Khalil v. Travelers Indem. Co. of Am., 1482 EDA 2019

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY STABILE, J.
Parties Dr. Ahlam KHALIL, Appellant v. TRAVELERS INDEMNITY COMPANY OF AMERICA, Glenn Campbell, Esquire, William S. Ferren and Associates, Travelers Indemnity Company, Monica O'Neill, Thomas, Thomas and Hafer, Pier 3 Condominium Company, Pier 3 Condominium Association, Pier 3 and First Service (Wentworth), Appellees
Docket Number1482 EDA 2019
Decision Date18 April 2022

273 A.3d 1211

Dr. Ahlam KHALIL, Appellant
v.
TRAVELERS INDEMNITY COMPANY OF AMERICA, Glenn Campbell, Esquire, William S. Ferren and Associates, Travelers Indemnity Company, Monica O'Neill, Thomas, Thomas and Hafer, Pier 3 Condominium Company, Pier 3 Condominium Association, Pier 3 and First Service (Wentworth), Appellees

No. 1482 EDA 2019

Superior Court of Pennsylvania.

Argued December 4, 2020
Filed April 18, 2022


Virginia H. McMichael, Radnor, Glen R. Morris, Philadelphia, for appellant.

Paul C. Troy, Norristown, for Glenn Campbell, Esquire and William S. Ferren and Associates and Travelers Indemnity Company, appellees.

Kevin C. McNamara, Peter J. Speaker, Harrisburg, for Monica O'Neill and Thomas, Thomas and Hafer, appellees.

Steven G. Leventhal, Philadelphia, for Pier 3 and First Service, appellees.

Robert J. Hoffman, Media, for Pier 3 Condominium Association, appellee.

Eric J. Phillips, North Wales, for Pier 3 Condominium Company, appellee.

Daniel T. Fitch, Philadelphia, for Travelers Defendants except Travelers Indemnity Company, appellees.

BEFORE: STABILE, J., NICHOLS, J. and COLINS, J.*

OPINION BY STABILE, J.:

273 A.3d 1214

Appellant, Dr. Ahlam Khalil, appeals from an order granting summary judgment against her and in favor of all Appellees captioned above. We affirm.

Introduction

Appellant accuses Appellees of fraudulent conduct in two prior lawsuits, the water damage action and the Pier 3 action. Appellant owns a condominium unit in the Pier 3 condominium building in Philadelphia. Appellant sued Pier 3's insurer, Travelers, after Appellant's condominium unit incurred water damage (the water damage action). Pier 3 filed a separate action against Appellant for unpaid condominium fees (Pier 3 action), to which Appellant filed counterclaims against Pier 3 and its management company, Wentworth. Prior to trial in the water damage action, Appellant settled her claim against Travelers. The plain language of the Travelers release barred Appellant from pursuing counterclaims against Pier 3 in the Pier 3 action. Appellant argues that the release she signed explicitly preserved her right to pursue counterclaims in the Pier 3 action, but Travelers fraudulently altered the release to state that it barred all such counterclaims. Based on the altered release, she claims, Pier 3 and Wentworth obtained dismissal of Appellant's counterclaims in the Pier 3 action.

In the present action, Appellant seeks monetary damages against Appellees, which include Travelers, Pier 3, Wentworth, and the attorneys who represented these parties in the water damage and Pier 3 actions. We conclude that the trial court properly granted summary judgment to all Appellees under the doctrine of res judicata. Res judicata protects Travelers because Appellant could have raised fraud in the water damage action but failed to do so until long after the case was marked settled, discontinued and ended. Similarly, res judicata protects Pier 3 and Wentworth because Appellant could have raised fraud in the Pier 3 action, but (1) she failed to do so prior to trial, and (2) while she raised fraud in post-trial motions, she abandoned this claim during her appeal to the Commonwealth Court. Finally, res judicata protects the attorney Appellees because they were in privity with the non-attorney Appellees during the water damage and Pier 3 actions.

We begin by summarizing the water damage action and the Pier 3 action. We also synopsize a lawsuit Appellant filed against her former attorneys in the water damage and Pier 3 actions ( Khalil v. Williams, Cuker & Berezovsky, P.C. ) (referred to below as " Khalil III" ).

Inception of Water Damage and Pier 3 Actions

Since 1997, Appellant has owned a condominium unit in Pier 3's condominium building in Philadelphia, Pennsylvania. On May 25, 2007, Appellant's unit sustained damage caused by a water leak in an adjacent unit owned by her neighbors, Jason and Anne Marie Diegidio. Travelers1 was the insurer of Pier 3 and Pier 3's management company, Wentworth Property

273 A.3d 1215

Management ("Wentworth"). Appellant also had a personal homeowner's insurance policy issued by State Farm Fire and Casualty Company.

On July 16, 2008, Appellant commenced the water damage action, an action alleging negligence against the Diegidios, State Farm, and Travelers. Monica O'Neill, Esquire, an attorney employed by Thomas, Thomas & Hafer, LLP,2 represented Travelers in the water damage action.

In 2009, the Pier 3 action began when Pier 3 sued Appellant for condominium association fees incurred after Appellant left her unit due to water damage. Appellant filed a counterclaim against Pier 3 asserting that she refrained from paying fees because the water damage had not been rectified. Appellant also filed a joinder complaint against the Diegidios and Wentworth raising the same claims that she raised in the water damage action. The court subsequently approved a stipulation among all parties in which Appellant withdrew her claims against the Diegidios with prejudice.

Travelers defended Pier 3 and Wentworth in their capacity as defendants on the counterclaims and joinder complaint. Travelers hired Glenn Campbell, Esquire of William J. Ferren & Associates3 to defend Pier 3 and Wentworth against Appellant's counterclaim and joinder complaint.

Water Damage Action Settled and Court Adjudicates Appellant's Motion to Vacate Settlement

Prior to trial, on or about May 12, 2011, Appellant and Travelers reached a settlement agreement in which Appellant agreed to settle her claims against Travelers for $17,500.00. As a result of the settlement, Travelers was excused from attending trial. O'Neill prepared a release and sent it to Appellant's attorney, Beth Cole, Esquire, an attorney employed by Williams, Cuker & Berezovsky, P.C. ("Williams").

The release listed Appellant as the "Releasor," Travelers as the "Releasee," and Pier 3 as the "Releasee's Insured." The release provided that Appellant "forever discharge[d] ... Releasee of and from any and all claims of whatsoever kind or nature arising from the incident occurring at [the Unit]." Id. Appellant further agreed "to terminate all controversy and/or claims for injuries or damages against Releasee, and Releasee's Insured, and any affiliated or related people or entities, both known and unknown, including future developments thereof, in any way growing out of or connected with said incident." Id. At the conclusion of the release, Appellant again "specifically agreed that this [release] shall be a complete bar to all claims or suits against Releasee, Releasee's Insured, and any affiliated or related people or entities, both known and unknown, for injuries or damages of whatsoever nature resulting from or to said incident [at the Unit.]" Id. at 1-2.

Both Appellant and Cole signed the release, and on May 17, 2011, Cole's secretary emailed the signed release to O'Neill. Several emails indicate that both before and after Appellant signed the release, her attorney advised her that the release was limited to duct work in her condominium and did not affect her counterclaims in the Pier 3 action.

273 A.3d 1216

The water damage action proceeded to trial against the remaining defendants, the Diegidios and State Farm. During trial, Appellant agreed on the record to settle her claims against the Diegidios and State Farm for $50,000 and $40,000, respectively. Appellant further agreed to release Jason Diegidio, individually and in his capacity as a condominium board member, from the Pier 3 and water damage actions. On May 26, 2011, the trial judge, the Honorable Frederica Massiah-Jackson, marked the water damage action "settled by the parties."

Subsequently, Appellant refused to accept any of the payments in the water damage action. As a result, on September 30, 2011, Judge Massiah-Jackson held a hearing to review and confirm the terms of the settlement agreements. During the hearing, Appellant raised three objections to the settlement agreements: (1) following settlement, Appellant determined that a large quantity of her personal property, which had been placed into storage with two separate third-party companies by State Farm, was missing and/or destroyed, a loss not envisioned at the time of the settlement and for which Appellant held State Farm accountable; (2) Appellant contended that she never agreed to release Jason Diegidio, either individually or in his capacity as a board member, from the Pier 3 action; and (3) Appellant argued that the Travelers release in the water damage action would adversely affect her counterclaims in the Pier 3 action.

Appellant's attorney, Gerald Williams, Esquire of the Williams firm, stated his position that the release did not affect Appellant's counterclaims. N.T., 9/30/11, at 12. Later in the hearing, Appellant told the court, "I [sought] two other legal counselor opinions to understand the release, consultations for the release. And both of them advise[d] me the release as is will compromise my right for the losses and for the Pier 3 [litigation]." Id. at 23-24. In addition, Appellant stated that during a...

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