J-S31004-18

2018 PA Super 226

JOHN KESSOCK, JR.

v.

CONESTOGA TITLE INSURANCE CO.

v.

DELANCEY ABSTRACT CORP., 

JOSEPH HOPKINS, LAW OFFICES OF 

HOPKINS AND SCHAFKOPF, LLC, 

SECURITY SEARCH AND ABSTRACT 

CO., INC.

APPEAL OF: JOSEPH HOPKINS AND 

DELANCEY ABSTRACT CORP.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3737 EDA 2017

Appeal from the Judgment Entered October 12, 2017

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

No(s): No. 2008-17607

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

OPINION BY SHOGAN, J.: FILED AUGUST 09, 2018

Joseph Hopkins (“Hopkins”) and Delancey Abstract Corporation 

(“Delancey”) (collectively, “Appellants”) appeal the judgment entered against 

them.

1

 We affirm.

____________________________________________

1

 Appellants purport to appeal the order denying their motion for post-trial 

relief; however, their appeal properly lies from the judgment entered on 

October 12, 2017. Tincher v. Omega Flex, Inc., 180 A.3d 386, 396 n.7 (Pa. 

Super. 2018). We have amended the caption accordingly.
J-S31004-18

- 2 -

The trial court entered the following findings of fact:

1. This lawsuit arises from a dispute concerning real property 

purchased by Plaintiff [John Kessock, Jr.] on or about April 18, 

2005, with a physical address of 1333 Beaumont Drive, Gladwyne, 

PA 19035 (hereinafter, the “Subject Property”).

2. Defendant Conestoga was the title insurance underwriter for 

the Subject Property.

3. Plaintiff’s claim stems from a breach of Conestoga’s 

obligations to disclose an easement, as part of its title agency 

services, when Plaintiff purchased the Subject Property.

4. The recorded easement was discovered by Plaintiff after the 

completion of the sale of the Subject Property.

5. Thereafter, Plaintiff made a title insurance claim with 

Conestoga, alleging his claim was worth in excess of $1,000,000. 

Conestoga denied the insurance claim.

6. Additional Defendant Delancey, a now non-operating 

Pennsylvania corporate entity, was a title insurance broker.

7. Delancey was the title agent who conducted the closing for 

the Subject Property.

8. Additional Defendant Hopkins was the principal of Delancey.

9. Security Search and Abstract Company, Inc. (“Security 

Abstract”) was the agent hired by Delancey to actually conduct 

the title search for the Subject Property.

10. Additional Defendant Hopkins and Schafkopf is a law firm 

which provided no services related to this case even though 

Hopkins’ name appears in the firm’s name.

11. On April 21, 2004, Conestoga entered into an agency 

agreement with Delancey (the “Agency Agreement”).

12. Paragraph 5 of the Agency Agreement provides:

Agent agrees to be solely liable and indemnify Conestoga 

for all attorneys’ fees, court costs, expenses and loss or 
J-S31004-18

- 3 -

aggregate of losses resulting from shortages in its escrow 

accounts, fraud, negligence or misconduct of its agents, its 

officers, or employees in the issuance of title insurance. 

Agent agrees that Conestoga shall have full control of the 

determination, procedure and final decision of all losses 

including the defense thereof. Conestoga agrees to consult 

with Agent prior to making any final decision on losses on 

policies issued by Agent.

13. The Agency Agreement was executed under seal by Hopkins 

on behalf of Delancey.

14. Also on April 21, 2004, Hopkins executed a “Guaranty of 

Payment and Performance” in which Hopkins personally 

guaranteed Delancey’s performance of the Agency Agreement, 

including “indemnifications and claims of loss as set forth in the 

Agency Agreement (the “Guaranty”).

15. The Guaranty was not executed under seal by Hopkins.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 2–3.

The trial court summarized the procedural history of this case as follows:

On December 16, 2008 Plaintiff John Kessock, Jr. 

(“Plaintiff”) commenced this action by filing a Complaint against 

Conestoga Title Insurance Co. (“Conestoga”) and Security 

Abstract. On June 12, 2009, an Amended Complaint was filed. 

Pursuant to an Order dated January 19, 2010, Security Abstract’s 

Preliminary Objections were sustained, and it was dismissed as a 

party. Conestoga filed a motion to join Delancey, Hopkins, and the 

Law Offices of Hopkins & Schafkopf, LLC (“Hopkins & Schafkopf”) 

as additional defendants on May 19, 2011. That motion was 

granted on June 5, 2012, entered of record on June 6, 2012.

On November 9, 2016, a two-day non-jury trial on liability

was conducted. In an Order dated November 18, 2016, upon 

consideration of the evidence presented, and after granting 

Plaintiff’s Motion for Partial Directed Verdict, this [c]ourt ultimately 

found in favor of Conestoga and against Plaintiff. Further, on the 

crossclaims asserted by Conestoga against Appellants and 

Hopkins & Schafkopf, the [c]ourt found in favor of Conestoga and 

against Delancey and Hopkins only on its claim for attorney’s fees 
J-S31004-18

- 4 -

and costs. A compulsory nonsuit/directed verdict was granted to 

Hopkins & Schafkopf.

An additional two-day non-jury trial on damages was 

conducted beginning on May 1, 2017 on the singular issue of the 

assessment of attorney’s fees. On August 17, 2017 this [c]ourt 

issued its decision with seventeen pages of findings of fact and 

conclusions of law. On October 12, 2017, this [c]ourt denied 

Appellant[s’] motion for post-trial relief.

On October 17, 2017 Appellants filed a Notice of Appeal to 

this [c]ourt’s October 12, 2017 Order denying Appellant[s’] 

motion for post-trial relief.[2] On November 6, 2017, pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b), this [c]ourt 

Ordered Appellants to file a concise statement of errors 

complained of on appeal within 21 days.

Appellants filed their Concise Statement of Matters 

Complained of on Appeal on November 27, 2017. In their Concise 

Statement, Appellants claim, in more specific detail, that the trial 

court erred in: (1) allowing the joinder of [A]ppellants, (2) not 

finding in favor of Appellants, and (3) the [c]ourt’s calculation of 

attorney’s fees.

Trial Court Opinion, 12/1/17, at 1–2.

On appeal, Appellants present the following questions for our review:

A. Appellee Conestoga Title Insurance Company filed two 

successive motions to join Appellants Joseph Hopkins and 

Delancey Abstract Corporation as additional defendants, filed 

431 days and 1,270 days after the joinder period of Pa.R.C.P. 

No. 2253 expired. And Conestoga’s attorneys falsely 

represented to the Trial Court in both motions that they had 

just discovered Hopkins’ and Delancey’s potential liability. 

Did the Trial Court abuse its discretion in granting the joinder 

motions?

B. Appellant Joseph Hopkins gave a contract-based personal 

guaranty that Delancey Abstract Corporation would perform 

its Agency Agreement with Conestoga and would indemnify 

____________________________________________

2

 As explained in note 1, the appeal is properly from the entry of judgment.
J-S31004-18

- 5 -

Conestoga for attorneys’ fees if Delancey was negligent in 

issuing title insurance on Conestoga’s behalf. Conestoga did 

not file its complaint against Hopkins alleging breach of the 

guaranty until five years after it learned of its contractual 

claim against Hopkins[.] Did the Trial Court err in concluding 

that Conestoga’s claims against Hopkins were not barred by 

the statute of limitations?

C. Did the Trial Court err in refusing to reduce the attorneys’ 

fees chargeable to Hopkins and Delancey as unreasonable for 

any or all of the following reasons:

a. Conestoga litigated for eight years without ever

ascertaining the amount of money in dispute;

b. Conestoga denied liability and the existence of a 

contractual relationship between Plaintiff John 

Kessock and Conestoga for eight years of 

litigation, only to admit contractual liability at 

trial;

c. The time entries of the attorneys admitted into 

evidence were recorded recollections requiring 

the testimony of the declarant at trial, but two of 

the three attorneys did not testify at trial;

d. Delancey did not agree to indemnify Conestoga 

for attorneys’ fees related to enforcing the 

Agency Agreement, yet the judgment requires 

Hopkins and Delancey to indemnify Conestoga for 

those charges; and

e. Attorney Mark Clemm charged $175 per hour for 

his daughter’s time before she was admitted to 

practice law in Pennsylvania, which is the same 

rate charged after her admission to practice?

Appellants’ Brief at 3–4.

Appellants first complain that the trial court abused its discretion by

granting Conestoga’s untimely motions to join Appellants as additional 
J-S31004-18

- 6 -

defendants. Appellants’ Brief at 14. We have explained the joinder procedure 

as follows:

The Pennsylvania Rules of Civil Procedure provide that a writ 

for joinder shall be filed by the original defendant or an additional 

defendant no later than sixty (60) days after effecting service 

upon the original defendant of the initial pleading of the plaintiff 

or any amendment thereof “unless such filing is allowed by the 

court upon cause shown.” Pa.R.C.P. 2253, Time for Filing 

Praecipe or Complaint. Whether there is sufficient cause to 

allow late joinder of an additional defendant is a matter within the 

sound discretion of the trial court. Mutual Industries, Inc. v. 

Weinberg, 423 Pa.Super. 328, 621 A.2d 140, 143 (1993). 

Nevertheless, the court “should be guided by the objectives 

sought to be achieved by use of the additional defendant 

procedure.” Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 

638, 641 (1970). Joinder should be granted when it can “simplify 

and expedite the disposition of matters involving numerous 

parties without subjecting the original plaintiff to unreasonable 

delay in the prosecution of his portion of the litigation.” Id.

(citations omitted).

When requesting the belated joinder of an additional 

defendant, a party must show (1) that joinder is based on proper 

grounds, (2) that some reasonable excuse exists for the delay in 

commencing joinder proceedings, and (3) that the original plaintiff 

will not be prejudiced by the late joinder. Francisco v. Ford 

Motor Co., 406 Pa.Super. 144, 593 A.2d 1277, 1278 (1991). This 

Court has also considered the potential for prejudice to the 

proposed additional defendant. Prime Properties Development 

Corp. v. Binns, 397 Pa.Super. 492, 580 A.2d 405 (1990). 

However, limitations on joinder are primarily intended to protect 

a plaintiff from being unduly delayed in prosecuting his action. 

See Zakian, 438 Pa. at 256, 264 A.2d at 641[.]

Lawrence v. Meeker, 717 A.2d 1046, 1048–1049 (Pa. Super. 1998) (some 

internal citations omitted). “The rule permitting the joinder of additional 

defendants is to be broadly construed to effectuate its purpose of avoiding 

multiple lawsuits by settling in one action all claims arising out of the 
J-S31004-18

- 7 -

transaction or occurrence which gave rise to the plaintiff’s complaint.” 202 

Island Car Wash, L.P. v. Monridge Const., Inc., 913 A.2d 922, 926 (Pa. 

Super. 2006) (quoting Svetz for Svetz v. Land Tool Co., 513 A.2d 403, 405 

(Pa. Super. 1986) (citation omitted)).

According to Appellants, Conestoga filed its first joinder motion sixteen 

months after the ninety-day joinder period had closed; it offered no credible 

justification for the delay in filing the motion; and it misrepresented when

Conestoga knew of Appellants’ liability under the Agency Agreement and 

Guaranty. Appellants’ Brief at 19. Furthermore, Appellants contend that 

Conestoga filed its second joinder motion three and one-half years after the 

joinder period had closed; it offered no credible justification for the delay in 

filing the motion; and it again misrepresented when Conestoga knew of 

Appellants’ liability. Id. at 20–21.

In response, Conestoga argues that only the plaintiff in the underlying 

action, John Kessock, Jr. (“Kessock”), could object to a late joinder on the 

ground that Conestoga failed to provide a reasonable excuse for its delay. 

Conestoga’s Brief at 10 (citing Pa.R.C.P. 2253(b)). According to Conestoga, 

although Kessock objected to the first and second proposed joinder complaints 

due to the lack of reasonable delay, he did not file a post-trial motion or appeal 

the joinder of Appellants. Id. at 13–17. As for Appellants, Conestoga 

recognizes that they could object to joinder on grounds of prejudice. Id. at 

10. Conestoga points out, however, that although Appellants objected to the 
J-S31004-18

- 8 -

first joinder motion, they did not object to the second joinder motion; 

moreover, Appellants “have neither pled nor proven any aspect of legal 

prejudice, such as the loss of witnesses, the loss of documents, etc.” Id. at 

17. Conestoga explains it could have filed a separate action against Appellants 

and moved for consolidation of the cases, but that “would have been a waste 

of judicial time and effort, as the same result would have been accomplished 

by simply joining [Appellants].” Id. Conestoga concludes that the trial court 

properly allowed joinder for “purposes of judicial economy.” Id. at 18.

The trial court entered the following findings of fact relevant to 

Conestoga’s joinder motions:

19. Conestoga’s first attorney, David Henry, filed a motion to join 

Delancey, Hopkins, and Hopkins & Schafkopf as additional 

defendants on May 19, 2011.

20. That motion was granted on June 5, 2012, entered of record 

on June 6, 2012.

* * *

24. On November 15, 2012, the [c]ourt . . . provided that 

Conestoga shall have 30 days from the date of notice of that 

Order to file a Third Party Complaint to join Additional 

Defendants. The [c]ourt also noted in its Order that the Order 

shall be served upon Conestoga’s attorney of record, David 

Henry, Esquire, at his address currently reflected on the 

docket, 444 N. 4th Street, Suite 101, Philadelphia, PA 19122, 

and at the address reflected in the Certificate of Service of 

the second Motion for Reconsideration, 20 N. 3rd Street Suite 

301-B, Philadelphia, PA 19106.

25. This docket reflects that attempted service of the [c]ourt’s 

November 15, 2012 Order upon Conestoga’s prior attorney, 

David Henry, Esquire, at the two above addresses were 
J-S31004-18

- 9 -

returned as undeliverable and provided no forwarding 

information.

26. Concomitantly with the [c]ourt’s unsuccessful attempts at 

serving notice of the [c]ourt’s Orders upon defendant 

Conestoga’s prior attorney, David Henry, Esquire, he became 

unreachable to Conestoga and ceased communication with 

Conestoga.

27. Conestoga retained Attorney Mark Clemm, Esquire (“Mr. 

Clemm”) and his firm sometime in late 2012 or early 2013. 

Mr. Clemm’s first entry in this case was March 25, 2013.

28. Conestoga was unaware of the [c]ourt’s November 15, 2012 

Order granting Conestoga 30 days from the date of notice of 

that Order to file a Third Party Complaint to join Additional 

Defendants, until approximately April 2013 after Conestoga 

retained Mr. Clemm who had reviewed the docket and 

discovered the [c]ourt’s November 15, 2012 Order.

29. On August 2, 2013, Conestoga filed a motion to join Additional 

Defendants Delancey, Hopkins . . . “nunc pro tunc.”

30. Based on the foregoing, on December 11, 203, this [c]ourt 

granted Conestoga’s Motion for Leave to Join Additional 

Defendants nunc pro tunc.

31. On December 17, 2013, Conestoga filed its Joinder Complaint.

32. Neither Delancey nor Hopkins filed Preliminary Objections to 

their joinder.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 3–5. As 

evidenced by its order allowing joinder, the trial court accepted Conestoga’s 

justification for the untimely motions, although the trial court did not provide 

any conclusions of law. Decision with Findings of Fact and Conclusions of Law, 

8/17/17, at 11–17.
J-S31004-18

- 10 -

Pursuant to Pa.R.C.P. 2252(a)(4), joinder is permissible if the additional 

defendant may be liable to the joining party on any cause of action arising out 

of the transaction upon which the plaintiff’s cause of action is based. Here, 

Kessock’s cause of action against Conestoga arose out of the omission of an 

easement from the title search. Conestoga sought joinder of Appellants based 

on Appellants’ liability for the overlooked easement pursuant to the Agency 

Agreement and the Guaranty. Joinder Complaint, 12/17/13, at ¶¶ 14–20; 

Counts I, II, and III. We conclude, therefore, that Conestoga’s joinder request 

was appropriate.

Conestoga justifies its delay in filing the joinder motions as the result of 

not knowing that Kessock “had a direct claim against [Appellants] until 

Conestoga discovered the relationship between Hopkins and Kessock and that 

Hopkins provided legal advice as well as title services (through Delancey) to 

[Kessock].” Conestoga’s Brief at 12. Conestoga also cites its inability to 

contact counsel, Attorney David Henry, as a cause of the delay in filing the 

joinder complaint. Id. at 13. In contrast, Appellants assert that Conestoga 

did not have a reasonable excuse for the delayed joinder because it knew at 

the beginning of the underlying litigation—if not before—that Appellants faced 

potential liability under the Agency Agreement and the Guaranty. Appellants’ 

Brief at 19. In support of their position, Appellants direct us to several 

instances in the record demonstrating Conestoga’s knowledge of Appellants’ 

potential liability. Id. at 21–23.
J-S31004-18

- 11 -

Upon review, we find support in the record for the trial court’s credibility 

determination that Attorney Henry’s unreachability provided an excuse for 

Conestoga’s untimely filing of the second joinder motion in August of 2013. 

Attorney Henry became unreachable after the November 15, 2012 order 

directing Conestoga to file a joinder complaint. N.T., 5/1/17, at 76, 93–94. 

Consequently, the court-approved joinder complaint was not filed until new 

counsel, Attorney Mark Clemm, renewed the joinder motion in August of 2013. 

Conversely, we do not find support in the record for the trial court’s 

credibility determination that Conestoga provided a reasonable excuse for its 

delay in filing the first joinder motion in May of 2011. Rather, the record 

supports Appellants’ claim that Conestoga knew of Appellants’ potential 

liability under the Agency Agreement and the Guaranty prior to receiving 

complete discovery responses from Kessock. Indeed, the trial court found—

and our review of the record confirms—that Conestoga and Delancey executed 

the Agency Agreement on April 21, 2004; therein, Delancey obligated itself to 

reimburse Conestoga for damages, attorney’s fees, and costs arising out of 

Delancey’s negligence. On the same date, Conestoga and Hopkins executed 

the Guaranty, in which Hopkins personally guaranteed Delancey’s 

performance of the Agency Agreement. Decision with Findings of Fact and 

Conclusions of Law, 8/17/17, at ¶¶ 11–15, 77. When Kessock filed his lawsuit

on December 16, 2008, therefore, Conestoga knew that Appellants could be 

liable to Conestoga for attorney’s fees and damages depending upon the 
J-S31004-18

- 12 -

outcome of Kessock’s litigation. Thus, we conclude that Conestoga filed its 

first joinder motion out of time and lacked a reasonable excuse for the delay.

Nevertheless, we discern no prejudice resulting from the trial court’s 

grant of Conestoga’s late joinder motions. The record reveals that, although

Kessock objected to Conestoga’s untimely joinder motions, it did not challenge 

the joinder in post-trial motions or an appeal. As for Appellants, they have 

not argued in this Court, let alone demonstrated, how Conestoga’s untimely 

motions caused them prejudice.

Moreover, in Pennsylvania, “[i]t is well established that before 

indemnification rights accrue, the party seeking indemnification must pay the 

claim or verdict damages before obtaining any rights to pursue an 

indemnification recovery.” Chester Carriers, Inc. v. Nat’l Union Fire Ins. 

Co. of Pittsburgh, 767 A.2d 555, 563 (Pa. Super. 2001) (quoting Beary v. 

Container General Corp., 4, 193 (Pa. Super. 1989)). See also F.J. 

Schindler Equipment Company v. Raymond Company, 418 A.2d 533, 

534 (Pa. Super. 1980) (“It is clear that before the right of indemnification 

arises, the indemnitor must in fact pay damages to a third party. Any action 

for indemnification before such payment ... is premature.”). Procedurally, 

when Conestoga moved to join Appellants in May of 2011 and August of 2013, 

it had not paid any damages to Kessock; therefore, the statute of limitations 

on its potential claims against Appellants for indemnity on damages paid to a 

third party had not started to run, let alone expire. F.J. Schindler, 418 A.2d 
J-S31004-18

- 13 -

at 534. Consequently, the timing of the joinder motions did not delay any 

litigation arising out of the indemnification provisions of the Agency 

Agreement and the Guaranty. Based on the foregoing, we conclude that the 

trial court did not abuse its discretion in allowing the late joinder of Appellants.

In their second issue, Appellants argue that the four-year statute of 

limitations set forth in 42 Pa.C.S. § 5525(a) barred Conestoga’s claim against 

Hopkins.

3

 Appellants’ Brief at 25. According to Appellants:

Hopkins’ duty to guaranty Delancey’s performance of the Agency 

Agreement does not arise under common law. Rather, Hopkins’ 

____________________________________________

3 Appellants do not challenge the timeliness of Conestoga’s claim against 

Delancey, nor could they. Based on its findings of fact, which are supported 

by the record, the trial court concluded—and we agree—that Conestoga filed 

its joinder complaint against Delancey within the relevant limitations period:

11. On April 21, 2004, Conestoga entered into an agency 

agreement with Delancey (the “Agency Agreement”).

* * *

13. The Agency Agreement was executed under seal by Hopkins 

on behalf of Delancey.

* * *

85. The statute of limitations for a written contract signed under 

seal is twenty years. Osprey Portfolio, LLC v. Izett, 32 A.3d 

793 (Pa. Super. 2011).

* * *

87. Therefore, the cross-claim brought by Conestoga against 

Delancey was clearly within the 20-year statute of limitations.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 2–3, 12–

13.
J-S31004-18

- 14 -

duty to indemnify Conestoga for its attorneys’ fees can arise only

under his contractual promise to “guaranty the full performance 

of the Agency Agreement by the Agent”.

* * *

Logically, for Conestoga to assert a right to indemnity from 

Hopkins under the Guaranty, Conestoga must assert a claim 

against Delancey for breach of the Agency Agreement—that is all 

that Mr. Hopkins guaranteed. Thus, as a matter of law, Conestoga 

was required to file its complaint against Mr. Hopkins personally 

for breach of the Guaranty by December 16, 2012—four years 

after Kessock served his complaint on Conestoga and Conestoga 

admits to knowing the identity of Delancey as the agent in that 

transaction.

Appellants’ Brief at 26–27 (citation to Reproduced Record and footnote 

omitted).

Conestoga does not challenge the application of a four-year statute of 

limitations; it challenges when the statute began to run. Specifically, 

Conestoga argues that its claim against Appellants ripened—and the statute 

began to run—on November 10, 2016, when the trial court determined in 

Conestoga’s cross-claim action that “Delancey was negligent in the issuance 

of title insurance.” Conestoga’s Brief at 19. Thus, in Conestoga’s view, its

December 17, 2013 joinder complaint against Appellants was filed within the 

statute. We agree.

The applicability of a statute of limitations is a question of law; therefore, 

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

Continental Ins. Co., 932 A.2d 877, 879 (Pa. 2007). “The trial court’s 

determination will not be disturbed absent an abuse of [its] discretion.” Id. 
J-S31004-18

- 15 -

“Pennsylvania favors strict application of the statutes of limitation.” 

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. 2007)

(citation omitted). “Lack of knowledge, mistake or misunderstanding, will not 

toll the running of the statute.” Id. at 572 (citation omitted). A statute of 

limitations begins to run “from the time the cause of action accrued.” 42 

Pa.C.S. § 5502(a). “In a contract case, a cause of action accrues when ‘there 

is an existing right to sue forthwith on the breach of contract.’” Leedom v. 

Spano, 647 A.2d 221, 226 (Pa. Super. 1994) (quoting Thorpe v. 

Schoenbrun, 195 A.2d 870, 872 (Pa. Super. 1963), and citing 51 Am.Jur.2d, 

Limitation of Actions § 107 (cause of action accrues the moment the right to 

commence an action comes into existence)).

According to the trial court, Hopkins executed the Guaranty on April 21, 

2004, “in which Hopkins personally guaranteed Delancey’s performance of the 

Agency Agreement,” and “[t]he Guaranty was not executed under seal.” 

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 14, 15. 

On May 10, 2005, Security Abstract received a search order from Delancey to 

perform a title search of the Subject Property and negligently failed to disclose 

a driveway easement. Id. at ¶ 38. On June 30, 2005, Delancey, as an agent 

of Conestoga, prepared a title insurance commitment regarding the Subject 

Property for $1,799,000. Id. at ¶ 39. Conestoga underwrote a title insurance 

policy to Kessock for the Subject Property on July 12, 2005. Id. at ¶ 40. 

Kessock learned about the undisclosed easement in November of 2005, and 
J-S31004-18

- 16 -

he filed suit against Conestoga and Security Abstract on December 16, 2008. 

Id. at ¶¶ 16, 41. Our review of the record confirms the trial court’s findings. 

N.T., 11/9/16, at 22, 56, 121–123, 127–130, Exhibits P-9, P-10, P-12, P-13, 

D-7.

Based on its findings of fact, the trial court entered the following relevant 

conclusions of law regarding when Conestoga’s cause of action against 

Hopkins arose:

84. The statute of limitations for a written contract not signed 

under seal is four years. Packer Soc. Hill Travel Agency, Inc. 

v. Presbyterian University of Pennsylvania Medical Center, 

635 A.2d 649 (Pa. Super. 1993).

* * *

88. The Guaranty, however, was not signed under seal and is 

therefore subject to the four-year statute of limitations.

89. In Leedom v. Spano, the Superior Court provided guidance 

on when a cause of action against a guarantor accrues. 

Leedom v. Spano, 647 A.2d 221, 225 (Pa. Super. 2016). In 

Leedom, a mortgagor defaulted on a mortgage note to which 

a third party acted as surety. Id. The Superior Court noted 

that upon default on a mortgage note by the principal “both 

the principal and the surety become liable on the original 

undertaking.” Based on that fact, the Court held that the 

statute of limitations began to run against both the principal 

and the surety at the time of the mortgagor’s default. Id. 

Thus, according to Leedom, a cause of action begins to run 

against a surety at the same time the cause of action begins 

to run against the principal. Therefore, to determine when 

the statute of limitations began to run against Hopkins under 

the Guaranty, we must first determine when the statute of 

limitations began to run against Delancey under the Agency 

Agreement.

90. The Agency Agreement provided that Delancey would “be 

solely liable and indemnify Conestoga for all attorney’s 
J-S31004-18

- 17 -

fees...resulting from...fraud, negligence or misconduct of its 

agents, its officers, or employees in the issuance of title 

insurance.” Claims for indemnification arise only when the 

party seeking indemnity has made payment on the underlying 

claim. McClure v. Deerland Corp., 585 A.2d 19, 22 (Pa. 

Super. 1991). “The right of indemnity rests upon a difference 

between the primary and secondary liability of two persons

each of whom is made responsible by the law to an injured 

party.” F.J. Schindler Equip. Co. v. Raymond Co., 418 A.2d 

533, 533 (Pa. Super. 1980)(citing Builder’s Supply Co. v. 

McCabe, 77 A.2d 362, 370 (Pa. 1951)[)]. Any action for 

indemnification before payment of damages to a third party 

is premature. Id. See also Beary v. Container Gen. Corp., 

568 A.2d 190, 193 (Pa. Super. 1989)(“It is well established 

that before indemnification rights accrue, the party seeking 

indemnification must pay the claim or verdict damages before 

obtaining any rights to pursue an indemnification[.]).

91. At the earliest, the cause of action for indemnification as set 

forth in the Agency Agreement did not accrue until the [trial 

c]ourt determined that Delancey was negligent in its issuance 

of title insurance and also determined the amount of damages 

or loss for which Conestoga was liable to Kessock. Under the 

Leedom decision, the cause of action against Hopkins did not 

accrue until that time as well.

92. The [trial c]ourt did not make its determination on liability 

until it granted [Kessock’s] Motion for a Partial Directed 

Verdict on November 10, 2016, finding that Delancey was 

negligent in the issuance of title insurance. Therefore, since 

a claim for indemnification arises only after verdict damages 

have been established, the statute of limitations on the claims 

against Hopkins begin to run no earlier than November 10, 

2016.

93. Accordingly, Conestoga’s claims against Hopkins were 

brought well within the four-year statute of limitations.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 12–14.

We have explained that a cause of action against a surety begins to run 

at the same time the cause of action begins to run against the principal. 
J-S31004-18

- 18 -

Leedom, 647 A.2d at 225. Accordingly, we agree with the trial court’s 

conclusion that Conestoga’s cause of action against Hopkins arose at the same 

time its cause of action against Delancey arose. Decision with Findings of Fact 

and Conclusions of Law, 8/17/17, at ¶ 89. Therefore, as recognized by the 

trial court, the determining factor is when Conestoga’s cause of action against 

Delancey arose. Id.

Preliminarily, we note there are two types of indemnity:

[I]ndemnity claims by a plaintiff against a defendant, where both 

owe a duty to a third party, are “legitimate” indemnity claims and 

are new, separate claims for statute of limitations purposes and 

accrue when the loss occurs. However, indemnity claims by a 

plaintiff against a defendant based only on the defendant’s alleged 

breach of a contractual duty owed to the plaintiff, where the 

defendant owes no duty to a third party, are no different from 

breach of contract claims in which the plaintiff’s payments to the 

third party are the contract damages, and therefore, the ordinary 

contractual statute of limitations applies, and the claims accrue at 

breach, not at the time of payment.

R. Gottlieb and B. Natarelli, Ace in the Hole: Developments Since Ace 

Securities in Residential Mortgage-backed Securities Litigation, 72 Bus. Law.

585 (Spring 2017) (citation omitted). 

The case at hand involves the second type of indemnification, i.e., 

Conestoga sought reimbursement from Delancey based only on Delancey’s 

obligations to Conestoga under the Agency Agreement. Decision with Findings 

of Fact and Conclusions of Law, 8/17/17, at ¶ 90. In Conestoga’s words, “The 

applicable Agency Agreement constituted a binding contract between 

Conestoga and Delancey Abstract.” Joinder Complaint, 12/17/13, at ¶ 35. 
J-S31004-18

- 19 -

This case also involves two components of indemnification arising out of 

Delancey’s negligence: damages payable to a third party and attorney’s fees 

and court costs. Agency Agreement, 4/21/04, at ¶ 5.

Opining that “a claim for indemnification arises only after verdict 

damages have been established,” the trial court concluded that the statute of 

limitations against Delancey began to run “no earlier than November 10, 

2016,” when the trial court found “Delancey was negligent in the issuance of 

title insurance.” Id. at ¶¶ 91–92. However, as stated above, “before 

indemnification rights accrue, the party seeking indemnification must pay the 

claim or verdict damages before obtaining any rights to pursue an 

indemnification recovery.” Beary, 568 A.2d at 193; Chester Carriers, 767 

A.2d at 563. Although the trial court found Conestoga liable to Kessock for 

breach of contract, it also found that Kessock “failed to present sufficient 

competent and credible evidence . . . that he suffered any damages pursuant 

to that breach.” Decision with Findings of Fact and Conclusions of Law, 

8/17/17, at ¶ 77, 78. Therefore, Conestoga’s indemnification rights against 

Delancey for damages payable to a third party did not accrue because 

Conestoga did not pay any damages to Kessock.

As for Conestoga’s claim against Delancey for attorney’s fees and court 

costs, it accrued according to the fee-shifting language of the Agency 

Agreement. The relevant language of the Agency Agreement provides that 

Delancey would be solely liable to Conestoga for all attorney’s fees and court 
J-S31004-18

- 20 -

costs resulting from the negligence of Delancey’s agents, officers, or 

employees in the issuance of title insurance. Agency Agreement, 4/21/04, at 

¶ 5. Necessarily, in order for Delancey to be liable for attorney’s fees and 

costs resulting from its negligence, there must be a finding that Delancey 

was negligent. In this case, that finding occurred when the trial court ruled 

in favor of Conestoga on its cross-claim against Appellants. N.T., 11/10/16, 

at 76. Accordingly, we agree with the trial court that Conestoga’s cause of 

action against Delancey arose on November 10, 2016, with the finding of 

Delaney’s negligence in issuing the title insurance. Decision with Findings of

Fact and Conclusions of Law, 8/17/17, at ¶¶ 77, 91–92. Consequently,

Conestoga’s claim against Hopkins under the Guaranty arose at the same 

time. Leedom, 647 A.2d at 225.

Hopkins signed the Guaranty, not under seal, on April 21, 2004. 

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 14, 15. 

The statute of limitations for a contract not under seal is four years. 42 Pa.C.S. 

§ 5525. Accordingly, Conestoga had to file suit against Hopkins pursuant to 

the Guaranty within four years of the finding of Delancey’s negligence, i.e., on 

or before November 10, 2020. Conestoga filed its joinder complaint on 

December 17, 2013, well before the statute of limitations began to run, let 

alone expire. Thus, we discern no error in the trial court’s conclusion that 

“Conestoga’s claims against Hopkins were brought well within the four-year 
J-S31004-18

- 21 -

statute of limitations.” Decision with Findings of Fact and Conclusions of Law, 

8/17/17, at ¶ 93.

Appellants’ third and final issue challenges the trial court’s refusal to 

reduce the award of $68,887.45 as reasonable attorney’s fees and costs to 

Conestoga on its cross-claim against Appellants. Appellants’ Brief at 30; 

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶¶ 94–103. 

Appellants argue that the amount awarded was unreasonable because: (1) 

Conestoga litigated the dispute for eight years without ascertaining the 

amount of money in dispute; (2) Conestoga litigated the dispute for eight 

years only to admit contractual liability at trial; (3) the trial court failed to 

exclude inadmissible hearsay about attorney charges for individuals who did 

not testify; (4) the trial court failed to exclude charges related to enforcing 

the Agency Agreement; and (5) the trial court failed to exclude amounts billed 

as attorney’s fees for work done by a paralegal. Appellants’ Brief at 31–39.

“Our standard of review of an award of attorney[’s] fees is well settled: 

we will not disturb a trial court’s determinations absent an abuse of discretion. 

A trial court has abused its discretion if it failed to follow proper legal 

procedures or misapplied the law.” Miller v. Miller, 983 A.2d 736, 743 (Pa. 

Super. 2009) (internal citation omitted). The default rule in Pennsylvania is 

that litigants bear responsibility for their own costs and attorney’s fees in the 

absence of express statutory authorization for fee awards, contractual feeshifting, or some other recognized exception. Herd Chiropractic Clinic, P.C. 
J-S31004-18

- 22 -

v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1062 (Pa. 2013).

4

 “[T]he 

interpretation of the terms of a contract is a question of law for which our 

standard of review is de novo, and our scope of review is plenary.” McMullen 

v. Kutz, 985 A.2d 769, 773 (Pa. 2009) (citation omitted). Our Supreme Court 

has held:

The facts and factors to be taken into consideration in determining 

the fee or compensation payable to an attorney include: the 

amount of work performed; the character of the services 

rendered; the difficulty of the problems involved; the importance 

of the litigation; the amount of money or value of the property in 

question; the degree of responsibility incurred; whether the fund 

involved was “created” by the attorney; the professional skill and 

standing of the attorney in his profession; the results he was able 

to obtain; the ability of the client to pay a reasonable fee for the 

services rendered; and, very importantly, the amount of money 

or the value of the property in question.

Id. at 774 (quoting In re Estate of LaRocca, 246 A.2d 337, 339 (Pa. 1968)).

Here, Delancey and Conestoga included a fee-shifting provision in the 

Agency Agreement. Agency Agreement, 4/21/04, at ¶ 5. Following a twoday bench trial on Conestoga’s cross-claim for attorney’s fees, the trial court 

entered the following findings of fact:

48. At the assessment of damages phase of the trial, Conestoga 

presented the testimony of William Parker, Esquire (“Mr. 

Parker”), in-house counsel for Conestoga.

49. The testimony of Mr. Parker was credible and accepted by the 

[c]ourt.

____________________________________________

4

 This rule is known as the “American Rule.” Trizechahn Gateway LLC v. 

Titus, 976 A.2d 474, 482–483 (Pa. 2009).
J-S31004-18

- 23 -

50. Mr. Parker commenced employment with Conestoga in 2009, 

shortly after this civil action was commenced. He was 

principally responsible for managing the matter which is the 

subject of this litigation, including supervising outside counsel 

working on behalf of Conestoga.

51. Mr. Parker has hired outside counsel to represent Conestoga 

and its insureds in connection with multiple claims throughout 

Pennsylvania, and also specifically in Montgomery County, 

Pennsylvania on multiple occasions. He is familiar with the 

rates charged by attorneys in the region, which vary based 

upon their level of experience and familiarity with these types 

of cases.

52. Mr. Clemm and the firm of Morris and Clemm, P.C. 

commenced their representation of Conestoga in March, 

2013. Thereafter, the name of Mr. Clemm’s law firm changed 

to Morris, Clemm and Wilson, P.C. Thereafter, Mr. Clemm 

withdrew from that firm and started a new firm known as 

Clemm and Associates, LLC. Mr. Clemm and the law firms 

with which he was associated continuously represented 

Conestoga in this case from March, 2013 to the present.

53. For this claim, Mr. Parker and other principals of Conestoga 

reviewed, approved of, and paid the bills for legal fees and 

costs submitted by Mr. Clemm and his associates.

54. Mr. Parker was Mr. Clemm’s primary contact at Conestoga, 

and Mr. Clemm provided Mr. Parker with copies of pleadings, 

correspondence and other documents generated and/or filed 

in connection with this case.

55. Mr. Clemm and/or members of his firm also provided Mr. 

Parker with updates concerning the status of the litigation and 

had discussions with Mr. Parker concerning strategy to be 

utilized in this case.

56. At the time that Mr. Clemm and his firm commenced 

representation of Conestoga in this matter, Mr. Parker 

negotiated a reduction in Mr. Clemm’s customary hourly rate 

from $400 to $300 per hour.

57. However, in Mr. Clemm’s first 5 time entries billed to 

Conestoga, Mr. Clemm billed his time at $350 per hour for a 
J-S31004-18

- 24 -

total of 12.2 hours and at $375 for a total of 3 hours. That 

constitutes a total of $632.50 above what Conestoga would 

have paid had Mr. Clemm charged the negotiated rate of $300 

per hour.1

1 These amounts are calculated from Slip IDs 

117960, 118081, 120152, 120984, and 121188 on 

Trial Exhibit D-9.

58. Joshua Knepp, Esquire, worked as an associate for Mr. Clemm 

and provided services to Conestoga in connection with this 

case. Mr. Knepp’s time was charged at the rate of $275 per 

hour, which was an hourly rate approved by Mr. Parker and 

Conestoga.

59. During the time that Mr. Clemm worked on the case for 

Conestoga, Katie M. Clemm also worked on the case. After 

her graduation from law school, but before she was admitted 

to practice in the [Commonwealth] of Pennsylvania, her time 

was charged at the rate of $175 per hour, a rate acceptable 

to Mr. Parker and Conestoga as reflecting a reasonable rate 

charged by a senior, highly experienced paralegal. After Katie 

M. Clemm, Esquire was admitted to practice in the 

Commonwealth of Pennsylvania, her rate remained the same 

at $175 per hour, which was an hourly rate acceptable to Mr. 

Parker and Conestoga as reflecting a reasonable rate charged 

by a young associate with her level of experience.

60. Mr. Clemm testified concerning the services provided by him 

and his associates in connection with the representation of 

Conestoga in this case, including preparing and serving 

various forms of written discovery; reviewing, analyzing and 

summarizing responses to written discovery which had been 

served; preparing, filing and serving various pleadings, 

motions and briefs in support of same; responding to various 

pleadings, motions and briefs filed by other parties in the 

case; performing and/or reviewing legal research at various 

times; identifying, communicating with and preparing various 

expert witnesses for trial; and preparing for and conducting 

the trial in this case.

61. The testimony of Mr. Clemm was credible and was accepted 

by the [c]ourt.
J-S31004-18

- 25 -

62. After Mr. Clemm entered his appearance for Conestoga in this 

case on July 15, 2013, there were over 90 docket entries 

which reflected pleadings, orders and other matters filed in 

this case which required Mr. Clemm’s participation and/or 

attention.

63. For the period from March 25, 2013 through and including 

March 31, 2017, Mr. Clemm and the associates who worked 

with him on this case billed a total of $62,669.95 in attorneys’ 

fees and costs, as reflected on Trial Exhibit D-9.

64. Mr. Clemm and his associates billed additional legal fees of 

$6,850 to prepare for and conduct the damages phase of the 

trial which occurred on May 1, 2017 and May 2, 2017.

65. The total legal fees and costs billed by Mr. Clemm and his 

associates through May 2, 2017 amounted to $69,519.95.

66. Hopkins and Delancey did not produce any fact witnesses or 

otherwise provide any evidence which challenged the 

reasonableness and necessity of the attorney’s fees and costs

billed by Mr. Clemm and his associates in connection with the 

representation of Conestoga in this case, instead relying 

entirely on their cross-examination of Mr. Parker and Mr. 

Clemm.

67. Hopkins and Delancey sought to call Keith Lipman, Esquire, as 

an expert witness to challenge the reasonableness and 

necessity of all attorney’s fees and costs billed by Mr. Clemm 

and his associates in connection with the representation of 

Conestoga in this case.

68. For the last 17 years, Mr. Lipman worked as an information 

technology consultant seeking to assist law firms (especially 

large law firms) in work efficiency, cyber security, and 

practice management.

69. Mr. Lipman practiced law for approximately three years from 

1994 through 1997 as a labor relations associate. Mr. Lipman 

has not practiced law since 1997.

70. Mr. Lipman has never reviewed or analyzed the hourly rates 

charged by attorneys in Montgomery County, Pennsylvania 

and specifically is not aware of rates charged by attorneys in 
J-S31004-18

- 26 -

Montgomery County, Pennsylvania, nor is he aware of rates 

charged by attorneys who defend title insurance companies 

in cases like the present matter.

71. Mr. Lipman has never conducted an audit of a law firm’s bills 

to assess their reasonableness.

72. Mr. Lipman’s office is located in the building owned by 

Hopkins, and he agreed to provide his testimony gratis as a 

favor to Hopkins.

73. Hopkins and Delancey asserted that Mr. Lipman’s testimony 

could assist the [c]ourt in identifying instances of block 

billing. However, Mr. Lipman was not permitted to testify as 

an expert because he had no specialized knowledge which 

would reasonably assist the [c]ourt as the trier of fact in this 

case.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 7–11.

Based on its findings of fact, the trial court entered the following 

conclusions of law:

101. The hourly rates charged by Mr. Clemm and his associates 

were consistent with rates charged by other lawyers in 

Montgomery County, Pennsylvania who provide similar 

types of legal services in similar types of cases.

102. The legal fees and costs billed by Mr. Clemm and his 

associates were necessary in order to defend Conestoga 

against the claims made by Kessock and in order to plead 

and prove the claims made by Conestoga against Delancey 

for recovery of attorney’s fees and costs incurred by 

Conestoga.

103. The amount of $69,519.95 billed by Mr. Clemm and his 

associates is reasonable less the $632.50 Mr. Clemm billed 

above his negotiated rate of $300 per hour.3, 4 Delancey is 

obligated to pay Conestoga the sum of $68,887.45 to 

reimburse Conestoga for the reasonable attorney’s fees and 

costs incurred by Conestoga in this case.
J-S31004-18

- 27 -

3 After nitpicking Mr. Clemm’s bills in ways not 

supported by common sense or case law, Delancey 

asserted that Conestoga should only recover 

$4,067.25 in attorney’s fees. That is, [Appellants] 

argued that the reasonable rate for a law firm to 

represent a client for over four years and 

successfully through trial was only slightly more than 

$1,000 per year of representation. The [c]ourt need 

say no more regarding the absurdity of this 

assertion.

4

 Delancey asserts that the test laid out in Neal v. 

Bavarian Motors, Inc., 882 A.2d 1022, 1032 (Pa. 

Super. 2005) is applicable to this case. Neal lays out 

the facts which should be considered when assessing 

the reasonableness of counsel fees “in a case 

involving a lawsuit which includes claims under the 

UTPCPL (the Unfair Trade Practices and Consumer 

Protection Law).” The factors are: “(1) The time and 

labor required, the novelty and difficulty of the 

questions involved and the skill requisite properly to 

conduct the case; (2) The customary charges of the 

members of the bar for similar services; (3) The 

amount involved in the controversy and the benefits 

resulting to the clients from the services; and (4) 

The contingency or certainty of the compensation.” 

The present matter obviously does not fall under the 

UTPCPL. Moreover, the party who could recover 

attorney’s fees under the UTPCPL would by necessity 

always be the Plaintiff. Therefore, the fourth factor 

clearly makes no sense in the context of a defendant 

requesting attorney’s fees under a contractual 

provision. The third factor is arguably irrelevant as 

well since the defendant has no control over having 

been sued. The defendant cannot simply drop a 

case, even if it deems the amount in controversy to 

be low. Certainly the defendant could attempt to 

settle the case with the plaintiff, but the plaintiff 

could always refuse. Therefore, in the case of an 

intractable plaintiff, a defendant would be forced to 

continue to incur attorney’s fees no matter what it 

deemed the amount in controversy to be. Here, 

[Kessock] asserted that [his] claim was worth more 

than $1,000,000. Therefore, there is no evidence 
J-S31004-18

- 28 -

that [Kessock], who ultimately did proceed with this 

case through trial, would have agreed to settle the 

case for a nominal amount. Notwithstanding the 

foregoing, to the extent this test is applicable to the 

case at bar, the [c]ourt determines that the fees 

requested by Conestoga are reasonable under the 

elements of the Neal test.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 16–17.

On appeal, Appellants complain that Conestoga litigated the dispute for 

eight years without ascertaining the amount of money in dispute, only to admit 

contractual liability at trial. Appellants’ Brief at 31–33. However, the trial 

court assessed attorney’s fees as of Attorney Clemm’s involvement in the 

case, which began in March of 2013, four years after Kessock filed his lawsuit 

against Conestoga. N.T., 5/1/17, at 140. During his representation, Attorney 

Clemm defended Conestoga against Kessock’s claim and pursued Conestoga’s 

cross-claims against Appellants; both lawsuits arose out of the incomplete title 

search. Id. at 113–114. Thus, we discern no merit to Appellants’ first two 

bases for challenging the trial court’s award of attorney’s fees to Conestoga.

Appellants next assail the trial court’s failure to exclude inadmissible 

hearsay about attorney charges for individuals who did not testify, i.e., Joshua 

Knepp (“Attorney Knepp”) and Katie Clemm. Appellants’ Brief at 35. 

Specifically, Appellants contend that the “compilation of individual time entries 

spanning the four years that the Clemm Firm handled this case . . . are 

hearsay within hearsay,” proven for the truth of the matter asserted. Id.

(citing Pa.R.E. 801). Relying on the “recorded recollections” hearsay 
J-S31004-18

- 29 -

exception,5 Appellants argue that, because Attorney Knepp and Katie Clemm 

did not testify at trial, Conestoga failed to prove all charges related to their 

time entries. Id. at 35–36 (citing Pa.R.E. 8803.1(3)). Therefore, Appellants 

conclude, the award of attorney’s fees should be reduced by the amount of 

Attorney Knepp’s and Katie Clemm’s billings. Id. at 36.

In response, Conestoga argues for admissibility of the invoices under an 

exception to the hearsay rule known as “Records of a Regularly Conducted 

____________________________________________

5

 This hearsay exception provides as follows:

The following statements are not excluded by the rule against 

hearsay if the declarant testifies and is subject to crossexamination about the prior statement:

* * *

(3) Recorded Recollection of Declarant-Witness. A 

memorandum or record made or adopted by a declarant-witness 

that:

* * *

(B) was made or adopted by the declarant-witness when the 

matter was fresh in his or her memory; and

(C) the declarant-witness testifies accurately reflects his or her 

knowledge at the time when made.

If admitted, the memorandum or record may be read into 

evidence and received as an exhibit, but may be shown to the jury 

only in exceptional circumstances or when offered by an adverse 

party.

Pa.R.E. 803.1(3).
J-S31004-18

- 30 -

Activity.” Conestoga’s Brief at 26 (citing Pa.R.E. 803(6)).

6

 According to 

Conestoga, Attorney Clemm was “an authenticating witness” who provided 

“sufficient information relating to the preparation and maintenance of the 

records to justify a presumption of trustworthiness for the business records of 

a company.” Id. (citing U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 401 

(Pa. Super. 2015)).

Upon review of the record, we observe that, at trial, Appellants objected 

to the admission of any evidence related to Attorney Knepp’s time; however, 

they did not object to evidence related to Katie Clemm’s time. N.T., 5/1/17, 

at 40–42. Therefore, Appellants’ challenge to the admissibility of evidence of 

____________________________________________

6 Rule 803(6) permits the admission of a recorded act, event or condition if:

(A) the record was made at or near the time by—or from 

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted 

activity of a “business”, which term includes business, institution, 

association, profession, occupation, and calling of every kind, 

whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification that 

complies with Rule 902(11) or (12) or with a statute permitting 

certification; and

(E) neither the source of information nor other circumstances 

indicate a lack of trustworthiness.

Pa.R.E. 803(6). 
J-S31004-18

- 31 -

Katie Clemm’s time is waived. See Folger v. Dugan, 876 A.2d 1049 (Pa. 

Super. 2005) (challenge to admissibility based upon improper authentication 

is waived where party failed to object on that basis at trial). 

As to the evidence of Attorney Knepp’s time, we conclude that Attorney 

Clemm proved the criteria for admission of his firm’s invoices under Pa.R.E. 

803(6). The record confirms that Attorney Clemm was president of the law 

firms that represented Conestoga. N.T., 5/1/17, at 116. His associate, 

Attorney Knepp, used the Time Slips program for recording time “every six 

minutes of every hour of every day that they worked on a case.” Id. at 115, 

131. Attorney Clemm supervised Attorney Knepp’s work on this case, and he 

reviewed Attorney Knepp’s time records on a monthly basis. Id. at 116, 134–

135, 142–143. The records were then submitted to the bookkeeper who 

generated the worksheets. Id. at 115, 137. Once Attorney Knepp reviewed 

the worksheets for accuracy, the bookkeeper generated invoices and sent 

them to the client. Id. at 116, 135, 137–138. Nothing in the record indicates 

a lack of trustworthiness in the source of information or other circumstances.

Pa.R.E. 803(6)(E). Moreover, the trial court made a credibility determination 

as to Attorney Clemm’s testimony, and we detect no reason to disturb it. 

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at ¶ 61. 

Based on the foregoing, we discern no merit to Appellants’ claims that the trial 

court abused its discretion in admitting all of the attorney invoices in support 

of Conestoga’s claim for attorney’s fees.
J-S31004-18

- 32 -

Appellants further assail the trial court’s failure to exclude charges 

related to enforcing the Agency Agreement. Appellants’ Brief at 37. We 

dispose of this issue by adopting as our own the well-reasoned analysis of the 

trial court:

2

 Delancey argues that attorney’s fees attributable 

to enforcement of the Agency Agreement itself 

should be interpreted as excluded from [paragraph 

5]. The [c]ourt, however, is not persuaded. First, 

the plain language of the contract does not so limit 

the recovery of attorney’s fees. Fees related to 

enforcement of the Agency Agreement by definition 

“result from” Delancey and its agents’ negligence. 

But for Delancey’s agents’ negligence, Conestoga 

would not have incurred legal fees enforcing its 

agreement with Delancey.

Delancey cites only two cases to buttress their 

argument, Twnshp of Millcreek v. Angela Cres Trust 

of June 25, 142 A.3d 98, 956 (Pa. Commwlth. 2016); 

Neal v. Bavarian Motors, Inc., 882 A,2d 1022, 1032 

(Pa. Super. 2005). However, both cases are readily 

distinguishable from the present matter. These 

cases relate to statutory attorney’s fees as opposed 

to attorney’s fees provided for in a contract. This is 

important, because in both cases, the court held that 

the attorney’s fees sought were not actually 

provided for in each statute. In Twnshp of Millcreek, 

attorney’s fees were not awarded because the bills 

submitted for reimbursement were pursuant to a 

proceeding for which reimbursement of attorney’s 

fees was not provided for by statute. Twnshp of 

Millcreek v. Angela Cres Trust of June 25, 142 A.3d 

948, 956 (Pa. Commwlth. 2016). Similarly, in Neal, 

attorney’s fees were not awarded because they were 

sought under a cause of action for which 

reimbursement of attorney’s fees was not provided 

for by statute. Neal v. Bavarian Motors, lnc., 882

A.2d 1022, 1032 (Pa. Super. 2005). In short, 

Delancey has presented no case law which would 
J-S31004-18

- 33 -

cause this [c]ourt to look past the clear wording of 

the Agency Agreement.

Decision with Findings of Fact and Conclusions of Law, 8/17/17, at 16 n.2.

Finally, Appellants complain that the trial court failed to exclude 

amounts billed as attorney’s fees for work done by a paralegal. Appellants’ 

Brief at 39. Appellants contend as follows:

Conestoga expended $3,412.50 for the activities of Katie 

McKenzie Clemm between March 26, 2015 and October 13, 2015. 

Ms. Clemm’s time was charged at an hourly rate of $175.00. Ms. 

Clemm’s name appears under the title of “Lawyer” at the header 

of each description.

However, Ms. Clemm was not admitted to the practice of 

law in Pennsylvania until October 19, 2015. After Ms. Clemm’s 

admission to the bar of Pennsylvania, her time was charged at the 

same hourly rate of $175.00.

The entire amount of $3,412.50 falsely billed as attorney 

time for an individual not licensed to practice law in Pennsylvania 

should be deducted from amounts attributable to [Appellants].

Appellants’ Brief at 39 (citations to reproduced record omitted).

Conestoga counters that Ms. Clemm’s paralegal rate of $175 per hour 

“reflect[ed] a reasonable rate charged by a senior, highly experienced 

paralegal. After Ms. Clemm was admitted to practice in the Commonwealth 

of Pennsylvania, her rate remained at the same rate of $175 per hour which 

reflected a reasonable rate charged by a young associate with her level of 

experience.” Conestoga’s Brief at 31 (citing N.T., 5/1/17, at 117).

The crux of Appellants’ argument is that Ms. Clemm’s status was 

misrepresented under the heading of “Lawyer” while she was still a paralegal. 
J-S31004-18

- 34 -

N.T., 5/1/17, at Exhibit D-9. In light of the record before us, we consider this 

argument disingenuous. At the trial on damages, William Parker, Conestoga’s 

Vice President of Claims and Underwriting, testified that his negotiations with 

Attorney Clemm’s firm for representation “took into account whether it’s a 

billing for a paralegal, whether it’s a billing for an attorney.” Id. at 72–73. 

He further testified that part of Conestoga’s original memorandum of 

understanding with Clemm and Associates “was that [Ms. Clemm] would be 

working on the case as well at the hourly rate of [$]175.” Id. at 73. 

Conestoga considered the bills received from Attorney Clemm’s firm to be fair 

and reasonable. Id. at 74. 

Additionally, Attorney Clemm described Ms. Clemm’s status as follows:

And also [Ms. Clemm] working at the firm as well. I think 

[she] started working on the file in March of 2015. And in my 

estimation, it was appropriate to bill [her] out at $175 an hour at 

that time. Because as a third year law student you were far more 

experienced than any paralegal would have been under similar 

circumstances. So the $175 an hour was a rate which reflected 

that.

And after [she] passed the bar, I think in October of 2015, 

then I elected not to increase [her] rate because [she was] being 

at that point slightly underpaid as a first year associate in terms 

of the hourly rate being charged. But I thought it was appropriate 

to continue that particular rate, based upon [her] age, experience, 

et cetera. And that was something which was approved by the 

company, it was understood by the company and agreed to by the 

company.

N.T., 5/1/17, at 117–118. As observed above, the trial court considered 

Attorney Clemm’s testimony to be credible, and we detect no basis on which 

to overrule its determination. Decision with Findings of Fact and Conclusions 
J-S31004-18

- 35 -

of Law, 8/17/17, at ¶ 61. Therefore, we discern no merit to Appellants’ final 

basis for challenging the award of attorney’s fees.

In sum, Appellants have failed to persuade us that the trial court erred 

in finding in favor of Conestoga on its cross-claim for attorney’s fees pursuant 

to the Agency Agreement and the Guaranty. Therefore, we affirm the entry 

of judgment against Appellants.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/18