J. A03038/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


VALERIE HUYETT,                             :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
DOUG’S FAMILY PHARMACY                      :
                                            :
                          Appellee          :     No. 776 MDA 2014


                Appeal from the Judgment Entered June 16, 2014
                 In the Court of Common Pleas of Berks County
                          Civil Division No(s).: 08-4706

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 18, 2015

        Appellant, Valerie Huyett, appeals from the judgment entered in the

Berks County Court of Common Pleas following a jury trial and verdict in her

favor for $21,394.92, which was against Appellee, Doug’s Family Pharmacy.

Appellant contends the court abused its discretion by refusing to award her

counsel fees totaling $106,429.30. We vacate and remand.

        We adopt the facts set forth in the trial court’s opinion. See Trial Ct.

Op., 8/18/2014, at 1-2. We reiterate that the trial court denied Appellee’s

motion for judgment notwithstanding the verdict or for a new trial.          On

January 17, 2014, the court denied Appellant’s motion for counsel fees,

reasoning as follows:

*
    Former Justice specially assigned to the Superior Court.
J. A03038/15


        A review of the jury verdict makes clear that the jury
        accepted [Appellant’s] claim of entitlement to lost earnings
        of . . . ($18,894.92) but awarded an extremely modest
        amount for noneconomic loss of . . . ($2,500.00). This
        Court has conducted an independent analysis of the
        evidence as required by 43 P.S. § 962(c) and concludes
        the jury’s verdict was not, in this Court’s opinion,
        supported by the evidence submitted to it.               The
        evidence was not overwhelming. Of particular importance
        to this Court was [Appellant’s] introduction of an email
        allegedly authored by a co-worker, Stephanie Mitchell.
        The email criticized [Appellant’s] work performance at
        [Appellee] and suggests that [Appellant] was terminated
        due to poor work performance rather than a discriminatory
        reason.      This email was contradicted by Stephanie
        Mitchell’s later affidavit that [Doug Hess] had specifically
        told Stephanie Mitchell that he . . . had terminated
        [Appellant] because of her illness. On cross-examination
        concerning the contradiction of the email and affidavit
        before this Court, Stephanie Mitchell testified that she did
        not recall whether she wrote the email and claimed that
        although it was sent from her personal email address,
        Doug Hess’s wife, Lisa, was present at the pharmacy on
        the day she wrote the email and may have added material
        to the email before it was sent to [Appellant]. This Court
        did not and does not find the testimony of Stephanie
        Mitchell to be credible. This contradictory testimony
        was relied on extensively by [Appellant]. It is within my
        discretion under 43 P.S. § 962 to deny [Appellant’s]
        attorney’s motion for fees and costs.

Order, 1/17/14, at 1-2 (emphases added).

     On April 14, 2014, although the trial court had not yet entered

judgment, it granted Appellant’s motion to file a notice of appeal nunc pro

tunc from the January 17, 2014 order.1 On May 5, 2014, Appellant filed a



1
  See generally 20 West’s Pennsylvania Appellate Practice § 301.26 (2014)
(“Where an order on counsel fees precedes the entry of the final order in a



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notice of appeal and a timely, court-ordered Pa.R.A.P. 1925(b) statement.

The trial court entered judgment on June 16, 2014.2

        Appellant raises the following issues:

           Did the lower court err and exceed the permissible scope
           of its discretion in its January 15, 2014 order insofar as the
           lower court invaded the province of the jury in order to
           deny [Appellant’s] request for the “make whole” remedy of
           attorney’s fees pursuant to the fee shifting provision of the
           remedial [Pennsylvania Human Relations Act3 (“PHRA”)]
           solely on the basis of a credibility determination adverse to
           [Appellant]?

           Did the lower court err and exceed the permissible scope
           of its discretion in its January 15, 2014 order and defy
           controlling authority insofar as the lower court misapplied
           and misstated the Supreme Court’s controlling statement
           of law on the issue of attorney’s fees under the PHRA?

           Did the lower court err and exceed the permissible scope
           of its discretion in its January 15, 2014 order when it
           defied controlling authority, which limited its discretion, in
           order to deny the prevailing [Appellant’s] request for the
           “make whole” remedy of attorney’s fees pursuant to the
           fee shifting provision of the remedial PHRA?

           Did the lower court err and exceed the permissible scope
           of its discretion in its January 15, 2014 order insofar as the
           lower court improperly converted the proceeding into a
           bench trial, and adopted [Appellant’s] factual narrative and
           legal arguments in order to nullify the jury’s determination


case, it is deemed interlocutory and unappealable until entry of the final
order in the underlying litigation.” (footnote omitted)).
2
  Thus, this Court’s appellate jurisdiction was perfected. See generally
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514
(Pa. Super. 1995) (en banc).
3
    43 P.S. §§ 951-963.




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         that [Appellant] had successfully proven a violation of the
         PHRA which would warrant the “make whole” remedy of
         attorney’s fees pursuant to the fee shifting provision of the
         remedial PHRA?

Appellant’s Brief at 3-4.

      We summarize her second and sixth arguments together. 4 Appellant

contends the trial court usurped the jury’s credibility determinations by

holding it did not find Stephanie Mitchell’s testimony credible. Id. at 26-27,

50. Appellant counters that the jury found Mitchell credible in awarding a

verdict in her favor and notes the court denied Appellee’s motion for

judgment notwithstanding the verdict.      Id. at 31.   We are constrained to

vacate and remand.




4
   Appellant raises six arguments in support of her four issues, which are
closely related. Appellant violated Pa.R.A.P. 2119(a), which mandates that
“argument shall be divided into as many parts as there are questions to be
argued.” See Pa.R.A.P. 2119(a). We reluctantly decline to quash. See
PHH Mortg. Corp. v. Powell, 100 A.3d 611, 615 (Pa. Super. 2014)
(refusing to quash appeal despite numerous violations of appellate briefing
rules); see also Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011)
(“The briefing requirements scrupulously delineated in our appellate rules
are not mere trifling matters of stylistic preference; rather, they represent a
studied determination by our Court and its rules committee of the most
efficacious manner by which appellate review may be conducted so that a
litigant’s right to judicial review as guaranteed by Article V, Section 9 of our
Commonwealth’s Constitution may be properly exercised.”). Furthermore,
her arguments—some of which are duplicative—fall within the scope of one
or more of her issues. “[A]ppellate advocacy is measured by effectiveness,
not loquaciousness.” Commonwealth v. Ellis, 626 A.2d 1137, 1140-41
(Pa. 1993) (quotation marks and citation omitted); see also Smith v.
Cheung, 2014 WL 7801634, at *3 n.9 (Pa. Super. Apr. 15, 2014) (“Judges
are not like pigs, hunting for truffles buried in briefs.” (citation omitted)).




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     “[T]he award of counsel fees and costs under the [PHRA] is within the

sound discretion of the trial court and will not be reversed unless the trial

court commits an abuse of that discretion.”     Hoy v. Angelone, 720 A.2d

745, 752 (Pa. 1998).

           When the court has come to a conclusion by the
        exercise of its discretion, the party complaining of it on
        appeal has a heavy burden; it is not sufficient to persuade
        the appellate court that it might have reached a different
        conclusion if, in the first place, charged with the duty
        imposed on the court below; it is necessary to go further
        and show an abuse of the discretionary power. An abuse
        of discretion is not merely an error of judgment, but if in
        reaching a conclusion the law is overridden or misapplied,
        or the judgment exercised is manifestly unreasonable, or
        the result of partiality, prejudice, bias or ill-will, as shown
        by the evidence or the record, discretion is abused.

Paden v. Baker Concrete Const., Inc., 658 A.2d 341, 343 (Pa. 1995)

(quotation marks and citations omitted); accord Hoy, 720 A.2d at 752.5


5
  A “court by definition abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996). In Krasnov v. Dinan,
465 F.2d 1298 (3d Cir. 1972), the United States Court of Appeals for the
Third Circuit set forth the following standard for reviewing the decisions of
the district court:

        [O]ur responsibility is not to substitute findings we could
        have made had we been the fact-finding tribunal; our sole
        function is to review the record to determine whether the
        findings of the District Court were clearly erroneous, i.e.,
        whether we are left with a definite and firm conviction that
        a mistake has been committed. It is the responsibility of
        an appellate court to accept the ultimate factual
        determination of the fact-finder unless that determination
        either (1) is completely devoid of minimum evidentiary
        support displaying some hue of credibility, or (2) bears no
        rational relationship to the supportive evidentiary data.



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The United States Court of Appeals for the Third Circuit has also adopted an

abuse of discretion standard: “We may also find an abuse of discretion when

the trial court uses improper standards or procedures in determining

[counsel] fees, or if he does not properly identify the criteria used for such

determination.      Factual findings, of course, are subject to the clearly

erroneous standard of review.”6 Silberman v. Bogle, 683 F.2d 62, 65 (3d

Cir. 1982) (citation omitted).



           Unless the reviewing court establishes the existence of
           either of these factors, it may not alter the facts found by
           the trial court. To hold otherwise would be to permit a
           substitution by the reviewing court of its finding for that of
           the trial court, and there is no existing authority for this in
           the federal judicial system, either by American common
           law tradition or by rule and statute.

Id. at 1302-03 (quotation marks and citation omitted). We acknowledge
that generally, “federal court decisions do not control the determinations of
the Superior Court.” NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52
A.3d 296, 303 (Pa. Super. 2012) (citation omitted).
6
    The High Court explained “clearly erroneous” as follows:

               Although the meaning of the phrase “clearly erroneous”
           is not immediately apparent, certain general principles
           governing the exercise of the appellate court’s power to
           overturn findings of a district court may be derived from
           our cases. The foremost of these principles . . . is that a
           finding is clearly erroneous when although there is
           evidence to support it, the reviewing court on the entire
           evidence is left with the definite and firm conviction that a
           mistake has been committed. This standard plainly does
           not entitle a reviewing court to reverse the finding of the
           trier of fact simply because it is convinced that it would
           have decided the case differently. The reviewing court
           oversteps the bounds of its duty . . . if it undertakes to



                                        -6-
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      In Martin v. Evans, 711 A.2d 458 (Pa. 1998), a jury found the

defendant was not negligent.     Id. at 459.    Our Supreme Court examined

whether the trial court erred by “granting a new trial based on its

determination that the [jury’s] verdict was against the weight of the

evidence.”   Id. at 459. The trial court had relied on conflicting testimony

that established the defendant’s liability.    Id. at 463.   The Martin Court

unanimously reversed the trial court:

             A resolution of whether [the defendant] was negligent
         relied upon a credibility determination and the jury’s
         assessment of what constituted ordinary care under the
         circumstances. Because this assessment was solely
         within the province of the jury, the trial court was
         not at liberty to reassess the evidence and make its
         own credibility determinations simply because it
         would     have reached        a   different  conclusion.
         Accordingly, we hold that the trial court abused its
         discretion by disregarding the jury’s credibility
         determination and substituting its own.



         duplicate the role of the lower court. In applying the
         clearly erroneous standard to the findings of a district
         court sitting without a jury, appellate courts must
         constantly have in mind that their function is not to decide
         factual issues de novo. If the district court’s account of
         the evidence is plausible in light of the record viewed in its
         entirety, the court of appeals may not reverse it even
         though convinced that had it been sitting as the trier of
         fact, it would have weighed the evidence differently.
         Where there are two permissible views of the evidence, the
         factfinder’s choice between them cannot be clearly
         erroneous.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985)
(quotation marks and citations omitted).




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J. A03038/15


Id. (emphases added and punctuation and citations omitted).

        The pertinent statute of the PHRA follows:

           (c.2) If, after a trial held pursuant to subsection (c), the
           court of common pleas finds that a defendant engaged in
           or is engaging in any unlawful discriminatory practice as
           defined in this act, the court may award attorney fees and
           costs to the prevailing plaintiff.

43 P.S. § 962(c.2). “Use of the term ‘may’ signals the legislature’s intention

to rest the award of counsel fees and costs within the discretion of the trial

court.” Hoy, 720 A.2d at 751. The Hoy Court acknowledged that it may

refer to the federal statutory analogue at 42 U.S.C. § 2000e,7 but was not

bound by it or case law construing it. See Hoy, 720 A.2d at 751-52.

        In Hoy, our Supreme Court held the trial court did not abuse its

discretion in denying counsel fees following a jury verdict in the plaintiff’s

favor:



7
    Subsection (k) follows:

           (k) Attorney’s fee; liability of Commission and United
           States for costs

           In any action or proceeding under this subchapter the
           court, in its discretion, may allow the prevailing party,
           other than the Commission or the United States, a
           reasonable attorney’s fee (including expert fees) as part of
           the costs, and the Commission and the United States shall
           be liable for costs the same as a private person.

42 U.S.C. § 2000e-5(k). The statute is part of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, which prohibits employment
discrimination.




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               After review of the record, we do not believe that the
           trial court committed an abuse of discretion when it denied
           counsel fees to [the plaintiff]. The Superior Court noted
           that [the plaintiff] received a fairly substantial monetary
           recovery against [the defendant] for its violation of the
           Act.    Additionally, as noted by Judge McEwen in his
           concurrence [to the Superior Court majority], the violation
           of the Act was fairly debatable, as the evidence was not
           overwhelming. The trial court weighed the verdict against
           the evidence and determined, in its discretion, that an
           award of counsel fees was not appropriate.

Id. at 752.8

        Instantly, the trial court—despite denying Appellee’s motion for post-

trial relief—held that the jury’s verdict was not supported by the evidence.

Order, 1/17/14, at 1. Furthermore, the court—identical to the trial court in

Martin—reassessed       the   evidence   by   rejecting   the   jury’s   credibility

determination in favor of Mitchell and substituting its own. See id.; Martin,

711 A.2d at 463. The trial court reversed the jury’s finding of fact and was

convinced the evidence did not support the jury’s verdict, cf. Anderson,

470 U.S. at 573; Krasnov, 465 F.2d at 1302-03, despite denying Appellee’s

motion for post-trial relief. See Order, 1/17/14, at 1. Unlike the Hoy Court,

which observed the evidence was underwhelming, the instant trial court did

not simply quantify the evidence: the court flatly rejected the jury’s

credibility determination and substituted its own.        See Hoy, 720 A.2d at

752.     In sum, rather than weigh the evidence as, e.g., overwhelming or


8
    The Hoy Court did not expand upon its use of the word “weigh.”




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weak, see id., the instant trial court outright rejected the jury’s credibility

determination in favor of Mitchell. See Martin, 711 A.2d at 463. Because

the trial court misapplied the law, it abused its discretion.   See Hoy, 720

A.2d at 752; Paden, 658 A.2d at 343; accord Silberman, 683 F.2d at 65

(holding abuse of discretion occurs when trial court uses improper standard).

Accordingly, we vacate the judgment, vacate the January 17, 2014 order,

and remand for further proceedings.9 Because we granted relief based on

two of Appellant’s arguments, we need not address her remaining issues and

arguments.     See Siegal v. Stefanyszyn, 718 A.2d 1274, 1277 n.6 (Pa.

Super. 1998); see generally Pa.R.A.P. 2119(a).

      Judgment vacated.      Order vacated.      Case remanded for further

proceedings. Jurisdiction relinquished.

      Judge Mundy joins the memorandum.

      Judge Stabile files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/18/2015




9
  If the trial court concludes counsel fees are warranted, then it may
consider the reasonableness of the amount requested.



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