J-A08013-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

KEYSTONE CARE ADMINISTRATIVE 

SERVICES, INC.,

 Appellee

v.

BRUCE GROSSINGER, D.O.,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

No. 1051 EDA 2015

Appeal from the Judgment Entered March 12, 2015

in the Court of Common Pleas of Montgomery County 

Civil Division at No(s): 06-04049

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED NOVEMBER 21, 2016

I join the Majority’s proficient resolution of all issues in this appeal 

save one: the award of counsel fees based upon the contract’s 

indemnification provision.

“Pennsylvania generally adheres to the American Rule, under which a 

litigant cannot recover counsel fees from an adverse party unless there is 

express statutory authorization, a clear agreement of the parties, or some 

other established exception.” Samuel-Bassett v. Kia Motors Am., Inc., 

34 A.3d 1, 56–57 (Pa. 2011) (citation and internal quotation marks omitted; 

emphasis added). The question here is whether the indemnification clause 
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at issue is a clear agreement to shift fees to the losing party in an action 

between the contracting parties for breach of the contract.

The Majority correctly notes that the agreements provide that the 

section headings shall not affect construction of the provisions. Majority 

Memorandum at 24. However, it is also true that 

[i]n construing a contract each and every part of it must 

be taken into consideration and given effect, if possible, and the 

intention of the parties must be ascertained from the entire 

instrument. ... The court will adopt an interpretation that is 

most reasonable and probable bearing in mind the objects which 

the parties intended to accomplish through the agreement.

Wrenfield Homeowners Ass'n, Inc. v. DeYoung, 600 A.2d 960, 963 (Pa. 

Super. 1991) (internal quotation marks and citations omitted). 

The provision at issue relates to indemnification. “An agreement to 

indemnify is an obligation resting upon one person to make good a loss 

which another has incurred or may incur by acting at the request of the 

former, or for the former’s benefit.” Burlington Coat Factory of 

Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 

1022 (Pa. Super. 2015) (citation and internal quotation marks omitted; 

emphasis added). 

A fairly common scenario involving use of an indemnification 

agreement is for a contractor performing work at a site to indemnify the 

premises owner for damages it was required to pay to a person injured on 

the premises as a result of the contractor’s negligence. See, e.g., 
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Bernotas v. Super Fresh Food Markets, Inc., 863 A.2d 478, 479 (Pa. 

2004) (noting general contractor’s indemnification of grocery store following 

settlement of case against the store by a patron who fell into a hole in the 

construction area). Such a provision in the contract at issue in this appeal 

makes sense: KCAS would not want to be on the hook if, for example, one of 

the claimants it sent to Physician was injured while Physician was performing 

an IME of the claimant. 

However, clauses requiring a losing party to a contract dispute to pay 

the other side’s attorney’s fees usually look very different. A typical 

contractual fee-shifting provision reads as follows:

If either party breaches any provision of this Agreement, the 

other party shall have the right, at his or her election, to sue for 

damages for such breach or seek such other remedies or relief 

as may be available to him or her, and the party breaching this 

contract shall be responsible for payment of legal fees and costs 

incurred by the other in enforcing their rights under this 

Agreement.

McMullen v. Kutz, 985 A.2d 769, 771 (Pa. 2009) (citation and internal 

quotation marks omitted). See also Bayne v. Smith, 965 A.2d 265, 269 

(Pa. Super. 2009) (“Attorney’s Fees. The prevailing party in an action 

brought for the recovery of rent or other money’s [sic] due or to become 

due under this lease or by reason of a breach of any covenant herein 

contained or for the recovery of the possession of said premises, or to 

compel the performance of anything agreed to be done herein, or to recover 

for damages to said property, or to enjoin any act contrary to the provisions 
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hereof, shall be awarded all of the costs in connection therewith, including, 

but not by way of limitation, reasonable attorney’s fees.”) (emphasis, 

citation, and internal quotation marks omitted); Trizechahn Gateway LLC 

v. Titus, 976 A.2d 474, 482 (Pa. 2009) (“The Tenant agrees to pay a 

reasonable attorney’s fee if legal action is required to enforce performance 

by Tenant of any condition, obligation or requirement hereunder.”).

In this action involving sophisticated parties who surely knew how to 

draft a standard fee-shifting provision, I would hold that the trial court erred 

in concluding that there was a clear agreement of the parties that one of 

them could recover attorney’s fees from the other for litigation stemming 

from breach of the contract. 

Therefore, I respectfully dissent to that portion of the Majority 

Memorandum that affirms the award of attorney’s fees to KCAS.