J-A23008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MICHAEL SCHAAB,          :      IN THE SUPERIOR COURT OF
Deceased,                                 :            PENNSYLVANIA
                                          :
                                          :
                                          :
                                          :
                                          :
APPEAL OF: MARY SCHAAB, as                :
Administratrix of the Estate of Michael   :
Schaab,                                   :
                                          :
                   Appellant              :          No. 1083 WDA 2014

                Appeal from the Order entered on June 12, 2014
              in the Court of Common Pleas of Allegheny County,
                   Orphans’ Court Division, No. 02-12-02720

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 14, 2015

       Mary Schaab (“Administratrix”), as Administratrix of the Estate of

Michael Schaab (“the Estate”), appeals from the Order of the Orphans’ Court

sustaining the claim against the Estate made by the intervenor, Farrell &

Reisinger, LLC (“F&R”), and ordering the distribution of $507,836.57 in

counsel fees and expenses to F&R.1 We affirm.

       On March 8, 2012, Michael Schaab (“Schaab”), an employee of

Western Psychiatric Clinic and Institute (“Western Psychiatric”), was shot

and killed during a shooting spree by John Shick (“Shick”), a patient at the

facility.   Eventually, police officers shot and killed Shick.    Schaab was



1
  The principals of F&R are Thomas J. Farrell, Esquire, Jay K. Reisinger,
Esquire, and Tina Miller, Esquire.
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survived by his parents, Harry Schaab (“Mr. Schaab”), Administratrix (Mr.

Schaab and Administratrix collectively referred to as “the Schaabs”), and

Schaab’s fiancée, Megan Shively (“Shively”). The Orphans’ Court granted to

Administratrix Letters of Administration, and named her as administratrix of

the Estate.

      The Schaabs and Shively retained F&R to investigate Schaab’s death,

and the possibility of filing civil actions against Western Psychiatric, the

University of Pittsburgh Medical Center (“UPMC”) (including its affiliates and

related entities), and others (all collectively referred to as “UPMC”). F&R’s

engagement letters for the Schaabs and Shively each contained the following

agreement regarding F&R’s fees:

      [F&R] will be paid our attorneys fees for representing you in this
      matter only if a recovery is actually obtained for you. Our
      fees will be 35% of any recovery obtained through
      litigation (after payment of costs described in Paragraph
      3 below). In the event a recovery is made without formal
      litigation, our fee will be 33% of any recovery.

F&R Fee Agreement at 2 (emphasis in original). The Schaabs and Shively

each signed their respective retainer letters.

      The Orphans’ Court described what next transpired as follows:

      Over the next couple of months, F&R conducted its own
      investigation and legal research, monitored the investigation
      being conducted by the District Attorney’s Office, monitored the
      investigations being conducted by OSHA and the [Service
      Employees International Union (“SEIU”)], conferred with other
      colleagues on the possible legal theories of recovery, met with
      counsel for UPMC, and met with the District Attorney regarding
      possible criminal charges and changes to security. The Schaabs,
      on more than one occasion, expressed sympathy for the parents


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     of [] Shick and indicated that they did not want to sue them.
     (N.T., 03/20-24/14, pp. 34-43, 200-218, 360-366)

           In late June 2012, the option of engaging in mediation with
     UPMC was discussed.        Thomas Cooper, Esquire (“Attorney
     Cooper”), was selected as the mediator[,] and the mediation was
     scheduled for July 20, 2012. F&R met with the Schaabs, along
     with other family members, at length[,] ten (10) days prior to
     the mediation to discuss strategy and the mediation process.
     (N.T., 03/20-24/14, pp. 44-49, 224-231)

           The mediation session occurred on July 20, 2012. After an
     opening statement by Attorney Cooper, Farrell made a
     statement, Administratrix made a statement, and Jeffrey Romoff
     (the CEO of UPMC) made a statement. The parties then split up
     into separate conference rooms and Attorney Cooper began the
     “shuttle diplomacy” that occurs in mediations. After some period
     of time and several offers and counteroffers, the figure of
     $1,500,000 was on the table. Attorney Cooper made it very
     clear to the Schaabs and F&R that UPMC would not go any
     higher for a number of reasons. After a thorough discussion
     of the options, including the possibility of terminating the
     mediation and walking out the door, the Schaabs agreed
     to accept $1,500,000 from UPMC.               This figure was
     memorialized in a document that was handwritten on a
     yellow legal pad by Attorney Cooper and signed by all
     parties and counsel [“the Settlement Agreement”]. (N.T.,
     03/20-24/14, pp. 51-56, 234-35, 367-68)

           Shortly after the agreement was reached, F&R offered to
     reduce their fee of $500,000 (i.e., 33% of the settlement
     amount) to $350,000, which would have allowed the Schaabs to
     accomplish their goal of providing funds to [Schaab’s] fiancée to
     pay off her student loans. (N.T., 03/20-24/14, pp. 58, 236)

          F&R received the first draft of a Release from UPMC[‘s]
     counsel approximately a week after the settlement was reached.
     F&R suggested changes to UPMC counsel, all of which were
     made. The [revised] Release [“the F&R Release”] was sent to
     the Schaabs for review in early September 2012. Throughout
     the fall [and] into the early winter, F&R and the Schaabs
     exchanged emails and spoke about the Schaabs’ requested
     changes to the [F&R] Release. The Schaabs agreed to sign the
     [F&R] Release, but failed to do so. This led to a meeting at the


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      end of January 2013. One of the matters discussed at this
      meeting was a letter that the Schaabs had received from
      Attorney Mark Homyak regarding his representation of one of
      the other shooting victims and his intent to sue [Shick’s] parents
      and [Shick’s] estate. As F&R was not interested in pursuing
      these actions on behalf of the Schaabs, they referred the
      Schaabs to [] Michael O’Day[, Esquire (“Attorney O’Day”)]. At
      the conclusion of the meeting, Mr. Schaab indicated that the
      [F&R] Release would be signed over the weekend and returned
      to F&R. (N.T., 03/20-24/14, pp. 59-66, 240-255, 370)

             The next communication that F&R received from the
      Schaabs was an inquiry as to what persons or entities were
      being “released” under the terms of the [F&R] Release. F&R
      assured the Schaabs that the only entities being released were
      UPMC, [Western Psychiatric], and their affiliates and related
      entities. The last communication that F&R received from the
      Schaabs was a letter terminating their representation.

Trial Court Opinion, 9/19/14, at 2-5 (unnumbered) (emphasis added).

      On March 28, 2013, in the Civil Division of the Court of Common Pleas

of Allegheny County (“the Civil Division”), F&R filed a Petition to Enforce the

Settlement Agreement between the Schaabs and UPMC. After a hearing, the

Civil Division denied the Petition to Enforce. On May 28, 2013, the Schaabs

executed a release prepared by Attorney O’Day (“the O’Day Release”)

settling their claims against UPMC for $1.5 million.

      On July 17, 2013, Administratrix filed, in the Orphans’ Court, a Petition

to Compromise and Settle on Behalf of Estate and Approve Distribution of

Proceeds (“Petition to Compromise and Settle”).        F&R filed a Motion to

Intervene in the Orphans’ Court proceeding, and a Notice of Claim against

the Estate for $514,061.91, plus interest and costs.     F&R asserted that it

was entitled to a portion of the settlement proceeds as legal fees, based


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upon breach of contract or, in the alternative, the theory of quantum meruit.

F&R subsequently filed an Amended Motion to Intervene.         Administratrix

filed Preliminary Objections to the Amended Motion to Intervene.

      In late October and November 2013, the Orphans’ Court entered

Orders authorizing the distribution of $985,938.00 of the Estate’s settlement

proceeds to the Schaabs, and directed that the disputed portion of the

settlement proceeds be placed in escrow. After discovery and hearings, 2 on

June 12, 2014, the Orphans’ Court entered an Order and Opinion awarding

F&R $507,836.57 of the Estate’s settlement proceeds for fees and expenses.

Thereafter, Administratrix filed the instant, timely appeal, and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Administratrix presents the following claims for our review:

      1. Whether the Orphans’ Court had subject matter jurisdiction
         over a breach of contract claim?

      2. Whether the [F&R Release] was a general release to all claims
         such that [Administratrix] would have been precluded from
         any other claims?

      3. Whether the doctrine of substantial performance was
         available to [F&R] as a theory of recovery for [the] contested
         claims?

Brief for Appellant at 4.

2
  At the hearing on November 19, 2013, Administratrix challenged the
jurisdiction of the Orphans’ Court over F&R’s breach of contract claim. On
November 25, 2013, Administratrix filed, in the Civil Division, a Complaint
asserting causes of action against F&R for breach of contract and
professional negligence.


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      Administratrix first claims that the Orphans’ Court lacked subject

matter jurisdiction over F&R’s breach of contract claim.        Id. at 19, 33.

Administratrix contends that the Orphans’ Court should have transferred the

matter to the correct division of the court of common pleas.         Id. at 23.

Administratrix further argues that the Orphans’ Court deprived the Estate of

its right to a jury trial as to its causes of action against F&R for breach of

contract and professional negligence. Id. at 33. Administratrix claims that

this result occurred “because the Orphans’ Court entered upon an inquiry in

a matter beyond its subject matter jurisdiction.” Id. Administratrix further

argues that the Orphans’ Court improperly concluded that a jury trial in this

matter would be advisory only and, therefore, unnecessary. Id. at 36.

      Initially, we observe that Administratrix did not raise this claim in her

1925(b) Concise Statement of matters complained of on appeal. However,

the question of subject matter jurisdiction may be raised at any time, by any

party, or by the court sua sponte.     B.J.D. v. D.L.C., 19 A.3d 1081, 1082

(Pa. Super. 2011).    Our standard of review is de novo, and our scope of

review is plenary. Id.

      As this Court has explained,

      [j]urisdiction is the capacity to pronounce a judgment of the law
      on an issue brought before the court through due process of law.
      It is the right to adjudicate concerning the subject matter in a
      given case …. Without such jurisdiction, there is no authority to
      give judgment and one so entered is without force or effect. The
      trial court has jurisdiction if it is competent to hear or determine
      controversies of the general nature of the matter involved sub
      judice. Jurisdiction lies if the court had power to enter upon the


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      inquiry, not whether it might ultimately decide that it could not
      give relief in the particular case.

Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa. Super. 2001)

(citation omitted).

      By statute, the Orphans’ Court Division has mandatory and exclusive

jurisdiction over “[t]he administration and distribution of the real and

personal property of decedents’ estates.”     20 Pa.C.S.A. § 711(1).       The

Orphans’ Court Division also has mandatory and exclusive jurisdiction over

      [t]he appointment, control, settlement of the accounts of,
      removal and discharge of, and allowance to and allocation of
      compensation among, all fiduciaries of estates and trusts[.] 20
      Pa.C.S.A. § 711(12). Taken together, these provisions mandate
      that the Orphans’ Court Division has exclusive jurisdiction of the
      administration and distribution of decedents’ estates, of the
      control of estate fiduciaries, and of the settlement of their
      accounts.

Estate of Ciuccarelli, 81 A.3d 953, 959 (Pa. Super. 2013) (citations and

internal quotation marks omitted).

      Regarding the Estate’s settlement of its claims against UPMC, the

Probate, Estates, and Fiduciaries Code (“the Probate Code”), 20 Pa.C.S.A.

§ 101 et seq., provides that “[w]henever it shall be proposed to compromise

or settle any claim … by or against an estate … the court, on petition by the

personal representative or by any party in interest … may enter a decree

authorizing the compromise or settlement be made.”              20 Pa.C.S.A.

§ 3323(a). “Where there is no action pending, the statute requires that the

settlement be approved by the Orphans’ Court having jurisdiction of the



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decedent’s estate.”      Moore v. Gates, 580 A.2d 1138, 1141 (Pa. Super.

1990).

      In accordance with section 3323(a), on July 17, 2013, Administratrix

sought Orphans’ Court approval for the Estate’s settlement with UPMC, and

permission to distribute the settlement proceeds.             Petition to Compromise

and   Settle,   3/17/13.       In     her   Petition   to   Compromise      and   Settle,

Administratrix averred that she had terminated F&R’s representation of the

Estate “for cause,” and sought the Orphans’ Court’s approval to pay, from

the Estate’s settlement proceeds, court costs and attorney fees to Attorney

O’Day. Id. ¶¶ 11, 15.

      Administratrix’s     Petition    to   Compromise       and   Settle   sought   the

distribution of personal property of Schaab’s Estate, a matter within the

mandatory jurisdiction of the Orphans’ Court.               See 20 Pa.C.S.A. § 711

(providing for the mandatory and exclusive jurisdiction of the Orphans’ Court

over “the administration and distribution of the real and personal property of

decedent’s estates”). F&R disputed Administratrix’s proposed distribution of

any portion of the settlement proceeds to Attorney O’Day, and submitted a

claim for fees and costs incurred as a result of the settlement negotiations

with UPMC. Id. F&R’s challenges to the administration and distribution of

the personal property of Schaab’s Estate (the settlement proceeds) implicate

the mandatory and exclusive jurisdiction of the Orphans’ Court.                   See 20

Pa.C.S.A. § 711(1).



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      Regarding   Administratrix’s   assertion   that   the   Orphans’      Court

improperly deprived her of her right to a jury trial, we observe the following.

Section 777 of the Probate Code provides for a right to a jury trial, in

Orphans’ Court, under the following circumstances:

      (a) Title to property.

      When a substantial dispute of fact shall arise concerning the
      decedent’s title to property, real or personal, any party in
      interest shall be entitled to a trial of such issue by a jury. The
      verdict of the jury shall have the same effect as the verdict of a
      jury in a case at law.

      (b) Determination of incapacity.

      Any person against whom proceedings have been instituted to
      establish his incapacity shall be entitled to a trial of such issue
      by a jury. The verdict of the jury shall have the same effect as
      the verdict of a jury in a case at law.

      (c) Will contest and other matters.

      When a contest shall arise concerning the validity of a writing
      alleged to be testamentary, or concerning any matter other than
      as provided in subsections (a) and (b) of this section, the
      orphans’ court division, in its discretion at any stage of the
      proceedings, may impanel a jury to decide any question of fact,
      but the verdict of the jury shall be advisory only.

20 Pa.C.S.A. § 777(a)-(c). Administratrix’s claims do not implicate any of

the above circumstances.3 Accordingly, we cannot grant Administratrix relief

on her claim.



3
  Although Administratrix cites cases where a jury trial is mandatory, those
cases only collaterally involved the administration and distribution of the
decedents’ real and personal property.



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      Administratrix   next   claims    that   the   Orphans’   Court   improperly

determined that the F&R Release was not a general release.               Brief for

Appellant at 37. Administratrix argues that F&R’s termination “was in large

measure the result of the failure [of F&R] to address the nature and wording

in the [F&R] Release.”     Id. at 48.      According to Administratrix, had she

signed the F&R Release, she would have been precluded from obtaining the

proceeds of her subsequent settlement, procured by Attorney O’Day, in

collateral litigation against Shick’s family. Id. at 46 n.13.

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

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

Assocs., LLC v. McIntyre, 11 A.3d 906, 914 (Pa. 2011). The release is to

be read as a whole. Ford Motor Co. v. Buseman, 954 A.2d 580, 585 n.7

(Pa. Super. 2008).

      [W]hen construing the effect and scope of a release, the court,
      as it does with all other contracts, must try to give effect to the
      intentions of the parties. Yet, the primary source of the court’s
      understanding of the parties’ intent must be the document itself.
      Thus, what a party now claims to have intended is not as
      important as the intent that we glean from a reading of the
      document itself. The parties’ intent at the time of signing as
      embodied in the ordinary meaning of the words of the document
      is our primary concern.

Id. at 583 (citation omitted).

      “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….” Harrity v.
      Medical College of Pennsylvania Hospital, 439 Pa. Super.
      10, 653 A.2d 5, 10 (Pa.Super. 1994) (quotation and
      citations omitted).  There is no requirement that all of the


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      parties to be discharged from liability are specifically named
      within a release if the terms of the release clearly extend to
      other parties. See In re Bodnar’s Estate, 472 Pa. 383, 372
      A.2d 746 (1977). The Pennsylvania Supreme Court has held
      that when the terms of a release discharge all claims and
      parties, the release is applicable to all tortfeasors despite the
      fact that they were not specifically named and did not contribute
      toward the settlement. Buttermore v. Aliquippa Hospital,
      522 Pa. 325, 561 A.2d 733 (1989).

Ford Motor Co., 954 A.2d at 583.

      Here, the F&R Release provided, in relevant part, as follows:

      FOR AND IN CONSIDERATION of the sum of One Million Five
      Hundred Thousand Dollars ($1,500,000) payable within
      thirty (30) days of the execution of this Full and Final Release,
      the undersigned hereby fully and forever releases, acquits and
      discharges: UPMC, UPMC PRESBYTERIAN SHADYSIDE, AND
      WESTERN PSYCHIATRIC INSTITUTE & CLINIC, their
      trustees, members successors, affiliates, directors, officers,
      employees, physicians, nurses, therapists, technicians, agents
      and servants, and ANY AND ALL OTHER PERSONS,
      CORPORATIONS AND/OR OTHER ENTITIES that are or
      might be claimed to be liable to the undersigned whether or not
      named herein, including the heirs, executors, administrators,
      successors, assigns, attorneys, insurers, servants and employees
      of each of them (hereafter referred to collectively as
      “Releasees”), from any and all actions, causes of action, claims
      or demands, of whatever kind or nature, and for any injuries,
      losses or damages, including loss of companionship, allegedly
      sustained by the undersigned and related in any way to any
      services by and/or on the premises of any Releasee up to and
      including the date of the execution of this Full and Final Release,
      relating to the incident at issue which occurred on or about
      March 8, 2012 and thereafter.

F&R Release, ¶ 1 (emphasis in original).

      F&R argues that the scope of the F&R release included only UPMC-

related entities.   Brief for Appellees at 28.   According to F&R, this limited

scope is evidenced by language releasing causes of action “related in any


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way to any services by and/or on the premises of any Releasee …

relating to the incident at issue which occurred on or about March 8,

2012 and thereafter.” Id., ¶ 1 (emphasis added). By this language, F&R

argues, the release does not include non-UPMC-related entities, and, in

particular, the Shicks. Id. We disagree.

      In Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989), the

plaintiff was injured as a result of an automobile accident with Frances Moser

(“Moser”). Id. at 734. The Plaintiff was taken to Aliquippa Hospital, where

he was examined and received treatment. Id. However, subsequent to the

initial treatment, it was determined that the plaintiff had sustained a fracture

of his neck as a result of the accident. Id. The plaintiff subsequently signed

a release, which provided, in part, as follows:

      I/We . . . hereby remise, release, acquit and forever discharge []
      Moser, et al. . . . and all other persons, associations and/or
      corporations, whether known or unknown, suspected or
      unsuspected, past, present and future claims, demands,
      damages, actions, third party actions, causes of action, or suits
      at law or in equity, indemnity of whatever nature, for or because
      of any matter or thing done, omitted or suffered to be done, on
      account of or arising from damage to property, bodily injury or
      death resulting or to result from an accident which occurred on
      or about the 3rd day of December, 1981 at or near Aliquippa,
      Pennsylvania for which I/We have claimed the said Frances
      Moser, et al. to be legally liable[.]

Id. at 734.    Thereafter, Buttermore sued Aliquippa Hospital and others,

alleging that the treatment he received at the facility aggravated the injuries

he had sustained in the accident with Moser. Id. at 735.        Ultimately, the

Pennsylvania Supreme Court held that “a release given to a particular


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individual and ‘any and all other persons . . . whether herein named or not’

[is] applicable to all tort-feasors despite the fact they were not specifically

named.”   Id. (emphasis added).

      Reading the F&R Release as a whole, we conclude that the F&R

Release, which similarly released “ANY AND ALL OTHER PERSONS,

CORPORATIONS AND/OR OTHER ENTITIES that are or might be claimed

to be liable to the undersigned whether or not named herein,” applies to all

tort-feasors, including the Shicks. Although the Orphans’ Court erred in its

interpretation of the F&R Release, such error does not compel an outcome

different than that reached by the Orphans’ Court. As we discuss infra, we

agree with the Orphans’ Court’s determination that F&R is entitled to its fee,

as set forth in the Fee Agreement.

      Administratrix claims that the Orphans’ Court erred in concluding that

F&R had substantially performed under its Fee Agreement.             Brief for

Appellant at 51. According to Adminitsratrix, F&R

      failed to remedy the nature and wording of the [F&R] Release;
      recurrently offered erroneous legal advice; and repeatedly
      attempted to coerce or cajole [Administratrix] into taking
      precipitous action by signing away her legal rights in order to
      allow [F&R] to collect a fee. Indeed, this conduct manifestly
      constituted bad faith and[,] when realized, ultimately caused
      [Administratrix] to terminate the contract [with F&R].

Id. at 52-53.   Administratrix challenges the characterization of the O’Day

Release as “merely wrap-up paperwork that was necessary to protect the

interests of both parties.” Id. at 53. Administratrix further argues that the



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Settlement Agreement did not create a “fund,” as “no monies were

exchanged until after [F&R was] terminated.” Id. at 54 (initial capitalization

omitted).

      Although Administratrix correctly states that the F&R Release is a

general release, the record, however, supports the determination of the

Orphans’ Court that F&R substantially performed its obligations under the

F&R Fee Agreement.

      [T]he doctrine of substantial performance has been created as
      an instrument of justice intended to avoid forfeiture because of
      technical, inadvertent or unimportant omissions. The doctrine is
      intended for the protection and relief of those who have faithfully
      and honestly endeavored to perform their contracts in all
      material and substantial particulars….

Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, 558 (Pa. Super. 2006)

(citations and quotation marks omitted).

      It is incumbent on him who invokes its protection to present a
      case in which there has been no wilful omission or departure
      from the terms of his contract. If he fails to do so, the question
      of substantial performance should not be submitted to the [fact-
      finder].

Ehrlich v. U.S. Fid. & Guar. Co., 51 A.2d 794, 800 (Pa. 1947) (internal

quotation marks and citations omitted).

      In its Opinion, the Orphans’ Court addressed this claim as follows:

      The [F&R F]ee [A]greement [] provided that F&R’s
      representation would have three phases: investigation of the
      matter through interviews with witnesses and the collection of
      documents, investigations through contact and records requests
      with UPMC …, and the preparation, filing and litigation of the
      case. Based upon the testimony of the three F&R attorneys,
      they conducted their own investigation[;] they performed legal


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      research[;] they monitored the investigations that were being
      conducted by the District Attorney’s Office, OSHA and the
      SEIU[;] they conferred regularly with other colleagues on the
      possible legal theories of recovery[;] they obtained records from
      UPMC[;] they interviewed potential trial witnesses who were
      present on the date of the incident[;] they met on several
      occasions with counsel for UPMC[;] they met with the District
      Attorney regarding possible criminal charges and changes to
      security[;] and finally, they represented the Schaabs at a
      mediation session with UPMC that resulted in a $1.5 million []
      settlement. That is unquestionably substantial performance of
      the contract. There really was not much more that could have
      been done on behalf of the Schaabs[,] and they have never
      actually articulated what else they believe should have been
      done on their behalf.[4]

Orphans’ Court Opinion, 9/19/14, at 10 (unnumbered).                Regardless of

whether a “fund” was created, the record supports the Orphans’ Court’s

finding that F&R substantially performed its obligations under the F&R Fee

Agreement, and its legal conclusions are sound. We therefore affirm on the

basis of the Orphans’ Court Opinion, as set forth above, with regard to this

contention. See id.

      Administratrix also argues that the F&R Fee Agreement bars F&R from

recovering an hourly fee.       Brief for Appellant at 57.          According to

Administratrix,   the   F&R   Fee    Agreement      clearly   contemplated   F&R’s

representation against “others” in addition to UPMC, services which F&R

declined to provide.     Id. at 58.          According to Administratrix, “record


4
  Our review discloses that F&R procured a significant settlement, in light of
the probability that this incident could have been subject to limitations
imposed by the Workers’ Compensation Law. Further, the evidence reflects
that the Schaabs expressed to F&R their sympathy for the Shicks, and their
lack of interest in pursuing an action against them.


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evidence shows that when asked by [Administratrix] regarding further

representation, [F&R] actually declined and then referred [Administratrix]

to other counsel to pursue other possible claims.”       Id.    This conduct,

Administratrix contends, constituted a material breach of the F&R Fee

Agreement, relieving Administratrix of any obligation to perform under its

terms. Id.

     Our review of the record discloses that Administratrix did not raise this

claim in her Pa.R.A.P. 1925(b) Concise Statement.5         Accordingly, it is

waived. See In re Estate of Boyle, 77 A.3d 674, 677 (Pa. Super. 2013)

(stating that “in order to preserve claims for appellate review, an appellant

must comply with a trial court order to file a Statement of Matters

Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).”) (citation

omitted).

     In her brief, Administratrix also argues that she terminated F&R’s

services before F&R had filed any lawsuit on her behalf. Brief for Appellant

at 60.   Relying on paragraph 5 of the F&R Fee Agreement, Administratrix

contends that an hourly fee is only payable to F&R if F&R’s services were

terminated after a lawsuit is filed.     Id.   Because no lawsuit was filed,

Administratrix asserts that F&R is not entitled to hourly fees. Id. Further,

5
  In her Concise Statement, Administratrix challenges the Orphans’ Court’s
determination that F&R substantially performed its obligations under the F&R
Fee Agreement, and contends that the Orphans’ Court erred in concluding
that F&R made a recovery on behalf of the Schaabs and the Estate at the
time of the UPMC mediation, therefore earning the contingency fee. Concise
Statement at ¶¶ 12-13.


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Administratrix argues that the quasi-contractual doctrine of quantum meruit

does not apply where an express agreement exists between the parties. Id.

     Administratrix’s argument, premised on paragraph 5 of F&R’s Fee

Agreement, was not raised in her Pa.R.A.P. 1925(b) Concise Statement.

Accordingly, it is not preserved for our review. See In re Estate of Boyle,

77 A.3d at 677.

     As Administratrix’s claims are without merit, we affirm the Order of the

Orphans’ Court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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