J-A06020-20

2020 PA Super 160

MICHAEL F. SZWERC, M.D.,

Appellant

v.

LEHIGH VALLEY HEALTH NETWORK, 

INC. D/B/A LEHIGH VALLEY 

NETWORK; LEHIGH VALLEY 

HOSPITAL, INC., D/B/A LEHIGH 

VALLEY HEALTH NETWORK AND 

LEHIGH VALLEY HEART AND LUNG 

SURGEONS; LEHIGH VALLEY 

PHYSICIAN GROUP, AFFILIATED 

WITH THE LEHIGH VALLEY HEALTH 

NETWORK D/B/A LEHIGH VALLEY 

PHYSICIAN GROUP AND LEHIGH 

VALLEY HEART AND LUNG 

SURGEONS; SPECIALTY PHYSICIANS 

OF LVHN, P.C. D/B/A LEHIGH VALLEY 

HEART AND LUNG SURGEONS; 

MICHAEL D. PASQUALE, M.D.; 

MICHAEL A. ROSSI, M.D.; AND 

THOMAS V. WHALEN, M.D.,

Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2500 EDA 2019

Appeal from the Order Entered August 5, 2019

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): No. 2014-C-3230

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.: FILED JULY 08, 2020

Appellant, Michael F. Szwerc, M.D., appeals from the order entered in 

the Lehigh County Court of Common Pleas, which denied Appellant’s postappeal motion for attorneys’ fees and costs in this breach of employment 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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contract action against Appellees, Lehigh Valley Health Network, Inc. d/b/a

Lehigh Valley Network; Lehigh Valley Hospital, Inc., d/b/a Lehigh Valley Health

Network and Lehigh Valley Heart and Lung Surgeons; Lehigh Valley Physician

Group, affiliated with the Lehigh Valley Health Network d/b/a Lehigh Valley

Physician Group and Lehigh Valley Heart and Lung Surgeons; Specialty

Physicians of LVHN, P.C. d/b/a Lehigh Valley Heart and Lung Surgeons; 

Michael D. Pasquale, M.D.; Michael A. Rossi, M.D.; and Thomas V. Whalen, 

M.D. We affirm. 

In its opinion, the trial court accurately sets forth the relevant facts and 

procedural history of this case as follows:

Appellant was employed by Appellees from June 9, 2009,

until September 12, 2014, at which point his employment 

was terminated. Appellant filed this lawsuit on October 7, 

2014. After the case proceeded through discovery, 

Appellant filed a Motion for Partial Summary Judgment on 

October 13, 2015. This [c]ourt reviewed that motion and 

entered an Order with an accompanying Memorandum 

Opinion which granted summary judgment in favor of 

Appellant and determined that as a matter of law, Appellees 

breached Appellant’s employment contract.

The wage loss damages at issue in this case totaled 

$70,590.47. However, because this matter was brought 

under Pennsylvania’s Wage Payment and Collection Law[, 

43 P.S. §§ 260.1-260.12] (“WPCL”), which specifically 

permits the recovery of “reasonable attorneys’ fees of any 

nature to be paid by the defendant,” 43 P.S. § 260.9a(f), 

the [c]ourt also had to assess a reasonable amount of 

attorneys’ fees. Despite the amount in controversy being 

fairly limited, Appellant’s counsel billed for 1,450 hours of 

legal work, resulting in a total sum of $396,058.50. 

The [c]ourt conducted a non-jury trial over the course of 

several non-consecutive days. On January 20, 2017, the 
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[c]ourt entered an Order awarding $70,590.47 to Appellant, 

as well as $305,053.07 in attorneys’ fees. In reaching this

sum, the [c]ourt reviewed hundreds of pages of billing 

statements and deducted charges that were duplicative, 

excessive, unnecessary, or otherwise unrelated to litigating 

the case under the WPCL. Of relevant note, the [c]ourt 

mistakenly directed [Appellee] Lehigh Valley Hospital, Inc. 

to pay the damages.

Both parties filed Post-Trial Motions on January 30, 2017. 

On February 17, 2017, the [c]ourt entered an Order with a 

Memorandum Opinion. The February 17, 2017 Order denied 

Appellees’ Motion for Post-Trial Relief and for a New Trial. 

The Order granted in part Appellant’s Post Trial Motion and 

amended the amount of legal fees awarded in the January 

20, 2017 Order to $389,584.50.

On March 20, 2017, Appellees filed a Notice of Appeal.

Appellant filed a Notice of Appeal on March 30, 2017. Both 

sides timely flied Concise Statements of Matters Complained

of on Appeal. 

On May 16, 2017, the [c]ourt conducted a settlement 

conference at the request of defense counsel to discuss a 

proposed withdrawal of the parties’ appeals. ... During this 

conference, counsel for Appellees also put on the record that 

“one of the reasons for appeal [is] that it’s not [Appellee 

Lehigh Valley Hospital] who is the employer, but it’s 

[Appellee Lehigh Valley Physician Group].” The parties were 

unable to reach an agreement, and the matter proceeded 

on appeal to the Pennsylvania Superior Court. 

On May 26, 2017, the [c]ourt entered its Pa.R.A.P. 1925(a) 

Opinion. In that Opinion, ...the [c]ourt explained that 

because it found that the individually-named Appellees 

acted in good faith in their capacity as corporate officers, 

the judgment should not have been entered against them. 

The Opinion went on to state, “For those reasons, the 

[c]ourt’s Order of January 20, 2017 should be remanded in 

order to properly identify Lehigh Valley Physician Group as 

the [Appellee] against which the judgment on the breach of 

contract has been entered.” 

On June 13, 2018, the Pennsylvania Superior Court affirmed 
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this [c]ourt’s judgment in all respects, including affirming 

the decision granting summary judgment and affirming the 

orders awarding a reduced amount of attorneys’ fees. 

Szwerc v. Lehigh Valley Hospital et al., [193 A.3d 1073 

(Pa.Super. 2018)] (unpublished memorandum). The 

Superior Court specifically addressed the request for a 

remand as follows:

The trial court requests remand for its January 20, 

2017 order to be amended to “properly identify Lehigh 

Valley Physician Group as the [Appellee] against 

which judgment on the breach of contract has been 

entered.” We deem that order so amended by virtue 

of this memorandum.

Id. at 3 (citation omitted).

On September 20, 2018, the parties filed a Joint Petition to 

Substitute Judgment consistent with the Superior Court’s 

Order. The [trial c]ourt granted that petition on September 

21, 2018.

On April 4, 2019, Appellant filed the instant Motion for 

Attorney’s Fees and Costs Incurred in Appeal and Collection 

of Judgment. Appellant is seeking an additional award of

$156,356.84 in attorneys’ fees and costs stemming from 

pursuing the appeal and collecting on the judgment based 

on Appellant’s assertion that [Appellees] “would not

voluntarily satisfy the Judgment following its loss at the 

Superior Court level.”

After corresponding with [c]ourt staff, counsel agreed to 

stipulate to the authenticity—but not legal merit—of 

invoices submitted by Appellant’s counsel for the [c]ourt’s 

consideration. [On June 10, 2019, Appellant filed a 

supplement to his April 4, 2019 motion, requesting 

additional attorneys’ fees and costs incurred in litigating the

April 4, 2019 motion for fees]. The [c]ourt heard legal 

argument on June 12, 2019, and took the matter under 

advisement.

On August 5, 2019, the [c]ourt entered an Order and a 

Memorandum Opinion denying Appellant’s motion. 
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Appellant [timely] filed the instant appeal on August 26, 

2019. Appellant timely filed a [court-ordered] Concise

Statement of Matters Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b) on September 16, 2019.

(Trial Court Opinion, filed September 23, 2019, at 3-6) (internal citations to 

record omitted). 

Appellant raises one issue for our review:

Did the Trial Court err in denying []Appellant, Michael F. 

Szwerc, M.D.’s, Motion for Attorney’s Fees and Costs 

Incurred in Appeal and Collection of Judgment on the basis 

that such Motion was untimely and/or that the Trial Court 

lacked jurisdiction to consider same?

(Appellant’s Brief at 5). 

Appellant argues the WPCL does not impose a time limitation on an 

employee judgment winner’s request for attorneys’ fees and costs. Appellant 

avers the trial court incorrectly reasoned his current motion for attorneys’ fees 

was untimely, and deprived the court of jurisdiction to consider the motion,

under 42 Pa.C.S.A. § 5505. Appellant submits he could not have filed his 

request for counsel fees and costs within 30 days of September 21, 2018 (the 

date of the substituted judgment), because in that timeframe, Appellant could 

not have known whether Appellees would file a petition for reargument in this 

Court, file a petition for allowance of appeal in our Supreme Court, and/or fail 

to satisfy the judgment. 

Appellant also claims the cases on which the trial court relied are 

factually distinguishable from the instant case because they did not involve 

the fee-shifting provision of the WPCL. Rather, Appellant relies on Township 
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of Millcreek v. Angela Cres Trust of June 25, 1998, 142 A.3d 948 

(Pa.Cmwlth. 2016), appeal denied, 641 Pa. 227, 166 A.3d 1236 (2017). In 

that case, Appellant maintains the Commonwealth Court held that the Section 

5505 time-bar did not apply to render untimely a motion for attorneys’ fees

filed in conjunction with a fee-shifting provision of the Pennsylvania Eminent 

Domain Code. Further, Appellant contends the trial court’s reliance on Section 

5505 is misplaced because Appellant did not seek attorneys’ fees via a request 

to modify any order. Appellant concludes his fee petition was filed in a timely 

manner, and this Court should reverse and remand for the trial court to 

consider Appellant’s request for attorneys’ fees, costs, and expenses, 

including those incurred litigating the current appeal. We disagree. 

Initially, we observe that “[t]rial courts have great latitude and 

discretion in awarding attorney fees when authorized by contract or statute. 

Generally, [t]he denial of a request for attorneys’ fees is a matter within the 

sound discretion of the trial court, which will be reversed on appeal only for a 

clear abuse of that discretion.” Generation Mortg. Co. v. Nguyen, 138 A.3d 

646, 649 (Pa.Super. 2016) (internal citations omitted). Whether a trial court 

had jurisdiction to act on a fee petition, however, is a question of law as to 

which our standard of review is de novo and our scope of review is plenary. 

Mazur v. Trinity Area School District, 599 Pa. 232, 961 A.2d 96 (2008).

Section 2503 of the Judicial Code expressly authorizes a litigant’s 

entitlement “to a reasonable counsel fee as part of the taxable costs of the 
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matter” to a participant “in such circumstances as may be specified by statute 

heretofore or hereafter enacted.” 42 Pa.C.S.A. § 2503(10). Taxable costs, 

such as counsel fees per Section 2503, “are generally payable incident to a 

final judgment, i.e., after termination of the action by...final disposition.” 

Miller Elec. Co. v. DeWeese, 589 Pa. 167, 175, 907 A.2d 1051, 1056 

(2006).

The WPCL includes a fee-shifting provision regarding awards of counsel 

fees and costs, as follows:

§ 260.9a. Civil remedies and penalties

* * *

(f) The court in any action brought under this section 

shall, in addition to any judgment awarded to the plaintiff or 

plaintiffs, allow costs for reasonable attorneys’ fees of any 

nature to be paid by the defendant.

* * *

43 P.S. § 260.9a(f). A successful WPCL claimant is also entitled to attorneys’ 

fees incurred on appeal. Ambrose v. Citizens Nat. Bank of Evans City, 5 

A.3d 413, 424–25 (Pa.Super. 2010), appeal denied, 610 Pa. 582, 19 A.3d 

1049 (2011).

Section 5505 of the Judicial Code sets forth the jurisdictional window of 

time in which trial courts retain jurisdiction after entry of a final order: 

§ 5505. Modification of orders

Except as otherwise provided or prescribed by law, a court 

upon notice to the parties may modify or rescind any order 

within 30 days after its entry, notwithstanding the prior 
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termination of any term of court, if no appeal from such 

order has been taken or allowed.

42 Pa.C.S.A. § 5505. Pursuant to Section 5505, “[a] trial court’s jurisdiction 

generally extends for thirty days after the entry of a final order.... After the 

30-day time period, the trial court is divested of jurisdiction.” Freidenbloom 

v. Weyant, 814 A.2d 1253, 1255 (Pa.Super. 2003), overruled in part on other 

grounds by Miller Elec. Co., supra. Where the litigant files a motion for 

counsel fees under Section 2503 after entry of a final order, Section 5505 

requires the litigant to do so within 30 days of the entry of a final order; the 

trial court lacks jurisdiction to consider a fee motion filed beyond the 30-day 

period. See Freidenbloom, supra (vacating as nullity trial court order 

granting Section 2503 motion for counsel fees filed 36 days after final order). 

Relatedly, Rule of Appellate Procedure 1701 enumerates the actions a 

trial court has authority to perform once a litigant initiates an appeal:

Rule 1701. Effect of Appeal Generally

(a) General rule. Except as otherwise prescribed by 

these rules, after an appeal is taken..., the trial court...may 

no longer proceed further in the matter. 

(b) Authority of a trial court or agency after appeal. 

After an appeal is taken..., the trial court...may:

(1) Take such action as may be necessary to preserve the 

status quo, correct formal errors in papers relating to the 

matter, cause the record to be transcribed, approved, filed 

and transmitted, grant leave to appeal in forma pauperis, 

grant supersedeas, and take other action permitted or 

required by these rules or otherwise ancillary to the appeal

or petition for review proceeding. 
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Pa.R.A.P. 1701(a), (b)(1). A petition for counsel fees under Section 2503 “is 

not a separate suit for fees, but rather, a matter that is connected but ancillary 

to the underlying action.” Miller Elec. Co., supra at 176, 907 A.2d at 1057. 

“Therefore, if the petition for counsel fees is timely filed, the trial court is 

empowered to act on it [under Rule 1701(b)(1)] after an appeal was taken.” 

Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 450, 34 A.3d 

1, 48 (2011), cert. denied, 567 U.S. 935, 133 S.Ct. 51, 183 L.Ed.2d 677 

(2012) (emphasis added).

In Ness v. York Tp. Bd. Of Com’rs, 123 A.3d 1166 (Pa.Cmwlth. 2015), 

the Commonwealth Court considered the interplay of Section 5505 and a fee 

petition under Section 2503. The Commonwealth Court explained:

1

The filing of an appeal...does not divest the trial court of 

jurisdiction over...a motion for counsel fees. Because the 

trial court retained jurisdiction over the separate issue of 

counsel fees, [the] filing of [an appeal] did not prevent [the] 

timely filing [of a] request for counsel fees on or before 

[expiration of 30 days from entry of the final order].

* * *

...Miller Electric Co. does not hold that an appeal extends 

the 30–day period after the trial court’s final order in which 

a party must file a motion for counsel fees. In Miller 

Electric Co., the motion for counsel fees was filed before

the final judgment, and the issue was whether the final 

judgment on other issues prevented a later ruling on the 

____________________________________________

1 Although this Court is not bound by decisions of the Commonwealth Court, 

“such decisions provide persuasive authority, and we may turn to our 

colleagues on the Commonwealth Court for guidance when appropriate.” 

Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010), appeal 

denied, 608 Pa. 648, 12 A.3d 371 (2010).
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counsel fee motion and a timely appeal from the denial of 

counsel fees, ...not whether a counsel fee motion can be filed 

in a trial court where nothing in the case is pending, long 

after final judgment, simply because it is within 30 days 

after completion of an appeal. ... 

* * *

Any implication in Miller Electric Co. that a motion for 

counsel fees is not ripe and cannot be filed and granted 

before the completion of appeals is also negated by our 

Supreme Court’s later decisions. In Old Forge School 

District,[ 592 Pa. 307, 924 A.2d 1205 (2007),] the 

Supreme Court held that this [c]ourt as trial court properly 

addressed a motion for counsel fees under 42 Pa.C.S.[A.] § 

2503(9), even though an appeal from the underlying final 

order was pending that could have changed the movant’s 

status as a prevailing party. [Old Forge School Dist., 

supra at 316-17,] 924 A.2d at 1211. See also Samuel–

Bassett[, supra at 450-52,] 34 A.3d at 48–49 (trial court 

had authority to award...counsel fees to plaintiffs as 

prevailing parties on statutory claim that provided for 

counsel fees while appeal of the merits was pending).

Moreover, ... [d]elay in filing a motion for counsel fees while 

an underlying appeal is pending denies the trial court the 

opportunity to consider the fee request at a time when the 

court is familiar with the case and issues. ... [A 

determination otherwise] would permit the filing of a motion 

for counsel fees years after the events and conduct for which 

fees are sought.

Ness, supra at 1170-71 (holding trial court lacked jurisdiction to act on 

Township’s petition for sanctions seeking counsel fees under Section 2503, 

where Township did not file petition within 30 days of trial court’s final order). 

Instantly, the trial court addressed the timeliness of Appellant’s April 4, 

2019 motion for attorneys’ fees in part as follows:

In this case, the fees at issue stemmed from pursuit of an 

appeal and Appellant’s alleged efforts to collect the 
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judgment awarded by the [trial c]ourt. Appellant’s motion 

was filed nine months after the Superior Court’s 

[disposition] and six months after the matter was effectively 

resolved [by entry of the substituted judgment]. ... 

[A]uthorization for a[n] appellant to recover attorneys’ fees 

incurred in an appeal pursued by the appellant must be 

balanced against the need to bring finality to litigation under 

Section 5505 of the Judicial Code. ...

On September 21, 2018, the Court entered an agreed-upon 

Order directing the Clerk of Judicial Records to substitute 

the judgment entered “against [Appellee] Lehigh Valley 

Hospital to instead be entered against [Appellee] Lehigh 

Valley Physicians Group, Affiliated with the Lehigh Valley 

Health Network, d/b/a Lehigh Valley Physician Group...and 

no longer against [Appellee] Lehigh Valley Hospital, Inc., 

pursuant to and in accordance with the June 13, 2018

Memorandum Opinion of the Superior Court....” 

The September 21, 2018 Order went on to direct [Appellee]

Lehigh Valley Physician Group to “issue payment to 

Appellant in the full amount of $515,527.83 less any 

applicable tax withholdings on the wages awarded, which 

the parties, as evidenced by their signatures below, hereby 

expressly acknowledge and agree represents the total 

Wages, Pre-Judgment and Post-Judgment interest on the 

March 22, 2017 Judgment owed to Appellant.” While the 

language of the Order did not expressly refer to counsel 

fees, the amount of the award clearly included the amount 

of attorneys’ fees awarded by the [c]ourt in this case.

In his [current] motion for counsel fees, Appellant argued 

that he should be awarded “the attorneys’ fees and costs he 

incurred in protecting his award of unpaid wages at the 

appellate level, in attempting to collect on the Judgment 

which was upheld by the Superior Court, and in 

subsequently presenting and establishing his request for 

fees incurred in connection with same.” While the [c]ourt 

was cognizant of the fact that Section 260.9a of the WPCL 

does not expressly establish a time period within which 

attorneys’ fees must be sought, Section 5505 of the 

Judiciary Code imposes a thirty-day limitation, which also 

divests the court of jurisdiction to act after the expiration of 

that period except to correct patent or obvious errors.
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In this case, the Superior Court entered its decision on June 

13, 2018. As noted above, the Superior Court did not 

remand the case as this [c]ourt requested.... Rather, the 

Superior Court exercised its authority to simply amend this 

[c]ourt’s Order without the need to go through a remand in 

order for this [c]ourt to make the correction. Szwerc[, 

supra 193 A.3d 1073, *1] ([stating:] “The trial court 

requests remand for its January 20, 2017 order to be 

amended to ‘properly identify Lehigh Valley Physician Group 

as the [Appellee] against which judgment on the breach of 

contract has been entered.’ We deem that order so 

amended by virtue of this memorandum”). Therefore, as of 

June 13, 2018, the judgment was corrected to be entered 

against [Appellee] Lehigh Valley Physician Group.

When the parties stipulated to the entry of an order in 

September of 2018 which included attorneys’ fees, and 

there was not any further appeal or relief sought within 

thirty days, the [trial c]ourt was divested of jurisdiction to 

act further in this matter. ... If Appellant wished to pursue

a claim for attorneys’ fees stemming from the litigation or 

any dispute resolving collection of the judgment pursuant to 

the WPCL, he could have raised that claim within that time 

period. Instead, he waited over six months to file the 

instant motion. The [c]ourt no longer had jurisdiction to 

entertain Appellant’s request.

(Trial Court Opinion at 9-12) (internal citations, emphasis, and footnotes 

omitted). We agree with the trial court’s conclusion. 

Regardless of whether June 13, 2018, or September 21, 2018, 

constitutes the date of entry of the “final order” on the merits in the underlying 

WPCL action, Appellant failed to file a motion for attorneys’ fees within 30 days 

of either date. Instead, Appellant filed the current request for fees on April 4, 

2019, ten months after this Court’s June 13, 2018 disposition and nearly six 

months after the trial court’s September 21, 2018 substituted judgment. 
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Although Appellant claims that Section 5505 of the Judicial Code does not 

apply in this case, Pennsylvania law has repeatedly applied the 30-day time 

restriction under Section 5505 to requests for attorneys’ fees under Section 

2503. See Samuel-Bassett, supra; Old Forge School Dist., supra; Miller 

Elec. Co., supra. 

Both Judicial Code Section 5505 and Rule of Appellate Procedure 1701 

deprived the trial court of jurisdiction to consider Appellant’s fee motion, 

arguably, 30 days after June 13, 2018, and definitively 30 days after 

September 21, 2018. See Samuel-Bassett, supra; Old Forge School 

Dist., supra; Miller Elec. Co., supra; Freidenbloom, supra. That either 

party could have appealed from either the June 13, 2018 disposition or 

September 21, 2018 substituted judgment did not impede Appellant’s ability 

to file and the trial court’s authority to consider a timely motion for attorneys’ 

fees.2 See Samuel-Bassett, supra; Old Forge School Dist., supra; Ness, 

____________________________________________

2 Appellant’s reliance on Township of Millcreek, supra is inapposite. In that 

case, the Commonwealth Court relied upon the specific language in the 

Eminent Domain Code to conclude that fee requests under that statute are 

not subject to the 30-day period under Section 5505. In making its decision, 

the Commonwealth Court explained, inter alia, the Eminent Domain Code is 

the “complete and exclusive procedure and law to be followed in condemnation 

proceedings.” Id. at 955. Thus, Section 5505, which applies “except as 

otherwise provided or prescribed by law,” could not restrict a condemnee’s 

request for fees incurred in defeating the condemnation, where the Eminent 

Domain Code provided no specific time limit regarding fee requests. Id. The 

Commonwealth Court further noted the lack of symmetry between the Judicial 

Code and the Eminent Domain Code, which “makes Section 5505 of the 

Judicial Code irrelevant to fee petitions filed under the Eminent Domain Code.” 
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supra. 

Furthermore, judicial policy requires finality in proceedings and cannot 

permit a litigant to prolong the case indefinitely by filing a motion for 

attorneys’ fees at any time. See Ness, supra. Based upon the foregoing, 

the trial court correctly concluded it lacked jurisdiction to consider Appellant’s 

untimely motion for attorneys’ fees. See Generation Mortg. Co., supra. 

Accordingly, we affirm.3

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2020

____________________________________________

Id. at 955-56. Here, the WPCL does not contain similar statutory language

to the Eminent Domain Code, or a similar lack of symmetry to the Judicial 

Code, to bar application of Section 5505.

3 Based on our disposition, we deny as moot Appellant’s request for remand

for the trial court to consider Appellant’s request for attorneys’ fees, costs, 

and expenses, including those incurred litigating the current appeal.