J-S59031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REED ASSOCIATES, INC.                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                      v.

TEKTON DEVELOPMENT CORP. & FLAMM
WALTON PC


                                                       No. 464 EDA 2017
APPEAL OF: FLAMM WALTON PC


              Appeal from the Order Entered December 16, 2016
    In the Court of Common Pleas of Chester County Civil Division at No(s):
                                2014-11438

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 22, 2017

        Appellant, Flamm Walton PC, appeals from an order granting summary

judgment to Appellee, Reed Associates, Inc., in the amount of $31,278.71.

The trial court held that Appellant, a law firm, wrongfully refused to release

funds that Appellant held in escrow for Appellee’s benefit.         Appellant

counters, inter alia, that it has a valid charging lien against the funds. We

affirm the order granting summary judgment to Appellee, and we direct the

trial court to recompute the amount of prejudgment interest due to Appellee

and amend the judgment accordingly.

        Tekton Development Corp. (“Tekton”), the general contractor on a

construction project for the Pennsbury School District (“School District”),

*
    Former Justice specially assigned to the Superior Court.
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hired Appellee as a subcontractor on the project. R.R. 26a.1 Disputes over

the construction project arose between Tekton and the School District and

between Tekton and Appellee.2         Tekton hired Appellant to provide legal

services in connection with the disputes. R.R. 92a-94a, The fee agreement

required Appellant to bill Tekton hourly for services provided and for Tekton

to pay monthly invoices. Id.

        In late 2010, Tekton resolved its disputes with the School District in a

written settlement, agreement (“the Tekton settlement agreement”).         R.R.

39a-46a. Section 3 of the Tekton settlement agreement stated with regard

to the unpaid contract balance that Tekton owed Appellee:

           Escrow. Tekton asserts that only the sum of $28,475.77
           is owed to [Appellee]. [Appellee] asserts that a greater
           amount is owed. Until this dispute is resolved, Tekton
           agrees that the sum of $28,475.77 will be placed in an
           escrow account, under the control of [Appellant]. Release
           of funds held in this escrow account shall be expressly
           conditioned on full and final resolution, or adjudication of
           the dispute between Tekton and [Appellee]. Upon such
           resolution or adjudication, written notice shall be provided
           to counsel for [the School District], Andrew B. Cohn,
           Esquire, and written authorization from [the School District]
           or its counsel shall be required before release of funds
           from the escrow account.




1
    For the parties’ convenience, we refer to the reproduced record.
2
  The record does not define the nature of the disputes with great
specificity, but it appears that at least part of the dispute concerned the
quality of Appellee’s work and the amount of Appellee’s bills.



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R.R. 53a (“the Escrowed Funds provision”).    In   2010,   Tekton    placed

$28,475,77 in an escrow account under Appellant’s control (“Escrowed

Funds”). R.R. 89a, 98a-99a, 107a.

      In an email dated March 20, 2014, Appellant wrote to Tekton’s

president:

         [Appellee], as you know, has contacted us [Appellant]
         regarding the escrow fund that was established for it
         several years ago. There is approximately $28,475.77 in
         escrow. Do you have information verifying the amount
         owed to them?

         In addition, I discovered that Tekton owes us $14,475.77.
         I would appreciate it if you would remit that payment.

R.R. 143a. Twenty minutes later, Tekton’s president responded via email as

follows: “Tekton closed up on 1-31-14. I would suggest you pay yourself

from the balance and remit the remainder to [Appellee].” Id.

      In November 2014, Appellee filed suit against Tekton, but Appellee

and Tekton subsequently negotiated a settlement in which Appellee accepted

$28,475,00.3    R.R. 26a-31a. On March 10, 2015, Appellee and Tekton

entered into a written settlement agreement (“Appellee’s settlement

agreement”), which stated: “[T]his Agreement shall serve as a directive to

[Appellant] to release the Escrowed Funds totaling $28,475.00 to [Appellee]

as set forth herein.” R.R. 28a.


3
  The agreement was silent with regard to the remaining seventy-seven
cents held in escrow.




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     In a letter dated March 26, 2015, Tekton’s counsel wrote to counsel for

Appellee: “You may use th[is] letter as Tekton’s authorization to [] to

release to [Appellee] the funds [Appellant] has been holding in escrow.”

R.R. 35a.

     On March 30, 2015, Appellee’s counsel provided Appellant with

Appellee’s settlement agreement and requested that Appellant release the

Escrowed Funds to Appellee.     R.R. 37a.   Further, in compliance with the

Tekton settlement agreement, Appellee’s counsel requested the School

District to approve release of the Escrowed Funds to Appellee. R.R. 48a. In

a letter dated April 24, 2015 addressed to Appellant and counsel for

Appellee, the School District authorized Appellant to release the Escrowed

Funds to Appellee. R.R. 89a-90a. Appellant refused to release the Escrowed

Funds to Appellee. R.R. 97a, 100a, 106a, 109a.

     On July 16, 2016, Appellee filed a civil complaint naming Tekton and

Appellant as defendants. The complaint requested specific performance of

Appellee’s settlement agreement and asserted a declaratory judgment action

against Appellant and an action against Appellant for tortious interference

with the Appellee settlement agreement. Tekton did not defend the action,

and Appellee entered a default judgment against Tekton on October 13,

2015. R.R. 3a. Tekton is not a participant this appeal.

     On March 14, 2016, an arbitration panel entered an award in favor of

Appellee in the amount of $29,879.24. Appellant filed a timely appeal from



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the arbitration award.    Following discovery, Appellee moved for summary

judgment against Appellant, and the court granted Appellee's motion for

summary judgment in the amount of $28,475.00 plus prejudgment interest

of $2,448.04 as of September 30, 20164 (plus per diem interest of $4.68

thereafter).   R.R. 6a.   Appellant filed a timely notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises three issues in this appeal:

         1. Did the [t]rial [c]ourt err in its application of the law
         regarding the existence of a charging lien when it granted
         summary judgement in [Appellee's] favor?

         2. Did the [t]rial [c]ourt err is its application of law
         regarding its finding that there was no assignment of
         interest from Tekton to [Appellant]?

         3. Did the [t]rial [c]ourt err in its application of law when
         it awarded prejudgment interest?

Appellant’s Brief at 2.

      Our review is governed by the following principles:

         [S]ummary judgment is appropriate only in those cases
         where the record clearly demonstrates that there is no
         genuine issue of material fact and that the moving party is
         entitled to judgment as a matter of law. When considering
         a motion for summary judgment, the trial court must take
         all facts of record and reasonable inferences therefrom in a
         light most favorable to the non-moving party. In so doing,
         the trial court must resolve all doubts as to the existence
         of a genuine issue of material fact against the moving
         party, and, thus, may only grant summary judgment

4
  The record does not indicate why the trial court entered a lump sum of
prejudgment interest as of September 30, 2016 and a per diem amount of
interest thereafter.



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         where the right to such judgment is clear and free from all
         doubt. On appellate review, then,

             an appellate court may reverse a grant of summary
             judgment if there has been an error of law or an
             abuse of discretion. But the issue as to whether
             there are no genuine issues as to any material fact
             presents a question of law, and therefore, on that
             question our standard of review is de novo. This
             means we need not defer to the determinations
             made by the lower tribunals.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations omitted).

      In its first argument, Appellant contends that it has a valid charging

lien against the Escrow Funds and therefore did not have to release them to

Appellee. We disagree.

      Our Supreme Court has held:

         [B]efore a charging lien will be recognized and applied, it
         must appear (1) that there is a fund in court or otherwise
         applicable for distribution on equitable principles, (2) that
         the services of the attorney operated substantially or
         primarily to secure the fund out of which he seeks to be
         paid, (3) that it was agreed that counsel look to the fund
         rather than the client for his compensation, (4) that the
         lien claimed is limited to costs, fees or other
         disbursements incurred in the litigation by which the fund
         was raised and (5) that there are equitable considerations
         which necessitate the recognition and application of the
         charging lien.

Recht v. Urban Redevelopment Authority of City of Clairton, 168 A.2d

134, 138-39 (Pa. 1961).      The trial court correctly reasoned that Appellant

failed to satisfy elements (1), (3) and (5) of this test.




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     With regard to element (1), the fund is not eligible for distribution on

"equitable principles" but only in accordance with the express terms of the

Tekton   settlement   agreement.     This   agreement    provides:   “Tekton

asserts that only the sum of $28,475.77 is owed to [Appellee].

[Appellee] asserts that a greater amount is owed.       Until this dispute is

resolved, Tekton agrees that the sum of $28,475.77 will be placed in an

escrow account . . . .” R.R. 53a. Moreover, the Escrowed Funds cannot

be distributed until “full and final adjudication of the dispute between

Tekton and [Appellee]” and “written authorization from [the School

District] or its counsel.” Id. The plain language of these terms governs

the distribution of the Escrowed Funds, not equitable principles.       See

Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 409 (Pa. Super.

2010) (where settlement agreement contains all requisites for valid

contract, court must enforce terms of agreement).

     As to element (3), there is no agreement that Appellant could look to

the Escrowed Funds instead of Tekton for compensation. The fee agreement

between Appellant and Tekton required Appellant to bill Tekton hourly for

services provided and for Tekton to pay monthly invoices.     R.R. 92a-94a.

There is no evidence that Appellant agreed to look to the Escrowed Funds as

an alternative source of compensation. Indeed, Appellant acknowledged in

an email to Tekton that the Escrowed Funds were for the benefit of Appellee,

not Appellant: “[Appellee], as you know, has contacted us regarding the



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escrow fund that was established for [Appellee] several years ago . . . .”

R.R. 143a.

      Finally, as to element (5), no equitable considerations compel

application of a charging lien. Appellant    entered   into   an   hourly   fee

compensation agreement with Tekton without bargaining to hold the

proceeds of any settlement pending Tekton's payment of Appellant’s bills.

Appellant contends that Tekton failed to pay monthly invoices and has gone

out of business, so Appellant will go unpaid unless it pays itself from the

Escrowed Funds.    This argument promotes inequity rather than equity—if

Appellant collects the Escrowed Funds, Appellee will go unpaid, despite being

the designated recipient of these monies.

      For these reasons, Appellant's first argument is devoid of merit.5

      In its second argument, Appellant contends that Tekton assigned the

Escrowed Funds to Appellant.     We agree with the trial court that Tekton

neither assigned nor had the legal right to assign the Escrowed Funds.

      Appellant claims that the March 20, 2014 email from Tekton's

president to Appellant creates an assignment by stating: “I would suggest

you pay yourself from the balance and remit the remainder to [Appellee].”

R.R. 143a. The trial court correctly held:



5
  We note that while Appellant does not have an equitable right to a
charging lien, Appellee does have an equitable right to prejudgment interest,
as discussed infra at pages 9-10.



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         Tekton’s president’s “suggestion” hardly qualified as legal
         assignment of any rights. In the settlement agreement of
         December 23, 2010, Tekton acknowledged that it owed
         [Appellee] at least $28,475.77, which amount was placed
         in escrow. On March 20, 2014, Tekton had no legal basis
         to support its suggestion that Appellant pay itself from this
         fund. Any release of the escrowed funds was conditioned
         on the settlement of the dispute between Tekton and
         [Appellee] and authorization from the [School District],
         which had not yet occurred.      Appellant      could     not
         reasonably rely on the contents of this email as a legal
         assignment by Tekton to pay its legal fees.

Trial Ct. Op., 5/8/17, at 6.    Simply put, Tekton’s president’s “suggestion”

cannot override the plain language of the Tekton settlement agreement,

which makes clear that Appellee is the intended recipient of the Escrowed

Funds.

      In its final argument, Appellant objects to the trial court’s award of

prejudgment interest to Appellee. We hold that this award is proper.

      An award of prejudgment interest is a legal right in contract cases, but

in non-contract cases, it is an “equitable remedy awarded to an injured party

at the discretion of the trial court.” Kaiser v. Old Republic Ins. Co., 741

A.2d 748, 755 (Pa. Super. 1999).         “[I]t is . . . clear that prejudgment

interest may be awarded when a defendant holds money or property which

belongs in good conscience to the plaintiff . . . .”   Id. (citations omitted).

      Appellant is not a contracting party to the Tektron settlement

agreement, but it is holding funds in escrow that belong to Appellee.

Appellant should have distributed the Escrowed Funds to Appellee on April

24, 2015, the date the School District instructed Appellant to release these


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funds to Appellee, thus finalizing Appellee’s right to the funds under

the Tektron settlement agreement.              R.R. 53a.    Since these monies

“belong[] in good conscience to [Appellee],” the trial court acted within its

discretion by awarding Appellee prejudgment interest.

      When the trial court entered summary judgment on December 16,

2016, it computed prejudgment interest as $2,448.04 as of September 30,

2016 plus per diem interest of $4.68 thereafter. R.R. 6a. It appears that

prejudgment interest between April 24, 2015 and December 16, 2016 at the

annual rate of six percent simple interest amounts to $2,817.86. We direct

the trial court to compute prejudgment interest on remand and to enter the

correct lump sum of prejudgment interest and the correct total as the

judgment in Appellee’s favor. See Stockton v. Stockton, 698 A.2d 1334,

1337 n.3 (Pa. Super. 1997) (trial court may modify order more than thirty

days after its entry “to correct clerical error or other formal error which is

clear on face of record and which does not require exercise of discretion”)

(citation omitted).6

      Order affirmed.     Case remanded for recomputation of prejudgment

interest   and   amount   of   judgment   in   Appellee’s   favor.   Jurisdiction

relinquished.

6
  Without any citation to legal authority, Appellant made several boilerplate
references to the “statute of limitations” in its appellate brief. See S.M.C.
v. W.P.C., 44 A.3d 1181, 1189 (Pa. Super. 2012) (appellant waived
appellate review of his claim of error by failing to cite any legal authority in
support of his claim).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2017




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