Huyett v. v. Doug's Family Pharmacy

J-A30012-16
2017 PA Super 115

VALERIE HUYETT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

DOUG’S FAMILY PHARMACY

No. 294 MDA 2016

Appeal from the Judgment Entered February 5, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 08-4706

BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.: FILED APRIL 20, 2017

This matter comes before this panel following a prior decision vacating

a judgment and remanding to the trial court for its application of the proper

legal standard to determine whether to award attorney fees pursuant to §

962(c.2) of the Pennsylvania Human Relations Act (the “PHRA”), 43 P.S. §

951 et seq.. See Huyett v. Doug’s Family Pharm., 122 A.3d 1136

(Pa.Super. 2015) (unpublished memorandum). Valerie Huyett, the

prevailing party below, renews her challenge to the trial court’s denial of

attorney fees. After careful review, we affirm.

We glean the relevant facts from our review of the record. Valerie

Huyett, a 38-year-old married mother of two young children, worked for

eleven years at Doug’s Family Pharmacy as a pharmacy technician. She
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received pay raises annually. Douglas Hess was the owner/operator of the

Pharmacy, and his wife, Lisa Hess, assisted him in running the business.

On August 24, 2006, Ms. Huyett was diagnosed with Hodgkins

lymphoma, a form of cancer. She communicated that diagnosis to her

immediate supervisor, Stephanie Mitchell, a pharmacist. Four days later, on

August 30, 2006, she received a telephone call from Mr. Hess. According to

Ms. Huyett, Mr. Hess told her that he was terminating her employment

because he could not deal with the scheduling issues related to her

treatments. He subsequently proposed that she sign a formal resignation,

and in return he would not contest her collection of unemployment

compensation benefits, he would pay her for three weeks of vacation, an

additional one week’s pay, and two sick days. N.T. Trial, 10/10/12, at 225.

When she refused to sign the resignation, he opposed her receipt of

unemployment compensation benefits. Nonetheless, she was awarded

unemployment.

Ms. Mitchell provided critical evidence on Ms. Huyett’s behalf. She

testified that she started at Doug’s Family Pharmacy in September 2005 as a

part-time pharmacist, and was a full-time employee from January 2006 to

May 2007. She was impressed with Ms. Huyett and described her as “one of

the best technicians that I ever worked with.” N.T., 10/11/12, at 474.

Ms. Mitchell verified that, prior to receiving the cancer diagnosis, Ms.

Huyett had complained of frequent sore throats and she had a visible,

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palpable lump on her throat. Ms. Mitchell and Mrs. Hess had actually

touched the lump. On one occasion prior to August 2006, Ms. Mitchell

recalled that Ms. Huyett left work to go to an urgent care center as she was

having trouble swallowing. According to Ms. Mitchell, both Mr. and Mrs.

Hess were aware that Ms. Huyett was scheduled to undergo a biopsy and

she personally discussed with them the possibility that Ms. Huyett had

cancer.

Ms. Huyett telephoned Ms. Mitchell on August 24, 2006, and informed

her that she had Hodgkins lymphoma. Ms. Mitchell told her she did not have

to come to work that day, but Ms. Huyett insisted on working. Id. at 485.

Ms. Huyett did not come to work on August 30, 2006, however, because she

had been fired the night before. Ms. Mitchell mentioned to Mr. Hess that day

that she could not believe that Ms. Huyett no longer worked there and that

she had been diagnosed with cancer. Id. at 493. Mr. Hess responded that

her termination was best, both for him and for Ms. Huyett, as “she could go

out and collect unemployment. She doesn’t have to worry about showing up

for work, she could be at home going through her treatments, she could

collect her unemployment check and he doesn’t have to worry about getting

coverage for work because of -- when she is calling out sick with her

treatments.” Id. He called it a “win/win situation.” Id. When Ms. Huyett

recovered, Mr. Hess would “hire her back.” Id. Mr. Hess did not disparage

Ms. Huyett or her work performance.

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Ms. Mitchell testified that approximately one month after Ms. Huyatt’s

termination, she observed Mrs. Hess walking around with a clipboard making

a list of mistakes Ms. Huyett had made. Mrs. Hess questioned Ms. Mitchell

and the other employees about what they had observed and noted their

responses.

Mr. Hess justified the firing based on Ms. Huyett’s declining work

performance. He told the jury that, for the first nine years of her

employment, Ms. Huyett was an excellent employee. During the final two

years, however, her performance declined. She wore inappropriate attire to

work and was habitually late. He also provided examples of mistakes made

by Ms. Huyett and instances where she gave inappropriate advice to

customers. Some of these incidents were confirmed by Mrs. Hess and by

Emily O’Neill, an employee who worked at the Pharmacy during the relevant

period. Ms. Huyett disagreed with their accounts of her work performance.

At trial, Ms. Mitchell disputed that Ms. Huyett arrived to work late on

the day of her diagnosis, or that she was tardy and appeared hung over on

August 28, 2006. She was confronted on cross-examination with an email

that purported to be from her account and that was critical of Ms. Huyett’s

performance. Ms. Mitchell denied that she authored the entire email and she

posited that someone else had added the paragraphs that disparaged Ms.

Huyett. Ms. Mitchell subsequently left her employment at Doug’s Pharmacy

and started working full-time at CVS.

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It was Ms. Huyett’s contention that she was fired due to her disability

and she claimed an economic loss of $18,894.92. At trial, Ms. Huyett

presented her treating oncologist, Daniel L. Foreman, M.D., who opined that,

she “suffered physical and mental impairment affecting one or more of her

major life activities as a result of her diagnosis and treatment.” N.T.,

10/9/12, at 58. However, her treatment did not affect her ability to work as

a pharmacy technician. Id. at 59. She was capable of performing those

duties “without assistance, adjustment, or accommodation.” Id. at 60. The

administration of her chemotherapy could be arranged to accommodate her

work schedule. Id.

In support of his position that Ms. Huyett’s termination was motivated

by her inadequate work performance rather than discrimination, Mr. Hess

also offered the testimony of his attorney, J. Kitridge Fegley. The attorney

confirmed that Mr. and Mrs. Hess mentioned to him in early August 2006

that they intended to terminate an eleven-year employee when they

returned from their vacation. After Ms. Huyett was diagnosed with cancer

just weeks later, they sought his legal advice about terminating Ms. Huyett

in light of the diagnosis.

The jury returned a verdict in favor of Ms. Huyett and against Doug’s

Family Pharmacy. It awarded damages for economic loss in the full amount

sought and $2,500.00 in non-economic damages. As the prevailing plaintiff,

Ms. Huyett petitioned for attorney fees totaling $106,429.30 pursuant to §

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962(c.2) of the PHRA. The trial court denied attorney fees because it did not

believe the jury’s verdict was supported by the evidence as it “did not and

does not find the testimony of Stephanie Mitchell to be credible.” Order,

1/17/14, at 1-2. Doug’s Family Pharmacy filed a motion for post-trial relief

arguing that the jury’s verdict was not supported by the evidence. The

motion was denied.

Ms. Huyett appealed to this Court and alleged, inter alia, that the trial

court exceeded the permissible scope of its discretion and usurped the jury’s

credibility determinations when it did not find Stephanie Mitchell’s testimony

credible. This Court found that the trial court misapplied the law, vacated

the order, and remanded for the trial court to apply the proper legal

standard in determining whether Ms. Huyett was entitled to attorney fees.

The trial court was directed to weigh the evidence in accord with our

Supreme Court’s decision in Hoy v. Angelone, 720 A.2d 745 (Pa. 1998).

Doug’s Family Pharmacy’s petition for allowance of appeal to the Supreme

Court was denied. See Huyett v. Doug’s Family Pharm., 129 A.3d 1243

(Pa. 2015) (unpublished decision).

Upon remand, the trial court weighed the evidence presented at trial

to determine whether Doug’s Family Pharmacy had engaged in an unlawful

discriminatory practice in violation of the PHRA. It concluded that the

evidence was “weak” and did not support a finding of a violation, and denied

attorney fees by order entered February 5, 2016.

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Ms. Huyett filed the within appeal and presents three questions for our

review:

A. Did the lower court err on Remand from this Court in its
February 5, 2016 Judgment and Order denying Appellant’s
Motion for Attorneys’ Fees and Litigation Costs when the trial
court – despite denying Appellee motion for post trial relief –
held that the jury’s verdict against the Appellee was not
supported by the evidence?

B. Did the lower court err on Remand from this Court in its
February 5, 2016 Judgment and Order denying Appellant’s
Motion for Attorneys’ Fees and Litigation Costs, insofar as the
lower court abrogated remedial intent of the anti-
discrimination provisions of the PHRA when it denied
Appellant the opportunity to be “made whole” for injuries she
suffered as a result of Appellee’s unlawful discrimination?

C. Did the lower court err on Remand from this Court in its
February 5, 2016 Judgment and Order denying Appellant’s
Motion for Attorneys’ Fees and Litigation Costs after she
prevailed in a jury trial on her PHRA claim when the lower
court, which was not the fact-finder at trial, usurped the
jury’s function in order to base its denial of Appellant’s post-
trial motion for fees on its unilateral findings on issues of fact
and credibility, and when the lower court distorted the
meaning of Appellant’s recovery to err in concluding that the
jury’s award was “modest.”

Appellant’s brief at 3-4.

Ms. Huyett’s three issues challenge the propriety of the trial court’s

denial of attorney fees and costs under the Pennsylvania Human Relations

Act (“PHRA”), 43 P.S. § 951 et seq. In support thereof, Ms. Huyett advances

numerous arguments, which we will address in the order that facilitates our

disposition.

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The statutory provision in the PHRA that authorizes an award of

attorney fees to the prevailing plaintiff is 43 P.S. § 962(c.2):

If, after a trial held pursuant to subsection (c), the court of
common pleas finds that a defendant engaged in or is engaging
in any unlawful discriminatory practice as defined in this act, the
court may award attorney fees and costs to the prevailing
plaintiff.

43 P.S. § 962(c.2) (emphasis supplied).1

“To the extent that the issue before us is a question of statutory

interpretation, . . . . our scope of review is plenary and the standard of

review is de novo.” Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1,

(Pa. 2011); Sayler v. Skutches, 40 A.3d 135 (Pa.Super. 2012). (citations

omitted). In reviewing the trial court’s determination under the PHRA, we

may not reverse unless the trial court committed an abuse of discretion.

Hoy v. Angelone, supra at 752. "[A]n abuse of discretion may not be

found merely because the appellate court might have reached a different

conclusion, but requires a showing of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly

erroneous." Id. (quoting Paden v. Baker Concrete Construction, Inc.,

658 A.2d 341, 343 (Pa. 1995)).

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1
The PHRA also authorizes the court to award attorney fees and costs to a
prevailing defendant upon a showing that the complaint was brought in bad
faith. See 43 P.S. § 962 (c.3)

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The policy of making the plaintiff whole is a recurring theme

underlying all of Ms. Huyett’s arguments. She contends that since the PHRA

is a remedial statute, individuals with disabilities have a right to be made

whole. According to Ms. Huyett, the PHRA, specifically § 962(c)(3),

mandates that the court order affirmative remedies that will effectuate that

intent.2 She contends that attorney fees, which are authorized under §

962(c.2), are affirmative remedies and implicitly mandatory where the

plaintiff prevails under the PHRA.

We note preliminarily that attorney fees are not identified in §

962(c)(3)’s remedial measures. Furthermore, while reinstatement or hiring,

and back pay are remedial measures for purpose of the PHRA, punitive

damages are not. Hoy, supra at 749. The legislature addressed attorney

fees in a separate subsection of the statute and provided that they “may” be

awarded, not that they “shall” be awarded. Our High Court expressly

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2
43 P.S. § 962(c)(3) (emphasis added) provides:

If the court finds that the respondent has engaged in or is
engaging in an unlawful discriminatory practice charged in the
complaint, the court shall enjoin the respondent from engaging
in such unlawful discriminatory practice and order affirmative
action which may include, but is not limited to, reinstatement or
hiring of employes, granting of back pay, or any other legal or
equitable relief as the court deems appropriate. Back pay liability
shall not accrue from a date more than three years prior to the
filing of a complaint charging violations of this act.

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rejected the notion in Hoy that § 962(c.2) of the PHRA mandated the award

of attorney fees and costs to a prevailing plaintiff. The Court reasoned that

the “term ‘may’ signals the legislature’s intention to rest the award of

counsel fees and costs within the discretion of the trial court.” Hoy, supra

at 751. The Court found this interpretation consistent with the Statutory

Construction Act, 1 Pa.C.S. § 1921(b), and its proviso that unambiguous

terms should not be disregarded in favor of the spirit of legislation.

In reaching its conclusion, the Court declined to be bound by the

interpretation of the analogous federal provision in Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., which has been construed as

presumptively entitling a prevailing plaintiff to counsel fees and costs unless

special circumstances existed that justified no award. See Newman v.

Piggie Park Enterprises, 390 U.S. 400 (1969). The Hoy Court concluded

that an award of counsel fees and costs under the PHRA was neither

mandatory nor presumptive, but fell within the sound discretion of the trial

court. The determination cannot be reversed unless the trial court

committed an abuse of discretion.

Ms. Huyett’s reliance upon Logan v. Marks, 704 A.2d 671, 673

(Pa.Super. 1997) (and federal cases cited therein), for the proposition that

“the prevailing party should ordinarily recover an attorney’s fee unless

special circumstances would render such an award unjust[,]” is misplaced.

The attorney fee determination in Logan was governed by the Civil Rights

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Attorney’s Fees Awards Act of 1976, rather than the PHRA. As the Hoy

Court noted when it rejected the federal courts’ interpretation of an

analogous provision, we are not bound by federal law in construing our

statutes.

Ms. Huyett also relies upon Krebs v. United Ref. Co., 893 A.2d 776

(Pa.Super. 2006), a case decided under the Storage Tank and Spill

Prevention Act (“STSPA”), in support of her claim of entitlement to attorney

fees under a remedial statute such as the PHRA. The counsel fee provision

in that statute contained the following language:

(f) FEES AND COSTS.— The court, in issuing any final order in
any action brought pursuant to this section, may award costs of
litigation (including attorney and expert witness fees) to any
party, whenever the court determines such award is appropriate.
....

35 P.S. § 6021.1305.

We held in Krebs that, generally “where the General Assembly has

departed from the "American Rule" (where each party is responsible for his

or her own attorney fees and costs), by providing a fee-shifting remedy in a

remedial statute, the trial court's discretionary award or denial of attorneys'

fees must be made in a manner consistent with the aims and purposes of

that statute.” Krebs at 788. In Krebs, we relied upon Hoy in interpreting

the use of the term “may” as discretionary. We noted further that the

STSPA did not specifically define when an award of attorney fees and costs

would be appropriate or how to calculate them, and there was no controlling

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case law. We looked to the legislative intent as discerned through statutory

interpretation and similar legislation, and construed the statute liberally to

effectuate its purpose.

Ms. Huyett cites Krebs for the broad proposition that where a

remedial statute is involved, the trial court’s discretion must be exercised

“within the framework of the legislative purpose behind the enactment of the

fee-shifting provision.” Krebs, supra at 788. Therein, we reversed the trial

court’s denial of almost $300,000 in counsel fees to the successful plaintiff

because the court impermissibly tied the recovery of fees to the relative size

of the damage award. Ms. Huyett also directs our attention to Krassnoski

v. Rosey, 684 A.2d 635, 637-38 (Pa.Super. 1996), where we affirmed the

trial court’s award of attorney fees under the Protection from Abuse Act even

though the attorney prosecuted the action without charge, noting the

deterrent effect of counsel fee awards upon a defendant.

However, in the present case, as distinguished from Krebs and

Krassnoski, the statute authorizing attorney fees expressly defines when a

prevailing plaintiff is entitled to such fees. Moreover, our Supreme Court’s

decision in Hoy construing § 962(c.2) is controlling herein. The trial court

has the discretion to award attorney fees when it determines there has been

a violation of the PHRA.

Ms. Huyett contends, however, that Hoy did not promulgate a test for

determining whether counsel fees should be awarded, and thus, is not

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controlling in this regard. She disputes that the trial court is allowed to re-

weigh the evidence of a violation in making its determination. She attributes

that misconception to the concurring opinion of then-Judge McEwen, and

dismisses it as dicta. Ms. Huyett maintains that the trial court was bound by

the fact finder’s finding of discrimination, and that it lacked discretion to

weigh the evidence and make its own independent determination of whether

the PHRA was violated. In essence, she asserts that attorney fees are

mandated or presumptively warranted when the plaintiff prevails.

We disagree. The language of the statute itself addresses the basis on

which the trial court may award attorney fees: where the plaintiff prevails

and the trial court determines there has been a violation. Ms. Huyett’s

proposed construction of the statute renders this language superfluous.

Furthermore, in reviewing whether the trial court abused its discretion in

denying counsel fees in Hoy, the Supreme Court favorably noted the

Superior Court majority’s observance that the appellant had received a

substantial monetary recovery, and Judge McEwen’s concurrence

characterizing the violation of the Act as “fairly debatable” and the evidence

as “not overwhelming.” Hoy, supra, at 752. It pointed out that, “[t]he trial

court weighed the verdict against the evidence and determined, in its

discretion, that an award of counsel fees was not appropriate[,]” and the

Court found no abuse of discretion. Id. However, since the trial court based

its denial of attorney fees on its determination that the verdict and punitive

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damages were a sufficient recovery for the discrimination suffered, and the

Court reversed the substantial punitive damage award, the Hoy Court

remanded to permit the trial court to reconsider attorney fees in light of that

change in circumstances. Upon remand, as Ms. Huyett correctly asserts, the

trial court awarded attorney fees.

Our sister court recently relied upon Hoy in Wagner v. Pa. Capitol

Police Dep't, 132 A.3d 1051, 1059 (Pa.Cmwlth. 2016), in holding that there

is no presumption of an award of attorney fees and costs to a prevailing

plaintiff under the PHRA. In that case, the jury awarded Wagner lost wages

but no non-economic damages. Wagner requested, inter alia, more than

$125,000 in counsel fees and costs. The trial court awarded him attorney

fees representing forty percent of the jury’s award, based on what it viewed

as a lack of evidence of pervasive discrimination and Wagner’s failure to

submit his fee agreement. The court’s calculation also reflected its

determination that most of the counsel fees were incurred in pursuing claims

upon which Wagner did not prevail. On appeal, the Commonwealth Court

found no abuse of discretion.

Herein, a prior panel reversed and remanded to the trial court with the

direction to weigh the evidence of a violation in light of the verdict. The trial

court herein complied and concluded that the violation of the PHRA was

“fairly debatable.” Trial Court Opinion, 5/13/16, at (unnumbered page) 3.

The court characterized the evidence supporting such a violation as “weak”

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and “not overwhelming” and denied attorney fees. Id. at (unnumbered

page) 4. Hence, the trial court followed our directive and applied the proper

legal standard.

Ms. Huyett argues that the trial court’s denial of attorney fees is

inconsistent with its denial of judgment NOV. She maintains that if the

record was legally insufficient to support a violation, the court should have

granted judgment notwithstanding the verdict (“JNOV”), which it did not.

Ms. Huyett misapprehends the difference between JNOV and the

discretion afforded the trial court to award counsel fees under the PHRA. For

purposes of JNOV, the trial court was required to view the evidence in the

light most favorable to the verdict winner, Ms. Huyett, and determine

whether the evidence was sufficient to support the verdict. Thus, applying

that standard, where the testimony of Ms. Huyett and Stephanie Mitchell

conflicted with that offered by Mr. Hess and his witnesses, the court was

required to credit the testimony of the former. Consequently, the trial court

found the evidence legally sufficient to support the verdict, and properly

denied JNOV.

The issue herein is not whether the evidence was sufficient to sustain

the jury’s verdict, but whether the trial court, after engaging in its own,

permissible weighing of the evidence, concluded the defendant engaged in a

discriminatory practice in violation of the PHRA for purposes of awarding

attorney fees. That determination was an exercise of the trial court’s

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discretion independent of the jury’s verdict. Hence, the denial of JNOV and

the trial court’s rationale for denying counsel fees were not inconsistent.

Ms. Huyett complains that the trial court did not provide any

evidentiary support for its conclusion, although it was directed to do so. We

do not read this Court’s prior directive as requiring the trial court to specify

which evidence it found persuasive in arriving at its conclusion. The court

relied on the “transcript and evidence in totality.” Trial Court Memorandum,

5/17/16, at (unnumbered page) 4. We find no abuse of discretion in this

regard.

Ms. Huyett next argues that, based on this Court’s earlier decision, the

trial court was obligated to accept the jury’s ultimate factual determination

unless it was “clearly devoid of minimum evidentiary support displaying

some hue of credibility, or . . . bears no rational relationship to the

supportive evidentiary data.” Huyett, supra at 122 A.3d 1136, n.5, 2015

Pa. Super. Unpub. LEXIS 1832 *7 n.5 (Pa.Super. 2015) (quoting Krasnov.

v. Dinan, 465 F.2d 1298 (3d Cir. 1972)). We do not view the cited

language, which was contained in a footnote, as imposing that standard.

Rather, the prior panel merely was referencing the federal appellate

standard of review of a district court decision, and noting that federal

decisions do not control our determinations.

Ms. Huyett also contends that the trial court erred in basing its

decision on the mistaken conclusion that the jury only awarded nominal

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recovery or modest damages. Not only was the characterization of the

recovery factually inaccurate, she contends that it was irrelevant to the

attorney fees determination.

We agree the size of the verdict or its relationship to the amount of

attorney fees does not control the fee determination. However, in Hoy, the

Supreme Court noted that the trial court considered the verdict and the

punitive damages award in determining that the appellant had received a

sufficient recovery for the discrimination suffered. It viewed the jury verdict

as “one factor” to be considered by the court in making the fee

determination. Hoy, supra at 752, n.9. We find no abuse of discretion

where the trial court herein merely noted the size of the verdict.

Finally, Ms. Huyett argues that the trial court’s denial of attorney fees

was the functional equivalent of reversing the jury verdict. She points out

that the Pharmacy pursued a counterclaim for slander that was unsupported,

forced her to defend against summary judgment, and demanded a jury trial.

Although she vindicated an important civil right, received an award of

damages for the full amount of the economic loss she suffered and an

additional $2,500 for non-economic loss, she was in a far worse financial

position after the trial due to the court’s refusal to award attorney fees. She

maintains that the court’s ruling frustrated the jury’s intent to make her

whole, and further, that she was entitled to be made whole under the

remedial PHRA statute.

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The PHRA provides explicit guidance to the trial court as to when

attorney fees are warranted. As the Supreme Court stated in Hoy, the

unambiguous terms of a statute cannot be disregarded to pursue its spirit.

Since the fee-shifting provision is a discretionary one, the legislature

obviously did not contemplate that all successful plaintiffs would

automatically recover counsel fees. Had it so intended, the legislature could

have so provided. Instead, the legislature left it up to the trial court’s

discretion to determine whether an award was appropriate.

Ms. Huyett was vindicated in her claim of discrimination and the jury

awarded her both economic and non-economic damages. She was not

entitled to attorney fees as a matter of right. The fact that her counsel fees

exceeded the amount of the damages awarded by the jury has no bearing

on our determination whether the trial court abused its discretion in denying

those fees.

Upon remand for the determination of attorney fees, the trial court

followed this Court’s directive. It presided over the trial and had the

opportunity to observe the witnesses. Additionally, it reviewed the trial

transcript, weighed the evidence, and reached the conclusion that the

evidence of a violation of the PHRA was weak. In arriving at that finding,

the court stated that it did not reject the jury’s credibility determination, but

rather independently reweighed the evidence. This is precisely what the

PHRA and our Supreme Court’s decision in Hoy required of the trial court

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and the trial court was fully compliant with our earlier directive. Absent

herein is any showing that the trial court’s decision was manifestly

unreasonable or biased or so lacking in support as to be clearly erroneous,

and we may not reverse simply because we may have reached a different

result.

Judgment affirmed.

Judge Stabile joins the opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/20/2017

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