J-A17016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EVERGREEN MANAGEMENT GROUP INC.,               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

COMMERCIAL SNOW & ICE, LLC,

                            Appellant               No. 3486 EDA 2014


               Appeal from the Order Entered November 7, 2014
               In the Court of Common Pleas of Chester County
                      Civil Division at No(s): 2012-04425


WILLIAM SMITH, SR. AND EVERGREEN               IN THE SUPERIOR COURT OF
MANAGEMENT GROUP INC.,                               PENNSYLVANIA

                            Appellant

                       v.

BRIAN HEMPHILL AND COMMERCIAL
SNOW & ICE, LLC,

                            Appellee                No. 3489 EDA 2014


               Appeal from the Order Entered November 14, 2014
                In the Court of Common Pleas of Chester County
                       Civil Division at No(s): 2012-04425

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 17, 2015

        Commercial Snow & Ice, LLC (hereinafter “Commercial”), appeals from

the trial court’s November 7, 2014 order denying its motion for a new trial. 1
____________________________________________


1
    Commercial’s appeal is docketed at 3486 EDA 2014.
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Additionally, William Smith, Sr. and Evergreen Management Group Inc.

(hereinafter “Evergreen”), appeal from the trial court’s November 14, 2014

order denying Evergreen’s petition for attorney’s fees.2    We consolidated

these two appeals by per curiam order dated March 6, 2015. After careful

review, we affirm both orders at issue in this case.

        In an opinion dated June 27, 2014, the trial court set forth detailed

factual findings and conclusions of law, which we summarize, as follows. In

November of 2010, Commercial and Evergreen entered a contract pursuant

to which Evergreen agreed to act as Commercial’s sub-contractor for snow

and ice removal at Stella Maris Church and two Acme Supermarket locations

in Philadelphia. From late December of 2010 through late February of 2011,

Evergreen performed snow and ice removal services at those locations when

dispatched by Commercial. Based on that service, Evergreen submitted 47

invoices to Commercial, 20 of which Commercial paid and 27 of which

remained outstanding.

        In May of 2012, Evergreen filed a complaint against Commercial

seeking payment of the 27 outstanding invoices. The case was heard by an

arbitration panel and, on July 29, 2013, Evergreen was awarded judgment in

the amount of $15,670.40, plus interest in the amount of $2,750.00,

totaling $18,420.40. Commercial appealed to the Court of Common Pleas of


____________________________________________


2
    Evergreen’s appeal is docketed at 3489 EDA 2014.



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Chester County. After a bench trial, the court found in favor of Evergreen

and awarded it $16,045.40, plus interest. On August 19, 2014, judgment

was entered in favor of Evergreen.

      Thereafter, and with the trial court’s permission, Commercial filed a

nunc pro tunc motion for a new trial.       Commercial alleged that the court

erred by precluding it from presenting witnesses to testify as to William

Smith’s   (principal     for   Evergreen)   reputation   for   truthfulness   or

untruthfulness.    On November 7, 2014, the trial court issued an order

denying Commercial’s motion, and it filed a timely notice of appeal. Herein,

Commercial raises one issue for our review: “Whether the [t]rial [c]ourt

erred in excluding character witness testimony regarding the reputation of

William Smith for truthfulness or untruthfulness as authorized by Rule 608 of

the Pennsylvania Rules of Evidence?” Commercial’s Brief at 5.

      We also have before us a timely appeal from Evergreen, stemming

from the trial court’s November 14, 2014 denial of Evergreen’s petition for

attorney’s fees.   Herein, Evergreen solely argues that the court erred by

denying that petition.

      We will now address both parties’ claims, beginning with Commercial’s

assertion that the court erred by denying its motion for a new trial.

Commercial argues that it is entitled to a new trial because the court

improperly excluded character testimony by two witnesses pertaining to

William Smith’s reputation for dishonesty. In support of its claim that such




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evidence was admissible, Commercial relies on several Pennsylvania Rules of

Evidence, namely Rule 608(a), which states:

      (a) Reputation Evidence. A witness's credibility may be
      attacked or supported by testimony about the witness's
      reputation for having a character for truthfulness or
      untruthfulness. But evidence of truthful character is admissible
      only after the witness's character for truthfulness has been
      attacked. Opinion testimony about the witness's character for
      truthfulness or untruthfulness is not admissible.

Pa.R.E. 608(a).

      In assessing Commercial’s claim, we initially note that:

      Our standard of review of the denial of a motion for a new trial is
      whether the trial court committed an error of law or an abuse of
      discretion that controlled the outcome of the case. Randt v.
      Abex Corp., 448 Pa. Super. 224, 671 A.2d 228, 232 (1996).
      Our standard of review for evidentiary rulings by the trial court is
      very narrow. Gemini Equipment v. Pennsy Supply, 407 Pa.
      Super. 404, 595 A.2d 1211, 1215 (1991). In general, we may
      reverse only for an abuse of discretion or an error of law. Id.

Cruz v. Northeastern Hosp., 801 A.2d 602, 610 (Pa. Super. 2002).

      Here, in its order denying Commercial’s motion for a new trial, the

court explained its rationale for doing so, as follows:

             The court was surprised by [Commercial’s] proffer [of
      character witnesses] and resorted to a quick perusal of Ohlbaum
      on the Pennsylvania Rules of Evidence. Ultimately, the court
      decided not to allow the testimony. In the back of the court’s
      mind was the likelihood of confusion of the issues and a concern
      over the waste of the court’s and parties’ time[,] as this action
      had already taken more trial time than the parties had
      anticipated, requiring the court to schedule additional days for
      completion of the trial. See [Pa.R.E.] 403[] … (stating “although
      relevant, evidence may be excluded if its probative value is
      outweighed by the danger of unfair prejudice, confusion of the
      issues, or misleading the jury, or by considerations of undue


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J-A17016-15


     delay, waste of time, or needless presentation of cumulative
     evidence.[”])      Furthermore, the court considered [that] the
     proffer was for a relatively low grade of evidence. There being
     no jury, the court decided that it was fully capable of assessing
     credibility for itself for the purposes of this trial.

           Even had the two witnesses described the reputation for
     untruthfulness of [William Smith] as the worst pathological
     scarlet-red liar in the hemisphere, the court is confident that it
     would not have decided the case differently. The reason is that
     this case turned on the credibility of [Commercial’s] principal,
     [Brian] Hemphill, not on that of [William Smith].

            The parties agreed that [Evergreen] had generated 47
     invoices for its services, of which 20 were paid by [Commercial]
     and 27 remained outstanding. The focus then became on the
     reasons [f]or non-payment.           The court discussed how
     [Commercial’s] three asserted reasons [for non-payment] were
     unavailing in its [d]ecision [issued on June 27, 2014], pp. 6-8.
     It was likewise the testimony of [Brian Hemphill], or lack
     thereof, which caused the court to find against [Commercial] on
     its counterclaims[.] (Decision, p. 8).

            [Commercial], in its Motion for a New Trial, and
     accompanying Memorandum, cites not one case in support of its
     position.    The record adequately supports the trial court’s
     reasons for its decision. Nor can it be argued that the trial court
     abused its discretion, nor that harm was ineluctably and
     prejudicially inflicted upon [Commercial] by the exclusion of
     these two witnesses. See Harman ex rel. Harman v. Borah,
     562 Pa. 455, 756 A.2d 1116, 1122 (2000) (holding “[a] new trial
     is not warranted merely because some irregularity occurred
     during the trial or another trial judge would have ruled
     differently; the moving party must demonstrate to the trial court
     that he or she has suffered prejudice from the mistake.”)

Trial Court Order, 11/7/14, at 1-2 n.1 (unpaginated).

     Based on the court’s discussion, we ascertain no abuse of discretion in

its decision to deny Commercial’s request for a new trial. Most notably, the

court concluded that the case hinged on the credibility of Brian Hemphill,

Commercial’s principal, and not on the credibility of William Smith. Thus, we


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J-A17016-15



agree with the court that Commercial failed to establish that it was

prejudiced by the omission of character testimony regarding Smith’s

reputation for untruthfulness.      Accordingly, we affirm the trial court’s

November 7, 2014 order denying Commercial’s motion for a new trial.

      Next, we assess Evergreen’s claim that the trial court erred by denying

its petition for attorney’s fees.

      The trial court may, upon motion, require a party to pay another
      participant's counsel fees if the party's conduct in commencing
      the action was arbitrary, vexatious or in bad faith. Santillo v.
      Robinson, 383 Pa. Super. 604, 557 A.2d 416 (1989); Brenckle
      v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983); 42
      Pa.C.S.A. § 2503. However, the intent of the rule permitting the
      recovery of counsel fees is not to punish all of those who initiate
      actions which ultimately fail, as such a course of action would
      have a chilling effect upon the right to raise a claim. Santillo v.
      Robinson, supra. Rather, the aim of the rule is to sanction
      those who knowingly raise, in bad faith, frivolous claims which
      have no reasonable possibility of success, for the purpose of
      harassing, obstructing or delaying the opposing party. See
      Brenckle v. Arblaster, supra. Upon review, the denial of a
      request for counsel fees is a matter within the sound discretion
      of the trial court and will be reversed on appeal only when there
      is a clear abuse of that discretion. Szillery v. Wheaton, 382 Pa.
      Super. 394, 555 A.2d 237 (1989); American Mut. Liability
      Ins. v. Zion and Klein, 339 Pa. Super. 475, 489 A.2d 259
      (1985).

Dooley v. Rubin, 618 A.2d 1014, 1018 (Pa. Super. 1993).

      Evergreen maintains that attorney’s fees were warranted under

Pa.R.C.P. 1023.1 and 42 Pa.C.S. § 2503(7) and/or (9). First, Rule 1023.1

states, in pertinent part:

      (c) The signature of an attorney or pro se party constitutes a
      certificate that the signatory has read the pleading, motion, or
      other paper. By signing, filing, submitting, or later advocating

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J-A17016-15


     such a document, the attorney or pro se party certifies that, to
     the best of that person's knowledge, information and belief,
     formed after an inquiry reasonable under the circumstances,

        (1) it is not being presented for any improper purpose,
        such as to harass or to cause unnecessary delay or
        needless increase in the cost of litigation,

        (2) the claims, defenses, and other legal contentions
        therein are warranted by existing law or by a nonfrivolous
        argument for the extension, modification or reversal of
        existing law or the establishment of new law,

        (3) the factual allegations have evidentiary support or, if
        specifically so identified, are likely to have evidentiary
        support after a reasonable opportunity for further
        investigation or discovery; and

        (4) the denials of factual allegations are warranted on the
        evidence or, if specifically so identified, are reasonably
        based on a lack of information or belief.

     (d) If, after notice and a reasonable opportunity to respond, the
     court determines that subdivision (c) has been violated, the
     court may, subject to the conditions stated in Rules 1023.2
     through 1023.4, impose an appropriate sanction upon any
     attorneys, law firms and parties that have violated subdivision
     (c) or are responsible for the violation.

Pa.R.C.P. 1023.1(c), (d).

     Additionally, the at-issue portions of section 2503 state:

     The following participants shall be entitled to a reasonable
     counsel fee as part of the taxable costs of the matter:

     ***

     (7) Any participant who is awarded counsel fees as a sanction
     against another participant for dilatory, obdurate or vexatious
     conduct during the pendency of a matter.

     ***

     (9) Any participant who is awarded counsel fees because the
     conduct of another party in commencing the matter or otherwise
     was arbitrary, vexatious or in bad faith.

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J-A17016-15



42 Pa.C.S. § 2503(7), (9). In discussing section 2503(7) and (9), this Court

recently stated:

      A suit is vexatious, such as would support an award of counsel
      fees, if it is brought without legal or factual grounds and if the
      action served the sole purpose of causing annoyance. In re the
      Barnes Foundation, 74 A.3d 129 (Pa. Super. 2013)
      (interpreting 42 Pa.C.S. § 2503(7)). “Behavior that protracts
      litigation may nonetheless not rise to the level of obdurate,
      vexatious and dilatory conduct within the meaning of the
      statute.” 17 West's Pa. Prac., Family Law § 13:2 (7th ed.) (citing
      Gardner v. Gardner, 371 Pa. Super. 256, 538 A.2d 4 (1988)).
      Section 2503(9) serves not to punish all those who initiate legal
      actions that are not ultimately successful, or which may seek to
      develop novel theories in the law, as such a rule would have a
      chilling effect on the right to bring suit for real legal harms
      suffered. Rather, the statute focuses attention on the conduct of
      the party from whom counsel fees are sought and on the relative
      merits of that party's claims.

Dong Yuan Chen v. Saidi, 100 A.3d 587, 592 (Pa. Super. 2014) (some

citations omitted).

      Here, Evergreen claims that attorney’s fees are appropriate under Rule

1023.1 and/or section 2503 for several reasons. For instance, it maintains

that Commercial “signed verifications of facts which were found to be

untrue.” Evergreen’s Brief at 27. It also avers that Commercial’s principal,

Brian Hemphill, committed perjury at trial. Finally, Evergreen contends that

Commercial’s counterclaims “were not warranted by existing law[,] … had no

evidentiary support,” and “were being presented for the improper purpose of

delay, [to] harass and to needlessly increase the cost of litigation.”

Evergreen’s Brief at 27.




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      The trial court found Evergreen’s arguments in support of attorney’s

fees unconvincing, and we agree. First, while it is true that the court did not

credit Brian Hemphill’s testimony, the court did not consider it as amounting

to perjury. See Trial Court Opinion, 1/5/15, at 1 (“Evergreen continues in

the use of the same sort of hyperbole its counsel engaged in at trial, such

[as] declaring Commercial[’s] … principal, Mr. Hemphill, as a ‘fabricator’ and

a ‘perjurer[.’] The court did not see it that way.”). Additionally, in regard to

Commercial’s counterclaims, the court explained:

            The court sat through three hearing days listening to [this]
      dispute. Having practiced trial law for 34 years before attaining
      the bench, and in the three years since, the court believes it
      knows a frivolous case when it sees it. The defense of this case
      was not frivolous; neither was it arbitrary or vexatious. The
      court draws a necessary distinction between an unsuccessful
      defense and one that is merely frivolous and interposed for
      delay. Indeed, the defense had some chance of success. The
      counterclaims, one for breach of contract and the other for
      tortious interference with contractual relations, were dubious in
      retrospect. Had [Commercial] but remembered to bring [its]
      documentary evidence to trial, [it] might have fared better.

            [Commercial’s] counsel was [also] no dilettante. Lawrence
      E. Wood, Jr., Esquire is an esteemed member of the trial bar as
      well as a former judge who spent a quarter-century on this
      bench. He is a quiet and reflective individual, and the last
      person to engage in baseless litigation. The court cannot ignore
      these facts when deliberating on this request for sanctions. The
      court believes that [Commercial] did no more than carry out its
      claim to conclusion.

            [Evergreen] is to be blamed for naming [Commercial’s]
      principal, Brian Hemphill, as an individual party defendant
      through the end of trial, for no reason apparent to the court.
      This could well rise to the level of obdurate conduct.

             In sum, [Commercial’s] actions were not sufficiently
      sinister to support an award of attorney’s fees.

                                     -9-
J-A17016-15



Trial Court Order, 11/14/14, at 6 n.1 (emphasis omitted).              The court’s

reasoned discussion is sufficient to demonstrate that the court did not abuse

its discretion in denying Evergreen’s petition for counsel fees.3
____________________________________________


3
  Before concluding, we note that Commercial filed a petition with this Court
requesting that we allocate to Evergreen the cost of copying the reproduced
record ($682.50 in total). The following portion of Pennsylvania Rule of
Appellate Procedure 2154 is pertinent to Commercial’s request:

       (a) General rule.--Except when the appellant has elected to
       proceed under Subdivision (b) of this rule, or as otherwise
       provided in Subdivision (c) of this rule, the appellant shall not
       later than 30 days before the date fixed by or pursuant to Rule
       2185 (service and filing of briefs) for the filing of his or her brief,
       serve and file a designation of the parts of the record which he
       or she intends to reproduce and a brief statement of issues
       which he or she intends to present for review. If the appellee
       deems it necessary to direct the particular attention of the court
       to parts of the record not designated by the appellant, the
       appellee shall, within ten days after receipt of the designations of
       the appellant, serve and file a designation of those parts. The
       appellant shall include in the reproduced record the parts thus
       designated. In designating parts of the record for
       reproduction, the parties shall have regard for the fact
       that the entire record is always available to the court for
       reference and examination and shall not engage in
       unnecessary designation.

Pa.R.A.P. 2154(a) (emphasis added). Commercial claims that Evergreen did
not “have regard for the fact that the entire record is always available,” id.,
and improperly requested that Commercial include superfluous documents in
reproducing the record, causing unnecessary photocopying costs to
Commercial. Thus, Commercial requests that we allocate the entire cost of
the reproduced record to Evergreen.

      We decline to do so.        Pennsylvania Rule of Appellate Procedure
2155(b) states that “if either party shall cause material to be included in the
reproduced record unnecessarily, the appellate court may on application
filed within ten days after the last brief is filed, in its order disposing of
(Footnote Continued Next Page)


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J-A17016-15



      Order affirmed in the case docketed at 3486 EDA 2014.        Order

affirmed in the case docketed at 3489 EDA 2014.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




                       _______________________
(Footnote Continued)

the appeal impose the cost of reproducing such parts on the designating
party.” Pa.R.A.P. 2155(b) (emphasis added). Here, our docket indicates
that the last brief (Commercial’s reply brief) was filed on May 21, 2015.
Commercial’s instant request that the cost of reproducing the record be
allocated to Evergreen was not filed until June 24, 2015, well beyond the
ten-day requirement of Rule 2155(b). Accordingly, we deny Commercial’s
request for costs.




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