J-A15035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHMOND & HEVENOR, ATTORNEYS AT                IN THE SUPERIOR COURT OF
LAW                                                   PENNSYLVANIA

                          Appellants

                    v.

ERCOLE MIRACHI

                          Appellee                     No. 2102 EDA 2015


                  Appeal from the Order Dated June 5, 2015
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): October Term, 2013 No. 00520


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED AUGUST 05, 2016

      Appellant Richmond & Hevenor, Attorneys at Law (“R&H”), appeals

from an order entered in the Philadelphia County Court of Common Pleas

denying its post-trial motions and entering judgment in favor of Appellee

Ercole Mirarchi following a bench trial. We affirm.

      On May 8, 2008, a commercial building owned by Mirarchi was

destroyed by a fire.     Opinion, filed 10/23/2015, at 1 (“1925(a) Opinion”).

Mirarchi hired R&H to represent him in a bad faith action Mirarchi filed

against his insurance carrier, Seneca Insurance. Id. Mirarchi claimed that

after the fire damage, the building suffered additional damage. He claims

the additional damages and resulting expenses were caused by the

insurance company’s failure to reimburse him until more than a year after

the fire. Id.
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      On November 1, 2009, Mirarchi entered into a Retainer Fee Agreement

with R&H.      1925(a) Opinion at 1.    Mirarchi made an initial payment of

$4,000.00 for the retainer. Id. The agreement provided that R&H would bill

Mirarchi $240.00 per hour and $2,500.00 per day. Id. at 2. The Retainer

Fee Agreement was mailed to Mirarchi, but not signed by either party. Id.

Mirarchi made payments to R&H, totaling $65,000.00 from October 29, 2009

to March 22, 2011. Id.

      In March 2011, the parties discussed converting Mirarchi to a

contingency-based agreement, due to the increasing legal and expert fees.

1925(a) Opinion at 2. The first mention of a contingency-based agreement

was on March 24, 2011, when Bill Hevenor sent Kenneth Richmond an email

stating:

           He was not eager to change over to a contingent fee, but
           now has a full explication of the Jurenko decision and the
           State Farm case decided a year after Hollick restricting
           punitive in Pennsylvania. 33% is not in the cards because
           he needs 2.5 million to be made whole for his lost business
           plan. So we’ll see what he decides.

Id. (quoting Exhibit P-8).

      On March 26, 2011, Mirarchi emailed his concerns about the

Contingency Fee Agreement.        1925(a) Opinion at 3.    On May 13, 2011,

Mirarchi sent an email to Richmond stating that they needed to work out the

details of the Contingency Fee Agreement. Id. On May 18, 2011, Mirarchi

wrote:

           Per our conversations on Monday 5/16/2011, this email is
           to confirm that I am agreeing to sign the Contingent Fee

                                       -2-
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            Agreement with your firm, providing that all monies paid
            for my Consultation and Action with Seneca Insurance
            since inception to current date be credited back to my
            reserve. As you are aware from an earlier email, the
            amounts to be credited are listed below.

Id. (quoting Exh. D-1).

       Richmond directed Mirarchi to read the third paragraph of the

Contingent Fee Agreement, which provided:

            This agreement converts our legal representation from a
            fee for services rendered billed against a retainer
            arrangement effective April 1, 2011. All past fees paid for
            legal services will be credited dollar for dollar against the
            contingent fee recovered by [R&H] in the referenced legal
            proceeding.

1925(a) Opinion at 3 n.7 (quoting Ex. P-3).         Mirarchi then wrote that he

“was still going with the contingent fee. Use whatever is left in retainer for

the financial expert.”1      Id.   R&H mailed the Contingent Fee Agreement to

Mirarchi.    Id. Following this, R&H no longer billed Mirarchi.     Id.     Further,

Mirarchi received no emails from R&H stating it was withdrawing money

from his account. Id.

       On October 18, 2011, Richmond advised Mirarchi that R&H no longer

wished to represent him and that Mirarchi should obtain independent legal

representation. 1925(a) Opinion at 4.




____________________________________________


1
   At some point, Allan Windt was retained as an expert. The trial court
states this was after conversion to a contingent fee agreement. R&H
maintains Windt was retained earlier. Additional experts also were retained.



                                           -3-
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         In October, 2013, Mirarchi’s case against Seneca Insurance was

dismissed on summary judgment. Opinion, 10/23/2015, at 4. The United

States Court of Appeals for the Third Circuit affirmed. Id.

         R&H filed an action in assumpsit against Mirarchi based upon an

account stated. Mirarchi filed an Answer and New Matter, and R&H filed a

reply.

         Following a bench trial, the trial court entered a verdict in favor of

Mirarchi and against R&H.       Among other things, the trial court found the

parties had entered the Contingent Fee Agreement as of May 18, 2011.

Opinion, 10/23/2015, at 4. The trial court calculated the number of hours

billed to Mirarchi prior to May 18, 2011, concluding R&H billed 190.4 hours,

at $240.00 per hour, for Mirarchi’s case prior to May 18, 2011.       Mirarchi,

therefore, owed $45,696.00 in attorneys fees. Id.

         The trial court then concluded that the amount deposited into

Mirarchi’s retainer account, $65,000.00, minus the expert fees that had a

corresponding check number, which totaled $18,807.60, was sufficient to

cover the $45,696.00 in fees owed. Opinion, 10/23/2015, at 5.

         R&H filed post-trial motions, which the trial court denied in an order

dated June 5, 2015 and filed on June 9, 2015. In the order, the trial court

also entered judgment in favor of Mirarchi.       On July 2, 2015, R&H filed a

notice of appeal. Both R&H and the trial court complied with Pennsylvania

Rule of Appellate Procedure 1925.

         Appellants raise the following claims on appeal:

                                       -4-
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         1. Whether the trial court erred in finding that there was
         an enforceable contingent fee agreement between the
         parties despite the admission of [Mirarchi] that he had not
         signed a contingent fee agreement nor had he paid experts
         as required by the contingent fee agreement?

         2. Whether the trial court erred in reforming the proposed
         contingent fee agreement so as to require [R&H] to pay
         the expert fees despite the plain language of the
         contingent fee agreement?

         3. Whether the trial court erred in reforming paragraph
         three of the proposed contingent fee agreement so as to
         credit pre-agreement fees to [Mirarchi’s] account despite
         unambiguous language in the agreement that legal fees
         paid would be credited only in the event of a contingent
         fee recovery?

         4. Whether the trial court erred as a matter of law, in
         finding that the legal requirement of proof for an action on
         an [a]ccount [s]tated had not been satisfied because
         [Mirarchi] had communicated an unspecified issue with an
         invoice to his attorney that was never communicated to
         [R&H]?

         5. Whether the trial court erred as a matter of law in not
         estopping [Mirarchi] from any dispute for an invoice where
         it was accepted by [Mirarchi] as accurate evidence that his
         attorney intended to submit to a federal court?

Appellants’ Brief at 5-6.

      This Court applies the following standard of review to verdicts

following a bench trial:

         Our appellate role in cases arising from non-jury trial
         verdicts is to determine whether the findings of the trial
         court are supported by competent evidence and whether
         the trial court committed error in any application of the
         law. The findings of fact of the trial judge must be given
         the same weight and effect on appeal as the verdict of a
         jury. We consider the evidence in a light most favorable to
         the verdict winner. We will reverse the trial court only if its
         findings of fact are not supported by competent evidence
         in the record or if its findings are premised on an error of

                                      -5-
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        law. However, [where] the issue . . . concerns a question
        of law, our scope of review is plenary.

        The trial court’s conclusions of law on appeal originating
        from a non-jury trial are not binding on an appellate court
        because it is the appellate court’s duty to determine if the
        trial court correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664-

65 (Pa.Super.2014) (quoting Wyatt, Inc. v. Citizens Bank of Pa., 976
A.2d 557, 564 (Pa.Super.2009)).

     Further, this Court applies the following when interpreting a contract:

        The interpretation of any contract is a question of law and
        this Court’s scope of review is plenary. Moreover, we need
        not defer to the conclusions of the trial court and are free
        to draw our own inferences. In interpreting a contract, the
        ultimate goal is to ascertain and give effect to the intent of
        the parties as reasonably manifested by the language of
        their written agreement. When construing agreements
        involving clear and unambiguous terms, this Court need
        only examine the writing itself to give effect to the parties’
        understanding. This Court must construe the contract only
        as written and may not modify the plain meaning under
        the guise of interpretation.

Stephans, 100 A.3d at 665 (quoting Humberston v. Chevron U.S.A.,

Inc., 75 A.3d 504, 509–10 (Pa.Super.2013)).

     Moreover:

        Contracts are enforceable when the parties reach a mutual
        agreement, exchange consideration, and have set forth the
        terms of their bargain with sufficient clarity. Greene v.
        Oliver Realty, Inc., []526 A.2d 1192 ([Pa.Super.]1987).
        An agreement is sufficiently definite if it indicates that the
        parties intended to make a contract and if there is an
        appropriate basis upon which a court can fashion a
        remedy. Id. Moreover, when the language of a contract
        is clear and unequivocal, courts interpret its meaning by its
        content alone, within the four corners of the document.

                                     -6-
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           Id. (citing Mears, Inc. v. National Basic Sensors, []
           486 A.2d 1335, 1338 ([Pa.Super.]1984)).

Stephans, 100 A.3d at 665.

      R&H first argues the trial court erred when it found the Contingent Fee

Agreement enforceable even though the agreement was not signed and

Mirarchi had not paid the expert fees. It argues that the expert fees drove

the proposed contingent-fee agreement. Appellant’s Brief at 13. R&H cites

Mirarchi’s email stating that he agreed to the Contingent Fee Agreement

“providing that all monies paid for my [c]onsultation and [a]ction with

Seneca Insurance since inception to the current date be credited back to

[r]eserve.” Id. Mirarchi was instructed to re-read paragraph three, which

states that “[a]ll past fees paid for legal services will be credited dollar for

dollar against the contingent fee recovered by [R&H] in the referenced legal

matter.”    Id. at 13-14.      R&H argues that it was error to find that the

$65,000.00 in the retainer account met Mirarchi’s obligation to pay all past

fees for legal services. Id. at 14.

      The trial court found:

           [R&H’s] first claim is that this [c]ourt erroneously found as
           a matter of law that [R&H] and [Mirarchi] could enter into
           an unsigned Contingent Fee Agreement, which is expressly
           forbidden by Pennsylvania Rule of Professional Conduct
           1.5(c).    [R&H] further claim[s] that, if there was a
           Contingent Fee Agreement, [the c]ourt erroneously
           determined that [Mirarchi] had a meeting of the minds
           with respect to his payment of the expert fees, and fulfilled
           his obligation in paying those expert fees. As [the c]ourt
           found, through the evidence admitted at trial, that there
           was a meeting of the minds with respect to converting the
           [Mirarchi’s] contract into a Contingent Fee Agreement, and


                                       -7-
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       that all material obligations of the agreement were
       satisfied, this claim fails.

       The Contingent Fee Agreement, which was submitted into
       evidence, complied with the requirements of Rule 1.5(c) in
       laying out the terms of the agreement in writing. It
       provided that the original Retainer Agreement entered into
       between the parties would be converted to a Contingent
       Fee Agreement. The Contingent Fee Agreement stated
       that the fee collected by [R&H] - 30% of the amount
       awarded - would be calculated against the full judgment
       entered in the matter of Ercole Mirarchi v. Seneca
       Specialty Insurance Company if the claim were
       successful. The agreement also provided that, because
       attorney’s fees might also be awarded, attorney time
       records would be maintained for all past and future
       services rendered through the conclusion of the matter.
       With respect to fees, the agreement stated:

          Hereafter, the direct costs of filing, subpoenas,
          depositions, transcripts, copy production, telex,
          travel, delivery, stationary will not be separately
          billed and will, henceforth, be absorbed by Richmond
          & Hevenor within the contingent fee. Expert witness
          fees will be borne by Ercole Mirarchi, but, if and
          when a punitive damage award is made, a claim for
          their recovery will be submitted together with the
          request for attorney fees.

       Exhibit P -3.

          Rule 1.5(c) provides:

          (c) A fee may be contingent on the outcome of the
          matter for which the service is rendered, except in a
          matter in which a contingent fee is prohibited by
          paragraph (d) or other law. A contingent fee
          agreement shall be in writing and shall state the
          method by which the fee is to be determined,
          including the percentage or percentages that shall
          accrue to the lawyer in the event of settlement, trial
          or appeal, litigation and other expenses to be
          deducted from the recovery, and whether such
          expenses are to be deducted before or after the
          contingent fee is calculated. Upon conclusion of a
          contingent fee matter, the lawyer shall provide the

                                  -8-
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          client with a written statement stating the outcome
          of the matter and, if there is a recovery, showing the
          remittance to the client and the method of its
          determination.

       Pa.R.P.C. 1.5(c).14
          14
              The reasoning behind requiring that contingent
          fee agreements be in writing is that “writings avoid
          misunderstandings regarding the fee and methods
          by which it is determined.” Eckell v. Wilson, 597
A.2d 696, 701 (Pa.Super. 1991), citing Pa.R.P.R.
          1.5, comment.

       As the Contingent Fee Agreement that [R&H] and
       [Mirarchi] entered into comports with the requirements of
       Rule 1.5(c), which makes no mention of whether the
       agreement must be signed, this claim fails. Exhibit P-3
       was introduced into evidence by [R&H], and provided that
       the Retainer Agreement would be converted to a
       Contingent Fee Agreement, effective April 1, 2011.15 The
       copy introduced into evidence was not signed, and neither
       [R&H] nor [Mirarchi] could provide [the c]ourt with a
       signed copy.16
          15
                 However, [the c]ourt made a factual
          determination that the parties did not actually reach
          a meeting of the minds with respect to the
          Contingent Fee Agreement until May 18, 2011, and
          thus determined that the Contingent Fee Agreement
          did not become effective until that date. Exhibit D-1.
          16
              Although it was never produced, there was
          evidence that a signed copy of the Contingent Fee
          Agreement existed. An email dated October 19,
          2011 from [Mirarchi] to Kenneth Richmond notes:

               After review, I realized we do have a second
               signed contract which replaced our original. It was
               signed in your [o]ffice [l]ibrary when we were
               meeting to go over the Interogs [sic] and events.
               A signed copy was requested [sic] by prospective
               firms for their evaluation to accept my [laws]uit. I
               will need you to please send me an electronic PDF
               copy as soon as you possibly can so I can submit
               it.

                                     -9-
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           Exhibit P -13.

        Contrary to [R&H’s] claim that there was no evidence to
        show there was a meeting of the minds, [the c]ourt found
        that the Contingent Fee Agreement, which was sent by
        [R&H] to [Mirarchi] and received by him, clearly outlined
        the terms of the agreement, and that there were no
        misunderstandings regarding the terms of the agreement.
        Through the emails introduced into evidence, it was clear
        to [the c]ourt that [Mirarchi] understood all the terms of
        the Contingent Fee Agreement, including the provision that
        [Mirarchi] was required to pay all expert fees.17 Exhibit D-
        1, D-2. See Sun Company, Inc. v. Pennsylvania
        Turnpike       Commission,        798 A.2d 875,     878
        (Pa.Cmwlth.Ct.1998) (“[A]ny ambiguous language in a
        contract is construed against the drafter and in favor of the
        other party if the latter’s interpretation is reasonable.”).
           17
               [The c]ourt did find it curious that the Retainer
           Agreement, with which [R&H] had no dispute, was
           also introduced into evidence by [R&H] unsigned.
           Exhibit P-1.

        After considering all of the evidence, [the c]ourt then
        made a factual determination that the parties had a
        meeting of the minds with respect to the Contingent Fee
        Agreement. See City of Erie v. Fraternal Order of
        Police, Lodge 7, 977 A.2d 3, 11 (Pa.Cmwlth.Ct. 2009)
        (“[T]here must be a meeting of the minds on all terms of
        the contract,” which “requires the concurrence of both
        parties to the agreement[.]”).        [The c]ourt further
        determined, based on the evidence, that [Mirarchi] had
        fulfilled his obligations under the contract in payment of
        the expert fees - through the payments he made into his
        retainer account. See footnote 11, supra.

        Therefore, as [the c]ourt made a factual finding that there
        was a meeting of the minds by the parties to enter into the
        Contingent Fee Agreement, which Pa.R.P.C. 1.5(c) does
        not require to be signed, and [Mirarchi] fulfilled his
        obligations under the agreement, this claim fails.

1925(a) Opinion at 8-10.




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      Viewing the evidence in the light most favorable to Mirarchi as verdict

winner, we find the trial court did not err.        The parties discussed the

Contingency Fee Agreement.          After being directed to the paragraph

discussing the payment of past fees, Mirarchi stated he still agreed to the

agreement.       Following Mirarchi’s email agreeing to the terms of the

Contingency Fee Agreement, R&H stopped sending invoices for its legal

services.    The court did not err in finding that the parties converted their

arrangement to the Contingent Fee Agreement as of May 18, 2011.

      R&H’s next claim argues the trial court reformed the Contingent Fee

Agreement because the court required R&H to pay the expert fees.            R&H

claims that the trial court erred in finding that the expert witness, Allan

Windt, was retained after conversion to a contingent-fee agreement.

Appellant’s Brief at 16. It maintains Windt was retained and paid prior to

May 18, 2011, and, therefore, the trial court erred in finding Mararchi had

$65,000.00 in the escrow account as of May 18, 2011. Id.       R&H claims the

court erred in finding that Mirarchi complied with all terms of the

Contingency      Fee   Agreement,   even   though   there   were   expert   fees

outstanding at the end of the attorney-client relationship. Id. at 18.

      The trial court found:

            [R&H’s] second claim is that [the c]ourt factually found,
            without any evidence, that [Mirarchi] had satisfied and
            performed all of the unequivocal material terms of the
            unsigned Contingent Fee Agreement, including payment of
            expert fees.



                                     - 11 -
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       As fact-finder, it was [the c]ourt’s duty to make factual
       determinations:

          In a bench trial, the trial judge acts as fact-finder
          and has the authority to make credibility
          determinations and to resolve conflicts in evidence.
          Ruthrau, Inc. v. Ravin, Inc., 914 A.2d 880
          (Pa.Super.2006). Consequently, the trial judge’s
          findings made after a bench trial must be given the
          same weight and effect as a jury verdict and will not
          be disturbed on appeal unless they are not supported
          by competent evidence in the record. Levitt v.
          Patrick, 976 A.2d 581 (Pa.Super.2009). . . .

       Merrell v. Chartiers Valley School District, 51 A.3d
286, 293-94 (Pa.Cmwlth.Ct.2012).

       Upon review of the evidence presented in this case, [the
       c]ourt made a factual determination that there was a
       meeting of the minds in switching from the Retainer
       Agreement to the Contingent Fee Agreement, and that
       [Mirarchi] had satisfied his obligations under the
       Contingent Fee Agreement. [R&H] presented the written
       Contingent Fee Agreement, which states: “Expert witness
       fees will be borne by Ercole Mirarchi[.]” Exhibit P-3. The
       emails between [R&H] and [Mirarchi] discussing the
       conversion to a Contingent Fee Agreement supported the
       notion that [R&H] had wished to convert the contract.
       Exhibits P-8, P-9, P-10.        The emails submitted by
       [Mirarchi] showed that [R&H] and [Mirarchi] ultimately had
       an understanding that there was a Contingent Fee
       Agreement between the parties. Exhibits D-1, D-2. After a
       determination that there was a Contingent Fee Agreement,
       and after reviewing the evidence concerning the payments
       that [Mirarchi] had made, [the c]ourt concluded that the
       expert fees that [Mirarchi] was responsible for under the
       Contingent Fee Agreement were all covered by the retainer
       payments he had already made to [R&H]. See Footnotes
       10 and 11, supra. This determination, again, was made
       based upon the evidence introduced by [R&H] at trial in
       the form of the “Time & Expenditure Data Sheets” of
       Richmond & Hevenor Attorneys at Law. Exhibit P-2. In
       review of Exhibit P-2, [the c]ourt found that [Mirarchi] was
       responsible only for those payments to experts that had a
       corresponding check number on the chart. Without a

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        check number, this Court found that there was no evidence
        to prove whether a payment was actually made to the
        expert or not. Therefore, [the c]ourt only credited the
        payments for expert fees detailed in footnote 11, supra.

        Because [the c]ourt’s factual determinations were based
        upon the evidence introduced at trial, this claim fails.

1925(a) Opinion at 10-11.

     The trial court also found:

        [R&H’s] fourteenth claim is that [the c]ourt [il]legally and
        erroneously neglected the material, unconditional, specific
        lawful requirement that [Mirarchi] cover expert fees which
        was the basis, at all times from October 17, 2011, for the
        termination of [R&H’s] representation.       [R&H] further
        claim[s] that [Mirarchi] never produced any evidence that
        his obligation to pay the experts under the Contingent Fee
        Agreement was fulfilled. As [R&H] failed to meet its burden
        of proof in showing that [Mirarchi] did not pay all of the
        expert fees, as required by the Contingent Fee Agreement,
        this claim fails.

        At trial, the only evidence of the fees owed to the experts,
        and for which [Mirarchi] was responsible, was set forth in
        Exhibit P-2, a “Time & Expenditure Data Sheet” created by
        [R&H]. [The c]ourt recognized and accepted that, under
        the Contingent Fee Agreement, [Mirarchi] was responsible
        for expert fees associated with his case. However, [R&H]
        failed to submit actual invoices from the experts, and also
        failed to submit any checks or receipts from payments to
        experts.     Although the invoices and payments were
        detailed on Exhibit P-2, [the c]ourt, as fact finder, found
        that this alone did not prove that these invoices existed or
        that the payments were actually made, as this was just a
        document created by [R&H]. As [R&H] possessed the
        burden of proof, it was not [Mirarchi’s] responsibility to
        provide proof of payment of the expert fees.

        Therefore, [the c]ourt exercised its discretion in
        determining whether [R&H] had provided sufficient
        evidence of the expert fees that were payable. As [the
        c]ourt did not ignore this requirement in the Contingent
        Fee Agreement, this claim fails.


                                   - 13 -
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1925(a) Opinion at 16-17 (internal footnotes omitted).

      Contrary to R&H’s contention, the trial court did not find that R&H

owed any expert fees. Rather, the trial court found that R&H proved it paid

expert fees only where it provided a check number associated with the

expenditure. Without the check number, or any other proof that the invoice

had been paid, the court properly found R&H failed to prove payment.

Because the amount paid to experts did not exceed the retainer amount, the

trial court found Mirarchi did not owe additional expert fees. This was not

error, and R&H’s second claim fails.

      R&H’s third claim alleges the Contingent Fee Agreement provided that

past fees paid for legal services would be credited only if a contingent fee

was recovered.    Appellant’s Brief at 20.      R&H claims that when Mirarchi

failed to pay the experts, it was a breach of the contingent-fee agreement.

Id. Further, R&H claims that Mirarchi’s alleged failure to pay the expert fees

destroyed the possibility of recovery in the bad faith action, because

recovery was impossible without experts. Id. at 21.

      The trial court concluded:

         [R&H’s] sixth claim is that the proposed unsigned
         Contingent Fee Agreement was an executory contract
         requiring future compliance by [Mirarchi], and [the c]ourt
         erroneously concluded that [Mirarchi] had fulfilled his
         material obligations under the agreement. Because [R&H]
         provided absolutely no evidence that the Contingent Fee
         Agreement was intended to be an executory contract, this
         claim fails.

         There was absolutely nothing in the Contingent Fee
         Agreement, nor in the evidence presented at trial, that

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          provides proof that the Contingent Fee Agreement was
          intended to be an executory contract.       An executory
          contract is a contract under which both parties have
          unperformed conditions or obligations that would
          constitute   a   material  breach    if  not  performed.
          Restatement (Second) of Contracts § 225, cmt.          A
          condition is “an event, not certain to occur, which must
          occur, unless its non-occurrence is excused, before
          performance under a contract becomes due.” Id. § 224.

          The only mention of [Mirarchi’s] obligations in the
          Contingent Fee Agreement was the following: “Expert
          witness fees will be borne by Ercole Mirarchi, but, if and
          when a punitive damage award is made, a claim for their
          recovery will be submitted together with the request for
          attorney fees.” Exhibit P-3. The contract does not state
          that there is no contract unless the expert fees are paid.
          It merely assigns responsibility for the payment of expert
          fees to [Mirarchi]. In any event, [the c]ourt found that the
          expert fees that [Mirarchi] was responsible for were all
          covered by his payments into the retainer account.
          Therefore, if the Contingent Fee Agreement was in fact an
          executory contract, [Mirarchi’s] obligations under the
          contract were satisfied.

1925(a) Opinion at 12 (footnote omitted).2          This was not error and

Appellant’s third claim fails.

       R&H’s fourth claim asserts that it sued on an account stated and that

Mirarchi accepted the accuracy of the account. Appellant’s Brief at 24. It


____________________________________________


2
  R&H also maintains that there was no evidence to support the trial court’s
determination that Mirarchi had paid R&H approximately $46,000.00 in
attorneys’ fees for hours expended through May 18, 2011. Appellant’s Brief
at 21-22. The trial court found that, because Mirarchi’s answer pled an
offset, it properly found the amounts owed to R&H were offset by amounts
Mirarchi paid into the retainer account, which was in the Plaintiff’s exhibit.
1925(a) Opinion at 14-15; Plaintiff Trial Exh. P-2. This was not error.




                                          - 15 -
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claims Mirarchi retained the account without objection, claiming Mirarchi

communicated his objection to his attorney, not R&H. Id. at 24-25.

       The trial court found:

          [R&H’s] final claim is that the evidence in the case
          demonstrated unequivocally that [R&H] proved an
          undisputed account stated which was acknowledged as
          received and reviewed by [Mirarchi’s] agent/attorney who
          requested forbearance while the underlying case
          proceeded. As the evidence in this case in fact
          demonstrated the opposite - that [Mirarchi] did take issue
          with the invoice - this claim fails.

          In an email dated July 3, 2012, from Andrew Swain [3] to
          Kenneth Richmond, Mr. Swain stated:

              I was working exclusively on the [summary
              judgment] reply motion and brief and asked
              [Mirarchi] as well to focus only [sic] that project,
              which was due and filed Monday. I have the asked
              [sic] the client to review your invoice to see if he
              identified any issues with your bill. I just returned
              from court and will be leaving early for the holiday.
              As the [summary judgment] hearing in federal court
              is late July, I would ask for you to file after the
              judge’s decision if payment arrangements or plans
              cannot be reached. I believe any filing now against
              [Mirarchi] will jeopardize our settlement negotiations
              with Seneca in the event [summary judgment] is
              denied. As there is a 4[-]year claim for breach of
              contract[,] I do believe you have time to file. Thank
              you for your consideration.

          Exhibit D-8.

          In another email dated July 3, 2012, from [Mirarchi] to
          Andrew Swain, [Mirarchi] states: “Andrew, I reviewed part
          of his bill today and I do have issue with it.” Exhibit D-8.
____________________________________________


3
  Mr. Swain was Mirarchi’s successor counsel in the matter against Seneca
Insurance.



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J-A15035-16


         As [Mirarchi] clearly did take issue with the invoice, this
         claim fails.

1925(a) Opinion at 19-20.

      The trial court did not err. The trial court relied on two emails to find

Mirarchi disputed the account: one from Mirarchi’s attorney to R&H

requesting that R&H not file a lawsuit until after the court ruled on the

summary judgment motion and one from Mirarchi to his attorney.

      R&H’s final issue asserts the trial court erred as a matter of law when

it found Mirarchi was not estopped from disputing the invoice. R&H claims

estoppel was proper because Mirarchi accepted the invoice as evidence to

submit to a federal court. Appellant’s Brief at 25-26.

      The court found the doctrine of judicial estoppel did not apply because

there was no proof the invoice was admitted into evidence in Mirarchi’s

federal court proceeding. Opinion, 10/23/2015, at 19. This was not error.

See Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa.Super.2010)

(“judicial estoppel is properly applied only if the court concludes the

following: (1) that the appellant assumed an inconsistent position in an

earlier action; and (2) that the appellant’s contention was ‘successfully

maintained’ in that action.” In re Adoption of S.A.J., 838 A.2d 616, 620,

621 (Pa.2003)).

      Judgment affirmed.




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J-A15035-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2016




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