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HomeMy WebLinkAbout2004-691 Civil (4) GIUSSEPPE BARONE and : IN THE COURT OF COMMON PLEAS OF LUIGI AMBROSINO, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS AND : COUNTERCLAIM DEFENDANTS: : V. : : VINCENZO PUGLIESE, : DEFENDANT AND : COUNTERCLAIM PLAINTIFF : 04-0691 CIVIL TERM IN RE: THE PIZZA CASE PLAINTIFFS’ MOTION FOR ATTORNEY FEES AND COSTS OPINION AND ORDER OF COURT Bayley, J., November 3, 2009:-- In an opinion in support of an order of September 10, 2009, we found that “defendant breached its Business Purchase Agreement and promissory note entered into with plaintiffs. We will award plaintiffs $105,000 against defendant: $69,000 for breach of a Business Purchase Agreement, and $36,000 for the breach of a promissory note.” The Business Purchase Agreement provides: Attorneys’ Fees. In the event that either party breaches this Agreement or any of the obligations or undertakings which form a part of the breaching party shall be obligated to reimburse this Agreement, the non-breaching party for reasonable attorney’s fees and court costs incurred as a result of such breach. (Emphasis added.) Plaintiffs filed a motion seeking recovery of their attorney fees for prevailing on their breach of contract claim against defendant. A hearing was conducted on October 20, 2009. The parties agree that the reasonable attorney fees and costs incurred by plaintiffs in pursing their claim for breach of contract for the balance owed under the 04-0691 CIVIL TERM Business Purchase Agreement and promissory note and defending against the counterclaim filed by defendant for breach of a restrictive covenant, after redacting services in a manner consistent with this court’s opinion in support of an order of September 10, 2009 which awarded attorney fees and costs to counterclaim plaintiff for prevailing on the claim of breach of the restrictive covenant, are $109,456.19. Pugliese filed a post-trial motion in which he maintains that the court erred in finding that he breached the Business Purchase Agreement and promissory note in failing to pay a remaining total of $105,000 due under those instruments. He maintains that he was entitled to withhold such payments because Barone and Ambrosino caused damage to him for their breach of the restrictive covenant. Therefore, he argues that Pugliese cannot recover any costs and attorney fees on that claim. We have rejected Pugliese’s position in an opinion in support of an order entered on November 3, 2009, denying his motion for post-trial relief. In previously awarding counterclaim plaintiff attorney fees and costs against counterclaim defendants for prevailing on the claim of a breach of the restrictive covenant, we stated: The bulk of the work in this case was the prosecution of the counterclaim. Defendant breached the Business Purchase Agreement and the promissory note when it failed to make the remainder of the $105,000 payments due under those instruments for which there was little in the way of a defense other than to seek an abatement of that amount as damages for plaintiffs’ breach of the restrictive covenant. We It is fair and concluded that abatement was not a fair and just remedy. reasonable to assign ten percent of the attorney fees toward the defense of plaintiffs’ claims and ninety percent toward the prosecution of the counterclaim. (Emphasis added.) -2- 04-0691 CIVIL TERM Notwithstanding, plaintiffs argue that the defense of the counterclaim was so inextricably interwoven with the prosecution of their breach of contract claim that they should be awarded more than the ten percent we assigned to the breach of contract claim when we awarded attorney fees and costs to counterclaim plaintiff for prevailing on his claim for a breach of the restrictive covenant. We reject this argument completely. Plaintiffs can only recover their reasonable costs and fees for prosecuting their breach of contract claim, and we have already decided the division that should prevail. The prosecution of plaintiffs’ breach of contract claim against defendant was no more interwoven with the defense of defendant’s counterclaim for breach of the restrictive covenant than the prosecution of defendant’s counterclaim was interwoven with the defense of plaintiffs’ breach of contract claim. We will award reasonable attorney fees and costs to plaintiffs for prevailing on their breach of contract claim against defendant of $10,945.62, representing ten percent of their total attorney fees and costs. The remainder of their attorney fees and costs were expended in defense of the counterclaim. ORDER OF COURT AND NOW, this day of November, 2009, Giusseppe Barone and Luigi Ambrosino are awarded attorney fees of $10,945.62 against Vincenzo Pugliese. By the Court, -3- 04-0691 CIVIL TERM Edgar B. Bayley, J. -4- 04-0691 CIVIL TERM Robert E. Kelly, Jr., Esquire Lee S. Cohen, Esquire 300 North Second Street th 10 Floor Harrisburg, PA 17101 For Plaintiffs Alan R. Boynton, Jr., Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 For Defendant :sal -5- GIUSSEPPE BARONE and : IN THE COURT OF COMMON PLEAS OF LUIGI AMBROSINO, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS AND : COUNTERCLAIM DEFENDANTS: : V. : : VINCENZO PUGLIESE, : DEFENDANT AND : COUNTERCLAIM PLAINTIFF : 04-0691 CIVIL TERM IN RE: THE PIZZA CASE PLAINTIFFS’ MOTION FOR ATTORNEY FEES AND COSTS ORDER OF COURT AND NOW, this day of November, 2009, Giusseppe Barone and Luigi Ambrosino are awarded attorney fees of $10,945.62 against Vincenzo Pugliese. By the Court, Edgar B. Bayley, J. Robert E. Kelly, Jr., Esquire Lee S. Cohen, Esquire 300 North Second Street th 10 Floor Harrisburg, PA 17101 For Plaintiffs Alan R. Boynton, Jr., Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 For Defendant :sal 04-0691 CIVIL TERM -2-