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Attorney’s Fees


Austin v. Thyssenkrupp Elevator Corp., 2021 Pa. Super. LEXIS 301 (May 14, 2021) (Stevens, P.J.E.)  Interesting case discussing when an attorney has a right to a charging lien for a fee.

With these precepts in mind, we agree with Attorney Schneider that there are equitable considerations necessitating the recognition and application of an attorney’s charging lien in the instant case. Specifically, it is clear from the record that if the attorney’s fees are not paid from the settlement agreement proceeds, no compensation will be paid to Attorney Schneider. Austin and tkE reached the oral settlement agreement on November 30, 2017, and on May 1, 2019, this Court expressly held that such an agreement existed. Thereafter, for almost two years, and for reasons unknown, Austin refuses to sign the written release. Meanwhile, Attorney Schneider has not been paid for his efforts, which directly resulted in the settlement agreement. Further, inasmuch as Austin discharged Attorney Schneider after the settlement agreement was reached, Attorney Schneider is no longer the counsel to whom the proceeds will be distributed, in the event Austin signs the written release. Thus, Attorney Schneider is faced with the prospect of watching Austin “run off with the fruits” of the lawsuit. Molitoris v. Woods, 422 Pa. Super. 1, 618 A.2d at 992 (Pa. Super. 1992). Given this scenario, we conclude there are “equitable considerations” which necessitate the recognition and application of the charging lien, and the trial court erred in holding otherwise. In light of the aforementioned, we reverse the trial court’s January 22, 2020, order, which denied Attorney Schneider’s motion for imposition of an attorney’s charging lien against the $60,000.00 settlement proceeds. As indicated supra, Attorney Schneider demonstrated his entitlement to a charging lien under the Recht factors.  Recht v. Urban Redevelopment Authority of City of Clairton, 402 Pa. 599, 168 A.2d 134, 138-39 (1961).   Accordingly, we remand for the trial court, upon consideration of the contingency fee agreement between Austin and Attorney Schneider, to determine the appropriate amount of the attorney’s charging lien.


Krishnan v. Cutler Group, 2017 Pa. Super. LEXIS 766 (October 2, 2017) Bender, P.J.E.  This case involves a building contract and award of attorney’s fees under the Unfair Trade Practices and Consumer Protection Law.  The trial court found in favor of the homeowners on their Unfair Trade Practices and Consumer Protection Law claim.  It granted request for prejudgment interest, denied the request for all their attorney’s fees, granted a request for attorney’s fees and costs in part, and otherwise sustained the verdict.  The judgment was affirmed in part, vacated in part and remanded for consideration of attorney’s fees award, consistent with the opinion.

The court has discretion to award attorney’s fees under the UTPCPL.  This also applies to award of costs, including expert fees.  The trial court appropriately awarded expert fees.  Also was proper to award prejudgment interest.  The court has discretion to award prejudgment interest on some claims and not on others.  The homeowner spent a half million dollars to have this home built, and there were many problems.  They had to pay almost $86,000 out of pocket to bring the home in compliance.  Awarding additional fees and costs were not a windfall to the homeowner.  An attorney is not limited by a contingent fee agreement. That is not a ceiling on the recovery of attorney’s fees under a fee-shifting provision of a remedial statute.  The verdict was not against the weight of the evidence either.  There was a breach of implied warranty of habitability and breach of implied warranty of workmanlike construction.  Water infiltration to the house supported the claim for breach of implied warranties as well.  There was no statute of limitations issue.  It is correct that a plaintiff must show justifiable reliance on defendant’s wrongful conduct to bring a cause of action under UTPCPL.  That was satisfied in this case.  Plaintiff alleging violations of the Consumer Protection Law must prove the common law fraud element of justifiable reliance and not all the elements of common law fraud.  The builder had engaged in the practice of deceptive conduct.  In spite of the fact that the hourly rates were reasonable, nothing in the course of this litigation was simple due to the defendant’s uncooperative tactics.  The court placed unreasonable weight on the fact that plaintiffs had a 20% contingency agreement with counsel. The appellate court determined that the trial court abused its discretion in calculating award of attorney’s fees by apparently limiting the award of attorney’s fees based on the contingency agreement.


Huyett v. Doug’s Family Pharm., 2017 Pa. Super. LEXIS 272 (April 20, 2017) Bowes, J.  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.

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.

Grimm v. Universal Medical Services, Inc., et al., No. 591 WDA 2016, 2017 PA Super 53 (March 1, 2017) Bender, P.J.E.  Appellants, Universal Medical Services, Inc. and Roderick K. Reeder, CFO, appeal from the trial court’s March 24, 2016 order granting Appellee’s Jeffrey P. Grimm, request for attorney’s fees.  In this appeal raising an issue of first impression, we must consider the interplay between the Pennsylvania Wage Payment and Collection Law (referred to herein as “WPCL”) and Pennsylvania Rule of Civil Procedure 1311.1, which allows a plaintiff to limit the maximum amount of damages recoverable to $25,000.00 in exchange for relaxed requirements in admitting certain documentary evidence at a de novo trial following compulsory arbitration.  After close review, we affirm.

Given the arguments advanced by counsel here and the facts of this specific case, we hold that attorneys’ fees under the WPCL were properly awarded, even though they caused the total amount recovered by Appellee to exceed the limit set forth in Rule 1311.1.

Order affirmed.


Scott Enterprises v. City of Allentown, 142 A.3d 779 (Pa. 2016).  Opinion by Justice Dougherty.  “In this discretionary appeal, we consider whether an award of a statutory penalty and attorney fees under the prompt payment provisions of the Commonwealth Procurement Code, see 62 Pa.C.S. §3935, is mandatory upon a finding of bad faith, irrespective of the statute’s permissive phrasing.  We hold such an award is not mandatory, and therefore reverse the order of the Commonwealth Court and remand the case to the trial court for proceedings consistent with this Opinion.”

Tioga County Crash Claims Life

WELLSBORO – A man was killed in a one-vehicle crash Saturday night in Delmar Township in Tioga County.

State police said Paul L. Wilcox Sr., 56, of Wellsboro, at about 8:17 p.m. lost control of his vehicle on Airport Road after he failed to negotiate a left turn, ultimately causing the car to overturn and slide down the road.

Wilcox was not wearing a seat belt at the time of the crash, police said.

The Wellsboro Fire Department, the county coroner and Cooper’s Garage all assisted at the scene.

Peer Review and Attorney’s Fees

Doctor’s Choice v. Travelers Personal Insurance, 128 A.3d 1183 (Pa. 2015).  The order of the Superior Court was reversed and the matter remanded for reinstatement of the modified verdict.  The trial court had determined that all treatments rendered by the patient’s doctor were reasonable and necessary in providing essential management for the pain deriving from injuries incurred in an automobile accident.  The trial court, however, vacated an award of attorney’s fees.  The Superior Court, on appeal, reversed the decision to strike the fee award.  The Superior Court focused on the Common Pleas Court’s determination that no valid peer review determination had been realized, given the doctor’s failure to ground his analysis in national norms, regional norms, or pre-established written standards as required by § 69.53(e) of the Pennsylvania Code.  In such circumstances, the court reasoned, fee-shifting was required by § 1797(b)(6) of the Financial Responsibility Law, notwithstanding the decision in Herd Chiropractic Clinic v. State Farm Mutual Automobile Insurance Company, 619 Pa. 438, 64 A.3d 1058 (2013).  The Supreme Court permitted appeal to evaluate the correctness of the Superior Court’s construction that Insured “has not challenged” the reasonableness and necessity of treatment before a PRO, 75 Pa. C.S. §1797(b)(4), even though the carrier did not in fact submit relevant treatment records to a PRO for peer review in a timely fashion.  Ultimately, the disposition of the appeal turned on a straightforward understanding of a “challenge” and the appreciation that under Herd there is simply no express statutory authorization for fee shifting on provider challenges to peer review determinations.  At 64 A.3d 1066.


The court concluded that plaintiff lacked standing to sue under 502(a)(3) even in a purely representative capacity insofar as he seeks monetary equitable relief.  The district court was affirmed in dismissing the complaint insofar as it seeks that kind of relief.  Disgorgement of profits is not permitted.  He seeks monetary equitable remedies in a “derivative” or “representative” capacity on behalf of the plan.  There is no support for that theory.  Perelman v. Perelman, 793 F.3d 368 (3d Cir. 2015).

Attorney’s Fees-ERISA-Catalyst Theory

A party seeking attorney’s fees under ERISA must show “some success” on the merits.  The lower court incorrectly defined “some success” by requiring evidence that a judicial action was not necessary.  Therefore the case was reversed and sent back to the trial court for consideration of the standard set by the court of appeals.  We have no trouble concluding that the catalyst theory of recovery of attorney’s fees is available under the ERISA statute.  The court will analyze a number of factors in order to determine whether the action of the plaintiff was a catalyst in bringing the desired result.  The court applied the Ursic standard.  Templin v. Independence Blue Cross, 785 F.3d 861 (3d Cir. 2015).


East Coast Paving v. North Allegheny School, 111 A.3d 220 (Pa. Cmwlth. 2015).  Nothing in the school code or the contract relieves the school district of its obligation to pay for work and materials demanded of a private contractor.  East Coast Paving was entitled to recover for breach of contract.  The school board approved the paving project completed by East Coast.  The lower court held the school district liable for penalties and attorney’s fees under CASPA.  The question of first impression is whether a school district can be held accountable to its contractor under either CASPA or the Prompt Pay Act, or both.  The Prompt Pay Act, not CASPA, governs construction contracts between a government agency such as school district in a contract.  Accordingly, the trial court erred in applying the remedies set forth in CASPA to this case.  East Coast’s claim for interest and attorney’s fees under the Prompt Pay Act was not untimely.  Only if the trial court finds that the school district withheld payment in bad faith must it award a penalty in attorney’s fees at the rate established by the Prompt Pay Act.  Interest may be awarded on a progress payment.