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J-A26032-22  

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

DR. M. MOSHE PORAT 

IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

 

v. 

EMPLE UNIVERSITY - OF THE 
COMMONWEALTH SYSTEM OF 
HIGHER EDUCATION AND  
RICHARD M. ENGLERT 
___________________________  
DR. M. MOSHE PORAT 

 

v. 

EMPLE UNIVERSITY - OF THE 
COMMONWEALTH SYSTEM OF 
HIGHER EDUCATION 

PPEAL OF: TEMPLE UNIVERSITY - 
OF THE COMMONWEALTH SYSTEM  
OF HIGHER EDUCATION 

No. 2350 EDA 2021 

Appeal from the Order Entered November 4, 2021 
In the Court of Common Pleas of Philadelphia County Civil Division at 
No(s):  190404754,  
210401182 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

M. MOSHE PORAT 

v. 

EMPLE UNIVERSITY - OF THE 
COMMONWEALTH SYSTEM OF 
HIGHER EDUCATION       

 

 

 

Appellant 

 No. 1278 EDA 2022 

     

    T

     

    T

    A

     

    T

   

 

 

 

  

Appeal from the Order Entered November 4, 2021 
In the Court of Common Pleas of Philadelphia County Civil Division at 
No(s):  210401182 

EFORE:  BOWES, J., KING, J., and PELLEGRINI, J.* 

MEMORANDUM BY PELLEGRINI, J.: 

FILED MARCH 16, 2023 

 

Temple University - of the Commonwealth System of Higher Education 

(Temple)  appeals  from  the  order  entered  in  the  Court  of  Common  Pleas  of 

Philadelphia County (trial court) granting the motion for summary judgment 

of M. Moshe Porat, Ph.D. (Dr. Porat) on his complaint for breach of contract 

seeking injunctive relief.  The complaint sought an order directing Temple to 

advance his litigation expenses pursuant to its By-Laws.  Temple argues that 

it was entitled to discontinue payment of attorneys’ fees and expenses at its 

sole  discretion  pursuant  to  an  Affirmation  and  Undertaking  (Undertaking) 

between the parties and there is no independent requirement under the By-

laws to provide such advancement.  We reverse and remand. 

We take the following factual background and procedural history from 

the trial court’s January 31, 2022 opinion and our independent review of the 

certified record. 

 

 

  B

 

 

J-A26032-22 

____________________________________________ 

* Retired Senior Judge assigned to the Superior Court. 
 

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J-A26032-22 

I. 

A. 

 

Dr. Porat was the Dean of Temple’s Fox School of Business (Fox School) 

from 1996 to 2018.  Pursuant to the Fox School By-Laws, Dr. Porat served as 

its Chief Executive Officer and Chief Academic Officer.  The U.S. News & World 

Reports (USNWR) ranked the Fox School’s MBA program number one in the 

country between 2015 and 2018. 

In January 2018, Temple discovered that Dr. Porat and other Fox School 

employees under his leadership had knowingly provided false information to 

USNWR that resulted in the ranking for multiple years.  After Temple notified 

USNWR,  Fox  School  lost  its  ranking  and  USNWR  listed  the  program  as 

“unranked.”    According  to  Dr.  Porat,  in  January  2018,  Attorney  Michael 

Schwartz (Attorney Schwartz) of Troutman Pepper was his “advisor.” 

 

In February 2018, Temple retained the services of the law firm of Jones 

Day  to  conduct  a  comprehensive  review  of  Fox  School’s  rankings  data  and 

processes.    On  July  9,  2018,  Jones  Day  completed  its  investigation  and 

concluded  that  Fox  School  had  intentionally  submitted  false  information, 

faulting  Dr.  Porat  for  his  leadership  failures.    Temple  President  Richard  M. 

Englert immediately announced the removal of Dr. Porat from his position as 

Dean of Fox School. 

 

 

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J-A26032-22 

B. 

After the announcement, the Association of Advanced Collegiate Schools 

of Business and the Pennsylvania Attorney General’s Office contacted Temple 

to  begin  their  own  investigations.    In  response  to  requests  for  employee 

interviews,  Temple’s  counsel  provided  approximately  ten  Fox  School 

employees,  including  Dr.  Porat,  with  a  draft  Undertaking  and  Common 

Interest/Joint Defense Agreement (JDA) providing legal representation for the 

investigations. 

On September 5, 2018, Attorney Schwartz contacted Temple’s counsel, 

Attorney Catherine M. Recker (Attorney Recker), about his representation of 

Dr. Porat.  She described the substance of the Undertaking and JDA to him, 

but  he  did  not  ask  any  questions  about  them,  instead  acknowledging  Dr. 

Porat’s  willingness  to  sign.    On  September  7,  2021,  Attorney  Schwartz 

requested a copy of the Undertaking and JDA so that he could discuss them 

with Dr. Porat.  On September 14, 2021, Attorney Schwartz was provided a 

copy of the signed Undertaking. 

 

The  Undertaking  memorialized,  in  pertinent  part,  that  Dr.  Porat 

“retained. . . counsel to represent [him] in connection with matters related to 

the.  .  .  falsification  of  rankings  data  (the  ‘Proceedings’),”  that  he  was 

requesting Temple advance him all reasonable attorneys’ fees and expenses 

related  thereto,  that  he  would  cooperate  with  the  investigation  and  that  he 

acted honestly, in good faith and in a manner he reasonably believed was in 

- 4 - 

J-A26032-22 

Temple’s best interest at all times and without committing any malfeasance 

or  misfeasance.    Pursuant  to  the  Undertaking’s  terms,  Temple  could 

“discontinue  the  advancement  of  legal  fees  and  expenses  on  [Dr.  Porat’s] 

behalf in its sole discretion and for any reason.”  (Undertaking, at 1).1 

 

On October 31, 2018, Attorney Schwartz sent Attorney Recker the first 

invoice  seeking  advancement  of  fees  and  costs.  Temple  paid  that  and 

subsequent invoices for legal services provided by Troutman Pepper, including 

its January 2021 invoice.  However, when Troutman Pepper sent the February 

2021 invoice, Temple, for the first time, questioned payment.  On March 14, 

2021,  Temple  advised  Attorney  Schwartz  that  “Temple  is  evaluating  all  its 

____________________________________________ 

1 As the United States Court of Appeals for the Third Circuit has observed: 
 

Indemnification and advancement are related but distinct avenues 
by which a business entity pays for an individual’s legal expenses.  
In  both,  the  corporation  pays  the  legal  expenses  of  the  officer, 
director,  or  other  employee  when  that  individual  is  accused  of 
wrongdoing in the course of performing duties to the corporation.  
For indemnification, the corporation reimburses the individual for 
his or her legal expenses once he or she has been successful in 
the  underlying  proceeding  on  the  merits  or  otherwise.    For 
advancement,  on  the  other  hand,  the  corporation  pays  legal 
expenses on an ongoing basis in advance of the final disposition 
of the lawsuit, provided that the individual must repay the amount 
advanced  if  it  turns  out  he  or  she  is  not  entitled  to  be 
indemnified—i.e.,  he  or  she  is  not  successful  on  the  merits  or 
otherwise in the underlying lawsuit. 

leynikov  v.  Goldman  Sachs  Grp.,  Inc.,  765  F.3d  350,  358-59  (3d  Cir. 

- 5 - 

2014) (citations omitted). 
 

  A

options” with respect to the advancement of Dr. Porat’s legal fees and costs 

pursuant to the 2018 Undertaking.  (Complaint, at ¶ 36); (Answer, at ¶ 36).  

On  March  23,  2021,2  another  of  Dr.  Porat’s  attorneys,  Stephen  G. 

Harvey  (Attorney  Harvey),3  sent  correspondence  to  Temple  in  which  he 

observed that Temple previously had paid Dr. Porat’s attorneys’ fees pursuant 

to the Undertaking, under which Temple could stop payment at its discretion. 

However,  he  requested  an  advancement  of  Dr.  Porat’s  legal  fees  and  costs 

pursuant to Section 8.4 of Temple’s By-Laws, which he contended foreclosed 

Temple  from not advancing counsel  fees.  Temple’s counsel  responded that 

Dr.  Porat  was  not  entitled  to  an  advancement  pursuant  to  the  By-Laws 

because he was not a trustee or officer of Temple and thus did not qualify as 

a “representative” as defined in Section 8.1.  On April 1, 2021, Temple notified 

Dr. Porat that it was discontinuing the advancement of  his legal fees  under 

the Undertaking effective April 9, 2021. 

2 On April 19, 2019, Dr. Porat filed a defamation action against Temple related 
to the July 2018 announcement regarding his removal as Dean (Defamation 
Action).  On March 23, 2021, Dr. Porat filed a motion to stay the Defamation 
Action  pending  resolution  of  the  criminal  action  in  which  he  stated  that  the 
United States’ Attorney’s Office intended to criminally indict him.  On April 16, 
2021, Dr. Porat was indicted and charged with conspiracy and wire fraud.  On 
May  12,  2021,  the  trial  court  stayed  the  Defamation  Action  in  its  entirety 
pending the outcome of Dr. Porat’s criminal case. 

 Attorney Harvey was retained to request the advancement of the attorneys’ 
fees and expenses denied Troutman Pepper.  (See Harvey Correspondence, 
3/23/21, at 1). 
 

  3

____________________________________________ 

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J-A26032-22 

J-A26032-22 

C. 

Dr. Porat filed a  Complaint against Temple for breach of  contract  and 

injunctive  relief,  arguing  that  it  violated  Article  VIII  of  the  By-Laws  by 

discontinuing  the  advancement  of  legal  fees  and  costs  related  to  litigation 

stemming  from  his  employment  with  Temple  (the  Advancement  Action).  

Temple filed an Answer, New Matter and Counterclaims in which it stated that 

the  monies  were  not  owed  under  the  terms  of  the  Undertaking.    It  further 

sought to recover the fees already advanced to Dr. Porat and other monies 

expended due to his fraudulent actions (the Counterclaims).  Dr. Porat filed a 

motion to stay the Counterclaims filed by Temple seeking reimbursement until 

the conclusion of the criminal matter, as well a motion for summary judgment 

in the Advancement Action. 

Then began a flurry of motions regarding whether Counterclaims filed 

by Temple should be stayed.  This resulted in a flurry of orders that are not 

relevant  except  for  the  trial  court’s  order  of  October,  4,  2021  granting  Dr. 

Porat’s  request  to  lift  the  stay  of  his  Advancement  Action  claims  and 

maintaining  the  stay  in  his  Defamation  Action  and  Temple’s  Counterclaims.  

The  trial  court  further  ordered  Temple  to  respond  to  Dr.  Porat’s  motion  for 

summary judgment in the Advancement Action within fifteen days. 

- 7 - 

J-A26032-22 

On  October  14,  2021,  Temple  appealed  the  October  4,  2021  order, 

arguing the stay order should be reviewed as a collateral order4 since it was 

contrary to Pennsylvania law and the principles of fundamental fairness. 

While its appeal was pending, Temple filed an answer to the motion for 

summary judgment and on November 4, 2021, after a hearing, the trial court 

granted Dr. Porat’s motion for summary judgment holding that he was entitled 

to  advancement  of  expenses  for  several  alternative  reasons.    It  noted  that 

under the provisions of Article VIII of the By-laws, officers and employees who 

were representatives of Temple were entitled to advancement of fees for any 

action brought against them while serving in those capacities.  It went on to 

find that he was a Temple officer while serving as Fox School Dean, or in the 

alternative,  he  certainly  was  an  officer  of  “another  enterprise,”  i.e.,  Fox 

School. 

It then ordered Temple to:  (1) “pay the unreimbursed legal fees and 

expenses incurred to date by Dr. Porat in the federal criminal action;” (2) pay 

future invoices for Dr. Porat’s federal criminal defense in full unless Temple 

found any portion to be unreasonable, in which case it was to pay the portions 

it did not dispute; and (3) make reasonable attempts to resolve any disputes 

____________________________________________ 

4 “A collateral order is an order separable from and collateral to the main cause 
of action where the right involved is too important to be denied review and 
the question presented is such that if review is postponed until final judgment 
in the case, the claim will be irreparably lost.”  Pa. R.A.P. 313(b). 
 

- 8 - 

J-A26032-22 

master for resolution.5 

over the invoices’ reasonableness and to otherwise submit the disputes to a 

Temple timely appealed the November 4, 2021 order and has complied 

with  the  trial  court’s  order  to  file  a  statement  of  errors  complained  of  on 

appeal.  See Pa. R.A.P. 1925(b).  On December 8, 2021, this Court granted 

Dr. Porat’s motion to quash Temple’s appeal of the October 4, 2021 order as 

interlocutory. 

On  appeal,  Temple  challenges  the  trial  court’s  grant  of  summary 

judgment on four bases:  (1) the trial court lacked jurisdiction to rule on the 

summary judgment motion because of the pending appeal of the October 4, 

2021  order;  (2)  the  court  misinterpreted  the  University’s  By-Laws  by 

concluding  that  Dr.  Porat  was  an  “officer”  or  “representative”  entitled  to 

mandatory advancement; (3) the court erred as a matter of law in finding that 

the Undertaking was not determinative of the parties’ rights and obligations; 

and (4) the trial court erred in denying its request to take limited discovery 

focused on the issues raised in Dr. Porat’s summary judgment motion. 

 

 

____________________________________________ 

5 On November 29, 2021, a federal jury convicted Dr. Porat of conspiracy and 
wire fraud for his central role in the rankings scandal.  On March 11, 2022, 
Dr.  Porat  was  sentenced  to  a  term of fourteen  months’  incarceration,  three 
years’ probation and a $250,000.00 fine.  His appeal to the Third Circuit Court 
of Appeals remains pending. 
 

- 9 - 

J-A26032-22 

II. 

We begin with Temple’s challenge to the trial court’s jurisdiction to enter 

the  order  on  appeal.    Citing  to Wexford Science & Tech., LLC v. City of 

Pittsburgh  Zoning  Bd.  of  Adjustment,  260  A.3d  316,  328  (Pa.  Cmwlth. 

2021) and Rule of Appellate Procedure 1701(c), Temple contends that the trial 

court lacked jurisdiction to decide the motion for summary judgment while the 

appeal  of  the  court’s  October  4,  2021  stay  order  was  pending  because  the 

remaining  proceedings  were  “tightly  intertwined”  with  the  stay  order.  

Temple’s  Brief  at  52.    Acknowledging  that  we  quashed  its  appeal  from  that 

order as interlocutory, Temple nonetheless argues that the trial court should 

not  have  proceeded  and  was  without  jurisdiction  to  decide  the  summary 

judgment motion.6 

Rule 1701(a) directs as a general matter that “after an appeal is taken. 

. . the trial court. . . may no longer proceed further in the matter.”  Pa.R.A.P. 

1701(a).    However,  Rule  1701(b)  provides,  in  pertinent  part,  that  after  an 

appeal is taken a court may “[p]roceed further in any matter in which a non-

____________________________________________ 

6  “As  a  general  rule,  only  final  orders  are  appealable,  and  final  orders  are 
defined as orders disposing of all claims and all parties.”   Am. Indep. Ins. 
Co. v. E.S., 809 A.2d 388, 391 (Pa. Super. 2002); see also Pa. R.A.P. 341(a) 
(“[A]n appeal may be taken as of right from any final order of a government 
unit or trial court.”).  Generally, we can only address the merits of an appeal 
taken  from  “(a)  a  final  order  or  an  order  certified  as  a  final  order;  (2)  an 
interlocutory  order  [appealable]  as  of  right;  (3)  an  interlocutory  order 
[appealable] by permission; or (4) a collateral order.”  Commerce Bank v. 
Kessler, 46 A.3d 724, 728 (Pa. Super. 2012). 
 

- 10 - 

J-A26032-22 

appealable interlocutory order has been entered, notwithstanding the filing of 

a notice of appeal. . . .”  Pa. R.A.P. 1701(b)(6).7 

Pursuant to Rule 1701(c), “when a party has appealed from a collateral 

order, the trial court retains jurisdiction to continue to act on those parts of 

the case that are unrelated to the collateral matter that is the subject of the 

appeal.”    Commonwealth  v.  McClure,  172  A.3d  668,  698-99  (Pa.  Super. 

2017)  (emphasis  added);  see  also  Wexford,  260  A.3d  at  328,  n.7  (“But, 

when the remaining proceedings in the trial court are ‘tightly intertwined’ with 

the collateral matter that is on appeal, the trial court may not take any action 

on  those  intertwined  matters  until  the  appeal  is  concluded.”)  (quoting 

McClure, 172 A.3d at 699). 

We  agree  with  the  trial  court  that  it  had  jurisdiction  to  consider  Dr. 

Porat’s motion for summary judgment pursuant to Rule 1706(b)(6) because 

____________________________________________ 

7 Rule 1701(b) also provides the following exceptions, which are not argued 
to be applicable here.  The trial court may:  (1) “[t]ake such action as may be 
necessary to preserve the status quo, correct formal errors in papers relating 
to  the  matter,  cause  the  record  to  be  transcribed,  approved,  filed  and 
transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and 
take other action permitted or required by these rules or otherwise ancillary 
to  the  appeal  or  petition  for  review  proceeding”;  (2)  “[e]nforce  any  order 
entered in the matter, unless the effect of the order has been superseded. . . 
.”; (3) grant reconsideration of the order which is the subject of the petition 
if a timely motion for reconsideration is filed and the trial court enters a timely 
order  expressly  granting  reconsideration;  (4)  “[a]uthorize  the  taking  of 
depositions or the preservation of testimony where required in the interest of 
justice”;  and  (5)  “[t]ake  any  action  directed  or  authorized  by  an  appellate 
court.”  Pa. R.A.P. 1701(b)(1)-(5). 
 

- 11 - 

J-A26032-22 

inapplicable. 

the  October  4,  2021  order  was  a  non-appealable  interlocutory  order.    The 

order  was  not  a  collateral  order  pursuant  to  Rule  313,  nor  was  it  “tightly 

intertwined”  with  the  motion  for  summary  judgment,  rendering  Wexford 

Temple  also  relies  on  Weise  v.  Goldman,  323  A.2d  31  (Pa.  Super. 

1974), for the proposition that the trial court was not permitted, in the first 

instance,  to  decide  if  the  October  4,  2021  order  was  interlocutory,  thereby 

allowing it to proceed pursuant to Rule 1701(b)(6).  Weise was decided before 

the  enactment  of  Rule  1701(b)(6),  and  the  subsequent  case  law  has  made 

clear that a trial court is permitted to proceed if it determines that the order 

is interlocutory, without the appellate court making such a ruling in the first 

instance.    See  Mahonski  v.  Engel,  145  A.3d  175,  n.3  (Pa.  Super.  2016) 

(“Although  the  trial  court  continued  to  resolve  Appellants’  claims  while  an 

appeal  was  pending  in  this  Court,  the  trial  court  was  not  divested  of  its 

jurisdiction upon the filing of this notice of appeal as Appellant sought review 

of  a  non-appealable  interlocutory  order.”);  Commonwealth  v.  Calloway, 

675 A.2d 743, 747 (Pa. Super. 1996) (finding, pursuant to Rule 1701(b)(6), 

that  trial  court  had  jurisdiction  to  enter  an  order  after  appeal  from 

interlocutory order had been filed). 

 

Based  on  the  foregoing,  the  trial  court  had  jurisdiction  to  decide  the 

summary judgment issue after Temple appealed the interlocutory October 4, 

- 12 - 

2021  order.    We  now  turn  to  substantive  arguments  regarding  Dr.  Porat’s 

counsel fees, which he contends were payable under Temple’s By-Laws. 

III. 

As  a  preliminary  matter,  we  observe  that  non-profit  corporations  like 

Temple are statutorily authorized to adopt by-laws providing for mandatory 

advancement  of  litigation  expenses  for  “representatives”  who  are  sued  for 

alleged wrongful acts they deny.  See 15 Pa.C.S. § 5745.8  An “[a]dvancement 

action is a summary proceeding” in which the scope is limited to determining 

“the  issue  of  entitlement  according  to  the  corporation’s  advancement 

Expenses  (including  attorneys’  fees)  incurred  in  defending  any 
action or proceeding referred to in this subchapter may be paid by 
a nonprofit corporation in advance of the final disposition of the 
action  or  proceeding  upon  receipt  of  an  undertaking  by  or  on 
behalf  of  the  representative  to  repay  the  amount  if  it  is 
ultimately determined that he is not entitled to be indemnified by 
the  corporation  as  authorized  in  this  subchapter  or  otherwise.  
Except  as  otherwise  provided  in  the  bylaws,  advancement  of 
expenses shall be authorized by the board of directors.  

5 Pa.C.S. § 5745 (emphasis added).  The Code defines “representative” as 

follows: 
 

  1

When used with respect to an association, joint venture, trust or 
other enterprise, a person occupying the position or discharging 
the  functions  of  a  director,  officer,  partner,  manager,  trustee, 
fiduciary, employee or agent, regardless of the name or title by 
which the person may be designated.   The term does not imply 
that a director, as such, is an agent of a corporation. 
 

15 Pa.C.S. § 102. 

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____________________________________________ 

8 The Associations Code provides: 
 

J-A26032-22 

J-A26032-22 

provisions  and  not  to  issues  regarding  the  movant’s  alleged  conduct  in  the 

underlying litigation.”  Kaung v. Cole Nat’l Corp., 884 A.2d 500, 509 (Del. 

2005) (footnotes omitted). 

In reviewing a trial court’s interpretation of by-laws, we “must use the 

same  rules  applicable  to  the  interpretation  of  statutes,  contracts  and  other 

written instruments.”  Purcell v. Milton Hershey Sch. Alumni Ass’n., 884 

A.2d  372,  379  n.10  (Pa.  Cmwlth.  2005)  (citation  omitted).9    To  interpret  a 

contract, “the entire contract should be read as a whole. . . to give effect to 

its true purpose.”  Commonwealth v. UPMC, 129 A.3d 441, 464 (Pa. 2015) 

(citation  omitted).    It  is  well-settled  that  a  contract  “must  be  construed  in 

accordance with the terms of the agreement as manifestly expressed, and the 

accepted  and  plain  meaning  of  the  language  used,  rather  than  the  silent 

intentions of the contracting parties, determines the construction to be given 

the agreement.”  Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 

186 (Pa. Super. 2013) (citation omitted). 

When  construing  agreements  involving  clear  and  unambiguous 
terms, this Court need only examine the writing itself to give effect 
to  the  parties’  understanding.    This  Court  must  construe  the 
contract  only  as  written  and  may  not  modify  the  plain  meaning 
under the guise of interpretation. 
 

____________________________________________ 

9 “This Court is not bound by decisions of the Commonwealth Court.  However, 
such  decisions  provide  persuasive  authority,  and  we  may  turn  to  our 
colleagues  on  the  Commonwealth  Court  for  guidance  when  appropriate.”  
Petow v. Warehime, 996 A.2d 1083, 1089 (Pa. Super. 2010), appeal denied, 
12 A.3d 371 (Pa. 2010) (citation omitted). 
 

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J-A26032-22 

Id. (citations omitted). 

Furthermore,  “a  word  used  by  the  parties  in  one  sense  is  to  be 

interpreted  as  employed  in  the  same  sense  throughout  the  writing  in  the 

absence  of  countervailing  reasons  such  as  thwarting  the  intent  of  the 

government.”  UPMC, 129 A.3d at 464 (citation omitted). 

A. 

Temple  contends  that  the  provisions  of  the  By-Laws  under  which  Dr. 

Porat  is  seeking  advancement  of  fees  are  not  enforceable  because  the 

Undertaking provided that Temple had the absolute discretion to discontinue 

Dr.  Porat’s  advancement  payments.    It  argues  that  the  trial  court’s  order 

renders the Undertaking a legal nullity. 

Dr. Porat counters that  the Undertaking is a separate agreement that 

does not preclude a request for mandatory advancement of counsel fees under 

Article VIII of the By-Laws.  He asserts that the Undertaking granted Temple 

the  right  to  cease  advancement  paid  pursuant  to  the  Undertaking  at  its 

discretion,  but  this  did  not  include  the  right  to  deny  payment  to  him  under 

Section  8.4  of  the  By-Laws.    He  maintains  that  the  By-Laws  mirror  the 

language of 15 Pa.C.S. § 5746(a) and speak directly to a situation in which an 

individual has separate rights to advancement under more than one contract. 

 

It is undisputed that the Undertaking provided Dr. Porat with “advance 

reasonable  and  customary  attorney’s  fees  and  expenses  associated  with” 

Attorney Schwartz’s representation in the Proceedings.  (Undertaking, at 1).  

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J-A26032-22 

Pursuant  to  the  Undertaking’s  unambiguous  terms,  Dr.  Porat  “expressly 

agreed and understood that the University may discontinue the advancement 

of legal fees and expenses on  [his] behalf  in its sole discretion and for any 

reason.”  (Id.). 

provides in pertinent part: 

However, Section 8.5 of the By-Laws, titled “Supplementary Coverage,” 

The indemnification and advancement of expenses provided by or 
granted  pursuant  to  this  Article  VIII  shall  not  be  deemed 
exclusive of any other rights to which an individual seeking 
indemnification  or  advancement  of  expenses  may  be 
entitled under the Act or any bylaw, vote of the disinterested 
Trustees, agreement or otherwise, both as to action in his or 
her  official  capacity  and  as  to  action  in  another  capacity  while 
holding that office. 
 

(University By-Laws, at § 8.5) (emphases added);10 see 15 Pa.C.S. § 5746(a). 

 

While the Undertaking was an agreement to advance counsel fees, the 

trial  court  found  that  it  was  an  additive  remedy  to  the  mandatory 

advancements  provided  for  under  this  provision  of  Temple’s  By-Laws.  This 

conclusion  is  consistent  with  the  By-Laws,  which  specifically  state  that  an 

____________________________________________ 

10  While  we  observe  that  Subsection  (A)  of  Section  8.5  provides  that  no 
indemnification may be made to a party to the extent “the act or failure to 
act giving rise to the claim for indemnification is determined by a court to have 
constituted  self-dealing,  willful  misconduct,  or  recklessness[,]”  as  stated 
previously, indemnification is paid after the conclusion of litigation, while the 
advancement at issue here is paid on an ongoing basis while the litigation is 
pending, with the understanding that the individual will pay the money back 
if he is unsuccessful.  See Aleynikov, 765 F.3d at 358.  Therefore, subsection 
A is not relevant to our review. 
 

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J-A26032-22 

individual’s  mandatory  right  to  advancement  under  the  By-Laws  is  not 

exclusive  to  any  other  right.  In  other  words,  the  By-Laws  specifically 

contemplated that a party may have different advancement rights under more 

than one agreement. 

 

Pursuant  to  the  Undertaking’s  unambiguous  terms,  Temple  could  and 

did  cease  paying  advancement  under  the  Undertaking  at  its  discretion.  

However, it was still required to comply with the equally unambiguous terms 

of  the  By-Laws  that  required  advancement  if  the  individual  was  one  of  the 

persons  denominated  as  entitled  to  advancement  and  indemnification.    We 

agree with the trial court that just because Temple exercised its right to cease 

payment under the Undertaking, it could not absolve itself of its duty to pay 

advancement  under  Sections  8.4  and  8.5  of  the  By-Laws,  which  expressly 

provided for advancement even if there are other sources from which counsel 

fees could be advanced. 

Next,  we  consider  whether  Dr.  Porat  was  entitled  to  advancement  of 

counsel fees under Temple’s By-Laws. 

B. 

Several provisions of the University By-Laws govern the indemnification 

and  advancement  of  counsel  fees.    Section  8.2  of  the  By-Laws  regarding 

indemnification for third party and derivative actions provides: 

The University shall indemnify any Trustee, officer, employee 
or agent of the University who was or is a representative of 
the University and who was or is a party (which includes giving 
testimony or similar involvement) or is threatened to be made a 

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J-A26032-22 

civil, 

against 

criminal, 

formal  or 

administrative 

party  to  any  threatened,  pending  or  completed  action  or 
proceeding,  whether 
or 
investigative, 
informal  (including  an  action  or 
proceeding by or in the right of the University), by reason of the 
fact  that  he  or  she  was  or  is  a  representative  of  the 
University, 
reasonable 
attorneys’  fees),  judgments,  fines  and  amounts  paid  in 
settlement  actually  and  reasonably  incurred  by  him  or  her  in 
connection with the action or proceeding.  If a representative is 
not  entitled  to  indemnification  for  a  portion  of  any  liabilities  to 
which he or she may be subject, the University nonetheless shall 
indemnify  him  or  her  to  the  maximum  extent  permitted  by  law 
and this Article for the remaining portion of the liabilities. 
 

(including 

expenses 

(University By-Laws, at § 8.2) (emphasis added). 

Section 8.1 defines “representative” for the purposes of Article VIII: 

[A]ny Trustee or officer of the University or an individual serving 
at  the  request  of  the  University  as  a  director,  officer,  partner, 
fiduciary, or trustee of another domestic or foreign corporation for 
profit or not-for-profit, partnership, joint venture, trust, or other 
enterprise. 
 

(Id. at § 8.1).11 

Section 8.4 specifically deals with the advancement of fees during the 

pendency of the litigation of the covered party.  It provides: 

The University shall pay expenses (including reasonable attorneys’ 
fees) actually and reasonably incurred in defending any action or 
proceeding  referred  to  in  Section  8.2  in  advance  of  the  final 
disposition  of  the  action  or  proceeding  upon  receipt  of  any 
undertaking  by  or  on  behalf  of  the  representative  to  repay  the 
amount if it is ultimately determined that he or she is not entitled 
to  be  indemnified  by  the  University  as  authorized  in  this  Article 
VIII or otherwise. 
 

____________________________________________ 

11 This definition of “representative” is much more limited than the definition 
contained in the Associations Code.  See footnote 8, infra. 
 

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Temple first contends that Dr. Porat is not entitled to advancement of 

counsel  fees  under  the  University  By-Laws  because  those  provisions  only 

apply  to  high-ranking  officers  listed  in  Section  7.1  of  the  By-Laws.12    It 

acknowledges that the Board may appoint other officers, but argues there is 

no evidence that the Fox School Dean was a position with “officer” status or 

that Dr. Porat was otherwise made a University officer.   

We agree that the trial court erred in finding that Dr. Porat was a Temple 

officer  entitled  to  advancement  of  counsel  fees.    Because  the  definition  of 

“officer” provided in Section 7.1 applies to Section 8.1, and Dr. Porat is not 

the “Chair of the Board, a Vice-Chair of the Board, a President, a Secretary[,] 

a Treasurer[,]. . . Vice President[], a Provost, [or] a University Counsel,” he 

is not a defined officer of Temple entitled to advancement of fees.  “Dean” is 

____________________________________________ 

12 Section 7.1 of the University By-Laws provides that: 
 

The officers of the University shall include a Chair of the Board, a 
Vice-Chair of the Board, a President, a Secretary and a Treasurer. 
The  officers  also  may  include  one  or  more  Vice  Presidents,  a 
Provost, a University Counsel, one or more Assistant Secretaries, 
one  or  more  Associate  or  Assistant  Treasurers,  and  such  other 
officers as the Board may determine from time to time. The same 
person  may  hold  any  number  of  offices.  Except  as  otherwise 
provided in these Bylaws, the Board may appoint officers at any 
meeting of the Board. Except for the Chair and Vice-Chair of the 
Board  and  the  President,  upon  appointment  by  the  Board,  all 
officers  shall  serve  at  the  pleasure  of  the  President,  subject  to 
consultation with the Board. 

- 19 - 

University By-Laws, at § 7.1). 

  (

J-A26032-22 

(Id. at § 8.4) (emphasis added). 

simply  not  one  of  the  enumerated  positions  set  forth  in  the  University  By-

Laws.  While the Board is entitled to denominate other positions or individuals 

as “officers,” there is nothing in the  record that reflects the Board did so in 

this instance.  The trial court erred in holding that Dr. Porat was entitled to 

advancement of fees based on its incorrect conclusion that he was an “officer” 

within the meaning of Section 8.2. 

 

However,  that  does  not  end  our  inquiry.    The  trial  court  alternatively 

found  that  Dr.  Porat,  as  Dean,  was  a  “representative”  under  Section  8.1 

because even “if Dr. Porat was not an officer of the University. . . he would be 

an officer of ‘another enterprise’, that being Fox School of Business.” (Trial Ct. 

Op., 1/31/22, at 15).  Even assuming that Dr. Porat is a Temple employee, 

who served as Fox School Dean at the request the University,  and that  the 

Fox School is an “enterprise,”13 Dr. Porat still does not meet the requirements 

of Section 8.1 to be a “representative.”  Under that section, Fox School must 

be an “other enterprise,” separate and apart from the University.14  (University 

13 Black’s Law Dictionary defines “enterprise” as “[a]n organization or venture, 
esp. for business purposes.” See Enterprise, Black’s Law Dictionary (11th ed. 
2019). 

4 Fox School has its own By-Laws that mainly involve the manner in which 
the  University  consults  with  the  Fox  School  faculty,  participates  and  is 
consulted about the affairs of the Fox School.  The Fox School’s By-Laws were 
originally approved by the President in 2002, and in 2019, were revised and 
approved by an assembly of Fox School faculty members.  Temple does not 
(Footnote Continued Next Page) 

  1

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By-Laws, at § 8.1). 

____________________________________________ 

J-A26032-22 

J-A26032-22 

 

The types of organizations denominated under Section 8.1 all involve a 

separate  governing  structure  from  that  of  the  University,  namely,  “another 

domestic or foreign corporation for profit or not-for-profit, partnership, joint 

venture,  trust,  or  other  enterprise.”    (University  By-Laws,  at  §  8.1).    The 

individual serving is not serving as a director, officer, trustee or fiduciary of 

the  University  but  is  serving  as  an  officer,  trustee  or  fiduciary  of  another, 

different organization.  For example, an employee serving as a “director” or 

“trustee”  of  “another”  for-profit  or  non-profit  board  would  have  to  be 

nominated to the board of that organization in accordance with its articles of 

incorporation or by-laws.  Similarly, an “officer” would have to be appointed 

according to the by-laws of that for-profit or non-profit.  As to “enterprise,” 

suggest those By-laws were not validly promulgated or that the President does 
not have the power to appoint the Dean.  If a Fox School  By-Law or action 
pursuant  to  those  By-Laws  conflicts  with  University  Policies,  by-laws  and 
collective  bargaining  agreements,  the  By-Law  or  action  is  superseded.  
“University Policies” refers to any action taken by the Temple University Board 
of Trustees or the President of Temple University.  (See generally Fox School 
By-Laws, Article I). 

egarding  Fox  School  governance,  the  By-Laws  provide  that  the  University 
President “appoints the Dean of the Fox School. . . in conformance with such 
Dean Search Guidelines as the President may from time to time promulgate.” 
(Id., Article II.C).   The Dean is accountable to the President and must follow 
all University Policies and directions.  (Id., Article II.D).  The Dean of the Fox 
School  is  its  chief  executive  officer  and  the  chief  academic  officer  and  is 
responsible  for  supervising  the  budget  and  administration  pursuant  to 
University  Policies.    (Id.,  Article  II.E,  F  &  H).    The  Dean  also  may  appoint, 
subject  to  University  Policies,  associate  deans,  assistant  deans,  and  other 
academic and administrative personnel. (Id., Article II.H).    
 

  R

____________________________________________ 

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J-A26032-22 

which is the catchall of business organizations, the individual serving in some 

fiduciary capacity is governed by the internal or contractual rules under which 

that enterprise operates.  In all cases, they are not the articles, by-laws, or 

internal or contractual rules of Temple. 

What is clear, then, is that as Dean of the Fox School, Dr. Porat is not 

serving some “other enterprise.”  Fox School is not separate and apart from 

Temple, but is merely one of its constituent parts that is, per its own by-laws, 

subject to the direction and control of the President and Board of Trustees of 

the University.  Accordingly, Dr. Porat does not fall within any of terms under 

the  definition  of  “representative”  in  Section  8.1  and  is  not  entitled  to 

advancement of costs under Section 8.2.15 

Order reversed.  Case remanded.  Jurisdiction relinquished. 

___________________________________________ 

15 Temple also argues that Dr. Porat’s federal court conviction requires that 
he pay back any money advanced to him.  The trial court did not address the 
University’s entitlement to recapture counsel fees when it granted summary 
judgment, having stayed Temple’s counterclaim seeking reimbursement.  This 
issue  is  waived  on  appeal  because  Temple  failed  to  raise  the  issue  of  the 
propriety  of  the  trial  court  staying  of  that  counterclaim  in  its  Rule  1925(b) 
statement.  Even if it had raised that issue and we decided it in its favor, the 
result would be the same as the result here - remanding the case to consider 
Temple’s  counterclaim.    Temple  also  claims  that  the  trial  court  erred  in 
prematurely  granting  summary  judgment  without  allowing  necessary 
discovery.    We  need  not  address  that  issue  because  of  the  way  we  have 
resolved this appeal. 

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        _

- 23 - 

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/16/2023 

        J

    J

  D

   

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