Neal v. Bavarian Motors, Inc.

tion and order a new as to that

charge. affirm Appellant’s We also judg-

ment of sentence as possession of a

controlled substance and conspir- criminal

acy convictions at 2108 WDA 2004.

¶ 35 At 2106 WDA judgment of

sentence affirmed. 36 At 2108 WDA judgment of part

sentence affirmed in and vacated in

part. Case remanded for new trial. Ju- relinquished.

risdiction

Jennifer NEAL MOTORS, INC.,

BAVARIAN Aded Be Benaleou,

naleou and Ashir MFN Fi Corporation, Mercury

nancial Fi Company, LLC,

nance & Consumer

Portfolio Services

Appeal Corporation, of MFN Financial Company, Finance LLC &

Consumer Portfolio Services.

Jennifer Neal Motors, Inc.,

Bavarian and MFN Finan Corporation, Mercury

cial Finance

Company, LLC, & Consumer Portfolio

Services

Appeal Motors, of: Bavarian Inc.

Superior Pennsylvania. Court of

Argued March Sept.

Filed MFN, Exton, for Mer- Coppock, R.

Reid cury Portfolio. & Consumer Narberth, Flitter, for Neal. Cary L. Philadelphia, Bavar- Gay, G. Andrew Motors, Inc. and Benaleou. ian TODD, KELLY, JJ., and Before: McEWEN, P.J.E.

McEWEN, P.J.E.: appeals have 1 These consolidated brought judgment that was from been in favor Neal (plaintiff entered of Jennifer below), against appellants in her action the sale of a that was founded to her legitimate of a guise car under the stolen Appellants Ap- at transaction. business Finan- No. 2438 EDA 2004 MFN peal Mercury Compa- Corporation, cial Finance LLC, ny, and Consumer Portfolio Services (hereinafter “Mercury”). to as referred No. 2439 EDA 2004 is Appeal Appellant (hereinafter Motors, Inc. re- Bavarian Motors”). af- to as We ferred “Bavarian part. part firm reverse ¶2 Judge Mary D. distinguished Colins, jury trial presided who over case, provided has this Court with the summary proce- of the facts and following history of matter: dural January Bavarian Motors sold a In that it either knew vehicle car have was stolen. The should known through Mercury, a third financed was timely pay- made lender. Plaintiff party permanent but never received ments the defendants registration or title from September plain- [appellants]. Pennsylvania tiff was contacted State Police and informed that the car tiffs motion to mold the verdict to list purchased that she had from Bavarian all parties’ names as to the Motors police was stolen vehicle. The defendants, plaintiffs but denied motion subsequently impounded the vehicle. toas the Bavarian Motors defendants Plaintiff Jennifer Neal filed suit on Octo- personal liability excluded the [which 18, 2002, against [appellants] ber employed by the individuals Bavarian contract, the following claims: breach of Motors]. [The court] ordered that Pennsylvania’s violation of Trade Unfair $17,869.48 the verdict be remitted to Practices and Consumer Protection Law Additionally, conform to the evidence. (“UTPCPL”) (73 9.2(a)); § P.S. following [the court] added the 201— (13 warranty breach of of title Pa.C.S. jury’s pursuant sums to the verdict 2312(a)); fraud, misrepresentation damages UTPCPL: the amount of Pennsylvania and violation of the Motor $1,000, $3,000.00; ... were trebled to Vehicle Sales Finance Act. $2,854.66 the amount of case tried before a $8,563.98; ... plain- were trebled to plaintiff May resulted a verdict for tiffs counsel in the amount of 2004. The awarded $42,599.50 granted; were costs $31,000. total the amount of in the granted. amount of were -The found Bavarian Motors liable post-verdict Thus the award for the $1[7],000.00 plaintiff Mercury for and plaintiff totaled [sic]. $14,000.00. to plaintiff liable for Bavari- 2004, 28, Slip Opinion, September pp. 1- an Motors was found liable on six entered, Judgment was thereafter and contract, counts: of breach violations of appeals these followed. UTPCPL, warranty breach of [under 2004, appeal 3 In the at No. 2438 EDA 2312(a)], fraud, § misrepresen- Pa.C.S. following questions sets out the PA tation and violation of the Motor for our review: [Mercury Vehicle Sales Act. Finance.

was found liable on four breach counts: the trial court its Whether abused dis- contract, UTPCPL, of violations of the cretion or committed and error of law in warranty breach of under Pa.C.S. its damages imposition calculation of and 2312(a), and violation of the PA Motor joint liability? of and several Vehicle Finance Act.] Sales Whether the trial court abused its dis- special findings made that attributed by failing fully cretion remit dam- $2,854.66 of Bavarian Motor’s total lia- ages? $17,000 bility of to violations of the Whether the trial court abused its dis- $1,000 Mercury’s of total cretion or committed an error of law $14,000 liability of to violations of the its of costs and award UTPCPL. treble under the Unfair Trade May a plaintiff On filed Practices and Protection Law Consumer motion to mold the verdict list all (UTPCPL)? in the final In parties’ names verdict. 2004, In EDA appeal at No. 2439 addition, plaintiff filed a motion for tre- questions by raised Bavarian Motors are damages, attorney ble fees and costs as follows: pursuant provision of trial its dis- Defendants filed a motion Whether the court abused UTPCPL. by failing fully remit dam- for remittitur of on June cretion granted plain- ages? [The court] colleague, the eminent Jus- by dis- our former the trial court abused its Whether he Saylor, wrote: law in tice Thomas G. when an error of cretion or committed its of fees and costs to a liability for harm “Whether under the Unfair Trade Practices question ais capable apportionment is (UTPCPL)? Law Consumer Protection court, question not a law for the history of Nabati, procedural Given the identical jury.” fact for the Harka commonality of appeals, these two and the Pa.Super. respec- questions Corwin, raised

two (1985), Voyles quoting tive we have elected to consoli- appellants, 126, 441 A.2d 381 disposi- appeals purposes date these the harm to determining whether tion.1 apportionment, capable is, sep that whether defendants ¶ Mercury first that the claims joint tortfeasors, or courts consid arate molding erred verdict factors: er several impose joint liability several im Bavarian Motors. basis identity cause action liability posing joint and is recited several of two or more defen- against each (Second) in the of Torts as Restatement dants; common, or the existence of follows: evidence duty; like whether the same appor- are to Damages each; harm against an action support will among

tioned two or more causes where nature of the single, indivisible (a) plaintiffs; identity of the harms, injury to the there are or distinct time, result; place facts as to (b) there is reasonable for de- basis injury im- is direct and whether termining the contribution of each mediate, consequential; rather than a single cause to harm. of defendants for responsibility (2) Damages any other cannot harm injuria distinguished the same as among two more apportioned or damnum. from the same causes. Corwin, at Pa.Super. 295 130- (Second) Voyles § Restatement of Torts 43BA. 131, 441 and Harka v. A.2d at 383 If the tortious conduct of each of two or 622, Pa.Super. 487 A.2d 337 at Nabati persons more is a cause of harm Prosser, (1985), Law citing at 434 both that apportioned, cannot be each is sub- 1971). (4th Torts, § 2 46 n. Ed. ject liability harm, entire irre- spective of whether their conduct is con- to pro- “If combine two or more causes curring or consecutive. incapable of harm which is single duce reasonable, (Second) any being logical, § 879. divided on Restatement Torts basis, cause is a practical have or and each These concise statements the law about the bringing into factor adopted jurisprudence been substantial harm, arbitrary apportionment Pennsylvania,2 governing and the law among Capone made.” Dono- liability or should not be assessment between 189, van, 185, Pa.Super. multiple well summarized tortfeasors was joint liability is questions and several assessed respective 1. have been set forth which we them. against multiple the order have chosen address defendants. See: Pa.C.S. 7102(b.l), July P.L. § Act of remarking It was filed 2. bears that matter 87, § No. 5. prior to to 42 Pa. and tried the amendments § C.S. which altered manner (1984), citing procedures financing Restatement a vehicle contrib- (Second) 433A, § uted to citing suffered-by Torts Com- the harm the plaintiff. Thus, Prosser, iment error in Law of Torts detect no decision (1941). § injuries impose joint the trial court personal “Most and several liability. by very their incapable nature of divi- sion.” Id. ¶ Next, appellants both contend “If the tortious conduct of two or more court erred when it refused persons single causes a harm which can- to grant greater remittitur of the verdict apportioned, not be joint actors are so as to for a account “use of vehicle” though they tortfeasors even have offset for the of the use of value the vehi acted independently.” Capone v. Dono- by during cle the time pos she van, at at period ap sessed and the car—a used (Second) (1984), citing Restatement proximately twenty months. The trial § of Torts Joint tortfeasors judge, appellants’ in granting post trial are: remittitur, request computed the dam $16,283.13 ages being composed persons

“...two or jointly more or $1,586.35 purchase price the cost of severally plus tort liable in for the same accessories that had added to the injury property, or persons wheth- vehicle, and remitted thereby er or ver judgment has been recov- $17,869.48. dict of Appel against ered all some of them.” 12 lants contend erred P.S. Black’s Law Dictio- using purchase price the full of the vehicle nary, tortfeasor, joint be a “the depreciated and should have used value parties act together must either testimony based was elicited acts, committing wrong, or their if plaintiffs from expert on cross-examinat other, independent of each must unite ion.3 in causing injury.” 4th single Ed. joint A page 1661. tort is de- law on 6 The remittitur was fined persons as “where or more two aptly by our summarized venerable de duty owe to another the same Judge ceased President Emeritus William their neglect common such other is Cercone, F. he when wrote: injured ...” Id. “A fix highest remittitur should Qualls,

Lasprogata 174, Pa.Super. v. 263 award, any amount could jury properly 4, 803, (1979). 179 n. 397 A.2d 805 n. 4 giving due to all weight the evidence Pulcinella, 525, v. 440 Pa.Super. Smith Mercy offered.” v. Hospital Cashdollar (1995). 494, A.2d In 656 496-497 this case 606, Pittsburgh, Pa.Super. 406 595 Mercury Motors, (1991). amply 70, Therefore, Bavarian A.2d 76 the cor- record, by demonstrated acted con- rect question on review is whether the to sale of cert facilitate the this stolen award of “falls within the un- plaintiff. Regardless to vehicle of whether certain limits "of fair and reasonable Mercury’s culpable compensation actions were less than so or whether the verdict Motors, justice Bavarian the inexcusable shocks the as to suggest sense comply required failure of with influenced by partiali- expert having plaintiff's “transportation 3. On cross derived value” examination had from period prior testified that the value of the vehicle had control of the for the time vehicle depreciated by posses- being police. it was to it over the time in the seized See: N.T. 12, 2004, plaintiff, May pp. sion of the and that had 21-29.

1029 fix mistake, remittitur corruption.” or date that should ty, prejudice, “[a] Arms, supra, v. Raven Pa. highest any jury properly [536 Haines could 452, 367], (citing 640 A.2d Carminati v. award,”5 no which to we find basis Co., 500, Philadelphia Pa. Transp. 405 chosen with the remitted amount disagree (1962)). 509, 440, 176 On ap- A.2d 445 by judge. the trial peal, Superior is not free to Court ¶ 8 further claim that Appellants judgment for its substitute in its the trial court erred decision Appli- Safety fact finder. Botek v. Mine costs, damages, award treble 160, 166, 531 611 Corp., ance Pa. A.2d under the UTPCPL.6 (1992). Rather, 1174, our 1176 is task contention, considering mindful post-trial to determine whether the mo- judge’s that we not disturb judge tions committed “clear” or there assessment these amounts unless “gross” abuse when con- discretion ducting its initial evaluation of a has been abuse of discretion. Skur defen- 165, (Pa.Su Lucci, 788, at request dant’s for remittitur. Id. 798 A.2d 796 nowicz A.2d 611 per.2002). Raezer, 334, 444 Pa.Super.

Doe v. 664 A.2d general purpose 9 The of the denied, 102, 105 (1995), 630, appeal Pa. 544 protect public is from (1996). 675 A.2d 1248 Accord: Bind deceptive and unfair or business fraud 803, Phillips, schusz v. 771 A.2d 813 practices. Pirozzi v. Penske Olds-Cad denied, (Pa.Super.2001), appeal 567 Pa. illac-GMC, Inc., 308, Pa.Super. 413 754, (2001); A.2d Gunn Gross denied, 665, 532 Pa. appeal A.2d (Pa.Su man, 748 A.2d 1240-1241 UTPCPL, by A.2d denied, per.2000), appeal 564 Pa. following language, virtue of authorizes (2000); Kleiner, Petrasovits v. liti judge grant a successful (Pa.Super.1998). 806-807 gant damages, for additional rea an award ¶ Consequently, if is there evi costs: sonable support dence the record to the award purchases leases Any person who or court, of the trial then Court goods primarily for personal, or services judgment by altering free to substitute its family or there- purposes household Therefore, within the award. since it was mon- by any ascertainable suffers loss reject purview of the the testi ey property, personal, real or as a or mony expert as to the amount of by any employment use or offset,4 result any suggested and since the deci method, practice de- person of a act sion of has solid evidentia act, ry section 3 of this comports foundation that man- clared unlawful Corp., 4.The law is well settled that Randt v. Abex 228, (1996). A.2d 233 all, part, is entitled to believe [a] presented. none of the evidence v. Rafter Raezer, 334, Pa.Super. 444 664 A.2d 5. Doe v. Industries, Inc., Raymark denied, 630, 102, (1995), appeal 544 Pa. 360, (1993). jury can 632 A.2d 897 A be (1996). 675 A.2d 1248 any testimony part of a lieve witness’ that choose, they disregard any portion may and finding the the Appellants do not contest testimony they of the that disbelieve. Mit they culpable 54, in for violat- Kamrin, jury that were fact A.2d 888 526 Pa. zelfelt UTPCPL, only discretionary the (1990). ing Credibility the determinations for assessing Shoemaker, judge these in decision of the trial jury. 421 Pa.Su the Sundlun v. (1992). was per. additional amounts excessive. 617 A.2d 1330 may bring private to recover seeking action The to recover actual $9,326.31 costs, or one hundred dollars in which are totaled ($ 100), greater. whichever is The court May through Plaintiff has discretion, may, up in its award three provided expenses. list of Of that sustained, times the actual damages but total, $7,172.50 plaintiffs is attributed to less than one hundred dollars expert witness. The Court finds that ($ 100), may additional provide such the fee is expert’s excessive and awards necessary relief as it or proper. deems $4,500.00. in costs may plaintiff, The court in award to the 28, 2004, 2004, Slip Opinion, July It p. 13. addition to provided other relief this explanation is clear from this trial section, costs and reasonable judge plaintiff partial awarded reimburse- fees. of hiring expert, ment for the cost while 9.2(a). P.S. 201— request denying plaintiffs for certain oth- tarry long We need not appellants dispute er costs. do not Since the challenge to the award of treble the retention expert fact that of an argument since the offered con (who pretrial report prepared and testi- sists of but two paragraphs appel short trial) necessary, fied at was no we find brief, Mercury’s unsupported lant and is basis on which conclude that by any development or citation to relevant judge awarding her discretion in abused authority. Consequently, we dismiss partial reimbursement the cost of that challenge on grounds of waiver. See: expert. System, v. Crozer Keystone Connor Health (Pa.Super.2003). ¶ 12 Finally, appellants con it, however, if Even we were to address trial court in awarding tend that the erred find no would basis which award full amount of her claim relief, any since violation $42,599.50. namely, law The empowers judge to consider the un determining attorney relevant to thereunder, additional provided remedies der the UTPCPL well stated our was record, the conduct of where colleague Judge Joseph esteemed Hu A. appellants egregious and their lia Lockhart, dock Sewak 699 A.2d 755 clear, bility we detect no abuse discre (Pa.Super.1997): judge tion the decision of the trial involving in- a case lawsuit which damages. award treble Stokes v. See: claims under the UTPCPL ... elude[s] Inc., Gary Barbera Enterprises, following factors should be consid- denied, (Pa.Super.2001), appeal assessing ered when the reasonableness Pa. 797 A.2d 915 fees: ¶ 11 Appellants, challenge their time and required, labor costs, litigation argue to the award of novelty difficulty questions failing to itemize erred requisite prop- the skill involved appellees of the sum of case; erly to conduct the The cus- judge, for costs. The trial charges tomary of the members of the motions, ruling upon parties’ post-trial services; similar bar provided following explanation for her controversy amount involved in the of an appropriate paid choice amount to be by appellants resulting and the benefits to the toward the reimbursement (4) services; of those costs: from the clients and ¶ multiple the of UTPCPL certainty of the com- While contingency or attorney award is fee pensation. present that which was clearly beyond 762, citing Foreign v. P. Id. at & W. Croft McCauslin, supra,8 do not find that it Service, A.2d Car the facts of this under inappropriate (1989).7 18, 20 by the case, precluded nor do we find The Court of that case. reasoning ¶ v. Reli McCauslin Subsequently, proportion a McCauslin did not mandate Company, ance Finance acceptability, the limit of but that would be prior held that (Pa.Super.2000), this Court a of only that there be “sense suggested a awarding plaintiff counsel fees to a on amounts. the two proportionality” between claim, have the defendant must UTPCPL appropriate would it have been Nor legiti “a fair to address” the opportunity fix amount proportionate Court a macy remanding the claim. In the case of limit of recoverable that would define the proceedings this Court made for further fees, Assembly specifi- since the General following there the observations: cally chose to include such factor “a be proportionality Therefore, should be sense of not accept we do the statute.9 that the award of appellants’ argument of the damages [under tween an award solely counsel this case is reversible attorney’s of and an award UTPCPL] total of the award is on the basis that the fees,” pur and has whether the amount of the disproportionate recovery in sued other addition theories recovery. UTPCPL given to a claim “should [be] UTPCPL arriving at an appropri consideration” however, do, find mer 15 We Id. at 685-686. See ate award of fees. awarding it in the that a court in argument Lucci, supra. v. the must also: Skurnowicz fees under UTPCPL Lockhart, (Pa.Su was attributable to the co-defendants’ Sewak 699 A.2d which affirmed, 1997), UTPCPL, per. being portion this Court as the from that violations of court, the within the discretion the to their the which was attributable verdict computation of a reasonable assessment for liability legal theories: under other rejected prevailing attorney’s and damages against assessed UTPCPL amount of plaintiffs' claim that the award should have $1,000.00, amount of was greater. been had court concluded damages against Bavarian UTPCPL assessed familiarity cus “[biased [its] on $2,854.66. responsibil- Since the Motors was attorneys tomary charges County of Bucks ity payment fees in the for the cases, (2) simplicity similar “joint made amount of present facts issues of the case and several,” validity we have al- of which ed, $5,000 (3) the controver discussed, ready the mathematical relation- sy, attorney's ... the fair and reasonable ship the award of counsel fees between $5,000.00.” fees in this case were Id. liability under the UTPCPL must the award of Subsequently, this Court reversed by totaling two UPTCPL computed grant prevail trial court fees to $3,854.66, awards, i.e., so that the a sum of ing grounds UTPCPL on the approximate- counsel fee award was UTPCPL had the four factor trial court not considered ly the amount 11.5 times out test and other considerations set Sewak (and of the tre- the amount 3.5 times Company, in McCauslin v. Reliance Finance $11,563.98). award of bled (Pa.Super.2000). See: Skur 751 A.2d Lucci, (Pa.Su nowicz per.2002). contrast, Assembly spec- 9.By did the General ify multiple of outside limit three above, specifi- 8. As in this case noted damages. "punitive” cally portion verdict allocated link attorney the damages fee award to the amount diet between under the UTPCPL of damages plaintiff sustained that and under under the other theories of Act, and by plaintiff eliminate from the award attor relief. Thus the decision of to ney proceed against multiple fees the efforts defendants under of counsel to recover theories, on a strategy, while defensible as non-UTPCPL theories. As this Court McCauslin, substantially to complexity stated in added the of supra, 751 case, for required par- counsel all statutory authority there is “no for prepare ties to for and acquainted be awarding attorney’s spent fees for time questions of that law would arise under pursuing [non-UTPCPL] counts”—a view theory.10 times, through each At all to the previously expressed by this Court in Croft jury charging conference at which trial Service, v. P. Foreign & W. supra, Car (“an judge finalized the proposed instructions A.2d at 20 effort should be made to jury, to the plaintiff option had the of apportion by the time spent counsel the on counts, withdrawing pro- individual action”). Moreover, distinct causes of the ceeding on her UTPCPL count alone. wisdom that apparent of view is under the Having so, to given chosen not do the case, plaintiff facts of this where initiated that, in Pennsylvania well established rule filing complaint case containing circumstances, special litigants absent bear action, six separate only causes of of one fees,11 own attorney permit plain- them to pleaded UTPCPL, which was the under tiff all to recover counsel fees for of the the case thereafter proceeded all through upon damages, counts which she recovered pretrial and stages with each of these only inequitable, would not but be would extant, causes of action jury and the contrary be law. to the ultimately instructed each count and required separately deliberate each Therefore, we are obliged vacate count. performed its function fees, attorney the award of and remand manner, a diligent and thereafter returned this case to court re-eompu- the trial for a a verdict specifically that ver- allocated the tation of that award.12 attorneys To cite but example, one the judge apply per- for the that 10. on remand required each prepare proposed side were centage plaintiff's request theory instructions on each that was to judge As fees. the trial reflects presented be jury. appropriate sum to awarded UTPCPL fees, judge wisely re- would “[T|here recovery attorneys' attorney-client compensation agree- can be no view party, express fees from an adverse absent an ment between and her counsel. That authorization, statutory agreement by agreement appear pre- a clear does to have been not parties excep- or some other established sented to the counsel’s motion (a County, tion.” Merlino v. Delaware 556 Pa. conclusion drawn from appear See fact that it does certified Builders, Inc., record), generally: Berg Georgetown repro- but has been included in the (Pa.Super.2003). A.2d 810 duced record which assembled and suggest submitted to this Court. We also agreement, of the remanding review fee since this case the trial court agreement re-computation concerned with fact that for the award attor- fees, hourly contingent ney cognizant contains an and a we are both the difficulties calculating parties method of a condi- judge. will face the and the trial seems, however, It jury's tion “to the extent that the Court award since attorneys' aggregate our than fees in amount less our $3,854.66 represented arrangement, pres- billable and fee total hours 21.6% ently adjusted payable by you remitted verdict on all counts remainder of our fee will be $17,869.48, recovery.” proceeds your would not be unreasonable out of

1033 ¶ ben- controversy in and the re- the Judgment part 17 affirmed involved or client clients resulting efits the pro- remanded for part. Case versed (4) services[;] The contin- from the Ju- ceedings Opinion. consistent with certainty compensation. the gency or relinquished.13 risdiction Inc., Service, Foreign P Car v. & W Croft ¶ KELLY, J., Concurring Files (1989) A.2d Statement. 503). However, (quoting P.S. J., KELLY, Concurring. apportioning also noted Court Croft “may prove dif damages UTPCPL-related ¶ I and thor- join well-reasoned on claims are based given ficult that these I majority sepa- but write ough opinion, legal related a common core of facts and my rately I es- disagree because with difficulty, Recognizing theories.” Id. colleagues’ recommendation teemed the trial because this Court remanded attorney directly propor- should be on cap as court used the of UTPCPL-relat- percentage tional to the investigating the attorney fees instead of Instead, I damages from whole. ed light of of the fees in reasonableness determining the emphasize would Id. aforementioned elements. attorney fees amount of UTPCPL-related as- very fact-specific is and should be ¶ Lockhart, Similarly, Sewak case-by-case on a Further- sessed basis. af- (Pa.Super.1997), this Court more, Appellees because were awarded $5,000 in court’s award of firmed the trial damages Appellants’ treble based fees, though the even claimed violations, suggest I these UTPCPL would $22,000. court The trial fees exceeded taken into treble should also be Croft, noting “the time followed the test awarding consideration in additional attor- considerable, required and labor ney fees. or issues and that no novel difficult ¶ notes, majority aptly 2 As the in as- Buyers’ ... presented [and] were sessing attorney court consid- researching unnecessary time spent er: admissibility summary Id. of a offense.”

(1) also had “familiari- required, time and at 763. The trial court The labor customary charges of Bucks Coun- novelty difficulty questions ty attorneys for similar cases” and found ty and the skill requisite [] involved Thus, excessive. Id. cus- an hour to be [properly]; conduct case The $180 Sewak, this Court refused charges of the members of the both tomary Croft services; per- on the to award fees based for similar The amount bar recovery, any plaintiff’s part of UTPCPL Pennsylvania Con- Rules of Professional including damages, be ac- provide part: the trebled can duct relevant agreement any lawyer payment of counsel fees A shall not enter into an cessed for the for, clearly specifically charge, illegal beyond or of counsel fees or collect The factors to be considered excessive fee. awarded under UTPCPL. determining propriety in- fee judicial the fact that the We take notice of following: clude the Judge Mary original judge, the learned contingent.] fee fixed whether the is Collins, longer presiding judge as a 1.5(a)(1). D. no any pro- absence of Pa.R.P.C. Philadelphia. Pleas of the Court of Common "hybrid” agreements vision in the Rules therefore, case, be This shall remanded agreements, perhaps suggests that while such reassign- Judge of that court closely President permissible, scrutinized. should Moreover, whether ment. shall decide centage actually time spent pursuing distin- UTPCPL-re- guished damage from total award. Croft, supra lated theories. See at 20. case, 4 In instant the trial court ¶ 6 In its reassessment of the attorney provided was with Appellee’s itemized fees, I trial would instruct court to billed Community Legal hours take into consideration the information Attorney Services Fees of Hour- Schedule provided by Appellee, it including ly The pro- Rates.14 trial court was also original agreement. fee The trial court qualifications vided with verifications of should especially be mindful research from Appellee’s counsel. The trial court performed by supported multiple counsel provided original was not with the fee Appellee theories. fact that was agreement, although it included for was us sug- awarded treble would also in the reproduced The trial record. gest attorney the award of fees should justification court’s awarding accordingly. increase $42,599.50 in attorney based on Appellants the fact that refused to refund ¶ note, agree “hy- On a further I the money and insisted continuing brid agreement” should be scrutinized. court. this finding While would undoubt- (See 12). 1033 n. Majority Opinion at I edly Appellee’s increase hours counsel would advise the court further pursuing worked on the case in UTPCPL- inquire Appellee’s whether damages, related there is no mention of willing would be withdraw 10% re- any statutory exception agreement by contingency in covery receiving lieu of parties justify awarding the full hourly determining Appellee’s rate. attorney fees. See Merlino v. per hour counsels’ rate “reasonable 422, 425, County, Delaware 556 Pa. 728 experienced [six] [ten] law Therefore, years of court experience,” the trial makes court separate must still UTPCPL from contingency no mention 10% added non-UTPCPL billed hours. (See Trial to the hours. billable Court

¶ majority 4). 28, 2004, states that since the Opinion, September filed UTPCPL represent 21.6% of the Had the court of such a been aware adjusted verdict, remitted would “it not be contingency, hourly may not rate have unreasonable for the on remand to seemed as reasonable. apply plaintiff’s that percentage re- respects, join 8 In all I other ma- quest (Majority Opin- fees.” jority opinion. 12).

ion at 16 n. Because the similarity strategies between UTPCPL and non- however, damages, inherently to separate attorney difficult percentage

fees based on strict because undoubtedly

research was performed support multiple

counsel in theories.

Thus, I awarding believe UTPCPL attor-

ney percentage fees based on a strict accurately

would not reflect the amount of note, however, Appellee's began July, I the date sched- billable hours ule took effect on November while

Case Details

Case Name: Neal v. Bavarian Motors, Inc.

Court Name: Superior Court of Pennsylvania

Date Published: Sep 2, 2005

Citation: 882 A.2d 1022

Court Abbreviation: Pa. Super. Ct.