J-A08013-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

KEYSTONE CARE ADMINISTRATIVE                 :     IN THE SUPERIOR COURT OF
SERVICES, INC.,                              :           PENNSYLVANIA
                                             :
               Appellee                      :
                                             :
       v.                                    :
                                             :
BRUCE GROSSINGER, D.O.,                      :
                                             :
               Appellant                     :        No. 1051 EDA 2015

              Appeal from the Judgment Entered March 12, 2015
              in the Court of Common Pleas of Montgomery County
                        Civil Division at No(s): 06-04049

BEFORE:       BOWES, OLSON, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED NOVEMBER 21, 2016

       I join the Majority’s proficient resolution of all issues in this appeal

save   one:    the   award   of   counsel   fees   based   upon   the   contract’s

indemnification provision.

       “Pennsylvania generally adheres to the American Rule, under which a

litigant cannot recover counsel fees from an adverse party unless there is

express statutory authorization, a clear agreement of the parties, or some

other established exception.”     Samuel-Bassett v. Kia Motors Am., Inc.,

34 A.3d 1, 56–57 (Pa. 2011) (citation and internal quotation marks omitted;

emphasis added). The question here is whether the indemnification clause




*Retired Senior Judge assigned to the Superior Court.
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at issue is a clear agreement to shift fees to the losing party in an action

between the contracting parties for breach of the contract.

     The Majority correctly notes that the agreements provide that the

section headings shall not affect construction of the provisions.       Majority

Memorandum at 24. However, it is also true that

           [i]n construing a contract each and every part of it must
     be taken into consideration and given effect, if possible, and the
     intention of the parties must be ascertained from the entire
     instrument. … The court will adopt an interpretation that is
     most reasonable and probable bearing in mind the objects which
     the parties intended to accomplish through the agreement.

Wrenfield Homeowners Ass'n, Inc. v. DeYoung, 600 A.2d 960, 963 (Pa.

Super. 1991) (internal quotation marks and citations omitted).

     The provision at issue relates to indemnification.       “An agreement to

indemnify is an obligation resting upon one person to make good a loss

which another has incurred or may incur by acting at the request of the

former, or for the former’s benefit.”         Burlington Coat Factory of

Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010,

1022 (Pa. Super. 2015) (citation and internal quotation marks omitted;

emphasis added).

     A   fairly   common   scenario   involving   use   of   an   indemnification

agreement is for a contractor performing work at a site to indemnify the

premises owner for damages it was required to pay to a person injured on

the premises as a result of the contractor’s negligence.             See, e.g.,



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Bernotas v. Super Fresh Food Markets, Inc., 863 A.2d 478, 479 (Pa.

2004) (noting general contractor’s indemnification of grocery store following

settlement of case against the store by a patron who fell into a hole in the

construction area). Such a provision in the contract at issue in this appeal

makes sense: KCAS would not want to be on the hook if, for example, one of

the claimants it sent to Physician was injured while Physician was performing

an IME of the claimant.

      However, clauses requiring a losing party to a contract dispute to pay

the other side’s attorney’s fees usually look very different.         A typical

contractual fee-shifting provision reads as follows:

      If either party breaches any provision of this Agreement, the
      other party shall have the right, at his or her election, to sue for
      damages for such breach or seek such other remedies or relief
      as may be available to him or her, and the party breaching this
      contract shall be responsible for payment of legal fees and costs
      incurred by the other in enforcing their rights under this
      Agreement.

McMullen v. Kutz, 985 A.2d 769, 771 (Pa. 2009) (citation and internal

quotation marks omitted). See also Bayne v. Smith, 965 A.2d 265, 269

(Pa. Super. 2009) (“Attorney’s Fees. The prevailing party in an action

brought for the recovery of rent or other money’s [sic] due or to become

due under this lease or by reason of a breach of any covenant herein

contained or for the recovery of the possession of said premises, or to

compel the performance of anything agreed to be done herein, or to recover

for damages to said property, or to enjoin any act contrary to the provisions


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hereof, shall be awarded all of the costs in connection therewith, including,

but not by way of limitation, reasonable attorney’s fees.”) (emphasis,

citation, and internal quotation marks omitted); Trizechahn Gateway LLC

v. Titus, 976 A.2d 474, 482 (Pa. 2009) (“The Tenant agrees to pay a

reasonable attorney’s fee if legal action is required to enforce performance

by Tenant of any condition, obligation or requirement hereunder.”).

      In this action involving sophisticated parties who surely knew how to

draft a standard fee-shifting provision, I would hold that the trial court erred

in concluding that there was a clear agreement of the parties that one of

them could recover attorney’s fees from the other for litigation stemming

from breach of the contract.

      Therefore, I respectfully dissent to that portion of the Majority

Memorandum that affirms the award of attorney’s fees to KCAS.




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