Del Pielago v. Orwig

• Decision Date: 21 November 2016
• Docket Number: No. 156 MDA 2016,156 MDA 2016
• Citation: 151 A.3d 608
• Parties: Armando DEL PIELAGO and Aida Del Pielago, Appellants v. Jeremy ORWIG, Appellee
• Court: Pennsylvania Superior Court

151 A.3d 608

Armando DEL PIELAGO and Aida Del Pielago, Appellants

v.Jeremy ORWIG, Appellee

No. 156 MDA 2016

Superior Court of Pennsylvania.

Submitted June 13, 2016

FILED NOVEMBER 21, 2016

Daniel M. Pell, York, for appellants.

Andrea J. Bullock, Plymouth Meeting, Jason P. McNicholl and Lisa M. DiBernardo, Lancaster, for appellee.

BEFORE: BOWES, SHOGAN, and FITZGERALD,^* JJ.

OPINION BY SHOGAN, J.:

Appellants, Armando Del Pielago ("Armando"), and Aida Del Pielago¹ ("Aida"), husband and wife, appeal from the order granting Appellee, Jeremy Orwig, summary judgment on December 24, 2015. At issue is the validity of a general release signed by Appellants. We reverse and remand.

The averments of the complaint that Appellants filed on September 11, 2013, allege that on July 14, 2011, Armando was operating his 2004 Chevrolet Trailblazer at 11:20 p.m. in York County, Pennsylvania, when Appellee, driving a 1999 Ford Taurus owned by his wife, failed to stop at a stop sign and "violently collide[d] into" Appellants' vehicle. Complaint, 9/11/13, at ¶¶ 1–6. As a result of the injuries sustained in the collision, Appellants, who contracted for the full tort option,² aver that Armando

has been forced to undergo extensive physical therapy, nerve block injections, and surgery to repair a left rotator cuff tear, a surgery to his left wrist to correct traumatically induced carpal tunnel syndrome, as well as medical testing and evaluation for his tinnitus, headaches, dizziness, low back problems, left sided weakness, leg and heel pain, and visual field distortions, as well as depression, for which [he] claims damages.

Id . at ¶¶ 9, 10.

The trial court summarized the procedural history as follows:

[Appellants] Armando and Aida Del [Pielago] initiated this action by filing a Complaint on September 11, 2013. [Appellee] responded to the Complaint on October 18, 2013 with New Matter. The Complaint followed a car accident involving Mr. Armando Del [Pielago], for which [Appellants] signed a pre-litigation release. The release was signed on July 26, 2011, at which time a check was tendered for $2,857.92.

[Appellee] then filed a Motion for Judgment on the Pleadings on October 21, 2013. The Motion for Judgment on the Pleadings was denied by the undersigned on February 2, 2014. [Appellee] then filed a Motion to Rule on Objections, which was withdrawn on July 7, 2014. [Appellee] filed a Motion for Summary Judgment on February 12, 2015, which was denied on May 26, 2015.

[Appellee] then filed his Second Motion for Summary Judgment on July 28, 2015. [Appellants] responded on August 17, 2015.

Trial Court Opinion (Summary Judgment), 12/24/15, at unnumbered 1–2.

The trial court granted Appellee summary judgment on December 24, 2015, and dismissed the action. Appellants filed the instant timely appeal to this Court on January 21, 2016.

Appellants raise the following single issue in their brief on appeal:

1. Whether there are triable issues of fact to be determined by a jury where releasing [Appellants] plead, and subsequently testify at depositions, that they signed a general release of liability, only because an unscrupulous insurance adjuster, through subtle misdirection, fraudulently induced them to sign the general release?

Appellants' Brief at 5.

Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to relief as a matter of law. Matharu v. Muir , 86 A.3d 250, 255 (Pa. Super. 2014) (en banc ) (citing Pa.R.C.P. 1035.2 ). "[A] factual issue is considered ‘material’ for summary judgment purposes if its resolution could affect the outcome of the case under the governing law." Strine v. Commonwealth , 586 Pa. 395, 894 A.2d 733, 737 (2006). "When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party." Kennedy v. Robert Morris Univ. , 133 A.3d 38, 41 (Pa. Super. 2016), appeal denied , 145 A.3d 166 (Pa. 2016) (quoting Summers v. Certainteed Corp ., 606 Pa. 294, 997 A.2d 1152, 1159 (2010) ).

We exercise plenary review in an appeal from an order granting summary judgment. Dougherty v. Pepper Hamilton LLP , 133 A.3d 792, 796 (Pa. Super. 2016). On appellate review, then, "we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Matharu , 86 A.3d at 255. As an appellate court, we may reverse a grant of summary judgment only if there has been an error of law or an abuse of discretion. Kennedy , 133 A.3d at 41. "To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record." Id . Further:

Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden. It is not sufficient to persuade the appellate court that it might have reached a different conclusion if charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. Chenot [v. A.P. Green Services, Inc. , 895 A.2d 55, 60–61 (Pa. Super. 2006) ] (citation omitted). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused. Id . at 61–62 (citation omitted).

Dougherty , 133 A.3d at 796.

Appellants assert that twelve days after the accident, on July 26, 2011, Mr. H. Jesse George, an adjuster from Progressive Insurance Company, the insurer for both parties, went to Appellants' home without an interpreter, knowing that Appellants could not understand English, presented a check for $2,851.92 and a release, and induced Appellants to sign the release that day. Appellants' Brief at 10; Deposition of H. Jesse George, 11/18/14, at 14. Mr. George described his initial involvement in the matter as follows:

I was assigned to their bodily injury claim and also their property damage claim. The Del Pielagos were also insured with Progressive. They had reported a claim under their own auto policy.

A dual loss was set up under the other person's accident. I investigated the merits of that claim as far as liability is concerned and contacted the Del Pielagos regarding the property damage claim and Mr. Del Pielago's bodily injury claim.

Deposition of H. Jesse George, 11/18/14, at 14. Mr. George stated that Appellee was deemed to be at fault for the accident "for failure to yield right-of-way at a stop sign." Id . at 20.

Appellants maintain that Mr. George knew that Appellants could not speak or understand English sufficiently to comprehend a legal matter. Appellants' Brief at 19. They argue that Mr. George lied at his deposition, inter alia , about his belief that Armando sustained only minor injuries, that his actions did not suggest that the check he presented was for lost wages only, that he destroyed his hand-written notes from the July 26, 2011 meeting with Appellants, and that his actions amounted to bad faith and fraud. Id . at 22. Appellants suggest that the fraudulent conduct herein while "subtle, it is provable." Id . at 29. Appellants contend that whether Mr. George committed fraud is a question of fact for a jury. Id . at 31 (citing Greenwood v. Kadoich , 239 Pa.Super. 372, 357 A.2d 604, 606 (1976) ).

The language of the release provided as follows:

FULL RELEASE OF ALL CLAIMS WITH INDEMNITY (WITH LIMITED FUTURE EXPENSES)

Know all by these presents, that Armando Del Pielago Sr. Aida Del Pielago(Releasor), for and in consideration of the payment of two thousand eight hundred fifty one ($2,851.92), the receipt and sufficiency of which is hereby acknowledged, do hereby for ourselves and for our heirs, executors, administrators, successors, assigns and any and all other persons, firms employers, corporations, associations or partnerships, acquit and forever discharge and his, her, their or its corporations, associations, or partnerships acquit and forever discharge Jeremy Orwig & Heather Orwig and his, her, their or its corporations, associations, or partnerships (Releasees) of, and from, any and all claims, actions, causes of action, demands, rights, damages, costs, loss of wages, expenses, hospital and medical and nursing expenses, loss of consortium, loss of service or affection, loss of society and companionship and any compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of an accident which occurred on or about 7/14/11 at or near Hanover, PA. In further consideration, the Releasees agree to pay reasonable and necessary medical and/or dental expenses and/or lost wages, not paid or payable by any other program, group contract or other arrangement, up to a maximum of seven thousand ($7,000) incurred by us within 45 days after the date of this Release, provided such treatment relates to the accident described above and would be recoverable by Releasor in a tort action in the courts of Pennsylvania under Pennsylvania law including but not limited to Act 6.

It is understood and agreed that this settlement is in full compromise of a doubtful and disputed claim as to both questions of liability and as to the nature and extent of the injuries and damage, and that neither this Release, nor the payment pursuant thereto, shall be construed as an admission of liability, such being denied.

The undersigned hereby declare(s) and represent(s) that the injuries are or may be permanent and that recovery there from is uncertain and indefinite and in making this Release, it is understood and agreed that the undersigned rely(ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent and duration of said injuries and

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