J-S53018-16


                                  2016 PA Super 258

ARMANDO DEL PIELAGO AND AIDA DEL                  IN THE SUPERIOR COURT OF
PIELAGO,                                                PENNSYLVANIA

                            Appellants

                       v.

JEREMY ORWIG,

                            Appellee                  No. 156 MDA 2016


               Appeal from the Order Entered December 24, 2015
                 In the Court of Common Pleas of York County
                   Civil Division at No(s): 2013-SU-2430-69


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

OPINION BY SHOGAN, J.:                           FILED NOVEMBER 21, 2016

       Appellants, Armando Del Pielago (“Armando”), and Aida Del Pielago 1

(“Aida”), husband and wife, appeal from the order granting Appellee, Jeremy

Orwig, summary judgment on December 24, 2015. At issue is the validity of

a general release signed by Appellants. We reverse and remand.

       The averments of the complaint that Appellants filed on September 11,

2013, allege that on July 14, 2011, Armando was operating his 2004

Chevrolet Trailblazer at 11:20 p.m. in York County, Pennsylvania, when

Appellee, driving a 1999 Ford Taurus owned by his wife, failed to stop at a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   We note that Appellants’ last name is variously spelled in the record also
as del Peilago.
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stop sign and “violently collide[d] into” Appellants’ vehicle.         Complaint,

9/11/13, at ¶¶ 1–6.        As a result of the injuries sustained in the collision,

Appellants, who contracted for the full tort option,2 aver that Armando

       has been forced to undergo extensive physical therapy, nerve
       block injections, and surgery to repair a left rotator cuff tear, a
       surgery to his left wrist to correct traumatically induced carpal
       tunnel syndrome, as well as medical testing and evaluation for
       his tinnitus, headaches, dizziness, low back problems, left sided
       weakness, leg and heel pain, and visual field distortions, as well
       as depression, for which [he] claims damages.

Id. at ¶¶ 9, 10.

       The trial court summarized the procedural history as follows:

               [Appellants] Armando and Aida Del [Pielago] initiated this
       action by filing a Complaint on September 11, 2013. [Appellee]
       responded to the Complaint on October 18, 2013 with New
       Matter. The Complaint followed a car accident involving Mr.
       Armando Del [Pielago], for which [Appellants] signed a pre-
       litigation release. The release was signed on July 26, 2011, at
       which time a check was tendered for $2,857.92.

             [Appellee] then filed a Motion for Judgment on the
       Pleadings on October 21, 2013. The Motion for Judgment on the
       Pleadings was denied by the undersigned on February 2, 2014.
       [Appellee] then filed a Motion to Rule on Objections, which was
       withdrawn on July 7, 2014.        [Appellee] filed a Motion for
       Summary Judgment on February 12, 2015, which was denied on
       May 26, 2015.



____________________________________________


2
  The full tort option permits an insured to seek recovery for all medical and
other out-of-pocket expenses in addition to financial compensation for pain
and suffering and other nonmonetary damages as a result of injuries caused
by other drivers. 75 Pa.C.S. § 1705(a)(1)(B); Hoffman v. Troncelliti, 839
A.2d 1013, 1015 (Pa. 2003).



                                           -2-
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            [Appellee] then filed his Second Motion for Summary
      Judgment on July 28, 2015. [Appellants] responded on August
      17, 2015.

Trial Court Opinion (Summary Judgment), 12/24/15, at unnumbered 1–2.

      The trial court granted Appellee summary judgment on December 24,

2015, and dismissed the action. Appellants filed the instant timely appeal to

this Court on January 21, 2016.

      Appellants raise the following single issue in their brief on appeal:

      1. Whether there are triable issues of fact to be determined by a
      jury where releasing [Appellants] plead, and subsequently testify
      at depositions, that they signed a general release of liability,
      only because an unscrupulous insurance adjuster, through subtle
      misdirection, fraudulently induced them to sign the general
      release?

Appellants’ Brief at 5.

      Summary judgment is appropriate where there is no genuine issue of

material fact, and the moving party is entitled to relief as a matter of law.

Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014) (en banc) (citing

Pa.R.C.P. 1035.2). “[A] factual issue is considered ‘material’ for summary

judgment purposes if its resolution could affect the outcome of the case

under the governing law.” Strine v. Commonwealth, 894 A.2d 733, 737

(Pa. 2006).   “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.” Kennedy v. Robert Morris

Univ., 133 A.3d 38, 41 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa.




                                     -3-
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2016) (quoting Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.

2010)).

     We exercise plenary review in an appeal from an order granting

summary judgment. Dougherty v. Pepper Hamilton LLP, 133 A.3d 792,

796 (Pa. Super. 2016). On appellate review, then, “we will view the record

in the light most favorable to the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be resolved against the

moving party.” Matharu, 86 A.3d at 255. As an appellate court, we may

reverse a grant of summary judgment only if there has been an error of law

or an abuse of discretion. Kennedy, 133 A.3d at 41. “To the extent that

this Court must resolve a question of law, we shall review the grant of

summary judgment in the context of the entire record.” Id. Further:

            Where the discretion exercised by the trial court is
     challenged on appeal, the party bringing the challenge bears a
     heavy burden. It is not sufficient to persuade the appellate court
     that it might have reached a different conclusion if charged with
     the duty imposed on the court below; it is necessary to go
     further and show an abuse of the discretionary power. Chenot
     [v. A.P. Green Services, Inc., 895 A.2d 55, 60–61 (Pa. Super.
     2006)] (citation omitted). 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.
     Id. at 61–62 (citation omitted).

Dougherty, 133 A.3d at 796.

     Appellants assert that twelve days after the accident, on July 26,

2011, Mr. H. Jesse George, an adjuster from Progressive Insurance


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Company, the insurer for both parties, went to Appellants’ home without an

interpreter, knowing that Appellants could not understand English, presented

a check for $2,851.92 and a release, and induced Appellants to sign the

release that day.       Appellants’ Brief at 10; Deposition of H. Jesse George,

11/18/14, at 14. Mr. George described his initial involvement in the matter

as follows:

               I was assigned to their bodily injury claim and also their
         property damage claim. The Del Pielagos were also insured with
         Progressive. They had reported a claim under their own auto
         policy.

               A dual loss was set up under the other person’s accident. I
         investigated the merits of that claim as far as liability is
         concerned and contacted the Del Pielagos regarding the property
         damage claim and Mr. Del Pielago’s bodily injury claim.

Deposition of H. Jesse George, 11/18/14, at 14.         Mr. George stated that

Appellee was deemed to be at fault for the accident “for failure to yield right-

of-way at a stop sign.” Id. at 20.

         Appellants maintain that Mr. George knew that Appellants could not

speak or understand English sufficiently to comprehend a legal matter.

Appellants’ Brief at 19. They argue that Mr. George lied at his deposition,

inter alia, about his belief that Armando sustained only minor injuries, that

his actions did not suggest that the check he presented was for lost wages

only, that he destroyed his hand-written notes from the July 26, 2011

meeting with Appellants, and that his actions amounted to bad faith and

fraud.     Id. at 22.    Appellants suggest that the fraudulent conduct herein


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while “subtle, it is provable.” Id. at 29. Appellants contend that whether

Mr. George committed fraud is a question of fact for a jury. Id. at 31 (citing

Greenwood v. Kadoich, 357 A.2d 604, 606 (Pa. Super. 1976)).

     The language of the release provided as follows:

              FULL RELEASE OF ALL CLAIMS WITH INDEMNITY
                    (WITH LIMITED FUTURE EXPENSES)

     Know all by these presents, that Armando Del Pielago Sr. Aida
     Del Pielago (Releasor), for and in consideration of the payment
     of two thousand eight hundred fifty one ($2,851.92), the receipt
     and sufficiency of which is hereby acknowledged, do hereby for
     ourselves and for our heirs, executors, administrators,
     successors, assigns and any and all other persons, firms
     employers, corporations, associations or partnerships, acquit and
     forever discharge and his, her, their or its corporations,
     associations, or partnerships acquit and forever discharge
     Jeremy Orwig & Heather Orwig and his, her, their or its
     corporations, associations, or partnerships (Releasees) of, and
     from, any and all claims, actions, causes of action, demands,
     rights, damages, costs, loss of wages, expenses, hospital and
     medical and nursing expenses, loss of consortium, loss of service
     or affection, loss of society and companionship and any
     compensation whatsoever, which the undersigned now has/have
     or which may hereafter accrue on account of or in any way
     growing out of an accident which occurred on or about 7/14/11
     at or near Hanover, PA. In further consideration, the Releasees
     agree to pay reasonable and necessary medical and/or dental
     expenses and/or lost wages, not paid or payable by any other
     program, group contract or other arrangement, up to a
     maximum of seven thousand ($7,000) incurred by us within 45
     days after the date of this Release, provided such treatment
     relates to the accident described above and would be
     recoverable by Releasor in a tort action in the courts of
     Pennsylvania under Pennsylvania law including but not limited to
     Act 6.

     It is understood and agreed that this settlement is in full
     compromise of a doubtful and disputed claim as to both
     questions of liability and as to the nature and extent of the
     injuries and damage, and that neither this Release, nor the

                                    -6-
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     payment pursuant thereto, shall be construed as an admission of
     liability, such being denied.

     The undersigned hereby declare(s) and represent(s) that the
     injuries are or may be permanent and that recovery there from
     is uncertain and indefinite and in making this Release, it is
     understood and agreed that the undersigned rely(ies) wholly
     upon the undersigned’s judgment, belief and knowledge of the
     nature, extent and duration of said injuries and liability
     therefore, and is made without reliance upon any statement or
     representation of the party or parties being released, or their
     representatives, or by any physician or surgeon by them
     employed.

     In consideration of the payment of the sum and expenses
     indicated above, the undersigned further agrees to indemnify the
     above Releasees and save them harmless from any and all
     further liability, loss, damage, claims of subrogation and expense
     (other than the sum and expenses described in the first
     paragraph of this Release), arising because of any injuries and
     damages, and, if necessary in order to save them so harmless,
     to satisfy on their behalf any judgment against them arising in
     any way out of the aforesaid accident.

     The undersigned further declare(s) and represent(s) that no
     promise, inducement or agreement not herein expressed has
     been made to the undersigned, and that this Release contains
     the entire agreement between the parties hereto, and that the
     terms of this Release are contractual and not a mere recital.

     The undersigned has read the foregoing Release and fully
     understands it.



     H. Jesse George 7/26/2011 x Armando del Pielago, Sr ______
     Witness       Date        Releasor                  Date

     ________________________x Aida del Pielago           __07/26/11
     Witness     Date------ Releasor                         Date

Release, Appellee’s Answer and New Matter, 10/18/13, at Exhibit A.




                                   -7-
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      “In Pennsylvania, it is well settled that the effect of a release is to be

determined by the ordinary meaning of its language.” Pennsbury Village

Associates, LLC v. McIntyre, 11 A.3d 906, 914 (Pa. 2011).                In the

absence of fraud or mutual mistake a general release is enforceable

according to its terms. Brosius v. Lewisburg Craft Fair, 557 A.2d 27, 29

(Pa. Super. 1989). With respect to general releases, our Supreme Court has

held that “however improvident their agreement may be or subsequently

prove for either party, their agreement, absent fraud, accident or mutual

mistake, is the law of the case.” Buttermore v. Aliquippa Hospital, 561

A.2d 733, 735 (Pa. 1989) (emphasis added).

      In granting summary judgment and dismissing this case, the trial

court stated as follows:

             [Appellants] have argued that they were unable to
      understand the release because they do not speak English well.
      However, [Appellants’] daughter who also speaks and
      reads the English language was present at the time
      [Appellants] met with the adjuster.             [Appellants] were
      advised that they could have an attorney present, and
      [Appellants’] daughter took notes on behalf of
      [Appellants], further demonstrating her understanding of
      the transaction. While the Court does have concerns about the
      predatory nature of some adjusters, we must determine this
      case under the law and the facts of this case. To set aside a pre
      -litigation release based on fraud is a high burden that we do not
      find [Appellants] are able to meet.

           [Appellants] signed a release, took money offered to them,
      and were additionally informed that they may have an attorney
      present. They chose to take these actions on their own accord.
      Our presumption is in favor of the release signed by
      [Appellants], and [Appellants] would be unable to meet their
      burden to prove an avoidance of the release under the law.

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Trial Court Opinion (Summary Judgment), 12/24/15, at unnumbered 4

(emphases added).

        The pleadings in this case disclose unresolved issues of fact pertaining

to the validity of the release.                Appellants assert that they had no

understanding of the release; indeed, they maintain that they were not even

given the opportunity to read it.         Rather, it was presented to them on an

electronic tablet that Mr. George scrolled through rapidly.          Deposition of

Armando Del Pielago, 4/18/14, at 82–86; Deposition of Aida Del Pielago,

9/30/14, at 29, 42; Deposition of Aida Flores,3 9/30/14, at 35–36.          While

Appellants observed words and letters on the document, they did not read it

or understand it, and they believed their signatures were required to receive

a check for lost wages. Deposition of Armando Del Pielago, 4/18/14, at 82–

86; Deposition of Aida Del Pielago, 9/30/14, at 15–17. Thus, they maintain

their signatures on the release were a product of fraud or misrepresentation.

        In Hower v. Whitmak Associates, 538 A.2d 524 (Pa. Super. 1988),

this Court held that questions pertaining to intent and understanding in

executing a release raise material issues of fact regarding the validity of the

agreement.       In Hower, mistake had been raised as a defense in the

pleadings, and it was supported by evidence which became apparent during

____________________________________________


3
     Aida Flores is Appellants’ daughter. Deposition of Aida Flores, 9/30/14, at
7.



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discovery.   The appellant therein alleged actual misrepresentation by the

insurance agent in informing her that the release would discharge only one

of the parties, and the appellant's deposition recounted her failure to

comprehend the meaning of the release.          Id. at 528.     Under these

circumstances, we held that the trial court erred in entering summary

judgment barring recovery. Similarly, in the instant case, Appellants have

alleged facts that assail the validity of the release, and the facts are

supported by evidence revealed during discovery.        Summary judgment

cannot be supported herein.

     Whether fraud exists in the instant case is a matter properly presented

to a jury. Nearly one hundred years ago, our Supreme Court examined a

plethora of cases that presented jury questions regarding whether releases

had been procured by fraud. The following cases, while found to not involve

fraud in the inducement to sign a release, all make clear that it is for the

jury to decide if fraud occurred, and the releaser’s ability to read and

understand is crucial to the determination:

     Pa. R. R. Co. v. Shay, 82 Pa. 198. Plaintiff, who signed a
     release, said he could neither read nor write; but execution of
     the paper was not denied.         He did not know contents of
     instrument, understood it to be simply a receipt for expenses,
     and did not intend to release damages when he put his name
     thereto. While the representative of defendant told plaintiff it
     was a receipt (as it was), it also was a release, which he did not
     tell plaintiff. The case was submitted to the jury, to find whether
     the release had been “obtained by fraud.” We said there was no
     evidence to justify submission, and, applying the rule laid down
     by Chief Justice Gibson in Greenfield’s Estate, 14 Pa. 489,
     496, “If a party who can read * * * will not read a deed put

                                   - 10 -
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     before him for execution, * * * he is guilty of supine negligence,
     which * * * is not the subject of protection, either in equity or at
     law,” we reversed a judgment for plaintiff. This authority is
     followed in many later cases, and is cited as late as O’Reilly v.
     Reading Trust Co., 262 Pa. 337, 343, 105 Atl. 542.

     Seeley v. Citizens’ Traction Co., 179 Pa. 334, 36 Atl. 229.
     Plaintiff, a woman, released damages for $25 six days after the
     accident. She testified that she did not “comprehend the nature
     of the writing.” The trial court instructed for defendant, and we
     affirmed a judgment in its favor. No evidence of “trickery or
     fraud” appears; but the case is important here because we there
     recognize (179 Pa. 338, 36 Atl. 229), as a relevant consideration
     in passing upon the validity of the release, the fact that plaintiff
     was a person of “intelligence and fair education,” as is the
     present plaintiff. Bruns v. Union Traction Co., 185 Pa. 533,
     39 Atl. 1114. Plaintiff’s husband was hurt at his work August 9,
     and died as the result thereof August 15. The day before his
     death he executed a release upon payment of $40.               The
     evidence tended to show the paper was signed when deceased
     was “mentally competent,” and after he had “bargained” with
     the representative of defendant company. The fact of this prior
     bargaining was taken into consideration in affirming judgment on
     a directed verdict for defendant, as it must be in the case now
     before us.

     Kane v. Chester Traction Co., 186 Pa. 145, 40 Atl. 320, 65
     Am. St. Rep. 846. Plaintiff, a woman, signed a release. She
     claimed it was obtained through fraudulent representations by
     defendant’s agent, who told her the local judge was a
     stockholder in defendant company, and therefore she had no
     chance to win a suit at law. We said, assuming as a fact that
     such false statement was made, there was no “clear testimony”
     that it induced the execution of the release, and stated (186 Pa.
     150, 40 Atl. 320, 65 Am. St. Rep. 846) the “flimsy nature” of the
     alleged misrepresentations was such as not to affect the
     judgment of a person of “common sense.” We also said that
     “the fact that the injuries proved greater than they looked to be
     at the time of the release is not to be considered at all,” citing
     Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229. Judgment for
     defendant was affirmed. Here again the apparent “common
     sense” or intellectual capacity of the person who signed
     the release is taken into account in passing upon the
     evidence as to its validity.

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     In De Douglas v. Union Traction Co., 198 Pa. 430, 48 Atl.
     262, binding instructions were given for defendant, and
     judgment in its favor affirmed. Plaintiff, a woman, signed a
     release, a few days after the accident, on payment of $50. She
     testified that an agent of defendant company called on her, paid
     the money, and asked for a receipt; whereupon she put her
     name to a paper which he produced. We held the proofs
     insufficient to overcome the release, saying that, when evidence
     to set aside a release is not “clear, precise, and indubitable,” the
     issue “should be withdrawn from the jury.” This is an authority
     that in such cases it may be the right and duty of the court to
     judge as to the sufficiency, in quality, of evidence to go to the
     jury on a question of alleged fraud in the procurement of a
     release.

                                     * * *

     Laird v. Union Traction Co., 208 Pa. 574, 57 Atl. 987. Plaintiff
     executed a release, on payment to him of $150, the day after
     the accident.     A judgment for defendant, following binding
     instructions in its favor, was affirmed. Plaintiff claimed he was
     unconscious from his injuries when he executed the release. We
     said, “To set aside a written instrument the evidence must be
     “clear, precise, and indubitable,” whether the allegation be fraud
     practiced by the beneficiary under it i.e., the person to whom the
     release is given, or incapacity on the part of him who executed
     it,” and added there was no evidence of fraudulent
     representation or undue persuasion when the release was
     executed, but there was “some slight evidence on the part of
     plaintiff that he was in a state of unconsciousness” at that time.
     The case is treated as though there were no evidence of fraud
     present; and this apparently because of the insufficiency of the
     testimony as to plaintiff’s unconsciousness; for, if plaintiff
     were really in a state of unconsciousness when the
     release was taken from him, and defendant knew it, the
     obtaining of the paper under such circumstances would in
     itself be a fraud. This authority is valuable here, for it clearly
     rules that the trial judge, in such cases, acts as a chancellor in
     passing on the legal sufficiency of the proofs (208 Pa. 576, 577,
     57 Atl. 987), as to whether or not they measure up to the
     standard required, and, if he considers the evidence not of a
     quality to be reasonably found “indubitable,” he should not let
     the jurors pass upon it.

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      Hicks v. Harbison-Walker Co., 212 Pa. 437, 61 Atl. 958.
      Plaintiff, who signed a release on payment of $25, claimed the
      person who obtained his signature thereto “misrepresented it as
      a receipt for money donated to him.” He could not read, and did
      not ask to have the paper read.       We considered plaintiff’s
      “mental capacity,” and, noting that his story was
      uncorroborated, applied the rule from Greenfield’s Estate, 14
      Pa. 489. Judgment on binding instructions for defendant was
      affirmed.

Ralston v. Philadelphia Rapid Transit Co., 110 A. 329, 331–332 (Pa.

1920) (emphases added). In the following cases, fraud was found to exist,

and all involved jury questions in the determination:

      Ettinger v. Jones, 139 Pa. 218, 21 Atl. 137, is one of those
      cases which must be confined to its own peculiar facts. A
      woman, whom defendant had got into trouble and promised to
      marry, signed a release, at his urgent solicitation, when she was
      under great mental stress. The only consideration was that
      imparted by the seal upon the instrument, and a renewal of the
      promise to marry when defendant got out of trouble with
      another woman. In affirming judgment for plaintiff, we held the
      release, obtained by “trick and fraud,” was void.

      Gibson v. W. N. Y. & Pa. R. R. Co., 164 Pa. 142, 30 Atl. 308,
      44 Am. St. Rep. 586, is a case where plaintiff proved that, when
      his name was put upon the release, he was mentally incapable
      from the effects of anaesthetics administered a short time
      before. Apparently it was not alleged defendant either knew of
      or took advantage of plaintiff’s weakened mental state; the sole
      contention being that, owing to his lack of mind, no contract
      existed. In deciding this issue was for the jury, we said (164
      Pa. 149, 30 Atl. 310, 44 Am. St. Rep. 586): “Where fraud * * *
      in the creation of the instrument is the defense, it is a purely
      equitable one, and equitable rules will be enforced as to the
      measure of proof to sustain it. But where the defense rests on
      the existence of a fact involving no element of fraud, the
      evidence is for the jury, under the common-law rules of
      evidence.”




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     Julius v. P., A. & M. Traction Co., 184 Pa. 19, 39 Atl. 141, is
     much like the case just reviewed. Clayton v. Consolidated
     Traction Co., 204 Pa. 536, 54 Atl. 332. Plaintiff, a woman,
     signed a release, upon payment of $5, ten days after the
     accident. She afterwards claimed it was procured by fraud.
     Judgment on a verdict against defendant was affirmed. Plaintiff
     testified a man called at her house, claiming he was a friend of
     the car conductor who had caused the accident, and said he had
     come to see her in regard to getting the former reinstated in his
     position. At a second interview this man inquired how much
     expense she had been put to, and, when told $5, he gave her
     the amount, asking for a receipt. He produced a paper, folded
     in such a way plaintiff could not read it; neither did he
     read it to her, but designated the place where he desired
     her to sign.        Plaintiff did not know the man was a
     representative of the company.          This testimony was fully
     corroborated by a disinterested witness. We said (204 Pa. 541,
     54     Atl.  332)    that    defendant’s      agent      not    only
     misrepresented the true character of the release, but
     “prevented” its contents from being known, and this, taken
     with the other circumstances in the case, constituted such fraud
     as to avoid the instrument.        However, we there expressly
     recognized the authority of Pa. R. R. Co. v. Shay, 82 Pa. 198,
     and De Douglas v. Union Traction Co., 198 Pa. 430, 48 Atl.
     262, but distinguish them on their facts. We also recognize the
     authority of In re Greenfield's Estate, 14 Pa. 489, and, in this
     connection, state that the mere circumstance of the release not
     being read to plaintiff would not convict defendant of fraud in
     procuring it. Finally, we direct attention to the fact that the man
     who called upon plaintiff did not introduce himself as a
     representative of defendant, or in any sense negotiate for a
     settlement of her claim against the traction company, which,
     with other apparent features, distinguishes the case from the
     one now on appeal.

                                     * * *

     Gordon v. Great A. & P. Tea Co., 243 Pa. 330, 90 Atl. 78.
     Plaintiff signed a release, which he claimed was procured by
     fraud. Judgment, entered on a verdict for plaintiff, was affirmed.
     A payment of $150 had been made at the time the release was
     signed; but plaintiff presented evidence to show he was then in
     an enfeebled mental condition, as the result of a “head
     operation” necessitated by the accident; that the representative

                                    - 14 -
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     of defendant informed him the $150 was a gratuity from his
     employers “to put” him over the holidays, and the word “release”
     was never mentioned; that a document was placed before him
     with only the signature line exposed, and he was hurried in
     the execution of the paper, which the representative of
     the company stated was merely a receipt. We said (243 Pa.
     335, 90 Atl. 79) the evidence was sufficient to justify the plea
     that plaintiff’s mind “was so enfeebled at the time he signed the
     paper that he could readily have been made a dupe of designing
     persons,” and this, together with the other evidence in the case,
     was ample to sustain a finding that he was deceived and
     defrauded into the execution of the alleged release, adding that
     ‘the fact that the plaintiff did not read or require the paper to be
     read to him” could not (under the peculiar circumstances) be
     given binding effect, for he had not been afforded a “fair
     opportunity for examination” thereof, and had been
     deceived as to its contents. We there note the distinction
     between cases where the effort is to “reform” and those in which
     the attempt is to “set aside” written instruments; also, in the
     latter class of cases, the difference between those where either
     the “element of fraud or mental enfeeblement” appears and
     instances where such elements are lacking. Here in the pending
     case the effort is to set aside the release, and, while fraud in its
     procurement is alleged, the evidence depended upon to prove
     that element fell short of the legal standard required for the
     purpose, as already shown in our review thereof, and as we shall
     hereinafter briefly discuss. The facts at bar and those in the
     last-cited case differ in many apparent respects.

     Lindemann v. Pittsburgh Rys. Co., 251 Pa. 489, 96 Atl. 1085.
     Plaintiff signed a release upon payment to him of $50. At trial
     there was ample evidence, both lay and expert, to sustain
     plaintiff’s contention that the release had been executed
     when he was mentally incapable; and the issue was decided
     accordingly. All that is said in the opinion of the court below
     affirming judgment on the verdict (adopted per curiam) must be
     read with the peculiar facts of the case in mind. This definition,
     relevant here, is there approved: “Indubitable proof * * * is
     evidence that is not only found to be credible, but of such weight
     and directness as to make out the facts alleged beyond a
     reasonable doubt.”

     In Hogarth v. Grundy, 256 Pa. 451, 100 Atl. 1001, it was
     alleged plaintiff signed a release on payment of $200. Plaintiff

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     admitted some money was given him by his employers, but said
     it was at a time when he was suffering intensely from the effects
     of an amputated arm. The agent of defendant who called to get
     the release did not make known to plaintiff who he was, and the
     latter did not know him. He told the injured man that he was
     going to give him a “little money,” as a “present” from his
     employers, “to help him out on expenses.” Plaintiff had no
     recollection of signing the release, which contained only his
     mark, or any other paper, and he denied that the man who
     brought the money said anything about a settlement of
     his claim against defendant. He was corroborated by his
     wife. We affirmed judgment for plaintiff; but, as may be seen,
     the case is readily distinguishable from the one before us.

     Vanormer v. Osborn Machine Co., 255 Pa. 47, 99 Atl. 161.
     Plaintiff signed a release in consideration of $1,150, and
     subsequently claimed it was secured by fraud. He testified the
     agent of the company which insured defendant obtained his
     signature by pretending to have a telephone conversation with
     his (plaintiff’s) doctor, an eminent eye specialist, “in which the
     agent quoted the doctor,” who had just examined plaintiff, as
     saying the latter’s right eye “would come out all right, and he
     would soon be able to resume his work.” The injured man,
     relying on the information thus conveyed to him as to his
     physical prospects for the future, signed the release; whereas
     the pretended conversation was an absolute fiction, and plaintiff
     soon afterwards lost the sight of his eye. We sustained a
     judgment entered on a verdict against defendant; for the
     evidence was ample in every way to show a direct case of fraud
     in the procurement of the release.

Ralston, 110 A. at 333–335 (emphases added).

     All of these cases reveal that physical or mental incapacitation of the

party presented with a release, his inability to read or understand, the

existence of corroboration by another witness, and the presentation of a

release under conditions identified as hurried and confusing impact the

determination of alleged fraud in procuring a release or in taking advantage

of a person’s alleged incapacity at the time a release is signed. Moreover,

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here, the conditions described were questions for a jury. All of the above

cases emphasized that the particular facts and conditions present were to be

evaluated on a case-by-case basis.

      Roughly seventy years later, our Supreme Court discussed the validity

of a release where the appellants alleged it was procured by fraud and

claimed the insurance agent failed to fully explain its effect.   Wolbach v.

Fay, 412 A.2d 487, 488 (Pa. 1980). Our Supreme Court explained that Mr.

Wolbach admitted in a deposition that the release was in clear language,

that he read it, and that he understood the meaning of the words. Id.

at 488 (emphasis added).     The Wolbach Court stated, “Since there is no

allegation of actual misrepresentation and appellant had an opportunity to

read the release and admitted he understood it, we find there was no fraud.”

Id.   Thus, the Court concluded that it was proper to grant summary

judgment.     As a basic premise, then, a person’s ability to read and

understand the release is a paramount inquiry.

      The instant case presents a completely contrary scenario to Wolbach.

In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellants’

allegations of fraud and Mr. George’s actions in taking advantage of

Appellants’ inability to speak and understand English. The trial court stated,

in pertinent part:

            Appellants have raised several factual issues in their
      Statement of Errors that are merely their beliefs, or issues that
      do not amount to disputes of material fact. They first raise that
      their daughter, Aida Flores, was not present at the time the

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       release was signed, as was stated in this [c]ourt’s [prior]
       Opinion. Appellant fails to point to anywhere in the record
       where it specifies that Ms. Flores was in Mechanicsburg at the
       time of the meeting. Further, extensive assertions were made in
       the pleadings that Ms. Flores was present and able to translate
       for her parents and take notes, which demonstrated her
       understanding of the conversation with the insurance adjuster,
       Mr. George. Additionally, whether Ms. Flores was physically
       present or present on the phone is neither a genuine issue of
       material fact, nor is it sufficient evidence of fraud to require the
       issue to be presented to a jury.

Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 1–2.

       This explanation represents the trial court’s paramount reason given in

support of its decision to grant summary judgment.          As noted supra, in

response to Appellants’ complaint that they were unable to understand the

release because they do not speak English, the trial court relied upon

Appellants’ daughter’s alleged presence at the meeting between Mr. George

and Appellants because she “speaks and reads the English language.” Trial

Court Opinion (Summary Judgment), 12/24/15, at unnumbered 4.

       The trial court does not identify any pleadings that set forth “extensive

assertions” that the parties’ daughter, Ms. Flores, was present at the

meeting.    Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered

1–2.    Both Appellants, Mr. George, and Ms. Flores all testified in their

depositions that Ms. Flores was not present when Mr. George procured

Appellants’ signatures on the release; rather she was at work, and Aida, her

mother, telephoned her there. Deposition of H. Jesse George, 11/18/14, at

36; Deposition of Armando Del Pielago, 4/18/14, at 81; Deposition of Aida


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Del Pielago, 9/30/14, at 16; Deposition of Aida Flores, 9/30/14, at 18. The

testimony of Appellants, that they had no understanding that they were

signing a release and believed that it was merely confirmation of receipt of a

check for lost wages, was corroborated by their daughter’s testimony.

Deposition of Armando Del Pielago, 4/18/14, at 15; Deposition of Aida Del

Pielago, 9/30/14, at 15; Deposition of Aida Flores, 9/30/14, at 22–25. Ms.

Flores specifically stated that she received an unexpected telephone call

from her mother, who was very upset and confused, on July 26, 2011, while

Ms. Flores was at work. Deposition of Aida Flores, 9/30/14, at 18, 19. Ms.

Flores explained that she had very little time due to her job duties and that

she did not know what was “going on” because she was “not there to see or

just to be present there.” Id. at 20. Ms. Flores testified that her mother

never mentioned a release, and Ms. Flores stated that she understood that

the purpose of Mr. George’s visit was to give Appellants a check for

Armando’s lost wages.     Id. at 23, 24.     Thus, we reject the trial court’s

unsubstantiated explanation.

      The trial court further defended the basis for its grant of summary

judgment as follows:

            Appellants next state that the [c]ourt failed to consider
      divergences in testimony and their belief that the insurance
      adjuster lied under oath. These issues, as with the first issue
      raised, do not constitute genuine issues of material fact that
      would disallow this [c]ourt to grant summary judgment in favor
      of Appellee. Whether Mr. George used an electronic tablet is not
      a material fact, and further, the assertion that he lied under oath
      is simply the Appellants’ belief.

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J-S53018-16



Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 2.

     Mr. George, in his deposition, testified that he knew Appellants did not

speak English, and Mr. George spoke no Spanish.       Deposition of H. Jesse

George, 11/18/14, at 31, 36. His previous discussions with Appellants noted

a language barrier to communication. Id. at 62. Despite this impediment,

Mr. George did not obtain an interpretor. Id. at 36. He stated it would have

been his “practice and procedure” to explain the release to Ms. Flores, their

daughter, and he subsequently stated that he recalled doing so on the

telephone.   Id. at 33–35.   Mr. George admitted that Armando spoke no

English, and Aida spoke very little English. Id. at 41. Curiously, Mr. George

offered specific memory of facts that supported his position but claimed a

lack of recall regarding all contrary assertions.   E.g., id. at 41, 44.   Mr.

George’s testimony was entirely contrary to Appellants’ and Ms. Flores’s

testimony on significant matters that went to the heart of the controversy

and constituted genuine issues of material fact that should have compelled

the trial court to deny summary judgment in favor of Appellee.

     The trial court’s further defense for its grant of summary judgment

was as follows:

           Appellants additionally argue that Mr. George admitted
     that he was initially unable to communicate with Appellants.
     Regardless, as this [c]ourt noted in its Opinion granting
     summary judgment in favor of Appellee, Mr. George advised
     Appellants that they could have an attorney present, and Ms.
     Flores was available to translate.


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J-S53018-16


Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 2–3. Once

again, the trial court fails to support its broad statements with specific

reference to the record, and our independent review of the record does not

support these claims. Mr. George did not state that he advised Appellants

they could have an attorney present at their meeting. Appellant Aida stated

that during the discussion “about two numbers,” which was never explained,

after the release was signed, Aida asked Mr. George if she was “going to

need a lawyer,” and “he say yes.” Deposition of Aida Del Pielago, 9/30/14,

at 39. Moreover, Ms. Flores was not available to translate, despite the trial

court’s statement to the contrary. Armando and Aida were consistent and

adamant that they believed Mr. George was there to give them a check for

Armando’s lost wages to date, they were confused, they did not understand

what was being said due to the language barrier, and Mr. George urged

them merely to sign without explaining his purpose. Deposition of Armando

Del Pielago, 4/18/14, at 79–86; Deposition of Aida Del Pielago, 9/30/14, at

15–35.   Mr. George’s responses to Aida’s multiple complaints that she did

not understand what he was saying were that he understood her.

Deposition of Aida Del Pielago, 9/30/14, at 30, 35.

     Finally, the trial court represented that

     the document speaks for itself. It was signed, without duress,
     by two adult individuals. Appellants chose to sign a release of
     their own free will. If they did not understand what they agreed
     to and signed anyway, it is at their own peril, and does not
     constitute fraud nor warrant recovery under the law.


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Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 4.          The

certified record reveals, instead, that Appellants, individuals who do not

speak English, were railroaded into signing this release, which they believed

to be merely an acknowledgment of Armando’s lost wages to date.

Deposition of Armando Del Pielago, 4/18/14, at 79–86; Deposition of Aida

Del Pielago, 9/30/14, at 15–35.    Thus, application of the law to the facts

herein dictates a reversal, and we conclude there exists a genuine issue of

material fact, such that entry of summary judgment was inappropriate. The

trial court erred in granting summary judgment in the face of pleadings and

depositions raising a factual issue of possible fraud in the procurement of the

release. Hower, 538 A.2d at 527.

      For these reasons, and upon our complete review of the record,

including the deposition testimony of 1) Appellant Armando Del Pielago on

April 18, 2014, and September 30, 2014, 2) Appellant Aida Del Peilago on

September 30, 2014, 3) Aida Flores, the parties’ daughter, on September

30, 2014, and 4) H. Jesse George, the insurance adjustor, on November 18,

2014; the notes of Aida Flores, the computer entries made by Mr. George,

and all of the pleadings filed in the case, we conclude the judgment

exercised was manifestly unreasonable.         There were sufficient factual

allegations in the pleadings and depositions to raise a material issue of fact

regarding Appellants’ execution of the release, see Pa.R.C.P. 1035.1, a

matter which justifies the submission of the issue to a trier-of-fact to


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resolve. See, e.g., Hower, 538 A.2d 524; Buttermore, 533 A.2d 481; and

Cady v. Mitchell, 220 A.2d 373 (Pa. Super. 1966). Thus, we reverse the

entry of summary judgment and remand this case to the common pleas

court.

         Order granting summary judgment in favor of Appellee reversed. Case

remanded. Jurisdiction relinquished.

         Judge Bowes joins the Opinion.

         Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2016




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