J-S38016-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DAN LEPORE & SONS COMPANY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : LIBERTY MUTUAL FIRE INSURANCE : No. 378 EDA 2024 COMPANY, SHEILANN P. HEWITT, : STYLIADES MEZZANOTTE & HASSON :
Appeal from the Order Entered December 19, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200801668
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY BECK, J.: FILED JANUARY 15, 2025
Dan Lepore & Sons Company (“Lepore”) appeals from the order entered
by the Philadelphia County Court of Common Pleas (“trial court”) granting the
motion for summary judgment filed by Liberty Mutual Fire Insurance Company
(“Liberty”), denying Lepore’s motion for summary judgment, and directing
that judgment be entered in favor of Liberty in the amount of $112,437.49.1
Lepore argues that summary judgment was erroneously entered because
there are genuine issues of material fact related to its breach of contract and
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Sheilann P. Hewitt (“Hewitt”), and Styliades, Mezzanote & Hasson (the “Firm”), a law firm in Liberty’s Corporate Law Division, are no longer parties to this action. J-S38016-24
bad faith claims against Liberty based upon the terms of the workers’
compensation and employer’s liability insurance policy (“Policy”).
Additionally, Lepore argues the trial court erred in finding that it owed money
to Liberty for defending Lepore under the Policy. Upon review, we affirm.
Lepore is a masonry restoration and construction contractor. In 2015,
Liberty issued the Policy to Lepore. The parties renewed the Policy in 2016.
Relevantly, the Policy stated the following, regarding workers’ compensation
insurance:
PART ONE – WORKERS COMPENSATION INSURANCE
A. How This Insurance Applies
This workers compensation insurance applies to bodily injury by accident…
1. Bodily injury by accident must occur during the policy period.
***
C. We Will Defend –
We have the right and duty to defend at our expense any claim, proceeding or suit against you for benefits payable by this insurance. We have the right to investigate and settle these claims, proceedings, or suits. We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.
Policy, 1/1/2015, at 2.
Under the Policy, the deductible amount for bodily injury by accident
was $350,000 per claim. Pennsylvania Deductible Endorsement, 1/1/2015,
at 1. The endorsement further explained the applicability of the deductible:
-2- J-S38016-24
A. How This Deductible Applies
1. Each Occurrence; Each Claim
You are responsible, and you agree to reimburse us, up to the deductible amount shown above, for this total of:
a. All benefits required of you by the workers compensation law … plus b. All sums you legally must pay as damages; plus c. All “allocated loss adjustment expense” as part of any claim or suit we defend;
Because of (1) bodily injury by accident to your employees arising out of any one “occurrence”…
We are responsible for those amounts of benefits, damages and “allocated loss adjustment expense” that exceed the applicable deductible amount shown above. We will not seek reimbursement of those amounts from you; the premium for them will be determined in accordance with PART FIVE – PREMIUM of the policy.
We may advance the part of all of the deductible amount used to settle any claim, proceeding or suit. You will reimburse us promptly for any amount(s) we have so advanced.
C. Definitions
1. “Allocated loss adjustment expense” means claim adjustment expense directly allocated by us to a particular claim. Such expense shall include, but shall not be limited to, attorneys’ fees for claims in suit, court and other specific items of expense such as medical examination, expert medical or other testimony, laboratory and X-ray, autopsy, stenographic, witnesses and summonses, and copies of documents. …
D. Conditions …
2. Your Duties
-3- J-S38016-24
a. The first Named Insured shown in the Information Page agrees and is authorized on behalf of all Named Insureds to reimburse us for all deductible amounts that we advance.
Id. at 1-3.
In 2015 and 2016, during the policy periods under the Policy,
Christopher Campana (“Campana”) worked as a foreman for Lepore. Due to
a slowdown in business, Campana accepted a voluntary layoff from Lepore,
and subsequently submitted an unemployment compensation claim, which
was approved by Lepore. In 2018, Campana filed three claim petitions against
Lepore under the Pennsylvania Workers’ Compensation Act.2 Campana
alleged that he suffered injuries on three separate occasions between 2015
and 2016. Upon receiving notice of the workers’ compensation claims, Liberty
assigned the matter to Hewitt, an attorney at the Firm. Hewitt took
depositions, contacted an investigator to conduct surveillance, and consulted
with an expert.
Campana’s petition was initially assigned to Judge Andrea McCormick.
Judge McCormick conducted hearings, but had not issued a decision when she
was removed from her position based on claims of judicial misconduct in
October 2018. The case was reassigned to Judge Sandra Craig. On February
14, 2019, Judge Craig found in favor of Campana and against Lepore. Judge
Craig found that although Campana had not immediately filed reports of his
2 77 P.S. §§ 1-1041.4, 2501-2710.
-4- J-S38016-24
injuries, she found that Lepore employees knew about the injuries. She
ordered payment of the benefits at the statutory rate, medical expenses, costs
of litigation, a $1,500 penalty and allocation of 17% of Campana’s benefits to
his counsel.
Lepore appealed the decision to the Workers’ Compensation Appeal
Board. However, before the appeal was decided, the parties agreed to a
compromise and release agreement which included a lump sum to Campana
of $186,750 and $38,250 to Campana’s counsel, for a total settlement of
$225,000. Following the settlement, Liberty sent Lepore deductible billing
statements. Lepore did not pay all the invoiced amounts.
On August 20, 2020, Lepore initiated the instant proceedings by filing a
complaint against Hewitt, the Firm, and Liberty and raised numerous claims,
including bad faith, breach of contract, and professional negligence. After
further proceedings not relevant to this appeal, on June 30, 2021, Lepore filed
a third amended complaint, listing Liberty as the only defendant and raising
claims of breach of contract and bad faith. In its breach of contract claim,
Lepore averred Liberty materially breached the Policy by failing to provide an
adequate defense of Campana’s claims; utilizing the high deductible on the
Policy to direct its defense obligations and placing its own interests above
Lepore’s interest, and hiring the attorneys of the Firm, which were controlled
by Liberty, created a conflict of interest. Lepore also raised a bad faith claim.
Liberty filed an answer and counterclaim. In the counterclaim, Liberty averred
-5- J-S38016-24
that under the terms of the Policy, Lepore was responsible for a $350,000
deductible, and sought $114,442.20 for Lepore’s unpaid deductible invoices.
The parties proceeded to discovery. Subsequently, both parties filed
motions for summary judgment. Notably, as part of its motion for summary
judgment, Liberty claimed that Lepore breached the terms of the Policy and
owes Liberty $112,437.49, based on various credits it had paid. On December
19, 2023, the trial court granted Liberty’s motion and denied Lepore’s motion,
and directed that judgment be entered in favor of Liberty in the amount of
$112,437.49. Lepore filed an appeal on January 19, 2024.3
On appeal, Lepore raises the following questions for our review:
A. Whether the trial court abused its discretion and/or committed errors of law in granting [Liberty’s] motion for summary judgment on all counts in the complaint where material facts still remain in dispute[?]
B. Whether the trial court abused its discretion and/or committed errors of law in holding that there was no liability to [Lepore] for its employee-lawyer’s breach of duty to defend with care[?]
C. Whether the trial court abused its discretion and/or committed errors of law in holding that there was no claim for Bad Faith to [Lepore] for its employee[-]lawyer’s breach of duty to defend with care[?] ____________________________________________
3 Lepore filed its notice of appeal thirty-one days after the order granting summary judgment was entered. This Court filed a rule to show cause, directing Lepore to show why the appeal should not be quashed. Lepore responded that the docket reflects that the trial court prothonotary issued notice on December 20, 2023. A review of the docket confirms Lepore’s claim. It is well settled that the “date of entry of an order ... shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). Therefore, the appeal was timely filed and we will address Lepore’s claims.
-6- J-S38016-24
D. Whether the trial court abused its discretion and/or committed errors of law in holding that [Lepore] breached its duty to pay the monies expended to defend Lepore pursuant to the terms of the Policy[?]
Lepore’s Brief at 5 (some capitalization omitted).
Our standard of review of an order granting a motion for summary
judgment is as follows:
We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.
Our scope of review of a trial court’s order granting … summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion.
Erie Ins. Exch. v. Eachus, 306 A.3d 930, 932-33 (Pa. Super. 2023) (citation
omitted).
“Additionally, we note that interpretation of an insurance policy presents
a pure question of law, over which our standard of review is de novo.” Rourke
v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 (Pa. Super. 2015)
(citation omitted); see also Kramer v. Nationwide Prop. & Cas. Ins. Co.,
313 A.3d 1031, 1039 (Pa. 2024). “[W]e are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.” Kline v. Travelers
Personal Sec. Ins. Com., 223 A.3d 677, 686 (Pa. Super. 2019).
-7- J-S38016-24
Breach of Contract
We will address Lepore’s first two claims together. Lepore contends that
the trial court erred in granting summary judgment on its breach of contract
claim. Lepore’s Brief at 27, 31, 33. Lepore argues that Liberty’s actions during
the underlying workers’ compensation case, its billing practices, and its
decision to hire Hewitt and the Firm to defend the case established a breach
of contract. Id. at 27, 34-35, 36-37. Lepore states that because it was
responsible for paying the first $350,000 in the action, it sought to choose its
own counsel to represent it in the workers’ compensation action. Id. at 28,
34; see also id. at 35 (Lepore also indicated it sought to be part of the
litigation process but was denied by Hewitt). Lepore claims Liberty rejected
this offer “based on the Policy language” because it received the sole benefit
of hiring Hewitt and the Firm, was able to handle the claims within the costs
of the high deductible, and did not have to pay any out-of-pocket expenses.
Id. at 28, 29, 34; see also id. at 33 (noting Liberty breached its duty to
defend with care); id. at 28, 34 (asserting that Hewitt and the Firm generated
revenue and profits for Liberty). Lepore argues that Liberty retaining its own
“incompetent” attorneys and ostensibly paying itself created a conflict. Id. at
29, 34; see also id. at 30, 35 (noting that the final brief was submitted with
typographical and factual errors, and failed to include key defenses, and
Hewitt failed to call two key witnesses). To that end, Lepore alleges that
Liberty exercised an unreasonable degree of control over the litigation. Id. at
-8- J-S38016-24
29. Further, Lepore highlights that it was granted a change of counsel after
a February 14, 2019 ruling in the workers’ compensation case. Id. at 35.
Lepore notes that its breach of contract claims are not premised upon any
malpractice by Hewitt, and therefore did not require an expert to prove
professional malpractice. Id. at 28, 29, 33, 35; see also id. (acknowledging
that “its breach of contract claim did not arise out of professional malpractice”
of the lawyers).
Additionally, Lepore contends there are genuine issues of material fact
relating to the costs of litigation and what it owed to Liberty. Id. at 30.
According to Lepore, the invoices were vague and contained minimal detail or
itemized costs. Id. at 31-32, 36. Lepore also argues that Liberty added
markups to each invoice, and labeled it a “variable expense.” Id. at 31-32;
see also id. at 32 (noting that it asked Liberty about the variable expenses,
but never received a response).
We review Lepore’s arguments with the following in mind:
Insurance policies are contracts, and the rules of contract interpretation provide that the mutual intention of the parties at the time they formed the contract governs its interpretation. Such intent is to be inferred from the written provisions of the contract. If doubt or ambiguity exists it should be resolved in the insured’s favor.
Sunoco (R&M), LLC v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 322 A.3d
930, 943 (Pa. Super. 2024) (citation omitted); see also Kramer, 313 A.3d
at 1039. The obligation to defend is contractual in nature and is determined
by the allegations of the complaint and the coverage provided by the insurance
-9- J-S38016-24
policy. Sunoco (R&M), LLC, 322 A.3d at 943. “To successfully maintain a
cause of action for breach of contract the plaintiff must establish: (1) the
existence of a contract, including its essential terms, (2) a breach of a duty
imposed by the contract, and (3) resultant damages.” Albert v. Erie Ins.
Exch., 65 A.3d 923, 928 (Pa. Super. 2013) (citation omitted).
As noted above, the Policy stated that Liberty has “the right and duty to
defend at our expense any claim, proceeding or suit against you for benefits
payable by this insurance. We have the right to investigate and settle these
claims, proceedings, or suits.” Policy, at 2. Further, Lepore agreed to
reimburse Liberty “up to the deductible amount” of $350,000, including
“attorneys’ fees for claims in suit, court and other specific items of expense
….” Pennsylvania Deductible Endorsement, at 1, 2.
Lepore does not establish what term of the Policy Liberty breached. To
that end, Lepore acknowledges the terms of the Policy, including that Liberty
would defend Lepore’s workers’ compensation claims and Lepore had a
deductible of $350,000. It is well settled that in fulfilling its duty to defend
Lepore, Liberty had the right to select counsel. See, e.g., Eckman v. Erie
Ins. Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011) (noting that “duty to
defend insurer has right to defend litigation and to select counsel”) (citation
and quotation marks omitted); see also Babcock & Wilcox Co. v. Am.
Nuclear Insurers, 131 A.3d 445, 456 (Pa. 2015) (“Where an insurer provides
a defense, the insured is at risk of breaching the insurance contract if it rejects
- 10 - J-S38016-24
the insurer’s defense[,]” and the “insured is obliged to cooperate with the
insurer defending the action.”) (citations omitted). Furthermore, Lepore
speculates, without any support, that Liberty was in breach of the Policy by
hiring Hewitt and the Firm, and that it purposefully defended Lepore’s claims
up to the deductible limits. See Krishack v. Milton Hershey Sch., 145 A.3d
762, 766 (Pa. Super. 2016) (“A plaintiff cannot survive summary judgment
when mere speculation would be required for the jury to find in plaintiff’s
favor”).4 Moreover, Lepore points to no terms in the Policy which established
Liberty breached a duty to use “due care” in defending Lepore under the plain
terms of the Policy.5 See Albert, 65 A.3d at 928 (stating that appellant must
establish that appellee breached a duty imposed by the contract). Lepore’s
bald, unsupported claim does not establish the trial court erred in granting
summary judgment in favor of Liberty. See Rock v. Rangos, 61 A.3d 239,
262 (Pa. Super. 2013) (noting that to overcome the entry of summary
judgment, appellant was required “to bridge the gap between his bald
4 Lepore generally cites to a single page in the reproduced record to support
its claim that Liberty rejected its offer to hire its own attorney to pay itself to represent Lepore. A review of the relevant page reveals an invoice from Liberty to Lepore regarding the workers’ compensation case. There is no evidence on this page, nor does Lepore cite to anything, which establish it tried to hire its own attorney or Liberty rejected the offer.
5 The trial court notes that “Lepore’s breach of contract claim is based on whether Liberty should be held vicariously liable for its employee lawyer’s alleged breach of duty to defend with due care.” Trial Court Opinion, 12/19/2023, at 3 (unnumbered). Lepore does not raise any argument in support of finding Liberty vicariously liable.
- 11 - J-S38016-24
allegations and a jury question”). Therefore, Lepore’s conclusory allegations
in this regard does not state a claim that Liberty breached its contractual duty
to defend.
Additionally, on the record before this Court, we discern no error or
abuse of discretion by the trial court in finding that Lepore failed to raise an
issue of material fact related to the costs of litigation and Liberty’s invoices.
We observe that in its invoice to Lepore, Liberty indicated there were
additional allocated expenses and adjusted charges, which totaled
$262,895.39. Invoice, 12/2/2019, at 1. Once again, Lepore makes only bald
allegations, and has not identified any error in the invoices or established any
breach of a term in the Policy.6 See Rock, 61 A.3d at 262. Finally, to the
extent Lepore’s claims implicate Hewitt and the firm’s malpractice, we find
such a claim waived, as Lepore did not raise it in the third amended complaint.
Steiner v. Markel, 968 A.2d 1253, 1259-60 (Pa. 2009) (finding that failure
to raise claim in complaint rendered it waived on appeal). Viewing the record
in the light most favorable to Lepore, and resolving all doubts as to the
existence of a genuine issue of material fact against Liberty, we conclude the
trial court did not err as a matter of law or abuse its discretion in granting
Liberty’s motion for summary judgment on Lepore’s claim for breach of
contract.
6 Furthermore, as noted infra, the record supports the amount Lepore owed
Liberty under the terms of the Policy.
- 12 - J-S38016-24
Bad Faith
In its third claim, Lepore argues that the trial court erred in granting
summary judgment because there were genuine issues of material fact
relating to its bad faith claim. Lepore’s Brief at 37. Lepore contends that
Liberty’s bad faith included hiring the Firm and Hewitt to defend Lepore; failing
to disclose they were employees of Liberty or any conflict of interest;
defending Lepore up to the deductible limits; failing to allow Lepore hire its
own counsel; sending invoices without a breakdown of costs, including
invoices for unrelated matters; failing to communicate with Lepore; and noting
that Hewitt and the Firm acted negligently. Id. at 38. According to Lepore,
these issues present material issues of fact that warrant reversal of the grant
of summary judgment. Id. at 38-39.
Bad faith applies to those actions an insurer took when called upon to perform its contractual obligations of defense and indemnification or payment of a loss that failed to satisfy the duty of good faith and fair dealing implied in the parties’ insurance contract. In order to recover in a bad faith action, the plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. Proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim, though such evidence is probative of the second prong of the bad faith test.
Berg v. Nationwide Mut. Ins. Co., Inc., 189 A.3d 1030, 1037 (Pa. Super.
2018) (citations, brackets, and quotation marks omitted).
An action for bad faith includes “all instances of bad faith conduct by an
insurer.” Rancosky v. Washington Nat. Ins. Co., 130 A.3d 79, 94 (Pa.
- 13 - J-S38016-24
Super. 2015) (citation omitted). This encompasses “evasion of the spirit of
the bargain, lack of diligence and slacking off, willful rendering of imperfect
performance, abuse of a power to specify terms, and interference with or
failure to cooperate in the other party’s performance.” Id. “Claims of bad
faith are fact specific and depend on the conduct of the insurer toward its
insured.” Wenk v. State Farm Fire & Cas. Co., 228 A.3d 540, 547 (Pa.
Super. 2020) (citation omitted).
Here, Lepore does not cite to any case law to support its argument and
instead provides a list of Liberty’s failings, without fully specifying how these
actions constituted bad faith. See Pa.R.A.P. 2119(a) (noting that argument
must be supported by citation to the record and pertinent authority). Indeed,
Lepore fails to establish Liberty did not satisfy the duty of good faith and fair
dealing implied in the Policy. Likewise, the alleged negligence by Hewitt and
the Firm does not establish bad faith on the part of Liberty. See generally
Brown v. Progressive Ins. Co., 860 A.2d 493, 501 (Pa. Super. 2004) (An
insurer’s mere negligence does not constitute bad faith). Therefore, Lepore
has not demonstrated that the trial court erred in granting summary judgment
on its bad faith claim.7
7 While Lepore refers to the trial court’s indication that expert testimony is needed to support its bad faith claim, Lepore presents no argument to support this allegation. Thus, the claim is waived. See Kaur v. Singh, 259 A.3d 505, 511 (Pa. Super. 2021) (finding conclusory argument which was unsupported by any legal analysis to be waived).
- 14 - J-S38016-24
Counterclaim
In its final claim, Lepore raises three separate arguments related to
Liberty’s counterclaim, which we will address in turn.
Discovery Violations
First, Lepore argues that Liberty’s counterclaim should have been
dismissed for repeated discovery violations. Lepore’s Brief at 39-41. Lepore
highlights that it sought written discovery on the counterclaim to establish the
veracity of the invoices, but Liberty provided unverified responses and only
provided two documents to support the bills. Id. at 41.
Here, Lepore cites a four-factor test for trial courts to apply when
considering a sanction for a plaintiff's violation of discovery rules. See id. at
40 (citing Croydon Plastics Co. v. Lower Bucks Cooling and Heating, 698
A.2d 625, 629 (Pa. Super. 1997)). This Court, however, has distinguished
between summary judgment cases and discovery sanctions cases. See True
R.R. Realty, Inc. v. McNees Wallace & Nurick, LLC, 275 A.3d 490, 497-
98 (Pa. Super. 2022); Miller v. Sacred Heart Hosp., 753 A.2d 829, 832-33
(Pa. Super. 2000). Notably, in deciding whether an order granting summary
judgment was proper, this Court found that the four-factor test for discovery
sanctions does not discuss the summary judgment standard or establish
whether plaintiffs have demonstrated a prima facie case. Miller, 753 A.2d at
832-33; accord True R.R. Realty, Inc., 275 A.3d at 497. The Court
concluded that “[b]ecause the court’s order in this case was entered not as a
- 15 - J-S38016-24
sanction for a procedural violation, but rather, to address a substantive
deficiency of proof in [plaintiff’s] cause of action, the order is properly subject
to review only under [the summary judgment standard] and cases interpreting
it.” Miller, 753 A.2d at 833; accord True R.R. Realty, Inc., 275 A.3d at
497.
As in Miller and True R.R. Realty, Inc., the parties filed motions for
summary judgment to determine whether Liberty or Lepore breached the
terms of the Policy. The discovery sanctions were not at issue in this case and
the four-factor test in that regard is irrelevant to determine whether the trial
court properly granted summary judgment in favor of Liberty. See Miller,
753 A.2d at 832-33; accord True R.R. Realty, Inc., 275 A.3d at 497.
Therefore, we find Lepore’s discovery sanctions issue without merit.
Damages Amount
Lepore also argues that there is a material issue of fact relating to the
breach of contract counterclaim. Lepore’s Brief at 44. Lepore claims that
Liberty failed to provide sufficient evidence to justify the amounts unpaid in
the invoices and therefore failed to establish a connection between the breach
of contract and damages. Id. at 45-46. Further, Lepore indicates that there
was a claim not related to Campana’s claims included in the statement of
accounts. Id. at 45-46.
“A party seeking damages for breach of contract must be able to prove
such damages with reasonable certainty.” Printed Image of York, Inc. v.
- 16 - J-S38016-24
Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa. Super. 2016) (citation and brackets
omitted). “[D]amages are not recoverable if they are too speculative, vague
or contingent and are not recoverable for loss beyond an amount that the
evidence permits to be established with reasonable certainty.” Newman
Dev. Grp. of Pottstown, LLC v. Genuardi’s Fam. Mkt., Inc., 98 A.3d 645,
661 (Pa. Super. 2014) (citation omitted). “The question of whether damages
are speculative has nothing to do with the difficulty in calculating the amount,
but deals with the more basic question of whether there are identifiable
damages.” Printed Image of York, Inc., 133 A.3d at 60 (citation omitted).
Here, as noted above, the Policy had a deductible of $350,000, and
Lepore agreed to reimburse Liberty “up to the deductible amount” of
$350,000, including “attorneys’ fees for claims in suit, court and other specific
items of expense ….” Pennsylvania Deductible Endorsement, at 1, 2. The
record reflects that Liberty paid Campana and his attorneys a total of
$225,000 to settle the workers’ compensation claims. On December 2, 2019,
Liberty sent an invoice to Lepore for $262,895.39. Invoice 12/2/2019. In a
subsequent email to Lepore, Liberty provided a breakdown of credits and
reimbursement it was due, noting that Lepore had paid $110,724.10 to Liberty
on the Campana claims. Email, 2/3/2020. Liberty sent two invoices in
February and April 2020, detailing further fees, costs, and expenses owed by
Lepore. Invoice, 4/2/2020; Invoice, 2/2/2020. As a result, Lepore owed a
total of $265,675.39. See id. Subsequently, Kayla Ellis (“Ellis”), a senior
- 17 - J-S38016-24
receivables analyst at Liberty, sent Lepore a statement of account on May 16,
2022, detailing that Lepore was owed credits totaling $153,237.90.
Statement of Account, 5/16/2022. Therefore, Lepore’s unpaid balance was
$112,437.49.
Liberty proved damages related to Lepore’s breach of the terms of the
Policy. See Vinculum, Inc. v. Goli Techs., LLC, 310 A.3d 231, 249 (Pa.
2024) (“It is beyond cavil that breach of contract damages are intended to
place the non-breaching party nearly as possible in the same position it would
have occupied had there been no breach.”) (citation, brackets, and quotation
marks omitted). Lepore takes issue with the costs and fees expended by
Liberty in defending the worker’s compensation claims, the purported lack of
detail in the invoices and statements of account, and the inclusion of another
claim in the statement of accounts, but does not establish the damages due
were speculative or vague. Indeed, Lepore does not dispute the settlement
amount or the terms of the Policy, which indicates it must pay attorneys’ fees
in conjunction with the duty to defend. Therefore, in light of this record, and
the paucity of Lepore’s argument, its claims in this regard are without merit.
Corporate Designee
Additionally, Lepore asserts that Liberty failed to produce an appropriate
corporate designee to confirm its counterclaim allegations under Pa.R.Civ.P.
4007.1, Procedure in Deposition By Oral Examination. Lepore’s Brief at 42,
44. Lepore notes that Ellis had limited information on the counterclaim and
- 18 - J-S38016-24
could not offer testimony in response to most of the questions presented to
her. Id. at 42-43. Lepore claims that Ellis testified to Liberty’s damages, but
could not provide any basis, context, or information on the allocated expenses
or paid losses stated in the invoices. Id. at 43-44, 45, 46. Lepore concludes
that there are “genuine issues of material fact still existing in determining
whether the [c]ounterclaim should have been dismissed for the discovery
violations.” Id. at 46.
Lepore again raises discovery claims without establishing the standard
of review for a motion for summary judgment. See Miller, 753 A.2d at 832-
33; accord True R.R. Realty, Inc., 275 A.3d at 497. To the extent Lepore
argues that the damages could not be proven absent Ellis’ testimony, it
ignores the various statements of account and invoices provided by Liberty.
As noted above, Lepore has not established that the damages were
speculative or vague. Therefore, its claim is without merit.
Conclusion
In light of the foregoing, we affirm the trial court’s order granting
Liberty’s motion for summary judgment and awarding Liberty $112,437.49.8
Order affirmed. Application to strike denied as moot.
8 During the pendency of this appeal, Liberty filed an application to strike portions of the reproduced record that are not in the certified record or were duplicative, and to disregard any references to such materials in the appellate brief. Application to Strike, 8/15/2024, at 2-4. Based upon our resolution of the case, and our reliance solely on the certified record on appeal, we deny the application as moot.
- 19 - J-S38016-24
Date: 1/15/2025
- 20 -