Dibish v. Ameriprise Financial, Inc.

J-A35013-15

2016 PA Super 35

MARGARET M. DIBISH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

AMERIPRISE FINANCIAL, INC.,
AMERIPRISE FINANCIAL SERVICES,
INC., RIVERSOURCE LIFE INSURANCE
COMPANY, AND JEFFREY C. SUHAYDA,

Appellees No. 70 WDA 2015

Appeal from the Judgment Entered December 9, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 01-007242

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

OPINION BY BENDER, P.J.E.: FILED FEBRUARY 16, 2016

Margaret M. Dibish appeals from the judgment entered December 9,

2014, following a trial during which she pursued claims of fraudulent and

negligent misrepresentation, as well as violations of the Unfair Trade

Practices Consumer Protection Law (UTPCPL), 73 P.S. §§ 201-1 – 201-9.3.

Appellant was awarded $10,000.00 in damages, $25,000.00 in attorney

fees, and $726.37 in costs. We affirm in part, reverse in part, vacate the

judgment entered and remand.

In August 2000, Appellant and her husband met with Mr. Jeffrey

Suhayda, an agent and representative of Ameriprise and IDS Life Insurance
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Company (IDS), to discuss their financial goals.1 At the time, Appellant

maintained two, whole life insurance policies with Prudential, with a

combined $30,000 benefit. The annual premiums for these policies totaled

$701. Mr. Suhayda recommended that Appellant cash-surrender these

policies and use the proceeds to help finance the purchase of a new, flexible

premium, variable universal life policy. According to Mr. Suhayda, Appellant

could maintain a $50,000 policy from Appellees, for the rest of her life, for

$715.56 annually.

As described by Mr. Suhayda, the new policy would be supported by

various investment subaccounts selected by the insured, including stocks,

bonds, mutual funds, and a cash savings account bearing a fixed rate of

interest. The insured could adjust the amount invested in these

subaccounts, depending on investment goals and performance. The insured

could also adjust premium payments and the death benefit. Mr. Suhayda

presented performance projections suggesting how the policy could grow in

value. However, he also explained that he would need to run projections on

Appellant’s policy annually to evaluate performance and, further, that an

increase in premium payments may be required.

Appellant accepted Mr. Suhayda’s recommendation and purchased a

policy with a $50,000 death benefit. Despite Mr. Suhayda’s description of
____________________________________________

1
During the course of this litigation, IDS became known as RiverSource Life
Insurance Company.

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her policy, Appellant believed that her annual premium for the new policy

would be $715.56 and that her premium payments would guarantee a

$50,000 death benefit until age ninety-nine. However, Appellant learned

thereafter that the payments were insufficient to do so. To the contrary, as

Appellant lived beyond her life expectancy, and the underlying cost of her

insurance increased, Appellant could be forced to either pay additional

premiums or reduce the policy death benefit. In order to guarantee a

$50,000 benefit until age ninety-nine, Appellant would need to pay the so-

called “Guideline Level Premium” of $1,360.29 annually, considerably more

than the $715.56 premium promised her.

In April 2001, Appellant commenced this litigation by writ of summons.

Appellant filed a complaint in October 2004, and an amended complaint in

May 2014, alleging (1) negligent misrepresentation; (2) fraudulent

misrepresentation; (3) violation of the UTPCPL; (4) bad faith; (5) breach of

fiduciary duty; and (6) negligent supervision. In May 2014, the trial court

granted Appellees’ motion for summary judgment as to counts 4, 5, and 6.

See Order of Court, 05/02/2015. Trial then proceeded on the remaining

claims.

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Regarding damages, the parties presented competing models of

compensation.2 Appellant suggested that her damages could be calculated

simply by multiplying the difference in premium amounts by the number of

years the policy would be in force.3 Appellees disputed this formula,

asserting that it was based upon worst-case investment performance

projections and costs that had never materialized, and countered with a

more detailed analysis. According to Appellees, based upon Appellant’s

assertions, the proper measure of damages should be calculated by

subtracting Appellant’s expected premium payments and her initial

investment from the expected policy death benefit. Appellees also

suggested that Appellant’s expected premium payments should extend from

policy inception through her life expectancy of age eighty-three. Finally, as

these payments were fixed into the future and not subject to inflation,

Appellees reduced these damages to their present value.4

____________________________________________

2
Appellees did not concede liability but provided expert testimony on
damages in the alternative.
3
Based upon Appellant’s age, the policy could remain in force 45 years.
Therefore, Appellant suggested the following formula:

($1,360.29 - $715.26) x 45 years = $29,012.85
4
Based on their analysis, Appellees suggested damages of $7,132. For a
discussion of the present value of future damages, see Helpin v. Trs. of
the Univ. of Pa., 10 A.3d 267, 270-77 (Pa. 2010).

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Following trial, a jury returned a mixed verdict. The jury found in

favor of Appellant on her claim of negligent misrepresentation but for

Appellees on the claim of fraud. The jury awarded Appellant $5,000.00 in

damages, seemingly rejecting both damages models suggested by the

litigants. The UTPCPL claim was submitted to the trial judge, who found for

the Appellant. The court also determined Appellant’s actual damages to be

$5,000, then doubled the award to $10,000.00, pursuant to 73 P.S. § 201-

9.2. The court also granted Appellant’s motion for attorney fees and costs,

awarding $25,000.00 in attorney fees and $726.37 in costs.

Appellant filed post-trial motions, which were denied. Thereafter, the

trial court entered judgment on the non-jury verdict.5 Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued responsive opinions. See Trial Court Opinion, 12/09/2014

(Hertzberg, J.); Trial Court Rule 1925(a) Memorandum, 04/30/2015

(Wettick, J.).

Appellant raises numerous issues, paraphrased as follows:

1. Whether the trial court erred as a matter of law by granting
summary judgment to Appellees on Appellant’s claim for breach
of fiduciary duty;
____________________________________________

5
The trial court declined to enter judgment on the jury verdict. According to
the trial court, “[s]ince the jury and non-jury verdicts result from the same
conduct of the [Appellees], I find the damages to be duplicative and select
the larger verdict, the $10,000 non-jury verdict, as the single verdict for this
proceeding.” Trial Court Order, 12/09/2014, at 2. Appellant does not
dispute this aspect of the judgment.

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2. Whether the court erred as a matter of law, or otherwise
abused its discretion, regarding its award of actual damages to
Appellant;

3. Whether the court abused its discretion, as it declined to
award treble damages under the UTPCPL;

4. Whether the court abused its discretion in its award of
attorney fees;

5. Whether the court abused its discretion regarding its
“damages” instruction to the jury, as it suggested the jury could
reduce a lump-sum award of future damages to present value;

6. Whether the court abused its discretion, as it permitted
Appellees’ damages expert to present a model of damages that
failed to compensate Appellant for the difference in price
between the policy that was promised and the policy that was
issued and that reduced a lump-sum award to present value;

7. Whether the court abused its discretion regarding its
“justifiable reliance” instruction to the jury; and

8. Whether the court erred in denying Appellant’s motion to
compel discovery related to company-wide financial planning and
insurance sales practices.

See Appellant’s Brief at 5-7.

In her first issue, Appellant contends that the trial court erred when it

granted Appellees’ motion for summary judgment and dismissed Appellant’s

claim for breach of fiduciary duty.

Our scope of review of an order granting summary judgment is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We 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. Only where there is no
genuine issue as to any material fact and it is clear that the

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moving party is entitled to a judgment as a matter of law will
summary judgment be entered.

Motions for summary judgment necessarily and directly implicate
the plaintiff's proof of the elements of his cause of action. Thus,
a record that supports summary judgment will either (1) show
the material facts are undisputed or (2) contain insufficient
evidence of facts to make out a prima facie cause of action or
defense and, therefore, there is no issue to be submitted to the
fact-finder. Upon appellate review, we are not bound by the trial
court's conclusions of law, but may reach our own conclusions.
The appellate court may disturb the trial court's order only upon
an error of law or an abuse of discretion.

DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super. 2013)

(internal citations and quotation marks omitted; some punctuation

modified).

Appellant notes that a party incurs fiduciary responsibilities toward

another where there exists a confidential relationship between them, citing

in support Brooks v. Conston, 51 A.2d 684 (Pa. 1947). Moreover,

according to Appellant, whether a confidential relationship exists presents a

question of fact, not readily answered by an inflexible rule of law. See

Wisniski v. Brown & Brown Ins. Co., 906 A.2d 571, 578 (Pa. Super.

2006). Finally, Appellant concludes, the trial court failed to consider

evidence sufficient to establish that Mr. Suhayda cultivated a confidential

relationship with her and her husband.

We need not address Appellant’s argument in detail. Integral to the

trial court’s decision was Appellant’s purchase of a life insurance policy from

Mr. Suhayda. According to the trial court, “the relationship between the

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seller of insurance and the purchaser of insurance should not be

characterized as a fiduciary relationship.” Trial Court Rule 1925(a)

Memorandum at 2 (rejecting an entire category of commercial relationships,

as a matter of law, and citing in support its prior decisions, e.g., Ihnat v.

Pover, 1999 WL 34788321 (Pa. Com. Pl. Feb. 1, 1999) (Wettick, J.)).

Recently, we rejected this exclusionary rule, as the existence of a

confidential relationship requires a fact-sensitive inquiry, which may not be

rigidly disposed of as a matter of law. Yenchi v. Ameriprise, Fin, Inc.,

123 A.3d 1071, 1080 (Pa. Super. 2015). Accordingly, we reverse the trial

court on this ground.6

In her second issue, Appellant contends the trial court erred in its

damages award. Damages under the UTPCPL are governed by the following

provision:

____________________________________________

6
We reject Appellees’ call for waiver of this issue. In the brief supporting
their motion for summary judgment, Appellees moved for dismissal of
Appellant’s breach of fiduciary duty claim based on previous rulings of the
trial court. See Appellees’ Memorandum of Law, 05/08/2013, at 10
(expressly citing Ihnat v. Pover, GD-94-17465, and Yenchi v. Ameriprise
Fin., Inc., GD-01-006610). In her response, Appellant conceded that
“[b]ased upon this court’s prior rulings, … the facts of the case fail to
support the [b]reach of [f]iduciary [d]uty claim.” Appellant’s Memorandum
of Law, 07/03/2013, at 17. Although no analysis accompanied the trial
court’s initial order dismissing Appellant’s breach of fiduciary duty claim, its
subsequent memorandum relies on its previous rulings expressly. Thus,
Appellant’s concession that the current did not support her claim does not
constitute waiver.

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Any person who purchases or leases goods or services primarily
for personal, family or household purposes and thereby suffers
any ascertainable loss of money or property, real or personal, as
a result of the use or employment by any person of a method,
act or practice declared unlawful by section 3 of this act, may
bring a private action to recover actual damages or one hundred
dollars ($100), whichever is greater. The court may, in its
discretion, award up to three times the actual damages
sustained, but not less than one hundred dollars ($100), and
may provide such additional relief as it deems necessary or
proper. The court may award to the plaintiff, in addition to other
relief provided in this section, costs and reasonable attorney
fees.

73 P.S. § 201–9.2(a) (footnote omitted). Thus, to recover damages, a

plaintiff must establish “an ascertainable loss as a result of the defendant's

prohibited action.” Boehm v. Riversource Life Ins. Co., 117 A.3d 308,

328 (Pa. Super. 2015) (quoting Weinberg v. Sun Co., Inc., 777 A.2d 442,

446 (Pa. Super. 2001) (emphasis in original)); DeArmitt, 73 A.3d at 593. A

plaintiff is then entitled to recover “actual damages.” 73 P.S. § 201–9.2(a).

According to Appellant, the court was required to compensate her, at a

minimum, for the “difference in value between what [she] bargained for and

what [she] received.” Appellant’s Brief at 38 (citing in support Boehm, 117

A.3d at 308). Based upon this premise, Appellant asserts that her damages

model relied upon “the exact same approach and methodology” accepted in

previous, similar cases. Id. at 38 (citing in support Boehm; Lesoon v.

Metropolitan Life Ins. Co., 898 A.2d 620, 628 (Pa. Super. 2006), appeal

denied, 912 A.2d 1293 (Pa. 2006); and Agliori v. Metropolitan Life Ins.

Co., 879 A.2d 315 (Pa. Super. 2005)). Thus, Appellant concludes, we must

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vacate the judgment entered and remand. We decline to do so for the

following reasons.

Appellant purports to raise a question of law, asserting that her

damages model is singularly appropriate. Thus, Appellant suggests our

review is de novo. See Appellant’s Brief at 1 (citing In re Novosieski, 992

A.2d 89, 99 (Pa. 2010) (interpreting, as a matter of law, certain provisions

of the Pennsylvania Multiple-Party Accounts Act, 20 Pa.C.S. §§ 6301-6306)).

However, Appellant is incorrect, and her reliance upon those cases cited

favorably in her argument is misleading. As made clear in those cases, the

UTPCPL does not define “actual damages,” nor has a Pennsylvania appellate

court endeavored to do so. Rather, we have focused on certain principles

necessary to affect the remedial purpose of the UTPCPL and repeatedly left

the calculation of actual damages to our trial courts, deferring to their fact-

finding expertise.7

For example, in Agliori, the plaintiff brought a claim under the

UTPCPL, broadly alleging misrepresentations by a life insurance agent that
____________________________________________

7
We note further that Appellant’s argument, suggesting the trial court was
obliged to review evidence of her damages “in the light most favorable” to
her as the “verdict winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence,” misstates the law. See
Appellant’s Brief at 47-48 (quoting Buckley v. Exodus Transit & Storage
Corp., 744 A.2d 298, 304-05 (Pa. Super. 1999) (reviewing a trial court’s
denial of the appellant’s/plaintiff’s motion for judgment notwithstanding the
defense verdict)). We admonish Appellant to strive for greater precision in
her presentation. See also Yenchi, 123 A.3d at 1080 n.6.

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induced the plaintiff to surrender his existing, whole life policies and

purchase a new, universal life policy. Agliori, 879 A.2d at 317. Following a

bench trial, the trial court found a UTPCPL violation but declined to award

damages, because it did not find any ascertainable loss of money or

property. Id. at 317-18.

The [trial] court determined that Mr. Donahue had entered into
the transaction to purchase $40,000 of life insurance coverage
for $600 per year plus the surrender value of his whole life
policies. Because Mr. Donahue never paid more than $600 per
year for the insurance and his estate received $40,000 plus
interest upon his death, the court found that Mr. Donahue
received the policy that he wished to purchase and therefore did
not suffer any loss.

Id. at 318.8

On appeal in Agliori, the issue before this Court was whether the

plaintiff had “suffered an ‘ascertainable loss’ within the meaning of the

UTPCPL.” Id. at 320. We observed that the plaintiff’s evidence suggested

that, if plaintiff had maintained his previous policies instead of purchasing a

new one from the defendants, then at the time of his death, the plaintiff

would have received a greater benefit.9 Id. at 321. Upon proper

examination of “all the policies that constituted the transaction,” we

suggested the court could find an ascertainable loss. Id. (emphasis in
____________________________________________

8
Following the plaintiff’s death, the claim was maintained by his estate. Id.
at 317 n.3.
9
The plaintiff introduced evidence suggesting that the value of his whole life
policies would have been $47,000. Id. at 318.

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original). Thus, we remanded for further consideration of the facts

presented and a determination of the appropriate damages. Id. at 322.

In reaching this conclusion, we stressed that the purpose of the

UTPCPL was “to prevent and deter fraud.” Id. at 320. However, at no point

in our analysis did we mandate the appropriate manner of calculating

damages. Quite to the contrary, we stated unequivocally that “[t]he UTPCPL

does not provide a formula for calculation of ‘actual damages,’ and, as noted

recently by the Third Circuit Court, the Pennsylvania Supreme Court has not

to date interpreted this statutory term.” Id. at 319 (citing Samuel-Bassett

v. KIA Motors Am., Inc., 357 F.3d 392, 399 (3d Cir. 2004)). We also

recognized that “our case law has sanctioned the application of several

damage assessment schemes under the UTPCPL.” Id. at 319 (thereafter

discussing several cases).

There is no issue before the Court in this case whether Appellant

suffered an ascertainable loss. Though Appellees challenged liability at trial,

they have elected not to appeal the judgment in this case. Clearly, the trial

court here determined that Appellant had suffered an ascertainable loss and

awarded damages. Moreover, Agliori has little in common with the factual

background in this case, apart from the obvious similarities that both cases

involve deceptive conduct and the sale of a life insurance policy. For our

purposes, Agliori serves only to stress the remedial goals of the UTPCPL

and our liberal construction of its provisions. Id. at 318.

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Appellant also cites this Court’s decision in Lesoon. In that case, the

plaintiffs maintained two, life insurance policies, valued at $5,000 and

$10,000. Lesoon, 898 A.2d at 622. Following a meeting with the

defendant’s agent, the plaintiffs agreed to purchase a new, $50,000 policy

for $18.00 per month. The plaintiffs purchased the new policy believing that

the two, pre-existing policies would remain unchanged. Id. at 623. The

plaintiffs also declined to enroll in the defendant’s automatic payment

program. Id. Thereafter, the plaintiffs discovered that one of their pre-

existing policies had been altered without their permission and that someone

had forged one plaintiff’s signature, thus enrolling the plaintiffs in the

automatic payment program. Id.

When the plaintiffs confronted the defendant, the defendant rescinded

the transaction, restored all moneys automatically deducted from their

checking account, and reinstated their pre-existing policy to its original form.

Id. at 624. Nevertheless, the plaintiffs filed a complaint alleging fraud and a

UTPCPL violation. Following a bench trial, the trial court found in plaintiffs’

favor on both claims but awarded $100.00 in damages, 10 concluding that the

plaintiffs had not suffered any actual damages. Id. at 625.

____________________________________________

10
$100.00 is the minimum award under the UTPCPL. See 73 P.S. § 201-
9.2.

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On appeal in Lesoon, we vacated the judgment and remanded so the

trial court could reassess its damages award. Id. at 633. We commenced

our analysis recognizing that “appellate courts should give deference to the

decisions of the trier of fact who is usually in a superior position to appraise

and weigh the evidence.” Id. at 628. Nevertheless, we specifically rejected

the trial court’s conclusion that, because the defendant had returned the

plaintiffs to their original position, its post-fraud rescission was a sufficient

remedy, and we concluded that the record did not support the trial court’s

determination that the plaintiffs had presented no evidence of an

ascertainable loss. Id. at 632. At a minimum, we concluded, the plaintiffs

had lost the benefit of their bargain, because the insurance policy issued was

more expensive than the policy promised them. Id. at 633. Thus, we

agreed that the plaintiffs were “entitled to the benefit of the contract that

was promised.” Id. at 631.

The Lesoon decision offers further guidance on how a trial court may

evaluate whether a UTPCPL plaintiff has suffered an ascertainable loss.

Moreover, unlike in Agliori, the issue of damages was squarely before the

Court in Lesoon. However, we rejected the opportunity to define actual

damages under the UTPCPL and expressly declined to adopt the plaintiffs’

calculation of damages, stressing that “the duty of assessing damages is for

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the trier of fact, and we will not usurp that function.” Id. (emphasis

added).11

Finally, in Boehm, an insured brought claims of fraudulent

misrepresentation in connection with the sale of a life insurance policy.

Boehm, 117 A.3d at 313. Although the plaintiffs’ common law claims were

denied, following a bench trial on their UTPCPL claims, the trial court found

that the defendants had “purposely and intentionally misrepresented the

terms of the policy.” Id. at 314. Significantly, the trial court credited the

plaintiffs’ evidence expressly and “explicitly found that [the defendants’]

experts on damages did not offer credible testimony.” Id. at 332; see also

id. at 314-19 (quoting the plaintiffs’ proposed findings of fact in their

entirety and noting their adoption by the trial court). In awarding damages,

the trial court accepted the plaintiffs’ model, awarding nearly the full

measure of the plaintiffs’ request. Id. at 319, 328.12

On appeal, we again stressed the deterrence function of the statute

but recognized that an ascertainable loss must be established by the facts of

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11
According to the plaintiffs in Lesoon, they were entitled to receive “the
sum of $531 multiplied by the life of the fifty-six year policy, or $29,736.”
Id. at 632-33. The Lesoon decision does not identify from where the
proposed $531 amount in annual relief originates. Further, there is no
indication what damages were eventually awarded.
12
The plaintiffs had requested $135,960; the trial court awarded $125,000
in actual damages.

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the case. Id. at 329 (quoting DeArmitt, 73 A.3d at 593-94; Agliori, 879

A.2d at 321). Regarding damages, we noted the following:

The determination of damages is a factual question to be
decided by the fact-finder. The fact-finder must assess the
testimony, by weighing the evidence and determining its
credibility, and by accepting or rejecting the estimates of the
damages given by the witnesses. Although the fact[-]finder may
not render a verdict based on sheer conjecture or guesswork, it
may use a measure of speculation in estimating damages. The
fact-finder may make a just and reasonable estimate of the
damage based on relevant data, and in such circumstances may
act on probable, inferential, as well as direct and positive proof.

Id. at 328 (quoting Penn Elec. Supply Co., Inc. v. Billows Elec. Supply

Co., Inc., 528 A.2d 643, 644 (Pa. Super. 1987) (internal citations

omitted)); see also DeArmitt, 73 A.3d at 593. Thus, we reiterated that

“[t]he duty of assessing damages is for the fact-finder” and that “appellate

courts should give deference to the decisions of the trier of fact.” Boehm,

117 A.3d at 328 (quoting Lesoon, 898 A.2d at 628).

Importantly, based upon the facts accepted by the trial court, we

deferred to the trial court’s formulation of damages. We did not mandate

any particular method of calculating actual damages; we merely discerned

no abuse of discretion. Boehm, 117 A.3d at 332-33.

We summarize the preceding precedents as follows. In order to

recover damages under the UTPCPL, a plaintiff must demonstrate an

ascertainable loss as a result of the defendant’s prohibited action.

Weinberg; Boehm; DeArmitt. The trier of fact must examine the entire

factual circumstances of a case to determine whether the plaintiff has

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succeeded in demonstrating an ascertainable loss. Agliori. If so, the fact-

finder may award actual damages. Though no precise definition of actual

damages currently prevails, it is clear that a successful plaintiff is entitled to

the benefit of her bargain. Lesoon. Therefore, the fact-finder must

consider the precise benefit expected. Boehm; Lesoon. It is also clear

that there must remain certain flexibility in calculating actual damages, as

they are dependent upon the evidence accepted and found persuasive by a

fact-finder. Boehm; DeArmitt; Agliori.

To be clear, none of the cases cited by Appellant have mandated a

particular method of calculating actual damages. Boehm; Lesoon; Agliori.

Moreover, we discern no authority empowering this Court to dictate which

facts must be accepted by the fact-finder when considering those damages

due a successful plaintiff. Boehm; Lesoon; Agliori. Provided a trial court

adheres to the basic principles outlined above, and absent further guidance

from the Legislature or our Supreme Court, we will continue to afford

deference to the damages decisions of the fact-finder.

Here, the trial court adhered to these principles, and thus we discern

no legal error. The court concluded that Mr. Suhayda had secured

Appellant’s purchase of a life insurance policy through deceptive means, thus

violating the UTPCPL. See Non-Jury Verdict, 06/17/2014. The court

recognized that Appellant had suffered an ascertainable loss as a result of

this prohibited conduct. Id.; see also Trial Court Opinion at 2, 6-8.

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In examining the evidence of damages, the trial court acknowledged

that calculating Appellant’s actual damages with precision was difficult

because of the underlying flexibility in policy investments, the scheduled

premiums, and the death benefit. Trial Court Opinion at 6-7 (asserting its

damage estimate was reasonable based on the evidence and citing in

support Penn Elec. Supply Co., Inc., 528 A.2d at 644). Nevertheless, the

court sought to insure that Appellant would receive the benefit of her

bargain, namely a $50,000 death benefit, secured beyond her life

expectancy, for a fixed, annual premium of $715.56. See Trial Court

Opinion at 8.

The trial court considered and expressly rejected Appellant’s evidence

of damages and, though with less specificity, similarly rejected the damages

model suggested by Appellees. See Trial Court Opinion at 6-8. It was free

to do so. Boehm; DeArmitt; Agliori. In rejecting Appellant’s evidence,

the court identified two areas of concern. First, the court found no evidence

to support Appellant’s suggestion that she would live fifteen years beyond

her life expectancy.13 Trial Court Opinion at 7. The court also found

“inappropriate” Appellant’s premise that “actual damages” should be
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13
We infer from the trial court’s opinion that the court sought a middle
ground in securing Appellant’s policy to age ninety-one. Essentially, this
splits the difference between Appellant’s calculations through age ninety-
nine and Appellees’ calculations through appellant’s life expectancy of
eighty-three. We discern no abuse of discretion in this regard. Boehm, 117
A.3d at 328.

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calculated using the so-called “Guideline Level Premium,” a premium level

designed to maximize the underlying cash value of a policy. Id. at 7. As

noted by the trial court, Appellant’s policy goal was not to maximize the

liquid, cash value of the policy but rather to secure financial security for her

beneficiary. Id. Moreover, the court recognized that Appellant had never

deviated from her underlying investment strategy, with policy subaccounts

invested in stocks, bonds, and mutual funds. Id. at 8. We defer to these

findings, as they are supported by the record.

The court’s calculation considered the current value of Appellant’s

policy, assumed a reasonable rate of investment growth in Appellant’s policy

subaccounts, and factored in Appellant’s fixed premium and the increasing

cost of insurance. Based on these considerations, the trial court concluded

that an additional $5,000 would ensure Appellant a $50,000 benefit until she

reaches age ninety-one. The court concluded that this was a reasonable

estimate of Appellant’s actual damages, and we discern no abuse of

discretion.14 Accordingly, the trial court’s judgment of $5,000 actual

damages is affirmed.

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14
Notably, Appellant does not challenge the calculations of the trial court,
with one exception. On appeal, Appellant attacks the court’s assumption of
a 6% rate of growth in Appellant’s investment subaccounts. According to
Appellant, the fluctuation in the rate of return on Appellant’s investments
renders any estimate too speculative. See Appellant’s Brief at 50-55.
However, at trial, Appellant introduced no evidence relating to the
performance of these accounts, and her attempt to introduce evidence now
(Footnote Continued Next Page)

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In her third issue, Appellant contends the trial court abused its

discretion when it declined to award treble damages under the UTPCPL.

According to Appellant, the trial court failed to properly consider the

evidence of Appellees’ prohibited conduct and, absent treble damages, “the

deterrence value of the UTPCPL is weakened, if not lost entirely.” See

Appellant’s Brief at 61 (quoting Boehm, 117 A.3d at 329).

Appellant’s argument is devoid of merit. The UTPCPL affords the trial

court discretion to “award up to three times the actual damages sustained.”

73 P.S. § 201-9.2(a) (emphasis added). Thus, there is no obligation for a

trial court to award treble damages. Indeed, and quite to the contrary of

Appellant’s position, our Supreme Court has recognized that trial courts’

discretion to award treble damages must be tempered by the facts

demonstrated.

[T]he discretion of courts of original jurisdiction is not limitless,
as we believe that awards of treble damages may be reviewed
by the appellate courts for rationality, akin to appellate review of
the discretionary aspect of equitable awards, as previously
discussed. Centrally, courts of original jurisdiction should focus
_______________________
(Footnote Continued)

is inappropriate. See Appellant’s Brief at 52-54 (attempting to demonstrate,
with fluctuating returns over a short, 3-year period, that an average rate of
return can produce different investment results). In contrast, the evidence
introduced by Appellees established that the value of these investment
subaccounts had doubled since inception, at one point reaching a 20%
growth rate. The trial court made a reasonable estimate based upon the
evidence before it. Boehm, 117 A.3d at 328 (permitting a measure of
speculation in estimating damages based upon the evidence). Accordingly,
we discern no abuse of discretion in the trial court’s estimate of future
investment growth.

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on the presence of intentional or reckless, wrongful conduct, as
to which an award of treble damages would be consistent with,
and in furtherance of, the remedial purposes of the UTPCPL.

Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007).

Here, the trial court expressly found that Appellees’ “misrepresentation

was made negligently, but not recklessly or intentionally.” Trial Court

Opinion at 9 (emphasis added); see also Non-Jury Verdict, 06/17/2014.

The court concluded that doubling Appellant’s actual damages was

consistent with the Schwartz analysis. Trial Court Opinion at 9. We agree

and, therefore, discern no abuse of the trial court’s discretion.15

____________________________________________

15
We note further that Appellant’s reliance upon Boehm is again
misleading. The full quote from Boehm is as follows:

Decisions by our Supreme Court and this Court have stressed time and
again the deterrence function of the statute. If the court permits the
appellee-defendants simply to repay what is owed the consumer under
the fraudulently induced contract, the deterrence value of the
[UTPCPL] is weakened, if not lost entirely. We cannot accept such an
evisceration of the statutory goals.

Boehm, 117 A.3d at 329 (emphasis added) (quoting Agliori, 879 A.2d at
321-22). In context, the Agliori Court was not suggesting that treble
damages were necessary to strengthen the deterrence value of the UTPCPL
but explaining our generally liberal approach to determining actual damages.
The court thereafter concluded as follows:

We therefore remand to the trial court for determination of Mr.
Donahue's ascertainable loss and the appropriate damages.
Appellants seek treble damages, but we decline to rule on that issue.
The imposition of treble damages is within the discretion of the trial
court, to be determined on remand.

Id. at 322 (emphasis added).
(Footnote Continued Next Page)

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In her fourth issue, Appellant contends that the trial court abused its

discretion when it declined to award the full measure of her requested

attorney fees. Following the trial court’s non-jury verdict, Appellant filed a

petition requesting fees in the amount of $75,971. See Petition for the

Award of Counsel Fees, 07/29/2014, at 13. In support of her request,

Appellant suggested an hourly rate of $400 for Attorney Kenneth R.

Behrend. Id. at Exihibit 1. However, the trial court rejected this rate,

reducing it to $350 per hour. Trial Court Order, 12/09/2014, at 2

(unnumbered); Trial Court Opinion at 11, 13 (noting that the court also

reduced the hourly rate of Attorney Behrend’s “second chair”). The court

further reduced certain line item fees due to a lack of evidentiary support

and made a general reduction to reflect the amount involved in the

controversy. Trial Court Order, 12/09/2014, at 1-2 (unnumbered) (citing in

support Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa. Super. 2005),

appeal denied, 882 A.2d 1022 (Pa. 2006)); Trial Court Opinion at 9-14.

The UTPCPL provides that the trial court “may award to the plaintiff, in

addition to other relief provided in this section, costs and reasonable

attorney fees.” 73 P.S. § 201-9.2 (emphasis added). An award is not

_______________________
(Footnote Continued)

In addition, though Appellant suggests that the facts of this case are
similarly egregious as in Boehm, see Appellant’s Brief at 60-61, and
therefore warrant treble damages, id., we observe that treble damages were
not awarded in Boehm. See Boehm, 117 A.3d at 319, 328.

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J-A35013-15

mandatory. Id.; see also Krebs v. United Ref. Co. of Pa., 893 A.2d 776,

786 (Pa. Super. 2006) (interpreting the use of the word “may” in a similar

provision of the Pennsylvania Storage Tank and Spill Prevention Act, 35 P.S.

§ 6021.1305(f) and concluding that an award “rests within the sound

discretion of the trial court”). Nevertheless,

the fee-shifting statutory provision of the UTPCPL is designed to
promote its purpose of punishing and deterring unfair and
deceptive business practices and to encourage experienced
attorneys to litigate such cases, even where recovery is
uncertain.

Boehm, 117 A.3d at 336 (citing Krebs, 893 A.2d 776, 788 (Pa. Super.

2006)).16 Thus, a court should consider these purposes when deciding

whether to award attorney fees. Id.

The following factors should be considered when assessing the

reasonableness of attorney fees under the UTPCPL:

(1) The time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the
case; (2) The customary charges of the members of the bar for
similar services; (3) The amount involved in the controversy and

____________________________________________

16
To be clear, our Supreme Court suggested that the purpose of a remedial
statute must be considered when a trial court evaluates whether to award
fees. Krebs, 893 A.2d at 788. The purpose does not impact the amount of
an award, which must be reasonable. Id. (noting that a departure from the
“American Rule,” where each party is responsible for their own attorney
fees, indicates that “the trial court’s discretionary award or denial … must be
made in a manner consistent with the aims and purposes of that statute”);
but cf. Boehm, 117 A.3d at 337 (citing Krebs in response to the
appellant’s argument that the trial court’s award of attorney fees was
excessive compared to a contingency fee arrangement).

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J-A35013-15

the benefits resulting to the clients from the services; and (4)
The contingency or certainty of the compensation.

Boehm, 117 A.3d at 335 (quoting Sewak v. Lockhart, 699 A.2d 755, 762

(Pa. Super. 1997)); see also Neal, 882 A.2d at 1030-31. Notably, “there

should be a sense of proportionality between an award of damages [under

the UTPCPL] and an award of [attorney] fees.” Boehm, 117 A.3d at 335

(quoting McCauslin v. Reliance Fin. Co., 751 A.2d 683, 685-86 (Pa.

Super. 2000)); Ambrose v. Citizens Nat. Bank of Evans City, 5 A.3d

413, 423 (Pa. Super. 2010) (distinguishing Neal on other grounds, but citing

it favorably for its recognition that “the amount of compensatory damages is

one of several considerations when assessing the reasonableness of an

attorney[’s] fee request”). We review a trial court’s assessment of attorney

fees for an abuse of discretion. Boehm, 117 A.3d at 335 (citing Neal, 882

A.2d at 1029).

Appellant raises several arguments in support of her contention.

According to Appellant, the trial court was required to accept counsel’s

requested hourly rate because the trial court in Boehm had approved the

same rate, under similar circumstances. Appellant’s Brief at 64-66

(referencing the decision in Boehm; citing in support Yudacufski v.

Commonwealth, Dep’t of Transp., 454 A.2d 923, 926 (Pa. 1962).

Appellant also challenges the trial court’s further reductions, suggesting that

they are inconsistent with the remedial purposes of the UTPCPL. Appellant’s

Brief at 72 (citing in support Boehm, 117 A.3d at 336).

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J-A35013-15

Appellant’s reliance upon Yudacufski is misplaced. In that case, our

Supreme Court held that “absent the most compelling circumstances, a

judge should follow the decision of a colleague on the same court when

based on the same set of facts.” Yudacufski, 454 A.2d at 926 (concluding

that the trial judge’s “thoughtful opinion” had “established the law of that

judicial district”). However, a judge is not bound by another’s decision

where it is not supported by an opinion addressing the reasons for that

decision. Kapres v. Heller, 612 A.2d 987, 991 (Pa. Super. 1992).

Although the trial court in Boehm approved an hourly rate of $400 for

Attorney Behrend, it offered no explanation for its decision. See Petition for

the Award of Counsel Fees, Exhibit 4 (Boehm v. Riversource Life Ins.

Co., No. GD 01-8289, 02/24/2014 (Lutty, J.)) at p. 3 (unnumbered).

Without the benefit of the Boehm trial judge’s reasoning, the Honorable

Alan Hertzberg, the trial judge in this case, was not required to accept

Appellant’s suggested hourly rate. In contrast here, Judge Hertzberg

examined the documentary evidence submitted by the parties and set forth

an analysis supporting his decision to reduce Attorney Behrend’s hourly rate.

See Trial Court Opinion at 11-12. Accordingly, we discern no legal error.17

____________________________________________

17
Moreover, it is not at all clear that the facts relevant to the Boehm court’s
decision are present here. As discussed, supra, the court must consider
specific factors in granting attorney fees, including the complexity of the
issues involved, the amount of labor required, and the amount involved in
the controversy. Boehm, 117 A.3d at 335. Appellant does not address
(Footnote Continued Next Page)

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J-A35013-15

Appellant also suggests that the trial court failed to explain its other

reductions to her requested attorney fees. See Appellant’s Brief at 66. This

is simply inaccurate. The trial court explained its decision in detail. See

Trial Court Order, 12/09/2014 (granting Appellant’s petition for attorney fees

and noting those factors which guided its decision); Trial Court Opinion at 9-

16 (setting forth the court’s analysis).

Finally, in a contrary argument, Appellant suggests that the trial court

conducted both an “hour-by-hour analysis,” as well as an “across-the-board”

reduction in hours to reduce the attorney fees awarded, a practice prohibited

under certain federal law. See Appellant’s Brief at 71 (citing Bivins v.

Wrap It Up, Inc., 548 F.3d 1348, 1351-52 (11th Cir. 2008) (precluding

such double-discounts of requested hours)). However, Appellant

mischaracterizes the trial court’s analysis. See id. (suggesting that the

court’s reduction of fees from roughly $48,000 to $25,000 was the result of

an “across-the-board” cut in hours). To the contrary, the trial court

explained in detail that this final reduction was based upon the “the amount
_______________________
(Footnote Continued)

these factors in her argument, and her suggestion that the present case
involves “the same issue and facts” merely because there are no compelling
differences is grossly inadequate. See Appellant’s Brief at 65. Further,
Appellant’s bald assertion that the trial court was estopped from deciding
counsel’s proper hourly rate is waived for failure to develop a proper
argument. See Pa.R.A.P. 2119(a); see also Appellant’s Brief at 66 (yet
again erroneously citing Boehm, which referenced collateral estoppel while
discussing the appropriate standard of proof to establish a fraud claim
brought under the UTPCPL; see Boehm, 117 A.3d at 320 n.4).

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J-A35013-15

involved in the controversy and the benefits resulting to the clients.” See

Trial Court Opinion at 13-14 (quoting Neal, 882 A.2d at 1030); see also

Boehm, 117 A.3d at 335.

Based upon its factual determinations, regarding counsel’s hourly rate

and the lack of evidentiary support for certain line item fees, as well as its

analysis of the factors set forth in Boehm, Sewak, and Neal, supra,

including consideration of the amount in controversy, we discern no abuse of

the trial court’s discretion. Boehm, 117 A.3d at 335. Accordingly, we

affirm its award of attorney fees.

In her fifth and seventh issues, Appellant contends the trial court

abused its discretion regarding two instructions given to the jury. According

to Appellant, the trial court committed reversible error when it instructed the

jury that (1) it could reduce a lump-sum award of future damages to their

present value if inflation would not adversely impact the award,; and (2) an

insured has no duty to read her policy and may rely on the representations

of her agent unless, under the circumstances, it is unreasonable for her not

to read the policy. See Appellant’s Brief at 75-76, 78-82.

We need not address these arguments in detail.

Our [standard] of review is limited to determining whether the
trial court committed a clear abuse of discretion or error of law
controlling the outcome of the case. Error in a charge is
sufficient ground for a new trial if the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse
rather than clarify a material issue. A charge will be found
adequate unless the issues are not made clear to the jury or the
jury was palpably misled by what the trial judge said or unless

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J-A35013-15

there is an omission in the charge which amounts to a
fundamental error. In reviewing a trial court's charge to the jury
we must look to the charge in its entirety. Because this is a
question of law, [the scope of] this Court's review is plenary.

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70

(Pa. 2006) (internal citations and quotations omitted; punctuation modified).

Here, the trial court instructed the jury that “if future inflation could

not impact damages under the method you use to calculate the cost of

future insurance, you are permitted to discount damages to present value.”

Notes of Testimony (N.T.), 05/20-23/2014, at 790; see also Trial Court

Opinion at 4 (citing in support Helpin, 10 A.3d at 272). Thereafter, the jury

returned a mixed verdict and awarded $5,000 in damages. Appellant’s

UTPCPL claim was submitted to the trial judge, who found for Appellant,

awarded $5,000 in actual damages, and then doubled the award pursuant to

73 P.S. § 201-9.2. Following disposition of Appellant’s post-trial motions,

the trial court selected “the $10,000 non-jury verdict … as the single verdict

for this proceeding” and directed judgment to be entered thereon. Trial

Court Order, 12/09/2014, at 2. Accordingly, as judgment was entered solely

on the non-jury verdict in this case, any error in the damages charge to the

jury did not control the outcome of this case.18

____________________________________________

18
Incidentally, Appellant does not assert that the trial court erroneously
reduced its actual damages award to present value. See Appellant’s
Pa.R.A.P. 1925(b) Statement at 2; Appellant’s Brief at 37-55.

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J-A35013-15

Appellant submitted common law claims to the jury, asserting

fraudulent and negligent misrepresentation. Both claims require that a

plaintiff establish the element of justifiable reliance. See Drelles v. Mfrs.

Life Ins. Co., 881 A.2d 822, 836, 840 (Pa. Super. 2005) (citing respectively

Rempel v. Nationwide Life Ins. Co., Inc., 323 A.2d 193, 197 (Pa. Super.

1974); Toy v. Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. 2004)).

Regarding the element of justifiable reliance, the trial court instructed the

jury that “an insured may … rely on the representations of his or her

insurance agent unless, under the circumstances, it is unreasonable for that

insured not to read the policy when it is delivered.” N.T. at 782-83; see

also Trial Court Opinion at 6 (citing in support Drelles, 881 A.2d at 840-

41). Here, although the jury’s verdict was not reduced to judgment, we

note that it found in favor of Appellant on her claim of negligent

misrepresentation and, thus, necessarily found that Appellant had

established the element of justifiable reliance. See Drelles, 881 A.2d at

836; Jury Verdict, 05/27/2014, at 2. Accordingly, we discern no reversible

error.

In her sixth issue, Appellant contends the trial court abused its

discretion, as it denied Appellant’s motion in limine, thus permitting

Appellees’ damages expert to present a model of damages that was

inconsistent with current law. According to Appellant, Appellees’ model

impermissibly reduces her future lump-sum damages to their present

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J-A35013-15

value.19 Appellant’s Brief at 77 (citing in support Boehm, 117 A.3d at 333-

34).

A trial court's decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court's decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous. In
addition, to constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to
the complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (internal

citations omitted; punctuation modified), appeal denied, 123 A.3d 331 (Pa.

2015), cert. denied, 136 S.Ct. 557 (2015).

Here, Appellant presented testimony that her actual damages were

$29,012.85; Appellees countered, suggesting damages of $7,132. However,

the jury awarded Appellant $5,000.00 in actual damages. Jury Verdict,

____________________________________________

19
It had long been recognized that a lump sum award for future damages
could be discounted to their present value. See, e.g., Chesapeake & Ohio
Ry. Co. v. Kelly, 241 U.S. 485, 489-91 (1916) (recognizing that a monetary
award for the deprivation of future benefits could be reduced to present
value in order to account for the earning power of money). However, our
Supreme Court later reevaluated this approach, adopting the “total offset
method” of calculating compensatory damages in limited circumstances.
See Kaczkowski v. Bolubasz, 421 A.2d 1027, 1036 (Pa. 1980) (rejecting
a reduction in damages to the present value of future lost earnings because
“the effect of the future inflation rate will completely offset the interest
rate”).

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J-A35013-15

05/27/2014, at 3. We do not know how the jury selected this amount, but it

is clear that the jury rejected both parties’ models. Therefore, we conclude

that any evidentiary error was neither harmful nor prejudicial to Appellant.20

Moreover, the trial court considered and expressly rejected the damages

model suggested by Appellees. See Trial Court Opinion at 6-8. Accordingly,

Appellant suffered no prejudice, and we discern no reversible error. Parr.

Notwithstanding the lack of prejudice to Appellant, we observe the

following. In Boehm, we discerned no reason why the total offset approach

to calculating damages would be inappropriate in a case brought under the

UTPCPL. Boehm, 117 A.3d at 334. Nevertheless, based upon the facts

accepted by the trial court and our deferential standard of review, we did not

set forth a new rule of law but merely noted the absence of a contrary rule

and ultimately deferred to the trial court’s decision. Id.

Our Supreme Court has recognized specifically that “in the absence of

inflation, there [is] no economic disagreement with the theory behind

discounting future damages awards to the present value.” Helpin, 10 A.3d

at 272. In addition, our Supreme Court has stated that its adoption of the

total offset approach was narrow. Id. at 274 (expanding the concept of

future lost earnings to include future lost profits but stating, “It must be

____________________________________________

20
As observed, supra, judgment in this matter was entered solely on the
non-jury verdict. Trial Court Order, 12/09/2014, at 2. Therefore, for this
reason, too, any evidentiary error did not prejudice Appellant.

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J-A35013-15

noted that this Court decided Kaczkowski narrowly.”). The Court’s

assertion in Helpin is on strong footing:

This Commonwealth now requires that a damage award be
discounted to its present value by using six percent simple
interest figure. We do not wish to disturb this requirement in
calculating future damages in other contexts. We refrain from
attempting to fashion broad general rules as a panacea. The
obviously wiser course is to resolve disputes on a case-by-case
basis until we develop, through experiences in (an) area, a
sound basis for developing overall principles.

Kaczkowski, 421 A.2d at 1036 n.21.

In Boehm, it is not clear whether any factual dispute was raised

regarding the impact of inflation on the premium payments payable into the

future. The trial court made no specific finding in that regard but rather

adopted the plaintiff’s findings expressly and rejected the defendant’s expert

analysis as “not credible.” Boehm, 117 A.3d at 314. However, the trial

court’s factual findings in Boehm should not preclude other fact-finders from

considering such evidence of the impact of inflation on a lump sum award of

future damages.21

____________________________________________

21
We observe further that counsel for Appellant conceded that inflation
would not adversely impact the premiums paid by Appellant.

THE COURT: So inflation can’t do anything with that [i.e., future
premiums]. That’s what I’m trying to say.

Mr. BEHREND: Their actuary factored everything in to come up with
that dollar amount. That is already factored in. They want to do a
double deduction.

(Footnote Continued Next Page)

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J-A35013-15

Finally, in her eighth issue, Appellant contends that the trial court

erred when it denied her motion to compel discovery related to company-

wide financial planning and insurance sales practices. The motion

referenced was not litigated in this case.22 Our law is clear:

On appeal the Superior Court will not consider a claim which was
not called to the trial court's attention at a time when any error
committed could have been corrected. In this jurisdiction ... one
must object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to afford the
jurist hearing the case the first occasion to remedy the wrong
and possibly avoid an unnecessary appeal to complain of the
matter.

Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008); see

also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Accordingly, this claim is

waived.

For the above reasons, we remand for further proceedings limited to

Appellant’s claim for breach of fiduciary duty. In all other respects, we

affirm the trial court.
_______________________
(Footnote Continued)

THE COURT: Right, so they covered the risk for themselves they
believe by doing that, but they say this is guaranteed, we’ll cover you
no matter what happens. They control that inflation factor.

MR. BEHREND: Yes, you are correct.

N.T. at 38-39.
22
For a more thorough discussion of the procedural background to this
motion, see Yenchi, 123 A.3d at 1081.

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J-A35013-15

Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2016

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