J-A04039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

QUINN BUSECK LEEMHUIS TOOHEY &                  IN THE SUPERIOR COURT OF
KROTO INC.,                                           PENNSYLVANIA

                         Appellee

                    v.

JODIE D. COOPER AND ROBERT G.
COOPER, HUSBAND AND WIFE,

APPEAL OF: JODIE D. COOPER

                                                      No. 503 WDA 2015


                     Appeal from the Order March 3, 2015
              In the Court of Common Pleas of Crawford County
                     Civil Division at No(s): AD 2013-897


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 23, 2016

      Jodie D. Cooper (“Appellant”) appeals from the trial court’s order

entering judgment on the pleadings in favor of Quinn, Buseck, Leemhuis,

Toohey, & Kroto, Inc. (“Law Firm”) for a sum Appellant owed pursuant to a

contingent fee agreement. Appellant contends that the trial court erred in

awarding judgment as there remains a question of material fact concerning

Law Firm’s authority to negotiate a settlement on Appellant’s behalf. After

careful review, we affirm.

      Because this Court sits in review of the trial court’s grant of Law Firm’s

motion for judgment on the pleadings, all well-pleaded statements of fact,

admissions, and    any documents       properly attached to     the   pleadings
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presented by the party against whom the motion is filed are considered as

true. Gongloff Contracting, L.L.C. v. L. Robert Kimball & Associates,

Architects & Engineers, Inc., 119 A.3d 1070, 1072 (Pa. Super. 2015)

(citing Citicorp North America, Inc. v. Thornton, 707 A.2d 536, 538

(Pa.Super.1998)).         The    facts   as    disclosed   by   those   pleadings   are

summarized as follows.

       On April 20, 2012, Appellant and her spouse, Robert Cooper

(“Husband”), were involved in a motor vehicle accident.1 On May 1, 2012,

Appellant and Husband retained Law Firm to represent their interests

relative to Appellant’s bodily injury claim stemming from the motor vehicle

accident.     In conjunction therewith, Appellant and Husband signed a

Contingent Fee Agreement providing, inter alia, that if Law Firm secured a

settlement “without the necessity of filing a lawsuit,” the fee earned by Law

Firm was “TWENTY PERCENT (20%) of the gross sum secured.” Amended

Complaint, 7/2/14, at Exhibit A.

       Law Firm pursued the case and sought to reach a settlement from

State Farm Insurance for $100,000, representing the limits of the liability

insurance under the tortfeasor’s policy. Law Firm drafted a demand letter to

State Farm dated January 3, 2013. Law Firm alleges that it emailed a copy

of the drafted letter to Appellant with the following instruction: “Attached

____________________________________________


1
    Husband is not a party to this appeal.



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please   find    the     draft.   Please   review   and   email    back     any

changes/corrections.”     Amended Complaint, 7/2/14, at Exhibit B.    The last

paragraph of the drafted demand letter included the following language: “I

have conferred with Mr. and Mrs. Cooper and they have authorized me to

make a demand for your policy limits which I understand to be at least

$100,000.” Id. Appellant made a few non-substantive changes to the letter

and emailed it back to Law Firm. In her return email, Appellant wrote that

she made “[a] few changes in red,” but that the letter accurately described

her injuries. Id. at Exhibit C.

      State   Farm     initially refused Law   Firm’s demand;     however, on

March 22, 2013, the insurance company agreed to a settlement in the

amount of $100,000. Amended Complaint, 7/2/14, at Exhibit G. Law Firm

then forwarded a release for the settlement to Appellant for her signature.

Id. at Exhibit H.      Law Firm also procured a waiver of subrogation from

Appellant’s insurance provider. Id. at Exhibit J.

      On May 6, 2013, Law Firm received a discharge letter dated May 1,

2013, from Appellant.      Amended Complaint, 7/2/14, at Exhibit     L.    As a

result, Law Firm sent attorney lien letters to State Farm and Appellant

regarding its contingent fee against the $100,000 settlement.             Id. at

Exhibits M-1, M-2. Appellant did not execute the release or pay Law Firm

the $20,000 fee representing twenty percent of the settlement amount.




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       On July 2, 2014, Law Firm filed a two-count amended complaint

against Appellant claiming breach of contract/specific performance and

demanding      judgment      in   the   amount   of   $20,000   plus   unreimbursed

expenses, attorney’s fees, interest, and costs of suit in satisfaction of its

attorney’s lien. Law Firm also demanded that Appellant sign the release and

submit it to State Farm.          In the alternative, Law Firm alleged breach of

contract and demanded judgment of $20,000 plus unreimbursed expenses.

       Appellant filed an answer and new matter. Appellant denied that she

received a copy of the demand draft letter, but admitted that she sent a

return email with a revised copy of that letter.           Central to this appeal,

Appellant denies that she authorized Law Firm to settle her personal injury

claim.   In her new matter, Appellant averred that, in the event Law Firm

prevails, any award to Law Firm is limited to quantum meruit recovery.

       On October 21, 2014, Law Firm filed a motion for judgment on the

pleadings and, on March 3, 2015, the trial court ruled in its favor.2 The trial

court acknowledged that an attorney must have express authority in order

to bind a client to a settlement agreement, see Reutzel v. Douglas, 870

A.2d 787, 789–790 (Pa. 2005) (internal citations omitted), but when it

____________________________________________


2
  The trial court held oral argument on the motion, but the certified record
does not include a transcription of the argument. Additionally, the docket
makes no reference to a transcript of the argument being ordered or filed.
Neither the trial court nor the parties refer to the substance of the oral
argument in their submissions.



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reviewed   the   correspondence     between    Law    Firm     and   Appellant,   it

determined that there was no language that would indicate a lack of express

authority to settle. Specifically, the trial court reasoned:


      [B]ased on the last paragraph of the January 3, 2013 draft letter
      that was sent to [Appellant], it was very clear the demand for
      policy limits was being made with her consent. Otherwise, in
      making changes to the proposed letter she certainly could have
      said she did not want it sent rather than making changes to it
      and providing them to [Law Firm attorney].

            The mere fact she now avers in her answer and new
      matter that she did not consent to the settlement which is
      contrary to the established facts from the attachments to the
      complaint does not create a “genuine” issue of fact.

Trial Court Opinion, 3/3/15, at 5. The trial court concluded that Law Firm

had and exercised express authority to settle Appellant’s claim, and that a

settlement in the amount of $100,000 was reached with State Farm, thereby

triggering the contingency provision of the agreement between Law Firm and

Appellant. The trial court thus granted Law Firm’s motion for judgment on

the pleadings and awarded Law Firm $20,000 plus unreimbursed expenses.

      Appellant raises the following issues on appeal:

      I. In granting [Law Firm’s] Motion for Judgment on                 the
      Pleadings, did the lower Court utilize an inappropriate           and
      erroneous legal standard by analyzing and deciding issues of      fact
      which were disputed by the pleadings filed of record in           this
      matter?

      II. In granting [Law Firm’s] Motion for Judgment on the
      Pleadings, did the lower Court erroneously order and direct
      [Appellant] to sign a Release settling her underlying bodily injury
      claim for a certain sum when she was not and is not desirous of
      doing so at this time and when such action on the part of the
      lower Court constituted an error of law?

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Appellant’s Brief at 3.

      Our standard of review of judgment on the pleadings is well settled. A

motion for judgment on the pleadings is similar to that of a demurrer in that

it may be entered only when there are no disputed issues of fact and the

moving party is entitled to judgment as a matter of law.           Rourke v.

Pennsylvania National Mutual Casualty Insurance Co., 116 A.3d 87, 91

(Pa. Super. 2015).        Appellate review of an order granting a motion for

judgment on the pleadings is plenary, and we apply the same standard

employed by the trial court.      Id.   We will affirm the grant of the motion

“only when the moving party’s right to succeed is certain and the case is so

free from doubt that the trial would clearly be a fruitless exercise.”

Gongloff, 119 A.3d at 1075–1076 (quotation and citation omitted).

      Appellant first argues that the trial court’s award of judgment of the

pleadings was erroneous because there was an outstanding issue of fact,

namely, Law Firm’s authority to settle with State Farm on her behalf.

Appellant asserts that the trial court erroneously decided the disputed issue

by drawing inferences and conclusions from documents in the record that

should not be considered in adjudicating motions for judgment on the

pleadings.   Appellant cites three cases in support of her position that the

trial court impermissibly inferred from the draft demand letter to State Farm

and her response thereto that Appellant authorized the settlement.        See

Aughenbaugh v. North American Refractories Co., 231 A.2d 173, 175


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(Pa. 1967) (inferences and conclusions drawn from a written instrument in

the record should not be considered or accepted as admitted in requests for

judgment on the pleadings); Eberhart v. Nationwide Mutual Insurance

Co., 362 A.2d 1094, 1097 (Pa. Super. 1976) (same); Leidy v. Desert

Enterprises, Inc. 381 A.2d 164, 173 (Pa. Super. 1977) (plaintiff’s denial of

validity of document in new matter precluded entry of judgment on

pleadings in defendant’s favor).    Appellant also offers that her consistent

denial in the pleadings that she authorized Law Firm to settle her case must

be considered as true, thereby precluding entry of a favorable judgment for

Law Firm.

      Law Firm counters that Appellant agreed to the proposed offer to settle

and there is no issue of fact remaining as to the validity of the language of

the demand letter granting Law Firm express authority to settle Appellant’s

case and Appellant’s approval of the letter.          Law Firm disputes that

Aughenbaugh, Eberhart, and Leidy support Appellant’s argument because

the trial court herein was not required to draw inferences from the record

documents. To the contrary, argues Law Firm, “the language of the demand

letter was a clear and unambiguous grant of express authority to [Law Firm]

to settle [Appellant’s] bodily injury claim.” Law Firm’s Brief at 8.

      We agree with Law Firm that the trial court correctly concluded that

Appellant’s answer and new matter failed to raise any genuine issue of fact

on the question of Law Firm’s authority to settle Appellant’s claim.     The


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drafted demand letter sent to Appellant for her review and corrections

expressly stated that Law Firm “conferred with [Appellant] and [she] has

authorized [Law Firm attorney] to make a demand . . . .”             Amended

Complaint, 7/2/14, at Exhibit B. Appellant did not make any changes to this

language in her red-lined copy.    Id. at Exhibit C.   Significantly, Appellant

admitted in her answer that Exhibit C, without correction to the authority-to-

settle wording, is the red-lined copy she returned to Law Firm. Answer and

New Matter, 7/21/14, at ¶ 8.

     As observed in Pocono Summit Realty, LLC v. Ahmad Amer, LLC,

52 A.3d 261 (Pa. Super. 2012), averments of fact properly pleaded by the

adverse party “must be taken as true, or as admitted, unless their falsity

is apparent from the record.” Id. at 267 (emphasis in original) (citation

omitted); 3 Goodrich Amram 2d § 1034(b):5 (in considering motions for

judgment on the pleadings, averments of relevant fact in the opposing

party’s pleadings must be deemed to be admitted or true, unless the record

shows those facts to be false).    Here, Appellant’s claim that she did not

authorize Law Firm to settle her claim with State Farm is specifically belied

by the precise language of the demand letter, and her concession that she

returned the red-lined copy effectively admits Law Firm’s allegations.

Accordingly, Appellant’s claim that an outstanding issue of fact precluded

entry of judgment for Law Firm is without merit.




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         Appellant’s second argument that the trial court erred when it ordered

her to sign the release settling her claim is, in part, dependent on the first

argument, now dismissed, that Law Firm did not have authority to settle the

case.     In any event, Appellant’s claim is reasoned by a faulty premise

because the trial court did not order Appellant to sign the release.      In its

order, the trial court granted Law Firm’s motion “as prayed for in its Motion

for Judgment on the Pleadings. . . .”     Order, 3/3/15, at 1.   Although Law

Firm’s amended complaint’s prayer for relief requested the trial court to

order Appellant to sign the release, no such remedy was requested in either

its motion for judgment on the pleadings or in its brief filed in support of the

motion. Accordingly, there is no legally cognizable basis for this allegation of

error.

         Although not enumerated in her Statement of the Questions Involved,

Appellant urges in her brief that the legal argument raised in her new matter

that any award to Law Firm is limited to quantum meruit recovery remains

unresolved.     Appellant did not raise this issue in her 1925(b) statement;

therefore, it is waived.    Majorsky v. Douglas, 58 A.3d 1250, 1259 (Pa.

Super. 2012) (appellant’s failure to include an issue in his 1925(b)

statement waives that issue for purposes of appellate review). Additionally,

to the extent that Appellant proposes that the injuries from the car accident

impeded her cognitive abilities to the point that she did not understand the

correspondence concerning Law Firm’s settlement authority, that claim is


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likewise waived, as it was not raised in either her new matter or in her

1925(b) statement. Id.

     For the reasons stated above, we affirm the trial court’s order granting

judgment on the pleadings in favor of Law Firm.

     Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2016




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