J-A26038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLINGTON ENERGY, INC. 

Appellant

v.

CITIZENS BANK OF PENNSYLVANIA

v.

RAELISE OSTROWSKI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 499 WDA 2019

Appeal from the Judgment Entered April 5, 2019

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD 13-017836

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 10, 2020

Appellant, Wellington Energy, Inc., appeals from the judgment entered 

on April 5, 2019. We affirm.

The trial court ably summarized the underlying facts and procedural 

posture of this case:

Raelise Ostrowski, an employee of Wellington Power 

Corporation,[1]forged indorsements on [264 of Appellant’s] 

checks, enabling her to steal $[375,628.62]. Ms. Ostrowski 

forged the indorsements from 2008 until she was caught in 

2013. Ms. Ostrowski was Wellington Power’s payroll 

administrator, which made her responsible for the payroll and 

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1 Wellington Power Corporation is Appellant’s parent corporation and it 

“oversees the administration, including the accounting and payroll functions, 

of” Appellant. Appellant’s Complaint, 12/11/13, at ¶¶ 8-9.
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“per diem” reimbursements as [Appellant’s] employees 

replaced between eight and ten million electrical meters in 

the State of California. Per diem checks, typically in the 

amount of $1,385 or $1,551.66, reimbursed approximately 

[15 or 20] employees monthly for their travel related 

expenses, such as mileage and housing. When Ms. Ostrowski 

found that an employee receiving per diem reimbursements 

separated from [Appellant] by way of resignation, 

retirement[,] or termination, she would continue to have per 

diem reimbursement checks issued to them.

Ms. Ostrowski then forged the indorsement signatures of the 

former employees on the backs of the checks and deposited 

them via automated teller machines into her own checking 

accounts with Citizens Bank and PNC Bank. For example, 

Zack Smith ended his employment with [Appellant] in 

September [] 2009, but Ms. Ostrowski continued to have 

monthly per diem reimbursement checks issued to Zack 

Smith until July [] 2013, when Citizens Bank discovered that 

checks she was depositing had forged signature 

indorsements. Ms. Ostrowski was then charged with the 

crime of mail fraud (18 U.S.C. § 1341), [pleaded] guilty[,] 

and served [24] out of a [27] month prison sentence.

In September [] 2013, [Appellant] began this civil lawsuit 

against Citizens Bank of Pennsylvania by writ of summons, 

which was followed in December by a complaint. Among 

other things, the complaint alleged that Citizens Bank owed 

[Appellant] $366,485.32 for failing to exercise ordinary care 

by accepting deposits into Ms. Ostrowski’s account of checks 

made payable to other individuals that contained forged 

indorsements. Citizens Bank joined Ms. Ostrowski as an 

additional defendant, alleging she should indemnify or 

contribute towards any liability of Citizens Bank to 

[Appellant]. . . .

In December [] 2017, the Honorable [Paul F. Lutty, Jr.]

granted Citizens Bank’s motion for partial summary judgment 

by prohibiting [Appellant’s] claims arising from all checks in 

bank statements made available to [Appellant] in July [] 2012 

or earlier. Judge Lutty’s ruling left intact [Appellant’s] claims 

[related to the] forged checks deposited between August [] 

2012 and July [] 2013.
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The dispute over the reduced amount of $109,581.66 was 

assigned to [the trial court judge, the Honorable Alan 

Hertzberg,] for resolution by way of a jury trial. After a trial 

of approximately three days, Citizens Bank withdrew its claim 

against Ms. Ostrowski. On [Appellant’s] claims against 

Citizens Bank, the jury returned a verdict in favor of Citizens 

Bank. [Specifically, the jury found that Citizens Bank did not 

fail to exercise ordinary care in this case. See Jury Verdict, 

11/30/18, at 1.]

Trial Court Opinion, 6/4/19, at 1-3 (footnotes and some capitalization 

omitted).

Following the denial of Appellant’s post-trial motion, Appellant filed a 

notice of appeal. Appellant raises three claims on appeal:

1) Did the [trial] court err when it applied the facially 

inapplicable provisions of 13 Pa.C.S.A. § 4406(f) to grant 

partial summary judgment and, thereby, to limit the scope of 

[Appellant’s] claims to a one-year lookback period?

2) Did the [trial] court err in permitting [Citizens Bank] to 

introduce as evidence customer agreements between other 

banks and their customers which were irrelevant, hearsay, 

unauthenticated, misleading and highly prejudicial?

3) Did the [trial] court err in not granting a mistrial or 

providing a limiting instruction when [Citizens Bank] made 

references to [Appellant’s] claims against [PNC Bank] in 

closing arguments in violation of [the trial court’s] order on 

[Appellant’s] pretrial motion in limine?

Appellant’s Brief at 4 (some capitalization omitted).

We have reviewed the briefs of the parties, the relevant law, the certified 

record, the notes of testimony, and the opinions of the able trial court judges, 

the Honorable Paul F. Lutty, Jr. and the Honorable Alan Hertzberg. We 

conclude that Appellant is not entitled to relief in this case, for reasons partially 
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expressed in Judge Lutty’s June 6, 2019 opinion2 and fully expressed in Judge 

Hertzberg’s June 4, 2019 opinion. Therefore, we affirm on the basis of Judge 

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2 Appellant claims that, in granting Citizens Bank’s motion for partial summary 

judgment, Judge Lutty erred by “limit[ing] the scope of [its] claims to a 

one-year lookback period.” Appellant claims that this error caused it prejudice 

because, during trial, Citizens Bank defended the action by pointing out “the 

long duration of the fraud” and by faulting Appellant for failing to catch the 

fraud earlier. Appellant’s Brief at 34-36. According to Appellant:

the wrongly-limited look-back period permitted the jury to 

consider [Citizens Bank’s] liability only for the final year –

after Ms. Ostrowski’s conduct had been continuing for years. 

In a trial without the prejudice of the one-year look-back 

period, the jury would consider [Citizens Bank’s] conduct 

looking back to 2008, which would have considerably altered 

the jury’s weighing of the claims and evidence.

Id. at 35-36.

If Appellant is claiming that it suffered prejudice because the summary 

judgment ruling limited its ability to present evidence related to events that 

occurred before the one-year look-back, this claim fails. To be sure, Judge 

Lutty’s summary judgment ruling only limited Appellant’s potential damages 

in this case – it did not limit the evidence that the parties were permitted to 

introduce. Indeed, at the beginning of the trial, Appellant’s attorney informed 

the trial court:

Yes[, Your Honor]. As [Citizens Bank’s attorney] said to Your 

Honor, while we are going to tell the facts going back 

to the beginning of the fraud, we’re only seeking damages 

and only mentioning specific damages for the 79 checks in 

the one-year look-back period consistent with Judge Lutty’s 

order.

. . .

We’re not going to make an argument that, gee, we’re 

entitled to [$]400,000, but we can only get [$109,000]. We 

understand it’s [$109,000] per Judge Lutty’s Order.
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Lutty’s and Judge Hertzberg’s thorough opinions and adopt them as our own. 

In any future filing with this or any other court addressing this ruling, the filing 

party shall attach a copy of Judge Lutty’s June 6, 2019 opinion and Judge 

Hertzberg’s June 4, 2019 opinion.

Judgment affirmed.

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I think both parties will be talking about the conduct over four 

or five years, but we will not ask for damages more than 

[$109,000], whatever the stipulated amount is.

N.T. Trial, 11/27/18, at 22 (emphasis added).

Further, in this case, the jury specifically found that Citizens Bank did not fail 

to exercise ordinary care. See Jury Verdict, 11/30/18, at 1. Therefore, since 

the summary judgment order only limited the potential damages that 

Appellant could receive and since the jury found that Appellant was not 

entitled to damages in this case, even if the summary judgment order were

erroneous, Appellant did not suffer any prejudice as a result of the error and 

it is not entitled to relief on appeal.

If, on the other hand, Appellant claims that the summary judgment ruling 

caused it to suffer prejudice because the ruling caused the jury to not “weigh[] 

Citizens [Bank’s] conduct of allowing these fraudulent ATM deposits for years 

against [Appellant’s] conduct,” this claim also fails. See Appellant’s Reply 

Brief at 9-10. This claim of prejudice would only be relevant as to the amount 

to which Appellant’s failure to exercise ordinary care contributed to its loss. 

Here, however, the jury simply found that Citizens Bank did not fail to exercise 

ordinary care. Therefore, and again, the summary judgment ruling did not 

prejudice Appellant.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2020