your Honor.

Trial Court Opinion, 10/23/19, at 8 (quoting N.T., 11/28/18, at 218-19). The

trial court concluded that the arrangement described by Attorney Trotman was

not a contingent fee arrangement, because no fee was contemplated for

securing Jackson’s PIP benefits. See Trial Court Opinion, 10/23/19, at 9.

      Under this definition set forth in Eckell, we discern no error in the trial

court’s determination. Attorney Trotman’s compensation was not contingent

upon the successful accomplishment of the subject matter. Rather, no fee

was contemplated for successfully pursuing Jackson’s PIP claim. Upon the

successful accomplishment of the subject matter, the fee would not be in an

amount “which is either fixed or to be determined under a formula.” Id.




                                      -8-
J-S16031-20


        However, even if an agreement for “no fee” upon the successful

accomplishment       of   the   subject    matter   constituted      a    contingent   fee

arrangement, we conclude that the trial court did not err in awarding

attorney’s fees to Attorney Trotman under subsection (b).                  As the United

States District Court for the Eastern District of Pennsylvania has observed,

“[e]ven    though    75    [Pa.C.S.A.]     §   1798(b)   prohibits       contingency   fee

agreements, nothing in the text of the statute states that an insured forfeits

her right to recover attorney’s fees as a penalty for entering into such an

arrangement.” Platt v. Fireman’s Fund Ins. Co., 2012 U.S. Dist. LEXIS

71000, *29 (E.D. Pa. May 22, 2012). The federal district court’s reasoning is

persuasive, when viewed in light of the plain language of subsections (a) and

(b).2

        Here, the trial court determined that USAA acted unreasonably

in refusing to pay Jackson’s PIP claim, an enumerated benefit in section

1798(a). Trial Court Opinion, 10/23/19, at 10. Pursuant to the plain language

of 75 Pa.C.S.A. § 1798(b), Jackson was entitled to the payment of her

attorney’s fees. See 75 Pa.C.S.A. § 1798(b). Consequently, we cannot grant

USAA relief on this claim.




____________________________________________


2 See Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa. 1999) (recognizing
that the Pennsylvania Supreme Court “is not bound by decisions of the federal
courts inferior to the United States Supreme Court, even though we may look
to them for guidance.”).

                                           -9-
J-S16031-20


      In its second claim, USAA argues that the trial court abused its discretion

by awarding attorney’s fees for the time incurred by Attorney Trotman in

pursuing the attorney’s fees, after the resolution of Jackson’s PIP benefits

claim. Brief for Appellant at 17.   Specifically, USAA disputes the trial court’s

inclusion of the 5.6 hours in fees incurred for the preparation of the Fee

Petition by Attorney Trotman. Id. In particular, USAA distinguishes the case

relied upon by the trial court, Richards v. Ameriprise Fin., Inc., 217 A.3d

854 (Pa. Super. 2019), as that case involved a petition for fees under the

Unfair Trade Practice and Consumer Protection Law (“UTPCPL”).            Brief for

Appellant at 17-18. According to USAA, the Richards case is distinguishable

because the UTPCPL “limits the recovery of fees to actual time spent for

representing a claimant in connection with a claim for first[-]party benefits.”

Id.

      Further, USAA contends that the case upon which the Richards Court

relied, Birth Ctr. v. St. Paul Cos., 727 A.2d 1144 (Pa. Super. 1999), provided

that “fee recovery may include the reasonable fees incurred in preparation

and litigation of the fee petition[,] if the client retains a material interest in

the fee litigation.” Brief for Appellant at 18 (emphasis omitted) (quoting Birth

Ctr., 727 A.2d at 1161).    USAA argues that Jackson had no further material

interest in the fee litigation, as Attorney Trotman had secured the payment of

Jackson’s PIP claim before trial. Id. at 21. Therefore, USAA claims, the award

of attorney’s fees should not have included the time spent solely in pursuit of


                                     - 10 -
J-S16031-20


attorney’s fees, and, at a minimum, should exclude the time expended “from

September 14, 2018, through January 7, 2019, totaling 39.6 hours—exclusive

of the 5.6 hours discussed above and associated with the drafting of the [F]ee

[P]etition.” Id. at 20.

      “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.

Krebs v. United Refining Co. of Pa., 893 A.2d 776, 788 (Pa. Super.

2006) (quoting Krassnoski v. Rosey, 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




                                     - 11 -
J-S16031-20


award of fees for preparing the Fee Petition promotes the specific purposes of

the statute involved. See Krebbs, supra.

      In its Opinion, the trial court explained its award as follows:

             “There is a dearth of Pennsylvania authority addressing the
      propriety of a fee award for hours spent preparing and litigating
      fee petitions.” Richards v. Ameriprise Fin., Inc., [217 A.3d at
      871]. [The] Superior Court acknowledged that “the federal courts
      generally permit such fees, but [that] the hours assigned to that
      task must be reasonable.” Id. “Determining the reasonable
      amount of time to prepare a fee petition is inherently an inexact
      science.” [Id. at 871] (citing Johnson v. G.D.F., Inc., 2014 U.S.
      Dist. LEXIS 14446, *31 (N.D. Ill. 2014)).

             The Fee Petition includes four entries that post-date the
      [t]rial [c]ourt’s Findings of Fact and Conclusions of Law. The four
      entries, one dated December 18, 2019, two dated January 3,
      2019[,] and one dated January 7, 2019[,] are for work related to
      reviewing the [t]rial [c]ourt’s [O]rders and drafting the Fee
      Petition[,] for a total of 5.6 hours.

            The [t]rial [c]ourt ordered [Attorney Trotman] to submit a
      Fee Petition, which included the following time spent after the PIP
      claim was paid:

               0.1 hours reviewing two [t]rial [c]ourt [O]rders;

               1.1 hours drafting the Fee Petition;

               1.3 hours to continue drafting the Fee Petition; [and]

               3.1 hours drafting, reviewing, editing and filing the Fee
                Petition.

             The time [that Attorney Trotman] spent reviewing the [t]rial
      [c]ourt’s [O]rders and drafting the Fee Petition was not excessive
      and was reasonably included in the 139.4 hours awarded. The
      [t]rial [c]ourt awarded reasonable attorney fees based on time
      expended to secure [Jackson’s] PIP claim, which included time
      spent reviewing the [t]rial [c]ourt’s [O]rders and drafting the Fee
      Petition.


                                     - 12 -
J-S16031-20


Trial Court Opinion, 10/23/19, at 13-14. As we discern no abuse of discretion

by the trial court in its calculation and award of attorney’s fees, we cannot

grant USAA relief on this claim.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/20




                                   - 13 -
