J-S31004-18


                                  2018 PA Super 226

    JOHN KESSOCK, JR.                            :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    CONESTOGA TITLE INSURANCE CO.                :
                                                 :
                                                 :   No. 3737 EDA 2017
                v.                               :
                                                 :
                                                 :
    DELANCEY ABSTRACT CORP.,                     :
    JOSEPH HOPKINS, LAW OFFICES OF               :
    HOPKINS AND SCHAFKOPF, LLC,                  :
    SECURITY SEARCH AND ABSTRACT                 :
    CO., INC.                                    :
                                                 :
                                                 :
    APPEAL OF: JOSEPH HOPKINS AND                :
    DELANCEY ABSTRACT CORP.                      :

             Appeal from the Judgment Entered October 12, 2017
     In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): No. 2008-17607


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

OPINION BY SHOGAN, J.:                                    FILED AUGUST 09, 2018

       Joseph    Hopkins     (“Hopkins”)       and   Delancey   Abstract   Corporation

(“Delancey”) (collectively, “Appellants”) appeal the judgment entered against

them.1 We affirm.

____________________________________________


1  Appellants purport to appeal the order denying their motion for post-trial
relief; however, their appeal properly lies from the judgment entered on
October 12, 2017. Tincher v. Omega Flex, Inc., 180 A.3d 386, 396 n.7 (Pa.
Super. 2018). We have amended the caption accordingly.
J-S31004-18


     The trial court entered the following findings of fact:

     1.   This lawsuit arises from a dispute concerning real property
     purchased by Plaintiff [John Kessock, Jr.] on or about April 18,
     2005, with a physical address of 1333 Beaumont Drive, Gladwyne,
     PA 19035 (hereinafter, the “Subject Property”).

     2.    Defendant Conestoga was the title insurance underwriter for
     the Subject Property.

     3.    Plaintiff’s claim stems from a breach of Conestoga’s
     obligations to disclose an easement, as part of its title agency
     services, when Plaintiff purchased the Subject Property.

     4.   The recorded easement was discovered by Plaintiff after the
     completion of the sale of the Subject Property.

     5.   Thereafter, Plaintiff made a title insurance claim with
     Conestoga, alleging his claim was worth in excess of $1,000,000.
     Conestoga denied the insurance claim.

     6.   Additional Defendant Delancey, a now non-operating
     Pennsylvania corporate entity, was a title insurance broker.

     7.    Delancey was the title agent who conducted the closing for
     the Subject Property.

     8.     Additional Defendant Hopkins was the principal of Delancey.

     9.     Security Search and Abstract Company, Inc. (“Security
     Abstract”) was the agent hired by Delancey to actually conduct
     the title search for the Subject Property.

     10. Additional Defendant Hopkins and Schafkopf is a law firm
     which provided no services related to this case even though
     Hopkins’ name appears in the firm’s name.

     11. On April 21, 2004, Conestoga entered into an agency
     agreement with Delancey (the “Agency Agreement”).

     12.    Paragraph 5 of the Agency Agreement provides:

          Agent agrees to be solely liable and indemnify Conestoga
          for all attorneys’ fees, court costs, expenses and loss or

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        aggregate of losses resulting from shortages in its escrow
        accounts, fraud, negligence or misconduct of its agents, its
        officers, or employees in the issuance of title insurance.
        Agent agrees that Conestoga shall have full control of the
        determination, procedure and final decision of all losses
        including the defense thereof. Conestoga agrees to consult
        with Agent prior to making any final decision on losses on
        policies issued by Agent.

     13. The Agency Agreement was executed under seal by Hopkins
     on behalf of Delancey.

     14. Also on April 21, 2004, Hopkins executed a “Guaranty of
     Payment and Performance” in which Hopkins personally
     guaranteed Delancey’s performance of the Agency Agreement,
     including “indemnifications and claims of loss as set forth in the
     Agency Agreement (the “Guaranty”).

     15. The Guaranty was not executed under seal by Hopkins.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 2–3.

     The trial court summarized the procedural history of this case as follows:

            On December 16, 2008 Plaintiff John Kessock, Jr.
     (“Plaintiff”) commenced this action by filing a Complaint against
     Conestoga Title Insurance Co. (“Conestoga”) and Security
     Abstract. On June 12, 2009, an Amended Complaint was filed.
     Pursuant to an Order dated January 19, 2010, Security Abstract’s
     Preliminary Objections were sustained, and it was dismissed as a
     party. Conestoga filed a motion to join Delancey, Hopkins, and the
     Law Offices of Hopkins & Schafkopf, LLC (“Hopkins & Schafkopf”)
     as additional defendants on May 19, 2011. That motion was
     granted on June 5, 2012, entered of record on June 6, 2012.

            On November 9, 2016, a two-day non-jury trial on liability
     was conducted. In an Order dated November 18, 2016, upon
     consideration of the evidence presented, and after granting
     Plaintiff’s Motion for Partial Directed Verdict, this [c]ourt ultimately
     found in favor of Conestoga and against Plaintiff. Further, on the
     crossclaims asserted by Conestoga against Appellants and
     Hopkins & Schafkopf, the [c]ourt found in favor of Conestoga and
     against Delancey and Hopkins only on its claim for attorney’s fees


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J-S31004-18


       and costs. A compulsory nonsuit/directed verdict was granted to
       Hopkins & Schafkopf.

             An additional two-day non-jury trial on damages was
       conducted beginning on May 1, 2017 on the singular issue of the
       assessment of attorney’s fees. On August 17, 2017 this [c]ourt
       issued its decision with seventeen pages of findings of fact and
       conclusions of law. On October 12, 2017, this [c]ourt denied
       Appellant[s’] motion for post-trial relief.

             On October 17, 2017 Appellants filed a Notice of Appeal to
       this [c]ourt’s October 12, 2017 Order denying Appellant[s’]
       motion for post-trial relief.[2] On November 6, 2017, pursuant to
       Pennsylvania Rule of Appellate Procedure 1925(b), this [c]ourt
       Ordered Appellants to file a concise statement of errors
       complained of on appeal within 21 days.

             Appellants filed their Concise Statement of Matters
       Complained of on Appeal on November 27, 2017. In their Concise
       Statement, Appellants claim, in more specific detail, that the trial
       court erred in: (1) allowing the joinder of [A]ppellants, (2) not
       finding in favor of Appellants, and (3) the [c]ourt’s calculation of
       attorney’s fees.

Trial Court Opinion, 12/1/17, at 1–2.

       On appeal, Appellants present the following questions for our review:

       A.   Appellee Conestoga Title Insurance Company filed two
            successive motions to join Appellants Joseph Hopkins and
            Delancey Abstract Corporation as additional defendants, filed
            431 days and 1,270 days after the joinder period of Pa.R.C.P.
            No. 2253 expired.       And Conestoga’s attorneys falsely
            represented to the Trial Court in both motions that they had
            just discovered Hopkins’ and Delancey’s potential liability.
            Did the Trial Court abuse its discretion in granting the joinder
            motions?

       B.   Appellant Joseph Hopkins gave a contract-based personal
            guaranty that Delancey Abstract Corporation would perform
            its Agency Agreement with Conestoga and would indemnify
____________________________________________


2   As explained in note 1, the appeal is properly from the entry of judgment.

                                           -4-
J-S31004-18


           Conestoga for attorneys’ fees if Delancey was negligent in
           issuing title insurance on Conestoga’s behalf. Conestoga did
           not file its complaint against Hopkins alleging breach of the
           guaranty until five years after it learned of its contractual
           claim against Hopkins[.] Did the Trial Court err in concluding
           that Conestoga’s claims against Hopkins were not barred by
           the statute of limitations?

      C.   Did the Trial Court err in refusing to reduce the attorneys’
           fees chargeable to Hopkins and Delancey as unreasonable for
           any or all of the following reasons:

            a.   Conestoga litigated for eight years without ever
                 ascertaining the amount of money in dispute;

            b.   Conestoga denied liability and the existence of a
                 contractual relationship between Plaintiff John
                 Kessock and Conestoga for eight years of
                 litigation, only to admit contractual liability at
                 trial;

            c.   The time entries of the attorneys admitted into
                 evidence were recorded recollections requiring
                 the testimony of the declarant at trial, but two of
                 the three attorneys did not testify at trial;

            d.   Delancey did not agree to indemnify Conestoga
                 for attorneys’ fees related to enforcing the
                 Agency Agreement, yet the judgment requires
                 Hopkins and Delancey to indemnify Conestoga for
                 those charges; and

            e.   Attorney Mark Clemm charged $175 per hour for
                 his daughter’s time before she was admitted to
                 practice law in Pennsylvania, which is the same
                 rate charged after her admission to practice?

Appellants’ Brief at 3–4.

      Appellants first complain that the trial court abused its discretion by

granting Conestoga’s untimely motions to join Appellants as additional




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J-S31004-18


defendants. Appellants’ Brief at 14. We have explained the joinder procedure

as follows:

             The Pennsylvania Rules of Civil Procedure provide that a writ
      for joinder shall be filed by the original defendant or an additional
      defendant no later than sixty (60) days after effecting service
      upon the original defendant of the initial pleading of the plaintiff
      or any amendment thereof “unless such filing is allowed by the
      court upon cause shown.” Pa.R.C.P. 2253, Time for Filing
      Praecipe or Complaint. Whether there is sufficient cause to
      allow late joinder of an additional defendant is a matter within the
      sound discretion of the trial court. Mutual Industries, Inc. v.
      Weinberg, 423 Pa.Super. 328, 621 A.2d 140, 143 (1993).
      Nevertheless, the court “should be guided by the objectives
      sought to be achieved by use of the additional defendant
      procedure.” Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d
      638, 641 (1970). Joinder should be granted when it can “simplify
      and expedite the disposition of matters involving numerous
      parties without subjecting the original plaintiff to unreasonable
      delay in the prosecution of his portion of the litigation.” Id.
      (citations omitted).

            When requesting the belated joinder of an additional
      defendant, a party must show (1) that joinder is based on proper
      grounds, (2) that some reasonable excuse exists for the delay in
      commencing joinder proceedings, and (3) that the original plaintiff
      will not be prejudiced by the late joinder. Francisco v. Ford
      Motor Co., 406 Pa.Super. 144, 593 A.2d 1277, 1278 (1991). This
      Court has also considered the potential for prejudice to the
      proposed additional defendant. Prime Properties Development
      Corp. v. Binns, 397 Pa.Super. 492, 580 A.2d 405 (1990).
      However, limitations on joinder are primarily intended to protect
      a plaintiff from being unduly delayed in prosecuting his action.
      See Zakian, 438 Pa. at 256, 264 A.2d at 641[.]

Lawrence v. Meeker, 717 A.2d 1046, 1048–1049 (Pa. Super. 1998) (some

internal citations omitted).   “The rule permitting the joinder of additional

defendants is to be broadly construed to effectuate its purpose of avoiding

multiple lawsuits by settling in one action all claims arising out of the


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J-S31004-18


transaction or occurrence which gave rise to the plaintiff’s complaint.” 202

Island Car Wash, L.P. v. Monridge Const., Inc., 913 A.2d 922, 926 (Pa.

Super. 2006) (quoting Svetz for Svetz v. Land Tool Co., 513 A.2d 403, 405

(Pa. Super. 1986) (citation omitted)).

      According to Appellants, Conestoga filed its first joinder motion sixteen

months after the ninety-day joinder period had closed; it offered no credible

justification for the delay in filing the motion; and it misrepresented when

Conestoga knew of Appellants’ liability under the Agency Agreement and

Guaranty.   Appellants’ Brief at 19.     Furthermore, Appellants contend that

Conestoga filed its second joinder motion three and one-half years after the

joinder period had closed; it offered no credible justification for the delay in

filing the motion; and it again misrepresented when Conestoga knew of

Appellants’ liability. Id. at 20–21.

      In response, Conestoga argues that only the plaintiff in the underlying

action, John Kessock, Jr. (“Kessock”), could object to a late joinder on the

ground that Conestoga failed to provide a reasonable excuse for its delay.

Conestoga’s Brief at 10 (citing Pa.R.C.P. 2253(b)). According to Conestoga,

although Kessock objected to the first and second proposed joinder complaints

due to the lack of reasonable delay, he did not file a post-trial motion or appeal

the joinder of Appellants.     Id. at 13–17.     As for Appellants, Conestoga

recognizes that they could object to joinder on grounds of prejudice. Id. at

10. Conestoga points out, however, that although Appellants objected to the


                                       -7-
J-S31004-18


first joinder motion, they did not object to the second joinder motion;

moreover, Appellants “have neither pled nor proven any aspect of legal

prejudice, such as the loss of witnesses, the loss of documents, etc.” Id. at

17. Conestoga explains it could have filed a separate action against Appellants

and moved for consolidation of the cases, but that “would have been a waste

of judicial time and effort, as the same result would have been accomplished

by simply joining [Appellants].” Id. Conestoga concludes that the trial court

properly allowed joinder for “purposes of judicial economy.” Id. at 18.

      The trial court entered the following findings of fact relevant to

Conestoga’s joinder motions:

      19. Conestoga’s first attorney, David Henry, filed a motion to join
          Delancey, Hopkins, and Hopkins & Schafkopf as additional
          defendants on May 19, 2011.

      20. That motion was granted on June 5, 2012, entered of record
          on June 6, 2012.

                                    * * *

      24. On November 15, 2012, the [c]ourt . . . provided that
          Conestoga shall have 30 days from the date of notice of that
          Order to file a Third Party Complaint to join Additional
          Defendants. The [c]ourt also noted in its Order that the Order
          shall be served upon Conestoga’s attorney of record, David
          Henry, Esquire, at his address currently reflected on the
          docket, 444 N. 4th Street, Suite 101, Philadelphia, PA 19122,
          and at the address reflected in the Certificate of Service of
          the second Motion for Reconsideration, 20 N. 3rd Street Suite
          301-B, Philadelphia, PA 19106.

      25. This docket reflects that attempted service of the [c]ourt’s
          November 15, 2012 Order upon Conestoga’s prior attorney,
          David Henry, Esquire, at the two above addresses were


                                     -8-
J-S31004-18


          returned as undeliverable and provided no forwarding
          information.

      26. Concomitantly with the [c]ourt’s unsuccessful attempts at
          serving notice of the [c]ourt’s Orders upon defendant
          Conestoga’s prior attorney, David Henry, Esquire, he became
          unreachable to Conestoga and ceased communication with
          Conestoga.

      27. Conestoga retained Attorney Mark Clemm, Esquire (“Mr.
          Clemm”) and his firm sometime in late 2012 or early 2013.
          Mr. Clemm’s first entry in this case was March 25, 2013.

      28. Conestoga was unaware of the [c]ourt’s November 15, 2012
          Order granting Conestoga 30 days from the date of notice of
          that Order to file a Third Party Complaint to join Additional
          Defendants, until approximately April 2013 after Conestoga
          retained Mr. Clemm who had reviewed the docket and
          discovered the [c]ourt’s November 15, 2012 Order.

      29. On August 2, 2013, Conestoga filed a motion to join Additional
          Defendants Delancey, Hopkins . . . “nunc pro tunc.”

      30. Based on the foregoing, on December 11, 203, this [c]ourt
          granted Conestoga’s Motion for Leave to Join Additional
          Defendants nunc pro tunc.

      31. On December 17, 2013, Conestoga filed its Joinder Complaint.

      32. Neither Delancey nor Hopkins filed Preliminary Objections to
          their joinder.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 3–5. As

evidenced by its order allowing joinder, the trial court accepted Conestoga’s

justification for the untimely motions, although the trial court did not provide

any conclusions of law. Decision with Findings of Fact and Conclusions of Law,

8/17/17, at 11–17.




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      Pursuant to Pa.R.C.P. 2252(a)(4), joinder is permissible if the additional

defendant may be liable to the joining party on any cause of action arising out

of the transaction upon which the plaintiff’s cause of action is based. Here,

Kessock’s cause of action against Conestoga arose out of the omission of an

easement from the title search. Conestoga sought joinder of Appellants based

on Appellants’ liability for the overlooked easement pursuant to the Agency

Agreement and the Guaranty. Joinder Complaint, 12/17/13, at ¶¶ 14–20;

Counts I, II, and III. We conclude, therefore, that Conestoga’s joinder request

was appropriate.

      Conestoga justifies its delay in filing the joinder motions as the result of

not knowing that Kessock “had a direct claim against [Appellants] until

Conestoga discovered the relationship between Hopkins and Kessock and that

Hopkins provided legal advice as well as title services (through Delancey) to

[Kessock].”    Conestoga’s Brief at 12.    Conestoga also cites its inability to

contact counsel, Attorney David Henry, as a cause of the delay in filing the

joinder complaint. Id. at 13. In contrast, Appellants assert that Conestoga

did not have a reasonable excuse for the delayed joinder because it knew at

the beginning of the underlying litigation—if not before—that Appellants faced

potential liability under the Agency Agreement and the Guaranty. Appellants’

Brief at 19.   In support of their position, Appellants direct us to several

instances in the record demonstrating Conestoga’s knowledge of Appellants’

potential liability. Id. at 21–23.


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      Upon review, we find support in the record for the trial court’s credibility

determination that Attorney Henry’s unreachability provided an excuse for

Conestoga’s untimely filing of the second joinder motion in August of 2013.

Attorney Henry became unreachable after the November 15, 2012 order

directing Conestoga to file a joinder complaint. N.T., 5/1/17, at 76, 93–94.

Consequently, the court-approved joinder complaint was not filed until new

counsel, Attorney Mark Clemm, renewed the joinder motion in August of 2013.

      Conversely, we do not find support in the record for the trial court’s

credibility determination that Conestoga provided a reasonable excuse for its

delay in filing the first joinder motion in May of 2011. Rather, the record

supports Appellants’ claim that Conestoga knew of Appellants’ potential

liability under the Agency Agreement and the Guaranty prior to receiving

complete discovery responses from Kessock. Indeed, the trial court found—

and our review of the record confirms—that Conestoga and Delancey executed

the Agency Agreement on April 21, 2004; therein, Delancey obligated itself to

reimburse Conestoga for damages, attorney’s fees, and costs arising out of

Delancey’s negligence. On the same date, Conestoga and Hopkins executed

the   Guaranty,   in   which   Hopkins    personally    guaranteed    Delancey’s

performance of the Agency Agreement. Decision with Findings of Fact and

Conclusions of Law, 8/17/17, at ¶¶ 11–15, 77. When Kessock filed his lawsuit

on December 16, 2008, therefore, Conestoga knew that Appellants could be

liable to Conestoga for attorney’s fees and damages depending upon the


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J-S31004-18


outcome of Kessock’s litigation. Thus, we conclude that Conestoga filed its

first joinder motion out of time and lacked a reasonable excuse for the delay.

      Nevertheless, we discern no prejudice resulting from the trial court’s

grant of Conestoga’s late joinder motions. The record reveals that, although

Kessock objected to Conestoga’s untimely joinder motions, it did not challenge

the joinder in post-trial motions or an appeal. As for Appellants, they have

not argued in this Court, let alone demonstrated, how Conestoga’s untimely

motions caused them prejudice.

      Moreover, in Pennsylvania, “[i]t is well established that before

indemnification rights accrue, the party seeking indemnification must pay the

claim or verdict damages before obtaining any rights to pursue an

indemnification recovery.” Chester Carriers, Inc. v. Nat’l Union Fire Ins.

Co. of Pittsburgh, 767 A.2d 555, 563 (Pa. Super. 2001) (quoting Beary v.

Container General Corp., 4, 193 (Pa. Super. 1989)).           See also F.J.

Schindler Equipment Company v. Raymond Company, 418 A.2d 533,

534 (Pa. Super. 1980) (“It is clear that before the right of indemnification

arises, the indemnitor must in fact pay damages to a third party. Any action

for indemnification before such payment ... is premature.”).    Procedurally,

when Conestoga moved to join Appellants in May of 2011 and August of 2013,

it had not paid any damages to Kessock; therefore, the statute of limitations

on its potential claims against Appellants for indemnity on damages paid to a

third party had not started to run, let alone expire. F.J. Schindler, 418 A.2d


                                    - 12 -
J-S31004-18


at 534. Consequently, the timing of the joinder motions did not delay any

litigation arising out of the indemnification provisions of the Agency

Agreement and the Guaranty. Based on the foregoing, we conclude that the

trial court did not abuse its discretion in allowing the late joinder of Appellants.

       In their second issue, Appellants argue that the four-year statute of

limitations set forth in 42 Pa.C.S. § 5525(a) barred Conestoga’s claim against

Hopkins.3 Appellants’ Brief at 25. According to Appellants:

       Hopkins’ duty to guaranty Delancey’s performance of the Agency
       Agreement does not arise under common law. Rather, Hopkins’
____________________________________________


3  Appellants do not challenge the timeliness of Conestoga’s claim against
Delancey, nor could they. Based on its findings of fact, which are supported
by the record, the trial court concluded—and we agree—that Conestoga filed
its joinder complaint against Delancey within the relevant limitations period:

       11. On April 21, 2004, Conestoga entered into an agency
           agreement with Delancey (the “Agency Agreement”).

                                               * * *

       13. The Agency Agreement was executed under seal by Hopkins
           on behalf of Delancey.

                                               * * *

       85. The statute of limitations for a written contract signed under
           seal is twenty years. Osprey Portfolio, LLC v. Izett, 32 A.3d
           793 (Pa. Super. 2011).

                                               * * *

       87. Therefore, the cross-claim brought by Conestoga against
           Delancey was clearly within the 20-year statute of limitations.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 2–3, 12–
13.

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J-S31004-18


     duty to indemnify Conestoga for its attorneys’ fees can arise only
     under his contractual promise to “guaranty the full performance
     of the Agency Agreement by the Agent”.

                                     * * *

     Logically, for Conestoga to assert a right to indemnity from
     Hopkins under the Guaranty, Conestoga must assert a claim
     against Delancey for breach of the Agency Agreement—that is all
     that Mr. Hopkins guaranteed. Thus, as a matter of law, Conestoga
     was required to file its complaint against Mr. Hopkins personally
     for breach of the Guaranty by December 16, 2012—four years
     after Kessock served his complaint on Conestoga and Conestoga
     admits to knowing the identity of Delancey as the agent in that
     transaction.

Appellants’ Brief at 26–27 (citation to Reproduced Record and footnote

omitted).

     Conestoga does not challenge the application of a four-year statute of

limitations; it challenges when the statute began to run.             Specifically,

Conestoga argues that its claim against Appellants ripened—and the statute

began to run—on November 10, 2016, when the trial court determined in

Conestoga’s cross-claim action that “Delancey was negligent in the issuance

of title insurance.” Conestoga’s Brief at 19. Thus, in Conestoga’s view, its

December 17, 2013 joinder complaint against Appellants was filed within the

statute. We agree.

     The applicability of a statute of limitations is a question of law; therefore,

our scope of review is plenary, and our standard of review is de novo. Ash v.

Continental Ins. Co., 932 A.2d 877, 879 (Pa. 2007).            “The trial court’s

determination will not be disturbed absent an abuse of [its] discretion.” Id.


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“Pennsylvania favors strict application of the statutes of limitation.”

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. 2007)

(citation omitted). “Lack of knowledge, mistake or misunderstanding, will not

toll the running of the statute.” Id. at 572 (citation omitted). A statute of

limitations begins to run “from the time the cause of action accrued.”        42

Pa.C.S. § 5502(a). “In a contract case, a cause of action accrues when ‘there

is an existing right to sue forthwith on the breach of contract.’” Leedom v.

Spano, 647 A.2d 221, 226 (Pa. Super. 1994) (quoting Thorpe v.

Schoenbrun, 195 A.2d 870, 872 (Pa. Super. 1963), and citing 51 Am.Jur.2d,

Limitation of Actions § 107 (cause of action accrues the moment the right to

commence an action comes into existence)).

      According to the trial court, Hopkins executed the Guaranty on April 21,

2004, “in which Hopkins personally guaranteed Delancey’s performance of the

Agency Agreement,” and “[t]he Guaranty was not executed under seal.”

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 14, 15.

On May 10, 2005, Security Abstract received a search order from Delancey to

perform a title search of the Subject Property and negligently failed to disclose

a driveway easement. Id. at ¶ 38. On June 30, 2005, Delancey, as an agent

of Conestoga, prepared a title insurance commitment regarding the Subject

Property for $1,799,000. Id. at ¶ 39. Conestoga underwrote a title insurance

policy to Kessock for the Subject Property on July 12, 2005.       Id. at ¶ 40.

Kessock learned about the undisclosed easement in November of 2005, and


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he filed suit against Conestoga and Security Abstract on December 16, 2008.

Id. at ¶¶ 16, 41. Our review of the record confirms the trial court’s findings.

N.T., 11/9/16, at 22, 56, 121–123, 127–130, Exhibits P-9, P-10, P-12, P-13,

D-7.

       Based on its findings of fact, the trial court entered the following relevant

conclusions of law regarding when Conestoga’s cause of action against

Hopkins arose:

       84. The statute of limitations for a written contract not signed
           under seal is four years. Packer Soc. Hill Travel Agency, Inc.
           v. Presbyterian University of Pennsylvania Medical Center,
           635 A.2d 649 (Pa. Super. 1993).

                                      * * *

       88. The Guaranty, however, was not signed under seal and is
           therefore subject to the four-year statute of limitations.

       89. In Leedom v. Spano, the Superior Court provided guidance
           on when a cause of action against a guarantor accrues.
           Leedom v. Spano, 647 A.2d 221, 225 (Pa. Super. 2016). In
           Leedom, a mortgagor defaulted on a mortgage note to which
           a third party acted as surety. Id. The Superior Court noted
           that upon default on a mortgage note by the principal “both
           the principal and the surety become liable on the original
           undertaking.” Based on that fact, the Court held that the
           statute of limitations began to run against both the principal
           and the surety at the time of the mortgagor’s default. Id.
           Thus, according to Leedom, a cause of action begins to run
           against a surety at the same time the cause of action begins
           to run against the principal. Therefore, to determine when
           the statute of limitations began to run against Hopkins under
           the Guaranty, we must first determine when the statute of
           limitations began to run against Delancey under the Agency
           Agreement.

       90. The Agency Agreement provided that Delancey would “be
           solely liable and indemnify Conestoga for all attorney’s

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          fees…resulting from…fraud, negligence or misconduct of its
          agents, its officers, or employees in the issuance of title
          insurance.” Claims for indemnification arise only when the
          party seeking indemnity has made payment on the underlying
          claim. McClure v. Deerland Corp., 585 A.2d 19, 22 (Pa.
          Super. 1991). “The right of indemnity rests upon a difference
          between the primary and secondary liability of two persons
          each of whom is made responsible by the law to an injured
          party.” F.J. Schindler Equip. Co. v. Raymond Co., 418 A.2d
          533, 533 (Pa. Super. 1980)(citing Builder’s Supply Co. v.
          McCabe, 77 A.2d 362, 370 (Pa. 1951)[)]. Any action for
          indemnification before payment of damages to a third party
          is premature. Id. See also Beary v. Container Gen. Corp.,
          568 A.2d 190, 193 (Pa. Super. 1989)(“It is well established
          that before indemnification rights accrue, the party seeking
          indemnification must pay the claim or verdict damages before
          obtaining any rights to pursue an indemnification[.]).

     91. At the earliest, the cause of action for indemnification as set
         forth in the Agency Agreement did not accrue until the [trial
         c]ourt determined that Delancey was negligent in its issuance
         of title insurance and also determined the amount of damages
         or loss for which Conestoga was liable to Kessock. Under the
         Leedom decision, the cause of action against Hopkins did not
         accrue until that time as well.

     92. The [trial c]ourt did not make its determination on liability
         until it granted [Kessock’s] Motion for a Partial Directed
         Verdict on November 10, 2016, finding that Delancey was
         negligent in the issuance of title insurance. Therefore, since
         a claim for indemnification arises only after verdict damages
         have been established, the statute of limitations on the claims
         against Hopkins begin to run no earlier than November 10,
         2016.

     93. Accordingly, Conestoga’s claims against Hopkins were
         brought well within the four-year statute of limitations.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 12–14.

     We have explained that a cause of action against a surety begins to run

at the same time the cause of action begins to run against the principal.


                                   - 17 -
J-S31004-18


Leedom, 647 A.2d at 225.        Accordingly, we agree with the trial court’s

conclusion that Conestoga’s cause of action against Hopkins arose at the same

time its cause of action against Delancey arose. Decision with Findings of Fact

and Conclusions of Law, 8/17/17, at ¶ 89. Therefore, as recognized by the

trial court, the determining factor is when Conestoga’s cause of action against

Delancey arose. Id.

      Preliminarily, we note there are two types of indemnity:

      [I]ndemnity claims by a plaintiff against a defendant, where both
      owe a duty to a third party, are “legitimate” indemnity claims and
      are new, separate claims for statute of limitations purposes and
      accrue when the loss occurs. However, indemnity claims by a
      plaintiff against a defendant based only on the defendant’s alleged
      breach of a contractual duty owed to the plaintiff, where the
      defendant owes no duty to a third party, are no different from
      breach of contract claims in which the plaintiff’s payments to the
      third party are the contract damages, and therefore, the ordinary
      contractual statute of limitations applies, and the claims accrue at
      breach, not at the time of payment.

R. Gottlieb and B. Natarelli, Ace in the Hole: Developments Since Ace

Securities in Residential Mortgage-backed Securities Litigation, 72 Bus. Law.

585 (Spring 2017) (citation omitted).

      The case at hand involves the second type of indemnification, i.e.,

Conestoga sought reimbursement from Delancey based only on Delancey’s

obligations to Conestoga under the Agency Agreement. Decision with Findings

of Fact and Conclusions of Law, 8/17/17, at ¶ 90. In Conestoga’s words, “The

applicable Agency Agreement constituted a binding contract between

Conestoga and Delancey Abstract.” Joinder Complaint, 12/17/13, at ¶ 35.


                                     - 18 -
J-S31004-18


This case also involves two components of indemnification arising out of

Delancey’s negligence: damages payable to a third party and attorney’s fees

and court costs. Agency Agreement, 4/21/04, at ¶ 5.

      Opining that “a claim for indemnification arises only after verdict

damages have been established,” the trial court concluded that the statute of

limitations against Delancey began to run “no earlier than November 10,

2016,” when the trial court found “Delancey was negligent in the issuance of

title insurance.”   Id. at ¶¶ 91–92.    However, as stated above, “before

indemnification rights accrue, the party seeking indemnification must pay the

claim or verdict damages before obtaining any rights to pursue an

indemnification recovery.” Beary, 568 A.2d at 193; Chester Carriers, 767

A.2d at 563. Although the trial court found Conestoga liable to Kessock for

breach of contract, it also found that Kessock “failed to present sufficient

competent and credible evidence . . . that he suffered any damages pursuant

to that breach.”    Decision with Findings of Fact and Conclusions of Law,

8/17/17, at ¶ 77, 78. Therefore, Conestoga’s indemnification rights against

Delancey for damages payable to a third party did not accrue because

Conestoga did not pay any damages to Kessock.

      As for Conestoga’s claim against Delancey for attorney’s fees and court

costs, it accrued according to the fee-shifting language of the Agency

Agreement. The relevant language of the Agency Agreement provides that

Delancey would be solely liable to Conestoga for all attorney’s fees and court


                                    - 19 -
J-S31004-18


costs resulting from the negligence of Delancey’s agents, officers, or

employees in the issuance of title insurance. Agency Agreement, 4/21/04, at

¶ 5. Necessarily, in order for Delancey to be liable for attorney’s fees and

costs resulting from its negligence, there must be a finding that Delancey

was negligent. In this case, that finding occurred when the trial court ruled

in favor of Conestoga on its cross-claim against Appellants. N.T., 11/10/16,

at 76. Accordingly, we agree with the trial court that Conestoga’s cause of

action against Delancey arose on November 10, 2016, with the finding of

Delaney’s negligence in issuing the title insurance. Decision with Findings of

Fact and Conclusions of Law, 8/17/17, at ¶¶ 77, 91–92.            Consequently,

Conestoga’s claim against Hopkins under the Guaranty arose at the same

time. Leedom, 647 A.2d at 225.

      Hopkins signed the Guaranty, not under seal, on April 21, 2004.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 14, 15.

The statute of limitations for a contract not under seal is four years. 42 Pa.C.S.

§ 5525. Accordingly, Conestoga had to file suit against Hopkins pursuant to

the Guaranty within four years of the finding of Delancey’s negligence, i.e., on

or before November 10, 2020.         Conestoga filed its joinder complaint on

December 17, 2013, well before the statute of limitations began to run, let

alone expire. Thus, we discern no error in the trial court’s conclusion that

“Conestoga’s claims against Hopkins were brought well within the four-year




                                      - 20 -
J-S31004-18


statute of limitations.” Decision with Findings of Fact and Conclusions of Law,

8/17/17, at ¶ 93.

      Appellants’ third and final issue challenges the trial court’s refusal to

reduce the award of $68,887.45 as reasonable attorney’s fees and costs to

Conestoga on its cross-claim against Appellants.       Appellants’ Brief at 30;

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 94–103.

Appellants argue that the amount awarded was unreasonable because: (1)

Conestoga litigated the dispute for eight years without ascertaining the

amount of money in dispute; (2) Conestoga litigated the dispute for eight

years only to admit contractual liability at trial; (3) the trial court failed to

exclude inadmissible hearsay about attorney charges for individuals who did

not testify; (4) the trial court failed to exclude charges related to enforcing

the Agency Agreement; and (5) the trial court failed to exclude amounts billed

as attorney’s fees for work done by a paralegal. Appellants’ Brief at 31–39.

      “Our standard of review of an award of attorney[’s] fees is well settled:

we will not disturb a trial court’s determinations absent an abuse of discretion.

A trial court has abused its discretion if it failed to follow proper legal

procedures or misapplied the law.” Miller v. Miller, 983 A.2d 736, 743 (Pa.

Super. 2009) (internal citation omitted). The default rule in Pennsylvania is

that litigants bear responsibility for their own costs and attorney’s fees in the

absence of express statutory authorization for fee awards, contractual fee-

shifting, or some other recognized exception. Herd Chiropractic Clinic, P.C.


                                     - 21 -
J-S31004-18


v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1062 (Pa. 2013).4 “[T]he

interpretation of the terms of a contract is a question of law for which our

standard of review is de novo, and our scope of review is plenary.” McMullen

v. Kutz, 985 A.2d 769, 773 (Pa. 2009) (citation omitted). Our Supreme Court

has held:

       The facts and factors to be taken into consideration in determining
       the fee or compensation payable to an attorney include: the
       amount of work performed; the character of the services
       rendered; the difficulty of the problems involved; the importance
       of the litigation; the amount of money or value of the property in
       question; the degree of responsibility incurred; whether the fund
       involved was “created” by the attorney; the professional skill and
       standing of the attorney in his profession; the results he was able
       to obtain; the ability of the client to pay a reasonable fee for the
       services rendered; and, very importantly, the amount of money
       or the value of the property in question.

Id. at 774 (quoting In re Estate of LaRocca, 246 A.2d 337, 339 (Pa. 1968)).

       Here, Delancey and Conestoga included a fee-shifting provision in the

Agency Agreement. Agency Agreement, 4/21/04, at ¶ 5. Following a two-

day bench trial on Conestoga’s cross-claim for attorney’s fees, the trial court

entered the following findings of fact:

       48. At the assessment of damages phase of the trial, Conestoga
           presented the testimony of William Parker, Esquire (“Mr.
           Parker”), in-house counsel for Conestoga.

       49. The testimony of Mr. Parker was credible and accepted by the
           [c]ourt.



____________________________________________


4 This rule is known as the “American Rule.” Trizechahn Gateway LLC v.
Titus, 976 A.2d 474, 482–483 (Pa. 2009).

                                          - 22 -
J-S31004-18


     50. Mr. Parker commenced employment with Conestoga in 2009,
         shortly after this civil action was commenced. He was
         principally responsible for managing the matter which is the
         subject of this litigation, including supervising outside counsel
         working on behalf of Conestoga.

     51. Mr. Parker has hired outside counsel to represent Conestoga
         and its insureds in connection with multiple claims throughout
         Pennsylvania, and also specifically in Montgomery County,
         Pennsylvania on multiple occasions. He is familiar with the
         rates charged by attorneys in the region, which vary based
         upon their level of experience and familiarity with these types
         of cases.

     52. Mr. Clemm and the firm of Morris and Clemm, P.C.
         commenced their representation of Conestoga in March,
         2013. Thereafter, the name of Mr. Clemm’s law firm changed
         to Morris, Clemm and Wilson, P.C. Thereafter, Mr. Clemm
         withdrew from that firm and started a new firm known as
         Clemm and Associates, LLC. Mr. Clemm and the law firms
         with which he was associated continuously represented
         Conestoga in this case from March, 2013 to the present.

     53. For this claim, Mr. Parker and other principals of Conestoga
         reviewed, approved of, and paid the bills for legal fees and
         costs submitted by Mr. Clemm and his associates.

     54. Mr. Parker was Mr. Clemm’s primary contact at Conestoga,
         and Mr. Clemm provided Mr. Parker with copies of pleadings,
         correspondence and other documents generated and/or filed
         in connection with this case.

     55. Mr. Clemm and/or members of his firm also provided Mr.
         Parker with updates concerning the status of the litigation and
         had discussions with Mr. Parker concerning strategy to be
         utilized in this case.

     56. At the time that Mr. Clemm and his firm commenced
         representation of Conestoga in this matter, Mr. Parker
         negotiated a reduction in Mr. Clemm’s customary hourly rate
         from $400 to $300 per hour.

     57. However, in Mr. Clemm’s first 5 time entries billed to
         Conestoga, Mr. Clemm billed his time at $350 per hour for a

                                    - 23 -
J-S31004-18


         total of 12.2 hours and at $375 for a total of 3 hours. That
         constitutes a total of $632.50 above what Conestoga would
         have paid had Mr. Clemm charged the negotiated rate of $300
         per hour.1

              1  These amounts are calculated from Slip IDs
              117960, 118081, 120152, 120984, and 121188 on
              Trial Exhibit D-9.

     58. Joshua Knepp, Esquire, worked as an associate for Mr. Clemm
         and provided services to Conestoga in connection with this
         case. Mr. Knepp’s time was charged at the rate of $275 per
         hour, which was an hourly rate approved by Mr. Parker and
         Conestoga.

     59. During the time that Mr. Clemm worked on the case for
         Conestoga, Katie M. Clemm also worked on the case. After
         her graduation from law school, but before she was admitted
         to practice in the [Commonwealth] of Pennsylvania, her time
         was charged at the rate of $175 per hour, a rate acceptable
         to Mr. Parker and Conestoga as reflecting a reasonable rate
         charged by a senior, highly experienced paralegal. After Katie
         M. Clemm, Esquire was admitted to practice in the
         Commonwealth of Pennsylvania, her rate remained the same
         at $175 per hour, which was an hourly rate acceptable to Mr.
         Parker and Conestoga as reflecting a reasonable rate charged
         by a young associate with her level of experience.

     60. Mr. Clemm testified concerning the services provided by him
         and his associates in connection with the representation of
         Conestoga in this case, including preparing and serving
         various forms of written discovery; reviewing, analyzing and
         summarizing responses to written discovery which had been
         served; preparing, filing and serving various pleadings,
         motions and briefs in support of same; responding to various
         pleadings, motions and briefs filed by other parties in the
         case; performing and/or reviewing legal research at various
         times; identifying, communicating with and preparing various
         expert witnesses for trial; and preparing for and conducting
         the trial in this case.

     61. The testimony of Mr. Clemm was credible and was accepted
         by the [c]ourt.


                                   - 24 -
J-S31004-18


     62. After Mr. Clemm entered his appearance for Conestoga in this
         case on July 15, 2013, there were over 90 docket entries
         which reflected pleadings, orders and other matters filed in
         this case which required Mr. Clemm’s participation and/or
         attention.

     63. For the period from March 25, 2013 through and including
         March 31, 2017, Mr. Clemm and the associates who worked
         with him on this case billed a total of $62,669.95 in attorneys’
         fees and costs, as reflected on Trial Exhibit D-9.

     64. Mr. Clemm and his associates billed additional legal fees of
         $6,850 to prepare for and conduct the damages phase of the
         trial which occurred on May 1, 2017 and May 2, 2017.

     65. The total legal fees and costs billed by Mr. Clemm and his
         associates through May 2, 2017 amounted to $69,519.95.

     66. Hopkins and Delancey did not produce any fact witnesses or
         otherwise provide any evidence which challenged the
         reasonableness and necessity of the attorney’s fees and costs
         billed by Mr. Clemm and his associates in connection with the
         representation of Conestoga in this case, instead relying
         entirely on their cross-examination of Mr. Parker and Mr.
         Clemm.

     67. Hopkins and Delancey sought to call Keith Lipman, Esquire, as
         an expert witness to challenge the reasonableness and
         necessity of all attorney’s fees and costs billed by Mr. Clemm
         and his associates in connection with the representation of
         Conestoga in this case.

     68. For the last 17 years, Mr. Lipman worked as an information
         technology consultant seeking to assist law firms (especially
         large law firms) in work efficiency, cyber security, and
         practice management.

     69. Mr. Lipman practiced law for approximately three years from
         1994 through 1997 as a labor relations associate. Mr. Lipman
         has not practiced law since 1997.

     70. Mr. Lipman has never reviewed or analyzed the hourly rates
         charged by attorneys in Montgomery County, Pennsylvania
         and specifically is not aware of rates charged by attorneys in

                                    - 25 -
J-S31004-18


          Montgomery County, Pennsylvania, nor is he aware of rates
          charged by attorneys who defend title insurance companies
          in cases like the present matter.

     71. Mr. Lipman has never conducted an audit of a law firm’s bills
         to assess their reasonableness.

     72. Mr. Lipman’s office is located in the building owned by
         Hopkins, and he agreed to provide his testimony gratis as a
         favor to Hopkins.

     73. Hopkins and Delancey asserted that Mr. Lipman’s testimony
         could assist the [c]ourt in identifying instances of block
         billing. However, Mr. Lipman was not permitted to testify as
         an expert because he had no specialized knowledge which
         would reasonably assist the [c]ourt as the trier of fact in this
         case.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 7–11.

     Based on its findings of fact, the trial court entered the following

conclusions of law:

     101. The hourly rates charged by Mr. Clemm and his associates
          were consistent with rates charged by other lawyers in
          Montgomery County, Pennsylvania who provide similar
          types of legal services in similar types of cases.

     102. The legal fees and costs billed by Mr. Clemm and his
          associates were necessary in order to defend Conestoga
          against the claims made by Kessock and in order to plead
          and prove the claims made by Conestoga against Delancey
          for recovery of attorney’s fees and costs incurred by
          Conestoga.

     103. The amount of $69,519.95 billed by Mr. Clemm and his
          associates is reasonable less the $632.50 Mr. Clemm billed
          above his negotiated rate of $300 per hour.3, 4 Delancey is
          obligated to pay Conestoga the sum of $68,887.45 to
          reimburse Conestoga for the reasonable attorney’s fees and
          costs incurred by Conestoga in this case.




                                    - 26 -
J-S31004-18


              3  After nitpicking Mr. Clemm’s bills in ways not
              supported by common sense or case law, Delancey
              asserted that Conestoga should only recover
              $4,067.25 in attorney’s fees. That is, [Appellants]
              argued that the reasonable rate for a law firm to
              represent a client for over four years and
              successfully through trial was only slightly more than
              $1,000 per year of representation. The [c]ourt need
              say no more regarding the absurdity of this
              assertion.

              4  Delancey asserts that the test laid out in Neal v.
              Bavarian Motors, Inc., 882 A.2d 1022, 1032 (Pa.
              Super. 2005) is applicable to this case. Neal lays out
              the facts which should be considered when assessing
              the reasonableness of counsel fees “in a case
              involving a lawsuit which includes claims under the
              UTPCPL (the Unfair Trade Practices and Consumer
              Protection Law).” The factors are: “(1) The time and
              labor required, the novelty and difficulty of the
              questions involved and the skill requisite properly to
              conduct the case; (2) The customary charges of the
              members of the bar for similar services; (3) The
              amount involved in the controversy and the benefits
              resulting to the clients from the services; and (4)
              The contingency or certainty of the compensation.”
              The present matter obviously does not fall under the
              UTPCPL. Moreover, the party who could recover
              attorney’s fees under the UTPCPL would by necessity
              always be the Plaintiff. Therefore, the fourth factor
              clearly makes no sense in the context of a defendant
              requesting attorney’s fees under a contractual
              provision. The third factor is arguably irrelevant as
              well since the defendant has no control over having
              been sued. The defendant cannot simply drop a
              case, even if it deems the amount in controversy to
              be low. Certainly the defendant could attempt to
              settle the case with the plaintiff, but the plaintiff
              could always refuse. Therefore, in the case of an
              intractable plaintiff, a defendant would be forced to
              continue to incur attorney’s fees no matter what it
              deemed the amount in controversy to be. Here,
              [Kessock] asserted that [his] claim was worth more
              than $1,000,000. Therefore, there is no evidence

                                   - 27 -
J-S31004-18


               that [Kessock], who ultimately did proceed with this
               case through trial, would have agreed to settle the
               case for a nominal amount. Notwithstanding the
               foregoing, to the extent this test is applicable to the
               case at bar, the [c]ourt determines that the fees
               requested by Conestoga are reasonable under the
               elements of the Neal test.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 16–17.

      On appeal, Appellants complain that Conestoga litigated the dispute for

eight years without ascertaining the amount of money in dispute, only to admit

contractual liability at trial. Appellants’ Brief at 31–33. However, the trial

court assessed attorney’s fees as of Attorney Clemm’s involvement in the

case, which began in March of 2013, four years after Kessock filed his lawsuit

against Conestoga. N.T., 5/1/17, at 140. During his representation, Attorney

Clemm defended Conestoga against Kessock’s claim and pursued Conestoga’s

cross-claims against Appellants; both lawsuits arose out of the incomplete title

search. Id. at 113–114. Thus, we discern no merit to Appellants’ first two

bases for challenging the trial court’s award of attorney’s fees to Conestoga.

      Appellants next assail the trial court’s failure to exclude inadmissible

hearsay about attorney charges for individuals who did not testify, i.e., Joshua

Knepp (“Attorney Knepp”) and Katie Clemm.             Appellants’ Brief at 35.

Specifically, Appellants contend that the “compilation of individual time entries

spanning the four years that the Clemm Firm handled this case . . . are

hearsay within hearsay,” proven for the truth of the matter asserted.        Id.

(citing Pa.R.E. 801). Relying on the “recorded recollections” hearsay


                                     - 28 -
J-S31004-18


exception,5 Appellants argue that, because Attorney Knepp and Katie Clemm

did not testify at trial, Conestoga failed to prove all charges related to their

time entries. Id. at 35–36 (citing Pa.R.E. 8803.1(3)). Therefore, Appellants

conclude, the award of attorney’s fees should be reduced by the amount of

Attorney Knepp’s and Katie Clemm’s billings. Id. at 36.

       In response, Conestoga argues for admissibility of the invoices under an

exception to the hearsay rule known as “Records of a Regularly Conducted

____________________________________________


5   This hearsay exception provides as follows:

       The following statements are not excluded by the rule against
       hearsay if the declarant testifies and is subject to cross-
       examination about the prior statement:

                                          * * *

       (3) Recorded Recollection of Declarant-Witness. A
       memorandum or record made or adopted by a declarant-witness
       that:

                                          * * *

       (B) was made or adopted by the declarant-witness when the
       matter was fresh in his or her memory; and

       (C) the declarant-witness testifies accurately reflects his or her
       knowledge at the time when made.

       If admitted, the memorandum or record may be read into
       evidence and received as an exhibit, but may be shown to the jury
       only in exceptional circumstances or when offered by an adverse
       party.

Pa.R.E. 803.1(3).




                                          - 29 -
J-S31004-18


Activity.”   Conestoga’s Brief at 26 (citing Pa.R.E. 803(6)).6     According to

Conestoga, Attorney Clemm was “an authenticating witness” who provided

“sufficient information relating to the preparation and maintenance of the

records to justify a presumption of trustworthiness for the business records of

a company.” Id. (citing U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 401

(Pa. Super. 2015)).

       Upon review of the record, we observe that, at trial, Appellants objected

to the admission of any evidence related to Attorney Knepp’s time; however,

they did not object to evidence related to Katie Clemm’s time. N.T., 5/1/17,

at 40–42. Therefore, Appellants’ challenge to the admissibility of evidence of



____________________________________________


6   Rule 803(6) permits the admission of a recorded act, event or condition if:

       (A) the record was made at or near the time by—or from
       information transmitted by—someone with knowledge;

       (B) the record was kept in the course of a regularly conducted
       activity of a “business”, which term includes business, institution,
       association, profession, occupation, and calling of every kind,
       whether or not conducted for profit;

       (C) making the record was a regular practice of that activity;

       (D) all these conditions are shown by the testimony of the
       custodian or another qualified witness, or by a certification that
       complies with Rule 902(11) or (12) or with a statute permitting
       certification; and

       (E) neither the source of information nor other circumstances
       indicate a lack of trustworthiness.

Pa.R.E. 803(6).

                                          - 30 -
J-S31004-18


Katie Clemm’s time is waived. See Folger v. Dugan, 876 A.2d 1049 (Pa.

Super. 2005) (challenge to admissibility based upon improper authentication

is waived where party failed to object on that basis at trial).

      As to the evidence of Attorney Knepp’s time, we conclude that Attorney

Clemm proved the criteria for admission of his firm’s invoices under Pa.R.E.

803(6). The record confirms that Attorney Clemm was president of the law

firms that represented Conestoga.       N.T., 5/1/17, at 116.     His associate,

Attorney Knepp, used the Time Slips program for recording time “every six

minutes of every hour of every day that they worked on a case.” Id. at 115,

131. Attorney Clemm supervised Attorney Knepp’s work on this case, and he

reviewed Attorney Knepp’s time records on a monthly basis. Id. at 116, 134–

135, 142–143.     The records were then submitted to the bookkeeper who

generated the worksheets. Id. at 115, 137. Once Attorney Knepp reviewed

the worksheets for accuracy, the bookkeeper generated invoices and sent

them to the client. Id. at 116, 135, 137–138. Nothing in the record indicates

a lack of trustworthiness in the source of information or other circumstances.

Pa.R.E. 803(6)(E). Moreover, the trial court made a credibility determination

as to Attorney Clemm’s testimony, and we detect no reason to disturb it.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶ 61.

Based on the foregoing, we discern no merit to Appellants’ claims that the trial

court abused its discretion in admitting all of the attorney invoices in support

of Conestoga’s claim for attorney’s fees.


                                     - 31 -
J-S31004-18


      Appellants further assail the trial court’s failure to exclude charges

related to enforcing the Agency Agreement.       Appellants’ Brief at 37.   We

dispose of this issue by adopting as our own the well-reasoned analysis of the

trial court:

               2  Delancey argues that attorney’s fees attributable
               to enforcement of the Agency Agreement itself
               should be interpreted as excluded from [paragraph
               5]. The [c]ourt, however, is not persuaded. First,
               the plain language of the contract does not so limit
               the recovery of attorney’s fees. Fees related to
               enforcement of the Agency Agreement by definition
               “result from” Delancey and its agents’ negligence.
               But for Delancey’s agents’ negligence, Conestoga
               would not have incurred legal fees enforcing its
               agreement with Delancey.

                   Delancey cites only two cases to buttress their
               argument, Twnshp of Millcreek v. Angela Cres Trust
               of June 25, 142 A.3d 98, 956 (Pa. Commwlth. 2016);
               Neal v. Bavarian Motors, Inc., 882 A,2d 1022, 1032
               (Pa. Super. 2005). However, both cases are readily
               distinguishable from the present matter. These
               cases relate to statutory attorney’s fees as opposed
               to attorney’s fees provided for in a contract. This is
               important, because in both cases, the court held that
               the attorney’s fees sought were not actually
               provided for in each statute. In Twnshp of Millcreek,
               attorney’s fees were not awarded because the bills
               submitted for reimbursement were pursuant to a
               proceeding for which reimbursement of attorney’s
               fees was not provided for by statute. Twnshp of
               Millcreek v. Angela Cres Trust of June 25, 142 A.3d
               948, 956 (Pa. Commwlth. 2016). Similarly, in Neal,
               attorney’s fees were not awarded because they were
               sought under a cause of action for which
               reimbursement of attorney’s fees was not provided
               for by statute. Neal v. Bavarian Motors, lnc., 882
               A.2d 1022, 1032 (Pa. Super. 2005). In short,
               Delancey has presented no case law which would


                                    - 32 -
J-S31004-18


               cause this [c]ourt to look past the clear wording of
               the Agency Agreement.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 16 n.2.

      Finally, Appellants complain that the trial court failed to exclude

amounts billed as attorney’s fees for work done by a paralegal. Appellants’

Brief at 39. Appellants contend as follows:

            Conestoga expended $3,412.50 for the activities of Katie
      McKenzie Clemm between March 26, 2015 and October 13, 2015.
      Ms. Clemm’s time was charged at an hourly rate of $175.00. Ms.
      Clemm’s name appears under the title of “Lawyer” at the header
      of each description.

            However, Ms. Clemm was not admitted to the practice of
      law in Pennsylvania until October 19, 2015. After Ms. Clemm’s
      admission to the bar of Pennsylvania, her time was charged at the
      same hourly rate of $175.00.

            The entire amount of $3,412.50 falsely billed as attorney
      time for an individual not licensed to practice law in Pennsylvania
      should be deducted from amounts attributable to [Appellants].

Appellants’ Brief at 39 (citations to reproduced record omitted).

      Conestoga counters that Ms. Clemm’s paralegal rate of $175 per hour

“reflect[ed] a reasonable rate charged by a senior, highly experienced

paralegal. After Ms. Clemm was admitted to practice in the Commonwealth

of Pennsylvania, her rate remained at the same rate of $175 per hour which

reflected a reasonable rate charged by a young associate with her level of

experience.” Conestoga’s Brief at 31 (citing N.T., 5/1/17, at 117).

      The crux of Appellants’ argument is that Ms. Clemm’s status was

misrepresented under the heading of “Lawyer” while she was still a paralegal.


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N.T., 5/1/17, at Exhibit D-9. In light of the record before us, we consider this

argument disingenuous. At the trial on damages, William Parker, Conestoga’s

Vice President of Claims and Underwriting, testified that his negotiations with

Attorney Clemm’s firm for representation “took into account whether it’s a

billing for a paralegal, whether it’s a billing for an attorney.” Id. at 72–73.

He further testified that part of Conestoga’s original memorandum of

understanding with Clemm and Associates “was that [Ms. Clemm] would be

working on the case as well at the hourly rate of [$]175.”          Id. at 73.

Conestoga considered the bills received from Attorney Clemm’s firm to be fair

and reasonable. Id. at 74.

      Additionally, Attorney Clemm described Ms. Clemm’s status as follows:

             And also [Ms. Clemm] working at the firm as well. I think
      [she] started working on the file in March of 2015. And in my
      estimation, it was appropriate to bill [her] out at $175 an hour at
      that time. Because as a third year law student you were far more
      experienced than any paralegal would have been under similar
      circumstances. So the $175 an hour was a rate which reflected
      that.

            And after [she] passed the bar, I think in October of 2015,
      then I elected not to increase [her] rate because [she was] being
      at that point slightly underpaid as a first year associate in terms
      of the hourly rate being charged. But I thought it was appropriate
      to continue that particular rate, based upon [her] age, experience,
      et cetera. And that was something which was approved by the
      company, it was understood by the company and agreed to by the
      company.

N.T., 5/1/17, at 117–118.     As observed above, the trial court considered

Attorney Clemm’s testimony to be credible, and we detect no basis on which

to overrule its determination. Decision with Findings of Fact and Conclusions

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of Law, 8/17/17, at ¶ 61. Therefore, we discern no merit to Appellants’ final

basis for challenging the award of attorney’s fees.

      In sum, Appellants have failed to persuade us that the trial court erred

in finding in favor of Conestoga on its cross-claim for attorney’s fees pursuant

to the Agency Agreement and the Guaranty. Therefore, we affirm the entry

of judgment against Appellants.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/18




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