J-S53018-16

2016 PA Super 258

ARMANDO DEL PIELAGO AND AIDA DEL 

PIELAGO,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

JEREMY ORWIG,

Appellee No. 156 MDA 2016

Appeal from the Order Entered December 24, 2015

In the Court of Common Pleas of York County

Civil Division at No(s): 2013-SU-2430-69

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

OPINION BY SHOGAN, J.: FILED NOVEMBER 21, 2016

Appellants, Armando Del Pielago (“Armando”), and Aida Del Pielago1

(“Aida”), husband and wife, appeal from the order granting Appellee, Jeremy 

Orwig, summary judgment on December 24, 2015. At issue is the validity of 

a general release signed by Appellants. We reverse and remand.

The averments of the complaint that Appellants filed on September 11, 

2013, allege that on July 14, 2011, Armando was operating his 2004 

Chevrolet Trailblazer at 11:20 p.m. in York County, Pennsylvania, when 

Appellee, driving a 1999 Ford Taurus owned by his wife, failed to stop at a 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

 We note that Appellants’ last name is variously spelled in the record also 

as del Peilago.
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stop sign and “violently collide[d] into” Appellants’ vehicle. Complaint, 

9/11/13, at ¶¶ 1–6. As a result of the injuries sustained in the collision, 

Appellants, who contracted for the full tort option,2aver that Armando

has been forced to undergo extensive physical therapy, nerve 

block injections, and surgery to repair a left rotator cuff tear, a 

surgery to his left wrist to correct traumatically induced carpal 

tunnel syndrome, as well as medical testing and evaluation for 

his tinnitus, headaches, dizziness, low back problems, left sided 

weakness, leg and heel pain, and visual field distortions, as well 

as depression, for which [he] claims damages.

Id. at ¶¶ 9, 10.

The trial court summarized the procedural history as follows:

[Appellants] Armando and Aida Del [Pielago] initiated this 

action by filing a Complaint on September 11, 2013. [Appellee] 

responded to the Complaint on October 18, 2013 with New 

Matter. The Complaint followed a car accident involving Mr. 

Armando Del [Pielago], for which [Appellants] signed a prelitigation release. The release was signed on July 26, 2011, at 

which time a check was tendered for $2,857.92.

[Appellee] then filed a Motion for Judgment on the 

Pleadings on October 21, 2013. The Motion for Judgment on the 

Pleadings was denied by the undersigned on February 2, 2014. 

[Appellee] then filed a Motion to Rule on Objections, which was 

withdrawn on July 7, 2014. [Appellee] filed a Motion for 

Summary Judgment on February 12, 2015, which was denied on 

May 26, 2015.

____________________________________________

2

 The full tort option permits an insured to seek recovery for all medical and 

other out-of-pocket expenses in addition to financial compensation for pain 

and suffering and other nonmonetary damages as a result of injuries caused 

by other drivers. 75 Pa.C.S. § 1705(a)(1)(B); Hoffman v. Troncelliti, 839 

A.2d 1013, 1015 (Pa. 2003).
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[Appellee] then filed his Second Motion for Summary 

Judgment on July 28, 2015. [Appellants] responded on August 

17, 2015.

Trial Court Opinion (Summary Judgment), 12/24/15, at unnumbered 1–2. 

The trial court granted Appellee summary judgment on December 24, 

2015, and dismissed the action. Appellants filed the instant timely appeal to 

this Court on January 21, 2016.

Appellants raise the following single issue in their brief on appeal:

1. Whether there are triable issues of fact to be determined by a 

jury where releasing [Appellants] plead, and subsequently testify 

at depositions, that they signed a general release of liability, 

only because an unscrupulous insurance adjuster, through subtle 

misdirection, fraudulently induced them to sign the general 

release?

Appellants’ Brief at 5.

Summary judgment is appropriate where there is no genuine issue of 

material fact, and the moving party is entitled to relief as a matter of law. 

Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014) (en banc) (citing 

Pa.R.C.P. 1035.2). “[A] factual issue is considered ‘material’ for summary 

judgment purposes if its resolution could affect the outcome of the case 

under the governing law.” Strine v. Commonwealth, 894 A.2d 733, 737 

(Pa. 2006). “When considering a motion for summary judgment, the trial 

court must take all facts of record and reasonable inferences therefrom in a 

light most favorable to the non-moving party.” Kennedy v. Robert Morris 

Univ., 133 A.3d 38, 41 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa. 
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2016) (quoting Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 

2010)).

We exercise plenary review in an appeal from an order granting 

summary judgment. Dougherty v. Pepper Hamilton LLP, 133 A.3d 792, 

796 (Pa. Super. 2016). On appellate review, then, “we will view the record 

in the light most favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved against the 

moving party.” Matharu, 86 A.3d at 255. As an appellate court, we may 

reverse a grant of summary judgment only if there has been an error of law 

or an abuse of discretion. Kennedy, 133 A.3d at 41. “To the extent that 

this Court must resolve a question of law, we shall review the grant of 

summary judgment in the context of the entire record.” Id. Further:

Where the discretion exercised by the trial court is 

challenged on appeal, the party bringing the challenge bears a 

heavy burden. It is not sufficient to persuade the appellate court 

that it might have reached a different conclusion if charged with 

the duty imposed on the court below; it is necessary to go 

further and show an abuse of the discretionary power. Chenot 

[v. A.P. Green Services, Inc., 895 A.2d 55, 60–61 (Pa. Super.

2006)] (citation omitted). 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. 

Id. at 61–62 (citation omitted).

Dougherty, 133 A.3d at 796.

Appellants assert that twelve days after the accident, on July 26, 

2011, Mr. H. Jesse George, an adjuster from Progressive Insurance 
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Company, the insurer for both parties, went to Appellants’ home without an 

interpreter, knowing that Appellants could not understand English, presented 

a check for $2,851.92 and a release, and induced Appellants to sign the 

release that day. Appellants’ Brief at 10; Deposition of H. Jesse George, 

11/18/14, at 14. Mr. George described his initial involvement in the matter 

as follows:

I was assigned to their bodily injury claim and also their 

property damage claim. The Del Pielagos were also insured with 

Progressive. They had reported a claim under their own auto 

policy.

A dual loss was set up under the other person’s accident. I 

investigated the merits of that claim as far as liability is 

concerned and contacted the Del Pielagos regarding the property 

damage claim and Mr. Del Pielago’s bodily injury claim.

Deposition of H. Jesse George, 11/18/14, at 14. Mr. George stated that 

Appellee was deemed to be at fault for the accident “for failure to yield rightof-way at a stop sign.” Id. at 20.

Appellants maintain that Mr. George knew that Appellants could not 

speak or understand English sufficiently to comprehend a legal matter. 

Appellants’ Brief at 19. They argue that Mr. George lied at his deposition, 

inter alia, about his belief that Armando sustained only minor injuries, that 

his actions did not suggest that the check he presented was for lost wages 

only, that he destroyed his hand-written notes from the July 26, 2011 

meeting with Appellants, and that his actions amounted to bad faith and 

fraud. Id. at 22. Appellants suggest that the fraudulent conduct herein 
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while “subtle, it is provable.” Id. at 29. Appellants contend that whether 

Mr. George committed fraud is a question of fact for a jury. Id. at 31 (citing 

Greenwood v. Kadoich, 357 A.2d 604, 606 (Pa. Super. 1976)).

The language of the release provided as follows:

FULL RELEASE OF ALL CLAIMS WITH INDEMNITY

(WITH LIMITED FUTURE EXPENSES)

Know all by these presents, that Armando Del Pielago Sr. Aida 

Del Pielago (Releasor), for and in consideration of the payment 

of two thousand eight hundred fifty one ($2,851.92), the receipt 

and sufficiency of which is hereby acknowledged, do hereby for 

ourselves and for our heirs, executors, administrators, 

successors, assigns and any and all other persons, firms 

employers, corporations, associations or partnerships, acquit and 

forever discharge and his, her, their or its corporations, 

associations, or partnerships acquit and forever discharge 

Jeremy Orwig & Heather Orwig and his, her, their or its 

corporations, associations, or partnerships (Releasees) of, and 

from, any and all claims, actions, causes of action, demands, 

rights, damages, costs, loss of wages, expenses, hospital and 

medical and nursing expenses, loss of consortium, loss of service 

or affection, loss of society and companionship and any 

compensation whatsoever, which the undersigned now has/have 

or which may hereafter accrue on account of or in any way 

growing out of an accident which occurred on or about 7/14/11 

at or near Hanover, PA. In further consideration, the Releasees 

agree to pay reasonable and necessary medical and/or dental 

expenses and/or lost wages, not paid or payable by any other 

program, group contract or other arrangement, up to a 

maximum of seven thousand ($7,000) incurred by us within 45

days after the date of this Release, provided such treatment 

relates to the accident described above and would be 

recoverable by Releasor in a tort action in the courts of 

Pennsylvania under Pennsylvania law including but not limited to 

Act 6.

It is understood and agreed that this settlement is in full 

compromise of a doubtful and disputed claim as to both 

questions of liability and as to the nature and extent of the 

injuries and damage, and that neither this Release, nor the 
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payment pursuant thereto, shall be construed as an admission of 

liability, such being denied.

The undersigned hereby declare(s) and represent(s) that the 

injuries are or may be permanent and that recovery there from 

is uncertain and indefinite and in making this Release, it is 

understood and agreed that the undersigned rely(ies) wholly 

upon the undersigned’s judgment, belief and knowledge of the 

nature, extent and duration of said injuries and liability 

therefore, and is made without reliance upon any statement or 

representation of the party or parties being released, or their 

representatives, or by any physician or surgeon by them 

employed.

In consideration of the payment of the sum and expenses 

indicated above, the undersigned further agrees to indemnify the 

above Releasees and save them harmless from any and all 

further liability, loss, damage, claims of subrogation and expense 

(other than the sum and expenses described in the first 

paragraph of this Release), arising because of any injuries and 

damages, and, if necessary in order to save them so harmless, 

to satisfy on their behalf any judgment against them arising in 

any way out of the aforesaid accident.

The undersigned further declare(s) and represent(s) that no 

promise, inducement or agreement not herein expressed has 

been made to the undersigned, and that this Release contains 

the entire agreement between the parties hereto, and that the 

terms of this Release are contractual and not a mere recital.

The undersigned has read the foregoing Release and fully 

understands it.

H. Jesse George 7/26/2011 x Armando del Pielago, Sr ______

Witness Date Releasor Date

________________________x Aida del Pielago __07/26/11

Witness Date------ Releasor Date

Release, Appellee’s Answer and New Matter, 10/18/13, at Exhibit A.
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“In Pennsylvania, it is well settled that the effect of a release is to be 

determined by the ordinary meaning of its language.” Pennsbury Village 

Associates, LLC v. McIntyre, 11 A.3d 906, 914 (Pa. 2011). In the 

absence of fraud or mutual mistake a general release is enforceable 

according to its terms. Brosius v. Lewisburg Craft Fair, 557 A.2d 27, 29 

(Pa. Super. 1989). With respect to general releases, our Supreme Court has 

held that “however improvident their agreement may be or subsequently 

prove for either party, their agreement, absent fraud, accident or mutual 

mistake, is the law of the case.” Buttermore v. Aliquippa Hospital, 561 

A.2d 733, 735 (Pa. 1989) (emphasis added).

In granting summary judgment and dismissing this case, the trial 

court stated as follows:

[Appellants] have argued that they were unable to 

understand the release because they do not speak English well. 

However, [Appellants’] daughter who also speaks and 

reads the English language was present at the time 

[Appellants] met with the adjuster. [Appellants] were 

advised that they could have an attorney present, and 

[Appellants’] daughter took notes on behalf of 

[Appellants], further demonstrating her understanding of 

the transaction. While the Court does have concerns about the 

predatory nature of some adjusters, we must determine this 

case under the law and the facts of this case. To set aside a pre 

-litigation release based on fraud is a high burden that we do not 

find [Appellants] are able to meet.

[Appellants] signed a release, took money offered to them, 

and were additionally informed that they may have an attorney 

present. They chose to take these actions on their own accord. 

Our presumption is in favor of the release signed by 

[Appellants], and [Appellants] would be unable to meet their 

burden to prove an avoidance of the release under the law.
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Trial Court Opinion (Summary Judgment), 12/24/15, at unnumbered 4 

(emphases added).

The pleadings in this case disclose unresolved issues of fact pertaining 

to the validity of the release. Appellants assert that they had no 

understanding of the release; indeed, they maintain that they were not even 

given the opportunity to read it. Rather, it was presented to them on an 

electronic tablet that Mr. George scrolled through rapidly. Deposition of 

Armando Del Pielago, 4/18/14, at 82–86; Deposition of Aida Del Pielago, 

9/30/14, at 29, 42; Deposition of Aida Flores,3 9/30/14, at 35–36. While 

Appellants observed words and letters on the document, they did not read it 

or understand it, and they believed their signatures were required to receive 

a check for lost wages. Deposition of Armando Del Pielago, 4/18/14, at 82–

86; Deposition of Aida Del Pielago, 9/30/14, at 15–17. Thus, they maintain 

their signatures on the release were a product of fraud or misrepresentation.

In Hower v. Whitmak Associates, 538 A.2d 524 (Pa. Super. 1988), 

this Court held that questions pertaining to intent and understanding in 

executing a release raise material issues of fact regarding the validity of the 

agreement. In Hower, mistake had been raised as a defense in the 

pleadings, and it was supported by evidence which became apparent during 

____________________________________________

3

 Aida Flores is Appellants’ daughter. Deposition of Aida Flores, 9/30/14, at 

7.
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discovery. The appellant therein alleged actual misrepresentation by the 

insurance agent in informing her that the release would discharge only one 

of the parties, and the appellant's deposition recounted her failure to 

comprehend the meaning of the release. Id. at 528. Under these 

circumstances, we held that the trial court erred in entering summary 

judgment barring recovery. Similarly, in the instant case, Appellants have 

alleged facts that assail the validity of the release, and the facts are 

supported by evidence revealed during discovery. Summary judgment 

cannot be supported herein.

Whether fraud exists in the instant case is a matter properly presented 

to a jury. Nearly one hundred years ago, our Supreme Court examined a 

plethora of cases that presented jury questions regarding whether releases 

had been procured by fraud. The following cases, while found to not involve 

fraud in the inducement to sign a release, all make clear that it is for the 

jury to decide if fraud occurred, and the releaser’s ability to read and 

understand is crucial to the determination:

Pa. R. R. Co. v. Shay, 82 Pa. 198. Plaintiff, who signed a 

release, said he could neither read nor write; but execution of 

the paper was not denied. He did not know contents of 

instrument, understood it to be simply a receipt for expenses, 

and did not intend to release damages when he put his name 

thereto. While the representative of defendant told plaintiff it 

was a receipt (as it was), it also was a release, which he did not 

tell plaintiff. The case was submitted to the jury, to find whether 

the release had been “obtained by fraud.” We said there was no 

evidence to justify submission, and, applying the rule laid down 

by Chief Justice Gibson in Greenfield’s Estate, 14 Pa. 489, 

496, “If a party who can read * * * will not read a deed put 
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before him for execution, * * * he is guilty of supine negligence, 

which * * * is not the subject of protection, either in equity or at 

law,” we reversed a judgment for plaintiff. This authority is 

followed in many later cases, and is cited as late as O’Reilly v. 

Reading Trust Co., 262 Pa. 337, 343, 105 Atl. 542.

Seeley v. Citizens’ Traction Co., 179 Pa. 334, 36 Atl. 229. 

Plaintiff, a woman, released damages for $25 six days after the 

accident. She testified that she did not “comprehend the nature 

of the writing.” The trial court instructed for defendant, and we 

affirmed a judgment in its favor. No evidence of “trickery or 

fraud” appears; but the case is important here because we there 

recognize (179 Pa. 338, 36 Atl. 229), as a relevant consideration 

in passing upon the validity of the release, the fact that plaintiff 

was a person of “intelligence and fair education,” as is the 

present plaintiff. Bruns v. Union Traction Co., 185 Pa. 533, 

39 Atl. 1114. Plaintiff’s husband was hurt at his work August 9, 

and died as the result thereof August 15. The day before his 

death he executed a release upon payment of $40. The 

evidence tended to show the paper was signed when deceased 

was “mentally competent,” and after he had “bargained” with 

the representative of defendant company. The fact of this prior 

bargaining was taken into consideration in affirming judgment on 

a directed verdict for defendant, as it must be in the case now 

before us.

Kane v. Chester Traction Co., 186 Pa. 145, 40 Atl. 320, 65 

Am. St. Rep. 846. Plaintiff, a woman, signed a release. She 

claimed it was obtained through fraudulent representations by 

defendant’s agent, who told her the local judge was a 

stockholder in defendant company, and therefore she had no 

chance to win a suit at law. We said, assuming as a fact that 

such false statement was made, there was no “clear testimony” 

that it induced the execution of the release, and stated (186 Pa. 

150, 40 Atl. 320, 65 Am. St. Rep. 846) the “flimsy nature” of the 

alleged misrepresentations was such as not to affect the 

judgment of a person of “common sense.” We also said that 

“the fact that the injuries proved greater than they looked to be 

at the time of the release is not to be considered at all,” citing 

Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229. Judgment for 

defendant was affirmed. Here again the apparent “common 

sense” or intellectual capacity of the person who signed 

the release is taken into account in passing upon the 

evidence as to its validity.
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In De Douglas v. Union Traction Co., 198 Pa. 430, 48 Atl. 

262, binding instructions were given for defendant, and 

judgment in its favor affirmed. Plaintiff, a woman, signed a 

release, a few days after the accident, on payment of $50. She 

testified that an agent of defendant company called on her, paid 

the money, and asked for a receipt; whereupon she put her 

name to a paper which he produced. We held the proofs 

insufficient to overcome the release, saying that, when evidence 

to set aside a release is not “clear, precise, and indubitable,” the 

issue “should be withdrawn from the jury.” This is an authority 

that in such cases it may be the right and duty of the court to 

judge as to the sufficiency, in quality, of evidence to go to the 

jury on a question of alleged fraud in the procurement of a 

release.

* * *

Laird v. Union Traction Co., 208 Pa. 574, 57 Atl. 987. Plaintiff 

executed a release, on payment to him of $150, the day after 

the accident. A judgment for defendant, following binding 

instructions in its favor, was affirmed. Plaintiff claimed he was 

unconscious from his injuries when he executed the release. We 

said, “To set aside a written instrument the evidence must be 

“clear, precise, and indubitable,” whether the allegation be fraud 

practiced by the beneficiary under it i.e., the person to whom the 

release is given, or incapacity on the part of him who executed 

it,” and added there was no evidence of fraudulent 

representation or undue persuasion when the release was 

executed, but there was “some slight evidence on the part of 

plaintiff that he was in a state of unconsciousness” at that time. 

The case is treated as though there were no evidence of fraud 

present; and this apparently because of the insufficiency of the 

testimony as to plaintiff’s unconsciousness; for, if plaintiff 

were really in a state of unconsciousness when the 

release was taken from him, and defendant knew it, the 

obtaining of the paper under such circumstances would in 

itself be a fraud. This authority is valuable here, for it clearly 

rules that the trial judge, in such cases, acts as a chancellor in 

passing on the legal sufficiency of the proofs (208 Pa. 576, 577, 

57 Atl. 987), as to whether or not they measure up to the 

standard required, and, if he considers the evidence not of a 

quality to be reasonably found “indubitable,” he should not let 

the jurors pass upon it.
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Hicks v. Harbison-Walker Co., 212 Pa. 437, 61 Atl. 958. 

Plaintiff, who signed a release on payment of $25, claimed the 

person who obtained his signature thereto “misrepresented it as 

a receipt for money donated to him.” He could not read, and did 

not ask to have the paper read. We considered plaintiff’s 

“mental capacity,” and, noting that his story was 

uncorroborated, applied the rule from Greenfield’s Estate, 14 

Pa. 489. Judgment on binding instructions for defendant was 

affirmed.

Ralston v. Philadelphia Rapid Transit Co., 110 A. 329, 331–332 (Pa. 

1920) (emphases added). In the following cases, fraud was found to exist, 

and all involved jury questions in the determination:

Ettinger v. Jones, 139 Pa. 218, 21 Atl. 137, is one of those 

cases which must be confined to its own peculiar facts. A 

woman, whom defendant had got into trouble and promised to 

marry, signed a release, at his urgent solicitation, when she was 

under great mental stress. The only consideration was that 

imparted by the seal upon the instrument, and a renewal of the 

promise to marry when defendant got out of trouble with 

another woman. In affirming judgment for plaintiff, we held the 

release, obtained by “trick and fraud,” was void.

Gibson v. W. N. Y. & Pa. R. R. Co., 164 Pa. 142, 30 Atl. 308, 

44 Am. St. Rep. 586, is a case where plaintiff proved that, when 

his name was put upon the release, he was mentally incapable

from the effects of anaesthetics administered a short time 

before. Apparently it was not alleged defendant either knew of 

or took advantage of plaintiff’s weakened mental state; the sole 

contention being that, owing to his lack of mind, no contract 

existed. In deciding this issue was for the jury, we said (164 

Pa. 149, 30 Atl. 310, 44 Am. St. Rep. 586): “Where fraud * * * 

in the creation of the instrument is the defense, it is a purely 

equitable one, and equitable rules will be enforced as to the 

measure of proof to sustain it. But where the defense rests on 

the existence of a fact involving no element of fraud, the 

evidence is for the jury, under the common-law rules of 

evidence.”
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Julius v. P., A. & M. Traction Co., 184 Pa. 19, 39 Atl. 141, is 

much like the case just reviewed. Clayton v. Consolidated 

Traction Co., 204 Pa. 536, 54 Atl. 332. Plaintiff, a woman, 

signed a release, upon payment of $5, ten days after the 

accident. She afterwards claimed it was procured by fraud. 

Judgment on a verdict against defendant was affirmed. Plaintiff 

testified a man called at her house, claiming he was a friend of 

the car conductor who had caused the accident, and said he had 

come to see her in regard to getting the former reinstated in his 

position. At a second interview this man inquired how much 

expense she had been put to, and, when told $5, he gave her 

the amount, asking for a receipt. He produced a paper, folded 

in such a way plaintiff could not read it; neither did he 

read it to her, but designated the place where he desired 

her to sign. Plaintiff did not know the man was a 

representative of the company. This testimony was fully 

corroborated by a disinterested witness. We said (204 Pa. 541, 

54 Atl. 332) that defendant’s agent not only 

misrepresented the true character of the release, but 

“prevented” its contents from being known, and this, taken 

with the other circumstances in the case, constituted such fraud 

as to avoid the instrument. However, we there expressly 

recognized the authority of Pa. R. R. Co. v. Shay, 82 Pa. 198, 

and De Douglas v. Union Traction Co., 198 Pa. 430, 48 Atl. 

262, but distinguish them on their facts. We also recognize the 

authority of In re Greenfield's Estate, 14 Pa. 489, and, in this 

connection, state that the mere circumstance of the release not 

being read to plaintiff would not convict defendant of fraud in 

procuring it. Finally, we direct attention to the fact that the man 

who called upon plaintiff did not introduce himself as a 

representative of defendant, or in any sense negotiate for a 

settlement of her claim against the traction company, which, 

with other apparent features, distinguishes the case from the 

one now on appeal.

* * *

Gordon v. Great A. & P. Tea Co., 243 Pa. 330, 90 Atl. 78. 

Plaintiff signed a release, which he claimed was procured by 

fraud. Judgment, entered on a verdict for plaintiff, was affirmed. 

A payment of $150 had been made at the time the release was 

signed; but plaintiff presented evidence to show he was then in 

an enfeebled mental condition, as the result of a “head 

operation” necessitated by the accident; that the representative 
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of defendant informed him the $150 was a gratuity from his 

employers “to put” him over the holidays, and the word “release” 

was never mentioned; that a document was placed before him 

with only the signature line exposed, and he was hurried in 

the execution of the paper, which the representative of 

the company stated was merely a receipt. We said (243 Pa. 

335, 90 Atl. 79) the evidence was sufficient to justify the plea 

that plaintiff’s mind “was so enfeebled at the time he signed the 

paper that he could readily have been made a dupe of designing 

persons,” and this, together with the other evidence in the case, 

was ample to sustain a finding that he was deceived and 

defrauded into the execution of the alleged release, adding that 

‘the fact that the plaintiff did not read or require the paper to be 

read to him” could not (under the peculiar circumstances) be 

given binding effect, for he had not been afforded a “fair 

opportunity for examination” thereof, and had been 

deceived as to its contents. We there note the distinction 

between cases where the effort is to “reform” and those in which 

the attempt is to “set aside” written instruments; also, in the 

latter class of cases, the difference between those where either 

the “element of fraud or mental enfeeblement” appears and 

instances where such elements are lacking. Here in the pending 

case the effort is to set aside the release, and, while fraud in its 

procurement is alleged, the evidence depended upon to prove 

that element fell short of the legal standard required for the 

purpose, as already shown in our review thereof, and as we shall 

hereinafter briefly discuss. The facts at bar and those in the 

last-cited case differ in many apparent respects.

Lindemann v. Pittsburgh Rys. Co., 251 Pa. 489, 96 Atl. 1085. 

Plaintiff signed a release upon payment to him of $50. At trial 

there was ample evidence, both lay and expert, to sustain 

plaintiff’s contention that the release had been executed 

when he was mentally incapable; and the issue was decided 

accordingly. All that is said in the opinion of the court below 

affirming judgment on the verdict (adopted per curiam) must be 

read with the peculiar facts of the case in mind. This definition, 

relevant here, is there approved: “Indubitable proof * * * is 

evidence that is not only found to be credible, but of such weight 

and directness as to make out the facts alleged beyond a 

reasonable doubt.”

In Hogarth v. Grundy, 256 Pa. 451, 100 Atl. 1001, it was 

alleged plaintiff signed a release on payment of $200. Plaintiff 
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admitted some money was given him by his employers, but said 

it was at a time when he was suffering intensely from the effects 

of an amputated arm. The agent of defendant who called to get 

the release did not make known to plaintiff who he was, and the 

latter did not know him. He told the injured man that he was 

going to give him a “little money,” as a “present” from his 

employers, “to help him out on expenses.” Plaintiff had no 

recollection of signing the release, which contained only his 

mark, or any other paper, and he denied that the man who 

brought the money said anything about a settlement of 

his claim against defendant. He was corroborated by his 

wife. We affirmed judgment for plaintiff; but, as may be seen, 

the case is readily distinguishable from the one before us.

Vanormer v. Osborn Machine Co., 255 Pa. 47, 99 Atl. 161. 

Plaintiff signed a release in consideration of $1,150, and 

subsequently claimed it was secured by fraud. He testified the 

agent of the company which insured defendant obtained his 

signature by pretending to have a telephone conversation with 

his (plaintiff’s) doctor, an eminent eye specialist, “in which the 

agent quoted the doctor,” who had just examined plaintiff, as 

saying the latter’s right eye “would come out all right, and he 

would soon be able to resume his work.” The injured man, 

relying on the information thus conveyed to him as to his 

physical prospects for the future, signed the release; whereas 

the pretended conversation was an absolute fiction, and plaintiff 

soon afterwards lost the sight of his eye. We sustained a 

judgment entered on a verdict against defendant; for the 

evidence was ample in every way to show a direct case of fraud 

in the procurement of the release.

Ralston, 110 A. at 333–335 (emphases added).

All of these cases reveal that physical or mental incapacitation of the 

party presented with a release, his inability to read or understand, the 

existence of corroboration by another witness, and the presentation of a 

release under conditions identified as hurried and confusing impact the 

determination of alleged fraud in procuring a release or in taking advantage 

of a person’s alleged incapacity at the time a release is signed. Moreover, 
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here, the conditions described were questions for a jury. All of the above 

cases emphasized that the particular facts and conditions present were to be 

evaluated on a case-by-case basis.

Roughly seventy years later, our Supreme Court discussed the validity 

of a release where the appellants alleged it was procured by fraud and 

claimed the insurance agent failed to fully explain its effect. Wolbach v. 

Fay, 412 A.2d 487, 488 (Pa. 1980). Our Supreme Court explained that Mr. 

Wolbach admitted in a deposition that the release was in clear language, 

that he read it, and that he understood the meaning of the words. Id. 

at 488 (emphasis added). The Wolbach Court stated, “Since there is no 

allegation of actual misrepresentation and appellant had an opportunity to 

read the release and admitted he understood it, we find there was no fraud.” 

Id. Thus, the Court concluded that it was proper to grant summary 

judgment. As a basic premise, then, a person’s ability to read and 

understand the release is a paramount inquiry.

The instant case presents a completely contrary scenario to Wolbach. 

In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellants’ 

allegations of fraud and Mr. George’s actions in taking advantage of 

Appellants’ inability to speak and understand English. The trial court stated, 

in pertinent part:

Appellants have raised several factual issues in their 

Statement of Errors that are merely their beliefs, or issues that 

do not amount to disputes of material fact. They first raise that 

their daughter, Aida Flores, was not present at the time the 
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release was signed, as was stated in this [c]ourt’s [prior] 

Opinion. Appellant fails to point to anywhere in the record 

where it specifies that Ms. Flores was in Mechanicsburg at the 

time of the meeting. Further, extensive assertions were made in 

the pleadings that Ms. Flores was present and able to translate 

for her parents and take notes, which demonstrated her 

understanding of the conversation with the insurance adjuster, 

Mr. George. Additionally, whether Ms. Flores was physically 

present or present on the phone is neither a genuine issue of 

material fact, nor is it sufficient evidence of fraud to require the 

issue to be presented to a jury.

Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 1–2.

This explanation represents the trial court’s paramount reason given in 

support of its decision to grant summary judgment. As noted supra, in 

response to Appellants’ complaint that they were unable to understand the 

release because they do not speak English, the trial court relied upon 

Appellants’ daughter’s alleged presence at the meeting between Mr. George 

and Appellants because she “speaks and reads the English language.” Trial 

Court Opinion (Summary Judgment), 12/24/15, at unnumbered 4.

The trial court does not identify any pleadings that set forth “extensive 

assertions” that the parties’ daughter, Ms. Flores, was present at the 

meeting. Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 

1–2. Both Appellants, Mr. George, and Ms. Flores all testified in their 

depositions that Ms. Flores was not present when Mr. George procured 

Appellants’ signatures on the release; rather she was at work, and Aida, her 

mother, telephoned her there. Deposition of H. Jesse George, 11/18/14, at 

36; Deposition of Armando Del Pielago, 4/18/14, at 81; Deposition of Aida 
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Del Pielago, 9/30/14, at 16; Deposition of Aida Flores, 9/30/14, at 18. The 

testimony of Appellants, that they had no understanding that they were 

signing a release and believed that it was merely confirmation of receipt of a 

check for lost wages, was corroborated by their daughter’s testimony. 

Deposition of Armando Del Pielago, 4/18/14, at 15; Deposition of Aida Del 

Pielago, 9/30/14, at 15; Deposition of Aida Flores, 9/30/14, at 22–25. Ms. 

Flores specifically stated that she received an unexpected telephone call 

from her mother, who was very upset and confused, on July 26, 2011, while 

Ms. Flores was at work. Deposition of Aida Flores, 9/30/14, at 18, 19. Ms. 

Flores explained that she had very little time due to her job duties and that 

she did not know what was “going on” because she was “not there to see or 

just to be present there.” Id. at 20. Ms. Flores testified that her mother 

never mentioned a release, and Ms. Flores stated that she understood that 

the purpose of Mr. George’s visit was to give Appellants a check for 

Armando’s lost wages. Id. at 23, 24. Thus, we reject the trial court’s 

unsubstantiated explanation.

The trial court further defended the basis for its grant of summary 

judgment as follows:

Appellants next state that the [c]ourt failed to consider 

divergences in testimony and their belief that the insurance 

adjuster lied under oath. These issues, as with the first issue 

raised, do not constitute genuine issues of material fact that 

would disallow this [c]ourt to grant summary judgment in favor 

of Appellee. Whether Mr. George used an electronic tablet is not 

a material fact, and further, the assertion that he lied under oath 

is simply the Appellants’ belief.
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Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 2.

Mr. George, in his deposition, testified that he knew Appellants did not 

speak English, and Mr. George spoke no Spanish. Deposition of H. Jesse 

George, 11/18/14, at 31, 36. His previous discussions with Appellants noted 

a language barrier to communication. Id. at 62. Despite this impediment, 

Mr. George did not obtain an interpretor. Id. at 36. He stated it would have

been his “practice and procedure” to explain the release to Ms. Flores, their 

daughter, and he subsequently stated that he recalled doing so on the 

telephone. Id. at 33–35. Mr. George admitted that Armando spoke no 

English, and Aida spoke very little English. Id. at 41. Curiously, Mr. George 

offered specific memory of facts that supported his position but claimed a 

lack of recall regarding all contrary assertions. E.g., id. at 41, 44. Mr. 

George’s testimony was entirely contrary to Appellants’ and Ms. Flores’s 

testimony on significant matters that went to the heart of the controversy 

and constituted genuine issues of material fact that should have compelled 

the trial court to deny summary judgment in favor of Appellee.

The trial court’s further defense for its grant of summary judgment 

was as follows:

Appellants additionally argue that Mr. George admitted 

that he was initially unable to communicate with Appellants. 

Regardless, as this [c]ourt noted in its Opinion granting 

summary judgment in favor of Appellee, Mr. George advised 

Appellants that they could have an attorney present, and Ms. 

Flores was available to translate.
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Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 2–3. Once 

again, the trial court fails to support its broad statements with specific 

reference to the record, and our independent review of the record does not 

support these claims. Mr. George did not state that he advised Appellants 

they could have an attorney present at their meeting. Appellant Aida stated 

that during the discussion “about two numbers,” which was never explained, 

after the release was signed, Aida asked Mr. George if she was “going to 

need a lawyer,” and “he say yes.” Deposition of Aida Del Pielago, 9/30/14, 

at 39. Moreover, Ms. Flores was not available to translate, despite the trial 

court’s statement to the contrary. Armando and Aida were consistent and 

adamant that they believed Mr. George was there to give them a check for 

Armando’s lost wages to date, they were confused, they did not understand 

what was being said due to the language barrier, and Mr. George urged 

them merely to sign without explaining his purpose. Deposition of Armando 

Del Pielago, 4/18/14, at 79–86; Deposition of Aida Del Pielago, 9/30/14, at 

15–35. Mr. George’s responses to Aida’s multiple complaints that she did 

not understand what he was saying were that he understood her. 

Deposition of Aida Del Pielago, 9/30/14, at 30, 35.

Finally, the trial court represented that

the document speaks for itself. It was signed, without duress, 

by two adult individuals. Appellants chose to sign a release of 

their own free will. If they did not understand what they agreed 

to and signed anyway, it is at their own peril, and does not 

constitute fraud nor warrant recovery under the law.
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Trial Court (Pa.R.A.P. 1925(a)) Opinion, 3/2/16, at unnumbered 4. The 

certified record reveals, instead, that Appellants, individuals who do not 

speak English, were railroaded into signing this release, which they believed 

to be merely an acknowledgment of Armando’s lost wages to date. 

Deposition of Armando Del Pielago, 4/18/14, at 79–86; Deposition of Aida 

Del Pielago, 9/30/14, at 15–35. Thus, application of the law to the facts 

herein dictates a reversal, and we conclude there exists a genuine issue of 

material fact, such that entry of summary judgment was inappropriate. The 

trial court erred in granting summary judgment in the face of pleadings and 

depositions raising a factual issue of possible fraud in the procurement of the 

release. Hower, 538 A.2d at 527.

For these reasons, and upon our complete review of the record, 

including the deposition testimony of 1) Appellant Armando Del Pielago on 

April 18, 2014, and September 30, 2014, 2) Appellant Aida Del Peilago on 

September 30, 2014, 3) Aida Flores, the parties’ daughter, on September 

30, 2014, and 4) H. Jesse George, the insurance adjustor, on November 18, 

2014; the notes of Aida Flores, the computer entries made by Mr. George, 

and all of the pleadings filed in the case, we conclude the judgment 

exercised was manifestly unreasonable. There were sufficient factual 

allegations in the pleadings and depositions to raise a material issue of fact 

regarding Appellants’ execution of the release, see Pa.R.C.P. 1035.1, a 

matter which justifies the submission of the issue to a trier-of-fact to 
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resolve. See, e.g., Hower, 538 A.2d 524; Buttermore, 533 A.2d 481; and 

Cady v. Mitchell, 220 A.2d 373 (Pa. Super. 1966). Thus, we reverse the 

entry of summary judgment and remand this case to the common pleas 

court.

Order granting summary judgment in favor of Appellee reversed. Case 

remanded. Jurisdiction relinquished.

Judge Bowes joins the Opinion.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016