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HomeMy WebLinkAbout98-0981 CivilDARYL L. SEESE, Plaintiff Vo CHERYL B. AULT, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION--LAW : : NO. 98-981 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR COUNSEL FEES BEFORE OLER, J. ORDER OF COURT AND NOW, this rb~day of October, 1999, upon consideration of Defendant's Petition for Counsel Fees Pursuant to 42 PACSA § 2503, following a hearing, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, Joseph L. Hitchings, Esq. Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Plaintiff Samuel W. Milkes, Esq. Jacobsen & Milkes 52 East High Street Carlisle, PA 17013 Attorney for Defendant DARYI_, L. SEESE, : Plaintiff : V. .' CHERYL B. AULT, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION--LAW NO. 98-981 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR COUNSEL FEES BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., October 8, 1999. Presently before the court is a petition filed by the Defendant for counsel fees pursuant to Section 2503 of the Judicial Code.~ Defendant's petition alleges that Plaintiff's conduct in commencing and maintaining the action constituted obdurate or vexatious conduct.2 A hearing on the petition was held on August 5, 1999. For the reasons stated in this opinion, the petition for counsel fees will be denied. STATEMENT OF FACTS Pl?3ntiff cvmrv..enced the underlying action herein for unjust enrichment, based upon certain improvements he made to Defendant's home during a period when he and Defendant were living together. Plaintiff's complaint alleged that, "[als a result of the work performed on Defendant's home by the Plaintiff, and the resulting increase in value of the home, the Defendant has been unjustly enriched without compensating the Plaintiff for the cost of labor and materials, which he incurred.''3 Damages were claimed by Plaintiff"in an amount not exceeding $25,000.00, exclusive of interest and costs.''4 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503. Defendant's Petition for Counsel Fees Pursuant to 42 PACSA § 2503. Plaintiff's Complaint, paragraph 10. Plaintiff's Complaint, ad damnum clause. At a compulsory arbitration hearing, Defendant presented evidence as to the value of labor and materials which he allegedly furnished in connection with improvements to Plaintiff's home prior to the dissolution of their relationship. The fact that Plaintiff had done a significant amount of work on the home was not disputed by Defendant. Plaintiff did not, however, present evidence as to the increase in value of the property, if any, attributable to the improvements. At the conclusion of Plaintiff's case, the board of arbitrators sustained a motion by Defendant for a compulsory nonsuit. The ruling was based upon the absence of evidence as to the increase in value of the property, which the board perceived to be the proper measure of damages in a quantum meruit action.5 No appeal was filed from the decision of the board. Subsequent to the board's decision, Plaintiff filed the petition sub judice for counsel fees. DISCUSSION With respect to awards of counsel fees, Pennsylvania has traditionally adhered to the "American rule": The customarily applied "American rule" provides that there can be no recovery of counsel fees from an adverse party in the absence of an express statutory allowance of attomey's fees, a clear contractual agreement between the parties, or some other established exception permitting attorney's fees in a given situation. Pennsylvania State Police v. Benny Enterprises, Inc., 669 A.2d 1018, 1022 (Pa. Commw. Ct. 1995); see Act of July 9, 1976, P.L. 586, {}2, as amended, 42 Pa. C.S. §1726(a)(1) (1999 Supp.). 5 The board did not reach a second defense raised by Defendant, in the nature of accord and satisfaction. This defense was based upon an earlier settlement of various personal property issues between the parties. Whether the agreement encompassed other issues, such as Plaintiff's claim arising out of improvements to Defendant's premises, was a disputed issue of fact, dependent upon a determination of the parties' intentions. The correctness of Defendant's position on the issue is not so manifest as to warrant a favorable disposition of her petition for counsel fees on the basis of this defense. 2 Section 2503 of the Judicial Code provides statutory authorization for the recovery of reasonable counsel fees as part of the taxable costs of a case where the conduct of a party "in commencing the matter or other~vise was arbitrary, vexatious or in bad faith,''6 or "as a sanction against [al participant for dilatory, obdurate or vexatious conduct during the pendency of a matter,''? inter alia. An action for unjust enrichment based upon improvements made to a defendant's premises by an occupant with a reasonable expectation of continued residency upon the property has been recog~nized in Pennsylvania, in certain circumstances. See, e.g., Chesney v. Stevens, 435 Pa. Super. 71, 644 A.2d 1240 (1994) (upholding award of damages on unjust enrichment theory to month-to-month tenants for improvements made to leased premises during tenancy). In the present case, Plaintiff's action was ostensibly based upon facts giving rise to a legitimate cause of action in quasi contract. Although Defendant may be correct that Plaintiff pursued an incorrect measure of damages at the arbitration hearing,8 relief in quantum meruit cases is sometimes described as restitutionary in nature9 and confusion as to the proper measure of damages in such actions is not uncommon? Under the circumstances of the case at bar, the court does not find itself in a position to characterize Plaintiff's conduct in commencing the action as arbitrary, vexatious or in bad faith, or in maintaining the action as dilatory, obdurate or vexatious. In the absence of statutory authorization which would otherwise sanction an award of counsel fees to Defendant, or a contractual arrangement providing for such a remedy, or some other applicable 6 Act of July 9, 1976, P.L. 586, {}2, 42 Pa. C.S. {}2503(9). 7 Act of July 9, 1976, P.L. 586, {}2, 42 Pa. C.S. {}2503(7). 8 See Chesney v. Stevens, 435 Pa. Super. 71,644 A.2d 1240 (1994). 9 See $chenck v. K.E. David, Ltd.,446 Pa. Super. 94, 98, 666 A.2d 327, 329 (1995). ~o See, e.g., United Mercantile Agencies, Inc. v. $lotsky, 107 Pa. Super. 467, 164 A. 349 (1933). exception to the general role against recovery of counsel fees, the following order must be entered upon Defendant's petition: ORDER OF COURT AND NOW, this 8th day of October, 1999, upon consideration of Defendant's Petition for Counsel Fees Pursuant to 42 PACSA § 2503, following a hearing, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, Joseph L. Hitchings, Esq. Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Plaintiff Samuel W. Milkes, Esq. Jacobsen & Milkes 52 East High Street Carlisle, PA 17013 Attorney for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 4