194 A.3d 1046
Pa. Super. Ct.2018Background
- In 2005 Kessock purchased real property; a recorded easement was later discovered that had not been disclosed in the title work. Conestoga underwrote the title policy; Delancey acted as title agent and Hopkins was Delancey’s principal and executed a personal guaranty. Security Abstract performed the search and was later dismissed.
- Kessock sued Conestoga in 2008 for the undisclosed easement. Conestoga later moved to join Delancey and Hopkins as additional defendants based on an Agency Agreement (fee‑shifting/indemnity) and Hopkins’s Guaranty.
- Conestoga filed two joinder motions outside the 90‑day joinder window; the trial court allowed late joinder (nunc pro tunc) after finding reasonable excuse for the second motion (change of counsel) but not the first, and found no prejudice from lateness.
- After bench trials, the court found Delancey negligent in issuing title insurance and entered judgment in favor of Conestoga on its cross‑claim for attorney’s fees and costs; Hopkins and Delancey were ordered to indemnify Conestoga for reasonable fees totaling $68,887.45.
- Appellants (Hopkins and Delancey) appealed, raising: (1) improper/untimely joinder, (2) statute of limitations on Conestoga’s claim against Hopkins, and (3) excessive/unreasonable attorney’s fees award.
Issues
| Issue | Plaintiff's Argument (Conestoga) | Defendant's Argument (Hopkins/Delancey) | Held |
|---|---|---|---|
| 1. Timeliness of joinder of Hopkins and Delancey | Joinder proper under Pa.R.C.P. 2252/2253; delay excused by counsel change and court should allow joinder for judicial economy | First joinder was untimely and unsupported; second joinder also untimely and included misrepresentations; joinder prejudiced defendants | Court affirmed: first joinder lacked reasonable excuse but no prejudice shown; second joinder excuse (lost prior counsel) creditable; overall no abuse of discretion in allowing joinder |
| 2. Statute of limitations for Hopkins’s guaranty claim | Claim against Hopkins accrued when trial court found Delancey negligent (Nov. 10, 2016), so suit was timely | Hopkins: guaranty claim accrued earlier and was barred by 4‑year limitations | Held: accrual against surety follows accrual against principal; because indemnity/fee claim accrued upon finding of Delancey’s negligence, Conestoga’s claim against Hopkins was timely |
| 3. Recoverability and scope of contractual attorney’s fees | Agency Agreement permits recovery of fees/costs resulting from Delancey’s negligence, including enforcement costs; submitted fees were reasonable and supported | Fees unreasonable; include work after Conestoga conceded liability, hearsay time entries, fees for enforcement of contract not recoverable, paralegal billed as attorney | Held: trial court did not abuse discretion—fees supported by testimony and business records, enforcement-related fees fall within contract language, paralegal/associate rates were reasonable and previously approved |
| 4. Admissibility of time records / hearsay | Time records admissible as business records (Pa.R.E. 803(6)); Clemm authenticated invoices | Time entries for non‑testifying attorneys (Knepp, Katie Clemm) are hearsay and inadmissible under recorded recollection exception | Held: challenge waived as to Katie Clemm; Clemm authenticated Knepp’s entries and court properly admitted invoices under business‑records exception |
Key Cases Cited
- Tincher v. Omega Flex, Inc., 180 A.3d 386 (Pa. Super. 2018) (appeal properly lies from final judgment rather than post‑trial order)
- Leedom v. Spano, 647 A.2d 221 (Pa. Super. 1994) (statute of limitations against surety accrues when cause of action accrues against principal)
- F.J. Schindler Equipment Co. v. Raymond Co., 418 A.2d 533 (Pa. Super. 1980) (indemnity claim for payment to third party accrues only after payment is made)
- Chester Carriers, Inc. v. Nat’l Union Fire Ins. Co., 767 A.2d 555 (Pa. Super. 2001) (party seeking indemnification must pay underlying claim before indemnity rights arise)
- Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa. Super. 2005) (factors for assessing attorney’s fees under UTPCPL context; discussed but distinguished)