Latona Trucking v. E.R. Linde Constr. Corp.

J-A23038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LATONA TRUCKING, INC. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

E.R. LINDE CONSTRUCTION CORP. :

:

Appellant : No. 534 MDA 2024

Appeal from the Judgment Entered April 3, 2024

In the Court of Common Pleas of Sullivan County

Civil Division at No: 2019-CV-225

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED: OCTOBER 1, 2025

Appellant, E.R. Linde Construction Corporation (“Linde”), appeals from

the April 3, 2024, judgment of $227,444.96 in favor of Appellee, Latona

Trucking, Inc. (“Latona”). The trial court granted summary judgment on the

issue of liability in favor of Latona and subsequently conducted a non-jury trial

on the issue of damages and attorney’s fees. Linde challenges the granting

of summary judgment and the award of damages and attorney’s fees. Upon

review, we affirm in part, vacate in part, and remand for further proceedings

consistent with this memorandum.

In 2016, the Pennsylvania Department of Transportation (“PennDOT”)

contracted with D.A. Collins Construction Company (“Collins”) for a publicly

bid project known as the Pond Eddy Crossing Bridge Replacement Project (“the

Project”). On June 17, 2016, Collins entered into a subcontractor agreement

with Latona to “provide all labor, supervision, tools, equipment, materials,

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services, and supplies” necessary to complete the Project. See Latona’s

Motion for Summary Judgment, 3/28/22, Exhibit 3, Subcontractor Agreement.

The new bridge was constructed next to the existing bridge (“old bridge”),

which remained in use during construction because it was the only access

point for residents and other motorists.

On April 14, 2016, Linde provided a quote to Latona in which Linde would

supply and deliver aggregate, i.e., stone, gravel, and/or sand, to the Project.

Latona accepted the quote. See Amended Complaint, 12/26/19, Exhibit A.

Linde was responsible for picking up the aggregate at the quarry and

transporting it to the dumpsite at the Project. See Plaintiff’s Motion for

Summary Judgment, Exhibit 7, Deposition of Karl Harkenreader, at 33-34.

This duty included determining the route of travel for the trucks, ensuring that

Linde’s trucks were registered and arrived on time, and that its drivers had

CDL licenses and obeyed the laws of the road, including any weight limits on

roads or bridges. See id. at 34-35.

Thereafter, Linde entered into a subcontractor agreement with Scranton

Craftsmen to “load, transport and offload designated materials” for the

Project. See Plaintiff’s Response to Defendant’s Motion for Summary

Judgment, 5/16/22, Exhibit 10, Subcontractor Hauling Agreement.

To summarize, the chain of contracts was as follows:

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PennDOT

↓

Collins

↓

Latona

↓

Linde

↓

Scranton Craftsmen

On November 20, 2017, a driver employed by Scranton Craftsmen drove

a truck exceeding the weight limit over the old bridge, causing extensive

damage. Collins performed repairs to the old bridge at PennDOT’s request.

As a result, Collins backcharged Latona $75,913.74 for the cost of the repairs.

On March 20, 2019, Latona sent a written demand to Linde to satisfy the

claim.

Linde did not do so; therefore, on October 22, 2019, Latona initiated

this breach of contract action against Linde to recover the amount it owed

Collins for the cost of repairing the old bridge. In response to Linde’s

preliminary objections, Latona filed an amended complaint that included three

claims: (1) breach of contract; (2) negligence; and (3) common law

indemnification. Latona’s breach of contract claim alleged that Linde breached

its implied duty to perform in a workmanlike manner—specifically, Linde

breached its duty when one of the Scranton Craftsmen drivers, who was

subcontracted by Linde, negligently drove an overweight truck over the old

bridge and caused extensive damage.

Following discovery, on March 28, 2022, Latona filed a motion for

summary judgment asserting that both Linde’s corporate designee and its own

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expert admitted liability. Despite Latona’s reliance on the admission of liability

by Linde’s expert, Latona filed a motion in limine to preclude the same expert

from testifying at trial. See Latona’s Motion in Limine, 5/3/22.

The trial court did not rule on Latona’s motion in limine. Instead, it

agreed that Linde’s expert and corporate designee both admitted liability and

granted summary judgment on liability in favor of Latona. See Opinion and

Order, 8/1/22. On April 19, 2023, the court heard oral argument on Latona’s

motion in limine. Thereafter, the trial court granted Latona’s motion in limine

and precluded Linde’s expert, John M. Wolfersberger, from testifying at the

damages hearing. See Order, 4/24/23. The parties did not present evidence

during the damages hearing. Instead, after oral argument, the trial court

awarded Latona damages in the amount of $75,656.86. The trial court

conducted a separate hearing regarding Latona’s request for attorney’s fees

and awarded Latona an additional $151,788.10. See Order, 11/22/23.

Linde filed for post-trial relief, which was denied. A total judgment of

$227,444.96 in favor of Latona was entered on April 3, 2024. This timely

appeal followed. Both Linde and the trial court complied with Pa.R.A.P. 1925.1

Linde raises the following issues for our review:

A. Whether the April 3, 2024 judgment should be reversed

because the trial court erred when it granted [Latona’s] motion

for summary judgment and denied [Linde’s] motion?

____________________________________________

1 On March 14, 2025, this matter was briefly remanded to the trial court for

preparation of a supplemental 1925(a) opinion. We retained jurisdiction. The

trial court complied on April 15, 2025.

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B. Whether the April 3, 2024 judgment should be reversed

because [the] trial court erred when it granted [Latona’s]

motion in limine and precluded [Linde’s] damages expert, John

Wolfersberger?

C. Whether the April 3, 2024 judgment should be reversed

because the trial court erred when it imposed damages against

[Linde] on September 6, 2023.

D. Whether the April 3, 2024 judgment should be reversed

because the trial court erred when, after a bench trial on

November 14, 2023, it awarded [Latona] $151,788.10 in

attorney’s fees damages?

Appellant’s Brief, at 7-8.

Linde challenges the trial court’s decision to grant summary judgment

as to liability. In reviewing the grant or denial of summary judgment, our

standard of review is de novo, and our scope of review is plenary. Khalil v.

Williams, 278 A.3d 859, 871 (Pa. 2022). Our Supreme Court has explained

that

a trial court should grant summary judgment only in cases where

the record contains no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. It is the

moving party’s burden to demonstrate the absence of any issue

of material fact, and the trial court must evaluate all the facts and

make reasonable inferences in a light most favorable to the non-

moving party. . . . An appellate court may reverse a grant of

summary judgment only if the trial court erred in its application of

the law or abused its discretion.

Id. (citations omitted).

Here, the trial court largely granted summary judgment because Linde’s

expert and corporate designee admitted liability. See Trial Court Opinion,

8/1/22, at 6-9. Additionally, the trial court found that Linde’s duty to perform

work in a workmanlike manner was non-delegable. Id. at 8. In so holding,

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the trial court relied on Husak v. Berkel, Inc., 341 A.2d 174 (Pa. Super.

1975) for the proposition that “an initially obligated party cannot delegate his

responsibility by agreement with a third person.” Id. at 179.

We affirm the order granting summary judgment to Latona on the

ground that Linde had a non-delegable duty to perform work in a workmanlike

manner. The material facts in this case are that Linde agreed to perform

hauling services for Latona in a workmanlike manner; Linde subcontracted

with Scranton Craftsmen for partial performance of that work; and the old

bridge was damaged by a Scranton Craftsmen driver. There is no dispute of

these material facts, and the trial court properly decided the question of

liability as a matter of law.

Application of two principles support the entry of summary judgment.

First, every contract for work or services contains a duty to perform skillfully

and in a workmanlike manner as a matter of law, whether or not the contract

expressly states such a duty. See Huling v. Henderson, 29 A. 276, 278 (Pa.

1894) (“One who undertakes any work impliedly assumes that he will do it

with the ordinary skill and care, and becomes liable to make compensation for

not doing so.”); Ferguson v. Burge, 166 A.2d 288, 290 (Pa. Super. 1960)

(recognizing duty to perform services in workmanlike manner under contract

for installation of a well).

Second, the duty to perform work in a workmanlike manner is

nondelegable, even if that work is later subcontracted out. Husak, supra.

Husak involved a product liability claim against a successor corporation. The

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plaintiff was injured during work when his hand was accidentally caught in a

food grinding machine. Id. at 176. The plaintiff alleged that Enterprise,

Berkel’s predecessor, manufactured the defective machine and sold it to the

plaintiff’s employer. Id. The plaintiff sought to hold Berkel liable on a theory

of implied warranty. Id. Berkel joined SCM Corporation as an additional

defendant. Id.

The trial court granted summary judgment to SCM, but this Court

reversed the entry of judgment. Of relevance to the present case, one of the

reasons for reversing was our determination, based on review of a complex

chain of merger agreements, that SCM was a successor to Enterprise’s liability.

We reasoned that any contract between the successor to Enterprise’s liability,

i.e., SCM, and another party

cannot affect that successor’s original liability to the plaintiff. The

cause of action owned by the plaintiff is distinct from the cause of

action arising out of the duty of the additional defendant to

indemnify the defendant.

It is basic contract law that an initially obligated party cannot

delegate his responsibility by agreement with a third person.

“Neither the delegation of performance by an obligor, nor a

contract with the obligor by the person to whom the performance

is delegated to assume the obligor’s duty, extinguishes it or

prevents recovery of damages from him if the duty is not

performed.” Restatement of Contracts § 160(4) (1932). A party

with an original obligation to another cannot divest himself of

liability to that party merely by contracting with a third party to

assume that liability. See also Restatement of Contracts § 141(1)

(1932).

Id. at 179 (some citations omitted).

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In 1981, several years after Husak’s issuance, the Restatement

(Second) of Contracts was promulgated. The Restatement provision relied

upon by the Husak court was renumbered, but the substance remained

unchanged to the present:

(1) An obligor can properly delegate the performance of his duty

to another unless the delegation is contrary to public policy

or the terms of his promise.

(2) Unless otherwise agreed, a promise requires performance

by a particular person only to the extent that the obligee

has a substantial interest in having that person perform or

control the acts promised.

(3) Unless the obligee agrees otherwise, neither

delegation of performance nor a contract to assume

the duty made with the obligor by the person

delegated discharges any duty or liability of the

delegating obligor.

Restatement (Second) of Contracts § 318 (1981) (emphasis added).

Courts have consistently applied this general rule to hold that

contractors are liable for their subcontractors’ breaches of their duty to

perform work in a workmanlike manner. See Klauder & Nunno

Enterprises, Inc. v. Hereford Associates, Inc., 723 F. Supp. 336, 346

(E.D. Pa. 1989) (“[A]s contractor, K&N is liable for the breaches of its

subcontractors . . . As Professor Corbin has observed, ‘A duty can never be

escaped by assignment or delegation.’”) (citing 4 A. Corbin, Corbin on

Contracts § 886, at 455 (1951); Brooks v. Hayes, 395 N.W.2d 167, 170

(Wis. 1986) (general contractor who hires independent contractor to perform

services that general contractor was required to provide to owner is liable for

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independent contractor’s negligent construction based on the “hornbook

principle of contract law [] that the delegation of the performance of a contract

does not, unless the obligee agrees otherwise, discharge the liability of the

delegating obligor to the obligee for breach of contract”); Clear v. Patterson,

459 P.2d 358, 361 (N.M. Ct. App. 1969) (general contractor was responsible

to owner for its subcontractor’s negligent construction of carwash based upon

its nondelegable contractual duty to use reasonable skill in construction);

National Fire Ins. Co. of Hartford v. Westgate Const. Co., 227 F. Supp.

835, 838 (D. Del. 1964) (general contractor could be liable for its

subcontractor’s negligence in installing fireplace in home, which caused fire

damage).

Applying these principles, we hold that Linde was liable to Latona

because it could not delegate the duty it owed Latona to perform the work.

Latona signed a subcontractor agreement with Collins in which Latona agreed

to provide labor, supervision, equipment, materials, and services necessary

to perform certain clearing, grubbing, and excavation work for the Project.

See Amended Complaint, 12/26/19, ¶ 8. Latona then delegated partial

performance of the work to Linde, i.e., to provide materials and hauling

services for the Project. Id. at ¶ 9. Linde then delegated partial performance

of its duties to Scranton Craftsmen. Linde’s delegation of performance did not

discharge its duty to Latona to perform the work in a workmanlike manner.

When Scranton Craftsmen’s driver damaged the old bridge, it breached

the duty it owed to Linde to perform the work in a workmanlike manner.

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Linde, in turn, breached the duty it owed to Latona to perform the work in a

workmanlike manner. Accordingly, the trial court properly granted summary

judgment on liability in favor of Latona.

Based on the foregoing, we need not consider whether the court

properly granted summary judgment on the alternative ground that Linde’s

expert and corporate designee admitted liability. See Commonwealth v.

Singletary, 803 A.2d 769, 772-73 (Pa. Super. 2002) (“[W]here the result is

correct, an appellate court may affirm a lower court’s decision on any ground

without regard to the ground relief upon by the lower court itself.”).

In Linde’s second argument, it contends that the trial court abused its

discretion by granting Latona’s motion in limine precluding its expert,

Wolfersberger, from testifying regarding the amount of damage caused by the

accident. See Appellant’s Brief, at 65-71. Linde argues that the trial court

“disregarded that Wolfersberger has substantial, technical, specialized

knowledge” based on his “41 years [of] experience in investigating losses and

estimating damage amounts.” Id. at 66.

“A motion in limine is a procedure for obtaining a ruling on the

admissibility of evidence prior to or during trial, but before the evidence has

been offered.” Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579,

588 (Pa. Super. 2002). We review a trial court’s decision granting a motion

in limine using the same standard of review as applicable to the admission of

evidence at trial. Commonwealth v. Carter, 320 A.3d 140, 147 (Pa. Super.

2024). Evidentiary rulings are within the sound discretion of the trial court.

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Kelly v. Thackray Crane Rental, Inc., 874 A.2d 649, 653 (Pa. Super. 2005).

We review the trial court’s ruling on the admissibility of evidence for abuse of

discretion:

A finding of a trial court’s abuse of discretion does not occur if we

merely might have reached a different conclusion, but rather when

the result is manifestly unreasonable, is based on partiality,

prejudice, bias, or ill-will, or has such lack of support as to be

clearly erroneous.

Id. (citation omitted).

For expert testimony to be admitted at trial, the testimony must comply

with the requirements of Pennsylvania Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702. Furthermore, an expert’s report and testimony must include the

scientific authority on which the expert based his opinion:

The exercise of scientific expertise requires inclusion of scientific

authority and application of the authority to the specific facts at

hand. Thus, the minimal threshold that expert testimony must

meet to qualify as an expert opinion rather than merely an opinion

expressed by an expert, is this: the proffered testimony must

point to, rely on or cite some scientific authority – whether

facts, empirical studies, or the expert’s own research – that

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the expert has applied to the facts at hand and which

supports the expert’s ultimate conclusion. When an expert

opinion fails to include such authority, the trial court has no choice

but to conclude that the expert opinion reflects nothing more than

mere personal belief.

Snizavich v. Rohm and Haas Co., 83 A.3d 191, 197 (Pa. Super. 2013).

Here, the trial court granted Latona’s motion in limine to preclude

Linde’s expert Wolfersberger from testifying as to damages because he lacked

“any specialized knowledge in the field of engineering” and failed to provide a

damages valuation with “any calculation or explanation” as to how he arrived

at his conclusion. Trial Court Supplemental Opinion, 4/15/25, at 3-4.

According to his curriculum vitae, Wolfersberger is a general adjuster

with over 41 years of experience “as an insurance industry and claims

professional.” Latona’s Motion in Limine, 5/3/22, Exhibit C. He has “[i]n-

depth knowledge of claims adjusting and hands-on experience in

investigations of a broad variety of property loss cases.” Id. Such

investigations included a church collapse and several arson cases. Id.

Although there is nothing in his curriculum vitae to reflect that he has

experience evaluating structural damage to a bridge, Wolfersberger does have

specialized knowledge of evaluating property losses. Whether Wolfersberger

could adjust the claim in this case goes to the weight of his testimony, not

whether he may be admitted as an expert. On that basis, the trial court erred

in precluding Appellant’s expert report.

However, the trial court also found that Wolfersberger’s expert report

lacked a foundation on which his calculations were based. Wolfersberger’s

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report focused primarily on the cause of the damage. Wolfersberger claimed

to rely upon an engineer’s report 2 , PennDOT invoices, photographs of the

damage, and depositions of interested parties. Id., Exhibit B at 2. He also

reviewed the material, labor and equipment lists related to the repair work

done. Id. at 6. He concluded that “every single item on these lists were [not]

damages as a direct result of [Scranton’s] vehicle passage over the bridge.”

Id. He stated that the evaluation of the claim was based “upon the conditions

reported by the engineer, the photographs provided and our knowledge of

bridge construction.” Id. (emphasis added). The report did not explain what

this “knowledge” was or how he obtained such “knowledge.” Thus, his report

lacked a foundation to support his conclusion that Scranton did not cause

damage to the bridge.

Wolfersberger also claimed that the total value of the damage was

$58,745.69 minus $10,848.37 in depreciation, for a net value of $47,897.32,

approximately $28,000 less than the amount sought by Latona. His report,

however, lacked any explanation as to how he arrived at this conclusion. His

evaluation of damages consisted of three tables (material, equipment, and

labor), each setting forth the description of the cost, quantity, unit price, tax,

RCV, depreciation and ACV in separate columns. Id., Exhibit D. There was

no definition of RCV or ACV and no explanation as to how Wolfersberger

____________________________________________

2 Wolfsberger’s report indicates that SAI Consulting Engineers completed an

inspection of the bridge in November of 2017, and states that a copy of said

report is attached. However, despite our best efforts, we cannot locate a copy

of the engineer’s report in the certified record.

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arrived at the quantity, unit price, or any of the numbers for that matter. Id.

Nor was there any explanation for how Wolfersberger determined the amount

of depreciation. Wolfersberger thus failed to “point to, rely on or cite some

scientific authority – whether facts, empirical studies, or the expert’s own

research – that the expert has applied to the facts at hand and which supports

the expert’s ultimate conclusion.” Snizavich, supra. Accordingly, we

conclude that the trial court acted within its discretion by granting Latona’s

motion in limine to preclude Wolfersberger’s expert testimony on damages on

the basis that his report lacked the necessary foundation to support its

conclusions.

Linde’s third issue challenges the award of damages. It argues that the

trial court erred when it awarded Latona damages absent an evidentiary

hearing or jury trial. See Linde’s Brief, at 71-75. We review an award of

damages for abuse of discretion:

The duty of assessing damages is within the province of the [trier

of fact] and should not be interfered with by the court, unless it

clearly appears that the amount awarded resulted from caprice,

prejudice, partiality, corruption or some other improper influence.

In reviewing the award of damages, the appellate courts should

give deference to the decisions of the trier of fact who is usually

in a superior position to appraise and weigh the evidence.

Ferrer v. Trustees of Univ. of Penn., 825 A.2d 591, 611 (Pa. 2002)

(citations and quotation marks omitted).

The trial court initially denied summary judgment on damages, noting

an issue of fact because Linde’s expert opined that the cost to repair the old

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bridge was lower than what Latona claimed. Subsequently, however, the trial

court granted Latona’s motion in limine and precluded Linde’s expert from

testifying at the damages hearing scheduled for May 24, 2023. See Order,

4/24/23. Linde then filed a motion for recusal, arguing that the trial court had

knowledge of the parties’ settlement discussions, and as such, “could unfairly

influence [the trial court’s] decision-making as the fact-finder on damages.”

Motion for Recusal, 4/24/23, ¶ 17. The trial court continued the damages

hearing and scheduled oral argument on Linde’s recusal motion for the date

originally scheduled for the damages hearing, May 24, 2023.

During the May 24, 2023, hearing, issues arose regarding whether the

question of damages and attorney’s fees should be heard by a jury or a judge,

as well as the reasonableness of the attorney’s fees. Latona argued that a

damages hearing was no longer necessary because Linde had “no ability to

even present contrary evidence that the cost of the work that D.A. Collins back

charged to Latona [was] unreasonable” because Linde’s expert was precluded

from testifying. N.T. Argument, 5/24/23, at 27. Thus, Latona argued that

the issue of damages could be decided as a matter of law. The trial court

agreed and entered an order awarding Latona $75,656.86 in damages, the

amount pled in the amended complaint, without requiring Latona to present

any testimony or evidence during an evidentiary hearing or jury trial. See

Order, 9/11/23.

We are compelled to agree with Linde that the trial court abused its

discretion when it awarded Latona damages without requiring it to prove the

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amount to which it was entitled. It is well-settled that “the plaintiff in an

action for breach of contract has the burden of proving damages resulting

from the breach.” Spang & Co. v. U.S. Steel Corp., 545 A.2d 861, 866 (Pa.

1988). The determination of damages is a factual question to be decided by

the fact-finder:

The fact-finder must assess the testimony, by weighing the

evidence and determining its credibility, and by accepting or

rejecting the estimates of the damages given by the witnesses.

Although the fact-finder may not render a verdict based on sheer

conjecture or guesswork, it may use a measure of speculation in

estimating damages. The fact-finder may make a just and

reasonable estimate of the damage based on relevant data, and

in such circumstances may act on probable, inferential, as well as

direct and positive proof.

Judge Tech. Services, Inc. v. Clancy, 813 A.2d 879, 885 (Pa. Super. 2002)

(citation omitted). Even where liability is admitted or obtained via default

judgment, the plaintiff must prove the damages that are being sought. See

Derbyshire v. Jefferson Frankford Hosp., 329 A.3d 676, 684-85 (Pa.

Super. 2024). Moreover, “a party seeking damages for breach of contract

must be able to prove such damages with reasonable certainty.” Printed

Image of York, Inc. v. Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa. Super.

2016).

Although the trial court heard oral argument on the issue of damages,

oral advocacy is not evidence, and Latona has the burden to present evidence

that proved damages with reasonable certainty caused by Linde’s breach.

There was no testimony or evidence of damages introduced into the record

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for a fact-finder to weigh and evaluate for credibility. Thus, the trial court

abused its discretion when it awarded Latona damages without a trial on

damages. We therefore remand for trial in which the parties shall present

evidence of damages.

Lastly, Linde challenges the trial court’s award of attorney’s fees to

Latona. Latona requested attorney’s fees in its count for common law

indemnification. Subsequently, in its motion for summary judgment, Latona

requested attorney’s fees under both common law indemnification, and under

42 Pa.C.S.A. § 2503 on the ground that Linde’s conduct in defending the

lawsuit was dilatory, vexatious, obdurate or in bad faith. Motion for Summary

Judgment, 3/28/22, ¶¶ 79-89. Following a hearing, the trial court awarded

Latona “the full amount of attorney’s fees” of $151,788.10. See Order,

11/22/23. The order does not specify under which theory – common law

indemnification or Section 2503 – attorney’s fees were awarded, or how that

amount was calculated. In its supplemental 1925(a) opinion, the trial court

claimed that it awarded attorney’s fees because Linde’s “conduct throughout

the process was dilatorious [sic] or vexatious,” language that appears to have

been borrowed from Section 2503(7). Trial Court Supplemental Opinion,

4/22/25, at 8.

On appeal, Linde claims that Latona is not entitled to attorney’s fees

under either theory. We review a trial court’s award of attorney’s fees under

an abuse of discretion standard:

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If the record supports a trial court’s finding of fact that a litigant

violated the conduct provisions of the relevant statute providing

for the award of attorney’s fees, such award should not be

disturbed on appeal.

Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996). “Generally,

Pennsylvania adheres to the ‘American Rule,’ which states that litigants are

responsible for their own litigation costs and may not recover them from an

adverse party unless there is express statutory authorization, a clear

agreement of the parties, or some other established exception.” In re

Farnese, 17 A.3d 357, 370 (Pa. 2011) (citation and quotation marks

omitted). There is no dispute that there was no clear agreement of

indemnification between the parties, such as in a written contract. Rather,

Latona claimed, and was awarded, attorney’s fees under statutory

authorization (42 Pa.C.S.A. § 2503).

Section 2503 authorizes a trial court to award reasonable attorney’s fees

in specific circumstances, including “counsel fees as a sanction against another

participant for dilatory, obdurate or vexatious conduct during the pendency of

the matter.” 42 Pa.C.S.A. § 2503(7). Application of Section 2503 only applies

to conduct of a party “occurring after the lawsuit is initiated.” Cher-Rob, Inc.

v. Art Monument, Co., 594 A.2d 362, 333 (Pa. Super. 1991). Additionally,

“[a]ny award of counsel fees pursuant to 42 Pa.C.S.A. § 2503(7) . . . must be

supported by a trial court’s specific finding of such conduct.” Kulp v.

Hrivnak, 765 A.2d 796, 799 (Pa. Super. 2000).

Our Supreme Court has explained that conduct is considered dilatory

within the meaning of Section 2503(7) “where the record demonstrates that

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counsel displayed a lack of diligence that delayed proceedings unnecessarily

and caused additional legal work.” In re Doyle, 304 A.3d 1091, 1116 (Pa.

2023). “Obdurate conduct under this statutory provision is when counsel

stubbornly persist in a course of wrongdoing during the course of litigation.”

Id.

For example, in Kulp, the parties entered into a settlement agreement,

the terms of which were placed on record in open court. Kulp, 765 A.2d at

797. One year later, plaintiffs filed a motion to compel enforcement of the

agreement. Id. In its answer, defendants admitted to violating the

agreement. Id. After a hearing, the trial court, in part, awarded plaintiffs

attorney’s fees for the costs incurred by filing the action to compel the

agreement. Id. On appeal, we affirmed the award of attorney’s fees because

defendants “conduct could be considered dilatory in that it caused delay to

[plaintiffs’] recovery of the money owed as part of the settlement agreement.”

Id. at 800.

In Morgan v. Morgan, 193 A.3d 999 (Pa. Super. 2018), Husband

petitioned to reduce his alimony obligation from $5,000 to $1,000. Morgan,

193 A.3d at 1001. After a hearing, the trial court granted Husband’s petition

and reduced his alimony. Id. While the case was pending appeal, Wife

learned that during the hearing, Husband produced “false documentation and

testimony regarding his income, including two sets of false tax returns” to

justify the reduction of alimony. Id. Despite acknowledging Husband’s fraud,

the trial court did not modify the order reducing Husband’s alimony obligation

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to $1,000. Id. at 1002. However, it did award Wife 75% of her legal fees

from the time that she discovered Husband’s fraud. Id.

On appeal, this Court determined that the trial court erred in granting

Husband’s petition to reduce alimony and remanded to the trial court for

reinstatement of the original alimony award of $5,000. Id. at 1008. We also

concluded that Wife was entitled to 100% of her legal fees from the inception

of the case because “Husband’s fraudulent conduct is the sole cause of the

ten years of legal proceedings that resulted in Wife’s legal fees.” Id.

Attorney’s fees also have been upheld where a litigant initiates a lawsuit

that has no probability of success. For example, where an adopted child

attempted to intervene in the distribution of the estate of her natural father

despite knowing that an adopted child cannot inherit from its natural parents

in Pennsylvania. See In re Estate of Liscio, 638 A.2d 1019 (Pa. Super.

1994). The estate was awarded attorney’s fees for the cost of defending “a

frivolous and meritless claim.” Id. at 1021. We upheld the award, concluding

that the “claim had no reasonable possibility of success, coupled with her

prolonging litigating and unnecessary delaying distribution of the estate, as

well as costing the estate thousands of dollars in attorney[‘s] fees, we find

that such conduct is the conduct envisioned by [Section] 2503[.]” Id. at 1022.

Likewise, in Scalia v. Erie Ins. Exchange, 878 A.2d 114 (Pa. Super.

2005), plaintiffs filed a breach of contract action against Erie for denying their

claim for insurance after a fire caused extensive damage to their home.

Scalia, 878 A.2d at 115. Erie denied the claim because it believed the fire

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was arson set by or at the direction of plaintiffs. Id. Thereafter, plaintiffs

stipulated that the fire was caused by arson but denied any involvement. Id.

A jury found in favor of Erie. Id. The trial court awarded Erie attorney’s fees

because the “civil action was arbitrary, vexatious, and in bad faith.” Id. at

115-16. We upheld the award, concluding that the plaintiffs conduct was

obdurate because they “knew that they had no legal or factual grounds on

which to base their suit and the only result of the suit was annoyance.” Id.

at 118-19.

Here, the trial court agreed with Latona that Linde’s conduct in

defending this action was dilatory because Linde knew that “it had no legal

and/or factual defense as to liability and was responsible for at least

[$47,897.32], the amount quoted by [Linde’s] expert.” Trial Court

Supplemental Opinion, 4/22/25, at 6. It further explained:

A simple look at the docket sheet illustrates [Linde’s] dilatory

behavior. [Linde] filed preliminary objections to Latona’s original

complaint. An amended complaint was filed. Preliminary

objections were filed to the amended complaint with briefing and

oral argument thereon. The[re] [were] numerous motions for

continuance of trial that were filed by [Linde]. According to

Latona, [Linde] did not produce discovery to Latona until after the

discovery deadline and approximately seventeen (17) months

after the discovery was served.

****

The record reflects that [Linde] sought indemnification from

Scranton Craftsmen . . . that was accepted [by Scranton]. As

such, Scranton Craftsmen has essentially agreed to pay for any

liability assessed against [Linde]. As a result, [the trial court]

found [Linde’s] position disingenuous and to the extent to which

[Linde] has defended this matter a drain on judicial resources.

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. . . [The trial court] held a bench trial and determined [Linde’s]

conduct throughout the process was dilatorious [sic] or vexatious.

The [trial court] addressed the indemnification claim to illustrate

[Linde’s] further dilatorious [sic] and vexatious conduct in not

resolving this matter despite having Scranton Craftsmen

indemnify [Linde] for the damages.

Id. at 6-8. In sum, the trial court awarded Latona attorney’s fees because

(1) Linde filed preliminary objections to Latona’s complaint and amended

complaint; (2) Linde requested continuances of trial; (3) Linde was

indemnified by Scranton; and (4) Linde violated discovery timelines.

We are not in a position to determine whether the award was justified

because the trial court in many respects gave non-specific, conclusory

allegations of Linde’s “dilatory” conduct and not all conduct cited may have

been dilatory. For instance, the filing of preliminary objections and

continuances are allowed under our rules of civil procedure. The trial court

does not explain how Linde’s entire defense was dilatory, vexatious or

obdurate. Nor did it find that Linde’s filings delayed the matter or were, for

instance, the product of wrongdoing or fraud. See Kulp, Morgan, Liscio,

and Scalia, supra.

To the extent that the trial court’s award of attorney’s fees is based on

its finding that Linde was indemnified by Scranton, and thus should not have

defended the action, there is no evidence of record that indemnification

occurred, and if so, when. The trial court’s finding is based on a February 17,

2021, letter from Latona’s counsel to Linde’s counsel regarding Linde’s

response to Latona’s interrogatories, which reads:

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[O]n Page 8 of [Linde’s] Claim Notes, it states that Scranton

Craftsmen has “confirmed that it was their driver and vehicle that

caused the event.” Further, on page 18 of the Claim Notes, it

indicates that [Linde’s] carrier “confirmed that the vehicle was one

of Scranton’s and not a vehicle of [Linde].” . . . It also appears

that Scranton Craftsmen “accepted the tender of [Linde],” per

page 18 of the Claim’s Notes.

See Latona’s Motion for Summary Judgment, 3/28/22, Exhibit 11. The trial

court’s reliance on this letter is misplaced. The letter does not specifically

state that Linde was indemnified by Scranton. Moreover, it appears that

Latona’s claim that Linde was indemnified came from Linde’s “claim note.” We

could not locate the “claim note” in the certified record, nor any evidence or

testimony that Scranton indemnified Linde.

The trial court also did not explain how Latona was delayed by Linde not

producing discovery “until after the deadline and approximately seventeen

(17) months after the discovery was served.” Trial Court Supplemental

Opinion, 4/22/25, at 7. This would seem to be a pertinent inquiry since Latona

never filed a motion to compel discovery or a request for sanctions pursuant

to Pa.R.Civ.P. 4019.3 We certainly do not condone the late filing of discovery

responses, but an award under 2503(7) must find that the failure to respond,

absent any justification, was the product of dilatory, obdurate or vexatious

conduct.

Lastly, we note that Latona’s counsel testified that its request for fees

included work that was completed before the filing of the complaint in this

____________________________________________

3 Rule 4019 provides specific instances where the trial court has the authority

to impose sanctions, including attorney’s fees, for discovery issues.

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matter. N.T. Hearing, 11/14/23, at 102. Section 2503 does not permit a

court to award fees for conduct that occurred prior to the initiation of the

lawsuit. See Cher-Rob, Inc., supra. To the extent the award under 2503(7)

included fees prior to initiation of suit, this constituted error by the court.

Accordingly, we are compelled to conclude that the trial court abused its

discretion when it awarded Latona all of its attorney’s fees pursuant to 42

Pa.C.S.A. § 2503(7). The record is not sufficient for us to determine whether

Linde’s conduct in all respects criticized by the trial court was dilatory,

obdurate or vexatious, i.e., filing pleadings that are permitted to be filed in a

lawsuit, without more, cannot rise to the level of sanctionable conduct

envisioned by Section 2503(7).

For these reasons, we affirm the August 1, 2022, order granting

summary judgment as to liability, and the April 20, 2023, order granting

Latona’s motion in limine to exclude Linde’s testimony regarding damages.

We vacate the September 11, 2023, order awarding damages and remand for

trial on the issue of damages. We also vacate the November 22, 2023, order

awarding attorney’s fees without prejudice to Latona to renew its motion to

award fees under 2503(7). If it does so, the trial court shall provide specific

findings to justify the instances of dilatory, obdurate or vexatious conduct

committed by Linde, and further, only award fees that bear upon the improper

conduct found.

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Judgment affirmed in part, vacated in part, and remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/1/2025

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