J-A06020-20

                                  2020 PA Super 160

    MICHAEL F. SZWERC, M.D.,          :         IN THE SUPERIOR COURT OF
                                      :               PENNSYLVANIA
                    Appellant         :
                                      :
               v.                     :
                                      :
    LEHIGH VALLEY HEALTH NETWORK,     :
    INC. D/B/A LEHIGH VALLEY          :
    NETWORK; LEHIGH VALLEY            :
    HOSPITAL, INC., D/B/A LEHIGH      :
    VALLEY HEALTH NETWORK AND         :
    LEHIGH VALLEY HEART AND LUNG      :
    SURGEONS; LEHIGH VALLEY           :
    PHYSICIAN GROUP, AFFILIATED       :
    WITH THE LEHIGH VALLEY HEALTH     :
    NETWORK D/B/A LEHIGH VALLEY       :
    PHYSICIAN GROUP AND LEHIGH        :
    VALLEY HEART AND LUNG             :
    SURGEONS; SPECIALTY PHYSICIANS :
    OF LVHN, P.C. D/B/A LEHIGH VALLEY :
    HEART AND LUNG SURGEONS;          :
    MICHAEL D. PASQUALE, M.D.;        :
    MICHAEL A. ROSSI, M.D.; AND       :
    THOMAS V. WHALEN, M.D.,           :
                                      :
                    Appellees         :               No. 2500 EDA 2019

                  Appeal from the Order Entered August 5, 2019
                 In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): No. 2014-C-3230


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.:                                     FILED JULY 08, 2020

        Appellant, Michael F. Szwerc, M.D., appeals from the order entered in

the Lehigh County Court of Common Pleas, which denied Appellant’s post-

appeal motion for attorneys’ fees and costs in this breach of employment

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06020-20


contract action against Appellees, Lehigh Valley Health Network, Inc. d/b/a

Lehigh Valley Network; Lehigh Valley Hospital, Inc., d/b/a Lehigh Valley Health

Network and Lehigh Valley Heart and Lung Surgeons; Lehigh Valley Physician

Group, affiliated with the Lehigh Valley Health Network d/b/a Lehigh Valley

Physician Group and Lehigh Valley Heart and Lung Surgeons; Specialty

Physicians of LVHN, P.C. d/b/a Lehigh Valley Heart and Lung Surgeons;

Michael D. Pasquale, M.D.; Michael A. Rossi, M.D.; and Thomas V. Whalen,

M.D. We affirm.

      In its opinion, the trial court accurately sets forth the relevant facts and

procedural history of this case as follows:

         Appellant was employed by Appellees from June 9, 2009,
         until September 12, 2014, at which point his employment
         was terminated. Appellant filed this lawsuit on October 7,
         2014.     After the case proceeded through discovery,
         Appellant filed a Motion for Partial Summary Judgment on
         October 13, 2015. This [c]ourt reviewed that motion and
         entered an Order with an accompanying Memorandum
         Opinion which granted summary judgment in favor of
         Appellant and determined that as a matter of law, Appellees
         breached Appellant’s employment contract.

         The wage loss damages at issue in this case totaled
         $70,590.47. However, because this matter was brought
         under Pennsylvania’s Wage Payment and Collection Law[,
         43 P.S. §§ 260.1-260.12] (“WPCL”), which specifically
         permits the recovery of “reasonable attorneys’ fees of any
         nature to be paid by the defendant,” 43 P.S. § 260.9a(f),
         the [c]ourt also had to assess a reasonable amount of
         attorneys’ fees. Despite the amount in controversy being
         fairly limited, Appellant’s counsel billed for 1,450 hours of
         legal work, resulting in a total sum of $396,058.50.

         The [c]ourt conducted a non-jury trial over the course of
         several non-consecutive days. On January 20, 2017, the

                                      -2-
J-A06020-20


       [c]ourt entered an Order awarding $70,590.47 to Appellant,
       as well as $305,053.07 in attorneys’ fees. In reaching this
       sum, the [c]ourt reviewed hundreds of pages of billing
       statements and deducted charges that were duplicative,
       excessive, unnecessary, or otherwise unrelated to litigating
       the case under the WPCL. Of relevant note, the [c]ourt
       mistakenly directed [Appellee] Lehigh Valley Hospital, Inc.
       to pay the damages.

       Both parties filed Post-Trial Motions on January 30, 2017.
       On February 17, 2017, the [c]ourt entered an Order with a
       Memorandum Opinion. The February 17, 2017 Order denied
       Appellees’ Motion for Post-Trial Relief and for a New Trial.
       The Order granted in part Appellant’s Post Trial Motion and
       amended the amount of legal fees awarded in the January
       20, 2017 Order to $389,584.50.

       On March 20, 2017, Appellees filed a Notice of Appeal.
       Appellant filed a Notice of Appeal on March 30, 2017. Both
       sides timely flied Concise Statements of Matters Complained
       of on Appeal.

       On May 16, 2017, the [c]ourt conducted a settlement
       conference at the request of defense counsel to discuss a
       proposed withdrawal of the parties’ appeals. … During this
       conference, counsel for Appellees also put on the record that
       “one of the reasons for appeal [is] that it’s not [Appellee
       Lehigh Valley Hospital] who is the employer, but it’s
       [Appellee Lehigh Valley Physician Group].” The parties were
       unable to reach an agreement, and the matter proceeded
       on appeal to the Pennsylvania Superior Court.

       On May 26, 2017, the [c]ourt entered its Pa.R.A.P. 1925(a)
       Opinion. In that Opinion, …the [c]ourt explained that
       because it found that the individually-named Appellees
       acted in good faith in their capacity as corporate officers,
       the judgment should not have been entered against them.
       The Opinion went on to state, “For those reasons, the
       [c]ourt’s Order of January 20, 2017 should be remanded in
       order to properly identify Lehigh Valley Physician Group as
       the [Appellee] against which the judgment on the breach of
       contract has been entered.”

       On June 13, 2018, the Pennsylvania Superior Court affirmed

                                   -3-
J-A06020-20


       this [c]ourt’s judgment in all respects, including affirming
       the decision granting summary judgment and affirming the
       orders awarding a reduced amount of attorneys’ fees.
       Szwerc v. Lehigh Valley Hospital et al., [193 A.3d 1073
       (Pa.Super. 2018)] (unpublished memorandum).              The
       Superior Court specifically addressed the request for a
       remand as follows:

          The trial court requests remand for its January 20,
          2017 order to be amended to “properly identify Lehigh
          Valley Physician Group as the [Appellee] against
          which judgment on the breach of contract has been
          entered.” We deem that order so amended by virtue
          of this memorandum.

       Id. at 3 (citation omitted).

       On September 20, 2018, the parties filed a Joint Petition to
       Substitute Judgment consistent with the Superior Court’s
       Order. The [trial c]ourt granted that petition on September
       21, 2018.

       On April 4, 2019, Appellant filed the instant Motion for
       Attorney’s Fees and Costs Incurred in Appeal and Collection
       of Judgment. Appellant is seeking an additional award of
       $156,356.84 in attorneys’ fees and costs stemming from
       pursuing the appeal and collecting on the judgment based
       on Appellant’s assertion that [Appellees] “would not
       voluntarily satisfy the Judgment following its loss at the
       Superior Court level.”

       After corresponding with [c]ourt staff, counsel agreed to
       stipulate to the authenticity—but not legal merit—of
       invoices submitted by Appellant’s counsel for the [c]ourt’s
       consideration.    [On June 10, 2019, Appellant filed a
       supplement to his April 4, 2019 motion, requesting
       additional attorneys’ fees and costs incurred in litigating the
       April 4, 2019 motion for fees]. The [c]ourt heard legal
       argument on June 12, 2019, and took the matter under
       advisement.

       On August 5, 2019, the [c]ourt entered an Order and a
       Memorandum Opinion denying Appellant’s motion.


                                      -4-
J-A06020-20


         Appellant [timely] filed the instant appeal on August 26,
         2019. Appellant timely filed a [court-ordered] Concise
         Statement of Matters Complained of on Appeal pursuant to
         Pa.R.A.P. 1925(b) on September 16, 2019.

(Trial Court Opinion, filed September 23, 2019, at 3-6) (internal citations to

record omitted).

      Appellant raises one issue for our review:

         Did the Trial Court err in denying []Appellant, Michael F.
         Szwerc, M.D.’s, Motion for Attorney’s Fees and Costs
         Incurred in Appeal and Collection of Judgment on the basis
         that such Motion was untimely and/or that the Trial Court
         lacked jurisdiction to consider same?

(Appellant’s Brief at 5).

      Appellant argues the WPCL does not impose a time limitation on an

employee judgment winner’s request for attorneys’ fees and costs. Appellant

avers the trial court incorrectly reasoned his current motion for attorneys’ fees

was untimely, and deprived the court of jurisdiction to consider the motion,

under 42 Pa.C.S.A. § 5505. Appellant submits he could not have filed his

request for counsel fees and costs within 30 days of September 21, 2018 (the

date of the substituted judgment), because in that timeframe, Appellant could

not have known whether Appellees would file a petition for reargument in this

Court, file a petition for allowance of appeal in our Supreme Court, and/or fail

to satisfy the judgment.

      Appellant also claims the cases on which the trial court relied are

factually distinguishable from the instant case because they did not involve

the fee-shifting provision of the WPCL. Rather, Appellant relies on Township


                                      -5-
J-A06020-20


of Millcreek v. Angela Cres Trust of June 25, 1998, 142 A.3d 948

(Pa.Cmwlth. 2016), appeal denied, 641 Pa. 227, 166 A.3d 1236 (2017). In

that case, Appellant maintains the Commonwealth Court held that the Section

5505 time-bar did not apply to render untimely a motion for attorneys’ fees

filed in conjunction with a fee-shifting provision of the Pennsylvania Eminent

Domain Code. Further, Appellant contends the trial court’s reliance on Section

5505 is misplaced because Appellant did not seek attorneys’ fees via a request

to modify any order. Appellant concludes his fee petition was filed in a timely

manner, and this Court should reverse and remand for the trial court to

consider Appellant’s request for attorneys’ fees, costs, and expenses,

including those incurred litigating the current appeal. We disagree.

      Initially, we observe that “[t]rial courts have great latitude and

discretion in awarding attorney fees when authorized by contract or statute.

Generally, [t]he denial of a request for attorneys’ fees is a matter within the

sound discretion of the trial court, which will be reversed on appeal only for a

clear abuse of that discretion.” Generation Mortg. Co. v. Nguyen, 138 A.3d

646, 649 (Pa.Super. 2016) (internal citations omitted). Whether a trial court

had jurisdiction to act on a fee petition, however, is a question of law as to

which our standard of review is de novo and our scope of review is plenary.

Mazur v. Trinity Area School District, 599 Pa. 232, 961 A.2d 96 (2008).

      Section 2503 of the Judicial Code expressly authorizes a litigant’s

entitlement “to a reasonable counsel fee as part of the taxable costs of the


                                     -6-
J-A06020-20


matter” to a participant “in such circumstances as may be specified by statute

heretofore or hereafter enacted.” 42 Pa.C.S.A. § 2503(10). Taxable costs,

such as counsel fees per Section 2503, “are generally payable incident to a

final judgment, i.e., after termination of the action by…final disposition.”

Miller Elec. Co. v. DeWeese, 589 Pa. 167, 175, 907 A.2d 1051, 1056

(2006).

      The WPCL includes a fee-shifting provision regarding awards of counsel

fees and costs, as follows:

          § 260.9a. Civil remedies and penalties

                                   *    *     *

          (f)   The court in any action brought under this section
          shall, in addition to any judgment awarded to the plaintiff or
          plaintiffs, allow costs for reasonable attorneys’ fees of any
          nature to be paid by the defendant.

                                   *    *     *

43 P.S. § 260.9a(f). A successful WPCL claimant is also entitled to attorneys’

fees incurred on appeal. Ambrose v. Citizens Nat. Bank of Evans City, 5

A.3d 413, 424–25 (Pa.Super. 2010), appeal denied, 610 Pa. 582, 19 A.3d

1049 (2011).

      Section 5505 of the Judicial Code sets forth the jurisdictional window of

time in which trial courts retain jurisdiction after entry of a final order:

          § 5505. Modification of orders

          Except as otherwise provided or prescribed by law, a court
          upon notice to the parties may modify or rescind any order
          within 30 days after its entry, notwithstanding the prior

                                       -7-
J-A06020-20


          termination of any term of court, if no appeal from such
          order has been taken or allowed.

42 Pa.C.S.A. § 5505. Pursuant to Section 5505, “[a] trial court’s jurisdiction

generally extends for thirty days after the entry of a final order…. After the

30-day time period, the trial court is divested of jurisdiction.” Freidenbloom

v. Weyant, 814 A.2d 1253, 1255 (Pa.Super. 2003), overruled in part on other

grounds by Miller Elec. Co., supra.      Where the litigant files a motion for

counsel fees under Section 2503 after entry of a final order, Section 5505

requires the litigant to do so within 30 days of the entry of a final order; the

trial court lacks jurisdiction to consider a fee motion filed beyond the 30-day

period.   See Freidenbloom, supra (vacating as nullity trial court order

granting Section 2503 motion for counsel fees filed 36 days after final order).

      Relatedly, Rule of Appellate Procedure 1701 enumerates the actions a

trial court has authority to perform once a litigant initiates an appeal:

          Rule 1701. Effect of Appeal Generally

          (a) General rule. Except as otherwise prescribed by
          these rules, after an appeal is taken…, the trial court…may
          no longer proceed further in the matter.

          (b) Authority of a trial court or agency after appeal.
          After an appeal is taken…, the trial court…may:

          (1) Take such action as may be necessary to preserve the
          status quo, correct formal errors in papers relating to the
          matter, cause the record to be transcribed, approved, filed
          and transmitted, grant leave to appeal in forma pauperis,
          grant supersedeas, and take other action permitted or
          required by these rules or otherwise ancillary to the appeal
          or petition for review proceeding.


                                      -8-
J-A06020-20


Pa.R.A.P. 1701(a), (b)(1). A petition for counsel fees under Section 2503 “is

not a separate suit for fees, but rather, a matter that is connected but ancillary

to the underlying action.” Miller Elec. Co., supra at 176, 907 A.2d at 1057.

“Therefore, if the petition for counsel fees is timely filed, the trial court is

empowered to act on it [under Rule 1701(b)(1)] after an appeal was taken.”

Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 450, 34 A.3d

1, 48 (2011), cert. denied, 567 U.S. 935, 133 S.Ct. 51, 183 L.Ed.2d 677

(2012) (emphasis added).

       In Ness v. York Tp. Bd. Of Com’rs, 123 A.3d 1166 (Pa.Cmwlth. 2015),

the Commonwealth Court considered the interplay of Section 5505 and a fee

petition under Section 2503. The Commonwealth Court explained:1

          The filing of an appeal…does not divest the trial court of
          jurisdiction over…a motion for counsel fees. Because the
          trial court retained jurisdiction over the separate issue of
          counsel fees, [the] filing of [an appeal] did not prevent [the]
          timely filing [of a] request for counsel fees on or before
          [expiration of 30 days from entry of the final order].

                                       *       *   *

          …Miller Electric Co. does not hold that an appeal extends
          the 30–day period after the trial court’s final order in which
          a party must file a motion for counsel fees. In Miller
          Electric Co., the motion for counsel fees was filed before
          the final judgment, and the issue was whether the final
          judgment on other issues prevented a later ruling on the
____________________________________________


1 Although this Court is not bound by decisions of the Commonwealth Court,
“such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010), appeal
denied, 608 Pa. 648, 12 A.3d 371 (2010).

                                           -9-
J-A06020-20


         counsel fee motion and a timely appeal from the denial of
         counsel fees, …not whether a counsel fee motion can be filed
         in a trial court where nothing in the case is pending, long
         after final judgment, simply because it is within 30 days
         after completion of an appeal. …

                                   *     *      *

         Any implication in Miller Electric Co. that a motion for
         counsel fees is not ripe and cannot be filed and granted
         before the completion of appeals is also negated by our
         Supreme Court’s later decisions. In Old Forge School
         District,[ 592 Pa. 307, 924 A.2d 1205 (2007),] the
         Supreme Court held that this [c]ourt as trial court properly
         addressed a motion for counsel fees under 42 Pa.C.S.[A.] §
         2503(9), even though an appeal from the underlying final
         order was pending that could have changed the movant’s
         status as a prevailing party. [Old Forge School Dist.,
         supra at 316-17,] 924 A.2d at 1211. See also Samuel–
         Bassett[, supra at 450-52,] 34 A.3d at 48–49 (trial court
         had authority to award…counsel fees to plaintiffs as
         prevailing parties on statutory claim that provided for
         counsel fees while appeal of the merits was pending).

         Moreover, … [d]elay in filing a motion for counsel fees while
         an underlying appeal is pending denies the trial court the
         opportunity to consider the fee request at a time when the
         court is familiar with the case and issues.           …    [A
         determination otherwise] would permit the filing of a motion
         for counsel fees years after the events and conduct for which
         fees are sought.

Ness, supra at 1170-71 (holding trial court lacked jurisdiction to act on

Township’s petition for sanctions seeking counsel fees under Section 2503,

where Township did not file petition within 30 days of trial court’s final order).

      Instantly, the trial court addressed the timeliness of Appellant’s April 4,

2019 motion for attorneys’ fees in part as follows:

         In this case, the fees at issue stemmed from pursuit of an
         appeal and Appellant’s alleged efforts to collect the

                                       - 10 -
J-A06020-20


       judgment awarded by the [trial c]ourt. Appellant’s motion
       was filed nine months after the Superior Court’s
       [disposition] and six months after the matter was effectively
       resolved [by entry of the substituted judgment].             …
       [A]uthorization for a[n] appellant to recover attorneys’ fees
       incurred in an appeal pursued by the appellant must be
       balanced against the need to bring finality to litigation under
       Section 5505 of the Judicial Code. …

       On September 21, 2018, the Court entered an agreed-upon
       Order directing the Clerk of Judicial Records to substitute
       the judgment entered “against [Appellee] Lehigh Valley
       Hospital to instead be entered against [Appellee] Lehigh
       Valley Physicians Group, Affiliated with the Lehigh Valley
       Health Network, d/b/a Lehigh Valley Physician Group…and
       no longer against [Appellee] Lehigh Valley Hospital, Inc.,
       pursuant to and in accordance with the June 13, 2018
       Memorandum Opinion of the Superior Court….”

       The September 21, 2018 Order went on to direct [Appellee]
       Lehigh Valley Physician Group to “issue payment to
       Appellant in the full amount of $515,527.83 less any
       applicable tax withholdings on the wages awarded, which
       the parties, as evidenced by their signatures below, hereby
       expressly acknowledge and agree represents the total
       Wages, Pre-Judgment and Post-Judgment interest on the
       March 22, 2017 Judgment owed to Appellant.” While the
       language of the Order did not expressly refer to counsel
       fees, the amount of the award clearly included the amount
       of attorneys’ fees awarded by the [c]ourt in this case.

       In his [current] motion for counsel fees, Appellant argued
       that he should be awarded “the attorneys’ fees and costs he
       incurred in protecting his award of unpaid wages at the
       appellate level, in attempting to collect on the Judgment
       which was upheld by the Superior Court, and in
       subsequently presenting and establishing his request for
       fees incurred in connection with same.” While the [c]ourt
       was cognizant of the fact that Section 260.9a of the WPCL
       does not expressly establish a time period within which
       attorneys’ fees must be sought, Section 5505 of the
       Judiciary Code imposes a thirty-day limitation, which also
       divests the court of jurisdiction to act after the expiration of
       that period except to correct patent or obvious errors.

                                   - 11 -
J-A06020-20



         In this case, the Superior Court entered its decision on June
         13, 2018. As noted above, the Superior Court did not
         remand the case as this [c]ourt requested…. Rather, the
         Superior Court exercised its authority to simply amend this
         [c]ourt’s Order without the need to go through a remand in
         order for this [c]ourt to make the correction. Szwerc[,
         supra 193 A.3d 1073, *1] ([stating:] “The trial court
         requests remand for its January 20, 2017 order to be
         amended to ‘properly identify Lehigh Valley Physician Group
         as the [Appellee] against which judgment on the breach of
         contract has been entered.’       We deem that order so
         amended by virtue of this memorandum”). Therefore, as of
         June 13, 2018, the judgment was corrected to be entered
         against [Appellee] Lehigh Valley Physician Group.

         When the parties stipulated to the entry of an order in
         September of 2018 which included attorneys’ fees, and
         there was not any further appeal or relief sought within
         thirty days, the [trial c]ourt was divested of jurisdiction to
         act further in this matter. … If Appellant wished to pursue
         a claim for attorneys’ fees stemming from the litigation or
         any dispute resolving collection of the judgment pursuant to
         the WPCL, he could have raised that claim within that time
         period. Instead, he waited over six months to file the
         instant motion. The [c]ourt no longer had jurisdiction to
         entertain Appellant’s request.

(Trial Court Opinion at 9-12) (internal citations, emphasis, and footnotes

omitted). We agree with the trial court’s conclusion.

      Regardless of whether June 13, 2018, or September 21, 2018,

constitutes the date of entry of the “final order” on the merits in the underlying

WPCL action, Appellant failed to file a motion for attorneys’ fees within 30 days

of either date. Instead, Appellant filed the current request for fees on April 4,

2019, ten months after this Court’s June 13, 2018 disposition and nearly six

months after the trial court’s September 21, 2018 substituted judgment.


                                     - 12 -
J-A06020-20


Although Appellant claims that Section 5505 of the Judicial Code does not

apply in this case, Pennsylvania law has repeatedly applied the 30-day time

restriction under Section 5505 to requests for attorneys’ fees under Section

2503. See Samuel-Bassett, supra; Old Forge School Dist., supra; Miller

Elec. Co., supra.

       Both Judicial Code Section 5505 and Rule of Appellate Procedure 1701

deprived the trial court of jurisdiction to consider Appellant’s fee motion,

arguably, 30 days after June 13, 2018, and definitively 30 days after

September 21, 2018.          See Samuel-Bassett, supra; Old Forge School

Dist., supra; Miller Elec. Co., supra; Freidenbloom, supra. That either

party could have appealed from either the June 13, 2018 disposition or

September 21, 2018 substituted judgment did not impede Appellant’s ability

to file and the trial court’s authority to consider a timely motion for attorneys’

fees.2 See Samuel-Bassett, supra; Old Forge School Dist., supra; Ness,

____________________________________________


2 Appellant’s reliance on Township of Millcreek, supra is inapposite. In that
case, the Commonwealth Court relied upon the specific language in the
Eminent Domain Code to conclude that fee requests under that statute are
not subject to the 30-day period under Section 5505. In making its decision,
the Commonwealth Court explained, inter alia, the Eminent Domain Code is
the “complete and exclusive procedure and law to be followed in condemnation
proceedings.” Id. at 955. Thus, Section 5505, which applies “except as
otherwise provided or prescribed by law,” could not restrict a condemnee’s
request for fees incurred in defeating the condemnation, where the Eminent
Domain Code provided no specific time limit regarding fee requests. Id. The
Commonwealth Court further noted the lack of symmetry between the Judicial
Code and the Eminent Domain Code, which “makes Section 5505 of the
Judicial Code irrelevant to fee petitions filed under the Eminent Domain Code.”



                                          - 13 -
J-A06020-20


supra.

       Furthermore, judicial policy requires finality in proceedings and cannot

permit a litigant to prolong the case indefinitely by filing a motion for

attorneys’ fees at any time. See Ness, supra. Based upon the foregoing,

the trial court correctly concluded it lacked jurisdiction to consider Appellant’s

untimely motion for attorneys’ fees. See Generation Mortg. Co., supra.

Accordingly, we affirm.3

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




____________________________________________


Id. at 955-56. Here, the WPCL does not contain similar statutory language
to the Eminent Domain Code, or a similar lack of symmetry to the Judicial
Code, to bar application of Section 5505.

3 Based on our disposition, we deny as moot Appellant’s request for remand
for the trial court to consider Appellant’s request for attorneys’ fees, costs,
and expenses, including those incurred litigating the current appeal.

                                          - 14 -
