Huyett v. v. Doug's Family Pharmacy ( 2015 )

J. A03038/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VALERIE HUYETT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DOUG’S FAMILY PHARMACY :
:
Appellee : No. 776 MDA 2014
Appeal from the Judgment Entered June 16, 2014
In the Court of Common Pleas of Berks County
Civil Division No(s).: 08-4706
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 18, 2015
Appellant, Valerie Huyett, appeals from the judgment entered in the
Berks County Court of Common Pleas following a jury trial and verdict in her
favor for $21,394.92, which was against Appellee, Doug’s Family Pharmacy.
Appellant contends the court abused its discretion by refusing to award her
counsel fees totaling $106,429.30. We vacate and remand.
We adopt the facts set forth in the trial court’s opinion. See Trial Ct.
Op., 8/18/2014, at 1-2. We reiterate that the trial court denied Appellee’s
motion for judgment notwithstanding the verdict or for a new trial. On
January 17, 2014, the court denied Appellant’s motion for counsel fees,
reasoning as follows:
*
Former Justice specially assigned to the Superior Court.
J. A03038/15
A review of the jury verdict makes clear that the jury
accepted [Appellant’s] claim of entitlement to lost earnings
of . . . ($18,894.92) but awarded an extremely modest
amount for noneconomic loss of . . . ($2,500.00). This
Court has conducted an independent analysis of the
evidence as required by 43 P.S. § 962(c) and concludes
the jury’s verdict was not, in this Court’s opinion,
supported by the evidence submitted to it. The
evidence was not overwhelming. Of particular importance
to this Court was [Appellant’s] introduction of an email
allegedly authored by a co-worker, Stephanie Mitchell.
The email criticized [Appellant’s] work performance at
[Appellee] and suggests that [Appellant] was terminated
due to poor work performance rather than a discriminatory
reason. This email was contradicted by Stephanie
Mitchell’s later affidavit that [Doug Hess] had specifically
told Stephanie Mitchell that he . . . had terminated
[Appellant] because of her illness. On cross-examination
concerning the contradiction of the email and affidavit
before this Court, Stephanie Mitchell testified that she did
not recall whether she wrote the email and claimed that
although it was sent from her personal email address,
Doug Hess’s wife, Lisa, was present at the pharmacy on
the day she wrote the email and may have added material
to the email before it was sent to [Appellant]. This Court
did not and does not find the testimony of Stephanie
Mitchell to be credible. This contradictory testimony
was relied on extensively by [Appellant]. It is within my
discretion under 43 P.S. § 962 to deny [Appellant’s]
attorney’s motion for fees and costs.
Order, 1/17/14, at 1-2 (emphases added).
On April 14, 2014, although the trial court had not yet entered
judgment, it granted Appellant’s motion to file a notice of appeal nunc pro
tunc from the January 17, 2014 order.1 On May 5, 2014, Appellant filed a
1
See generally 20 West’s Pennsylvania Appellate Practice § 301.26 (2014)
(“Where an order on counsel fees precedes the entry of the final order in a
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notice of appeal and a timely, court-ordered Pa.R.A.P. 1925(b) statement.
The trial court entered judgment on June 16, 2014.2
Appellant raises the following issues:
Did the lower court err and exceed the permissible scope
of its discretion in its January 15, 2014 order insofar as the
lower court invaded the province of the jury in order to
deny [Appellant’s] request for the “make whole” remedy of
attorney’s fees pursuant to the fee shifting provision of the
remedial [Pennsylvania Human Relations Act3 (“PHRA”)]
solely on the basis of a credibility determination adverse to
[Appellant]?
Did the lower court err and exceed the permissible scope
of its discretion in its January 15, 2014 order and defy
controlling authority insofar as the lower court misapplied
and misstated the Supreme Court’s controlling statement
of law on the issue of attorney’s fees under the PHRA?
Did the lower court err and exceed the permissible scope
of its discretion in its January 15, 2014 order when it
defied controlling authority, which limited its discretion, in
order to deny the prevailing [Appellant’s] request for the
“make whole” remedy of attorney’s fees pursuant to the
fee shifting provision of the remedial PHRA?
Did the lower court err and exceed the permissible scope
of its discretion in its January 15, 2014 order insofar as the
lower court improperly converted the proceeding into a
bench trial, and adopted [Appellant’s] factual narrative and
legal arguments in order to nullify the jury’s determination
case, it is deemed interlocutory and unappealable until entry of the final
order in the underlying litigation.” (footnote omitted)).
2
Thus, this Court’s appellate jurisdiction was perfected. See generally
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514
(Pa. Super. 1995) (en banc).
3
43 P.S. §§ 951-963.
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that [Appellant] had successfully proven a violation of the
PHRA which would warrant the “make whole” remedy of
attorney’s fees pursuant to the fee shifting provision of the
remedial PHRA?
Appellant’s Brief at 3-4.
We summarize her second and sixth arguments together. 4 Appellant
contends the trial court usurped the jury’s credibility determinations by
holding it did not find Stephanie Mitchell’s testimony credible. Id. at 26-27,
50. Appellant counters that the jury found Mitchell credible in awarding a
verdict in her favor and notes the court denied Appellee’s motion for
judgment notwithstanding the verdict. Id. at 31. We are constrained to
vacate and remand.
4
Appellant raises six arguments in support of her four issues, which are
closely related. Appellant violated Pa.R.A.P. 2119(a), which mandates that
“argument shall be divided into as many parts as there are questions to be
argued.” See Pa.R.A.P. 2119(a). We reluctantly decline to quash. See
PHH Mortg. Corp. v. Powell, 100 A.3d 611, 615 (Pa. Super. 2014)
(refusing to quash appeal despite numerous violations of appellate briefing
rules); see also Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011)
(“The briefing requirements scrupulously delineated in our appellate rules
are not mere trifling matters of stylistic preference; rather, they represent a
studied determination by our Court and its rules committee of the most
efficacious manner by which appellate review may be conducted so that a
litigant’s right to judicial review as guaranteed by Article V, Section 9 of our
Commonwealth’s Constitution may be properly exercised.”). Furthermore,
her arguments—some of which are duplicative—fall within the scope of one
or more of her issues. “[A]ppellate advocacy is measured by effectiveness,
not loquaciousness.” Commonwealth v. Ellis, 626 A.2d 1137, 1140-41
(Pa. 1993) (quotation marks and citation omitted); see also Smith v.
Cheung, 2014 WL 7801634, at *3 n.9 (Pa. Super. Apr. 15, 2014) (“Judges
are not like pigs, hunting for truffles buried in briefs.” (citation omitted)).
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“[T]he award of counsel fees and costs under the [PHRA] is within the
sound discretion of the trial court and will not be reversed unless the trial
court commits an abuse of that discretion.” Hoy v. Angelone, 720 A.2d
745, 752 (Pa. 1998).
When the court has come to a conclusion by the
exercise of its discretion, the party complaining of it on
appeal has a heavy burden; it is not sufficient to persuade
the appellate court that it might have reached a different
conclusion if, in the first place, charged with the duty
imposed on the court below; it is necessary to go further
and show an abuse of the discretionary power. 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.
Paden v. Baker Concrete Const., Inc., 658 A.2d 341, 343 (Pa. 1995)
(quotation marks and citations omitted); accord Hoy, 720 A.2d at 752.5
5
A “court by definition abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996). In Krasnov v. Dinan,
465 F.2d 1298 (3d Cir. 1972), the United States Court of Appeals for the
Third Circuit set forth the following standard for reviewing the decisions of
the district court:
[O]ur responsibility is not to substitute findings we could
have made had we been the fact-finding tribunal; our sole
function is to review the record to determine whether the
findings of the District Court were clearly erroneous, i.e.,
whether we are left with a definite and firm conviction that
a mistake has been committed. It is the responsibility of
an appellate court to accept the ultimate factual
determination of the fact-finder unless that determination
either (1) is completely devoid of minimum evidentiary
support displaying some hue of credibility, or (2) bears no
rational relationship to the supportive evidentiary data.
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The United States Court of Appeals for the Third Circuit has also adopted an
abuse of discretion standard: “We may also find an abuse of discretion when
the trial court uses improper standards or procedures in determining
[counsel] fees, or if he does not properly identify the criteria used for such
determination. Factual findings, of course, are subject to the clearly
erroneous standard of review.”6 Silberman v. Bogle, 683 F.2d 62, 65 (3d
Cir. 1982) (citation omitted).
Unless the reviewing court establishes the existence of
either of these factors, it may not alter the facts found by
the trial court. To hold otherwise would be to permit a
substitution by the reviewing court of its finding for that of
the trial court, and there is no existing authority for this in
the federal judicial system, either by American common
law tradition or by rule and statute.
Id. at 1302-03 (quotation marks and citation omitted). We acknowledge
that generally, “federal court decisions do not control the determinations of
the Superior Court.” NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52
A.3d 296, 303 (Pa. Super. 2012) (citation omitted).
6
The High Court explained “clearly erroneous” as follows:
Although the meaning of the phrase “clearly erroneous”
is not immediately apparent, certain general principles
governing the exercise of the appellate court’s power to
overturn findings of a district court may be derived from
our cases. The foremost of these principles . . . is that a
finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed. This standard plainly does
not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would
have decided the case differently. The reviewing court
oversteps the bounds of its duty . . . if it undertakes to
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In Martin v. Evans, 711 A.2d 458 (Pa. 1998), a jury found the
defendant was not negligent. Id. at 459. Our Supreme Court examined
whether the trial court erred by “granting a new trial based on its
determination that the [jury’s] verdict was against the weight of the
evidence.” Id. at 459. The trial court had relied on conflicting testimony
that established the defendant’s liability. Id. at 463. The Martin Court
unanimously reversed the trial court:
A resolution of whether [the defendant] was negligent
relied upon a credibility determination and the jury’s
assessment of what constituted ordinary care under the
circumstances. Because this assessment was solely
within the province of the jury, the trial court was
not at liberty to reassess the evidence and make its
own credibility determinations simply because it
would have reached a different conclusion.
Accordingly, we hold that the trial court abused its
discretion by disregarding the jury’s credibility
determination and substituting its own.
duplicate the role of the lower court. In applying the
clearly erroneous standard to the findings of a district
court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide
factual issues de novo. If the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985)
(quotation marks and citations omitted).
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Id. (emphases added and punctuation and citations omitted).
The pertinent statute of the PHRA follows:
(c.2) If, after a trial held pursuant to subsection (c), the
court of common pleas finds that a defendant engaged in
or is engaging in any unlawful discriminatory practice as
defined in this act, the court may award attorney fees and
costs to the prevailing plaintiff.
43 P.S. § 962(c.2). “Use of the term ‘may’ signals the legislature’s intention
to rest the award of counsel fees and costs within the discretion of the trial
court.” Hoy, 720 A.2d at 751. The Hoy Court acknowledged that it may
refer to the federal statutory analogue at 42 U.S.C. § 2000e,7 but was not
bound by it or case law construing it. See Hoy, 720 A.2d at 751-52.
In Hoy, our Supreme Court held the trial court did not abuse its
discretion in denying counsel fees following a jury verdict in the plaintiff’s
favor:
7
Subsection (k) follows:
(k) Attorney’s fee; liability of Commission and United
States for costs
In any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing party,
other than the Commission or the United States, a
reasonable attorney’s fee (including expert fees) as part of
the costs, and the Commission and the United States shall
be liable for costs the same as a private person.
42 U.S.C. § 2000e-5(k). The statute is part of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, which prohibits employment
discrimination.
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After review of the record, we do not believe that the
trial court committed an abuse of discretion when it denied
counsel fees to [the plaintiff]. The Superior Court noted
that [the plaintiff] received a fairly substantial monetary
recovery against [the defendant] for its violation of the
Act. Additionally, as noted by Judge McEwen in his
concurrence [to the Superior Court majority], the violation
of the Act was fairly debatable, as the evidence was not
overwhelming. The trial court weighed the verdict against
the evidence and determined, in its discretion, that an
award of counsel fees was not appropriate.
Id. at 752.8
Instantly, the trial court—despite denying Appellee’s motion for post-
trial relief—held that the jury’s verdict was not supported by the evidence.
Order, 1/17/14, at 1. Furthermore, the court—identical to the trial court in
Martin—reassessed the evidence by rejecting the jury’s credibility
determination in favor of Mitchell and substituting its own. See id.; Martin,
711 A.2d at 463. The trial court reversed the jury’s finding of fact and was
convinced the evidence did not support the jury’s verdict, cf. Anderson,
470 U.S. at 573; Krasnov, 465 F.2d at 1302-03, despite denying Appellee’s
motion for post-trial relief. See Order, 1/17/14, at 1. Unlike the Hoy Court,
which observed the evidence was underwhelming, the instant trial court did
not simply quantify the evidence: the court flatly rejected the jury’s
credibility determination and substituted its own. See Hoy, 720 A.2d at
752. In sum, rather than weigh the evidence as, e.g., overwhelming or
8
The Hoy Court did not expand upon its use of the word “weigh.”
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weak, see id., the instant trial court outright rejected the jury’s credibility
determination in favor of Mitchell. See Martin, 711 A.2d at 463. Because
the trial court misapplied the law, it abused its discretion. See Hoy, 720
A.2d at 752; Paden, 658 A.2d at 343; accord Silberman, 683 F.2d at 65
(holding abuse of discretion occurs when trial court uses improper standard).
Accordingly, we vacate the judgment, vacate the January 17, 2014 order,
and remand for further proceedings.9 Because we granted relief based on
two of Appellant’s arguments, we need not address her remaining issues and
arguments. See Siegal v. Stefanyszyn, 718 A.2d 1274, 1277 n.6 (Pa.
Super. 1998); see generally Pa.R.A.P. 2119(a).
Judgment vacated. Order vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judge Mundy joins the memorandum.
Judge Stabile files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
9
If the trial court concludes counsel fees are warranted, then it may
consider the reasonableness of the amount requested.
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