Carmen Enters., Inc. v. Murpenter, LLC

J-A03039-18

2018 PA Super 97

CARMEN ENTERPRISES, INC., : IN THE SUPERIOR COURT OF
F/D/B/A CRUISE HOLIDAYS OF : PENNSYLVANIA
NORRISTOWN & BYEBYENOW.COM :
TRAVEL STORE :
:
Appellee :
:
v. :
: No. 2241 EDA 2017
MURPENTER, LLC D/B/A UNIGLOBE :
WINGS TRAVEL :
:
Appellant :

Appeal from the Order Dated June 16, 2017
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2002-07223

CARMEN ENTERPRISES, INC., : IN THE SUPERIOR COURT OF
F/D/B/A CRUISE HOLIDAYS OF : PENNSYLVANIA
NORRISTOWN & BYEBYENOW.COM :
TRAVEL STORE :
:
Appellant :
:
v. :
: No. 2341 EDA 2017
MURPENTER, LLC D/B/A UNIGLOBE :
WINGS TRAVEL :
:
Appellee :

Appeal from the Order Entered June 16, 2017
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 02-07223

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

OPINION BY PLATT, J.: FILED APRIL 25, 2018

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03039-18

In cross-appeals, Appellant, Carmen Enterprises, Inc., f/d/b/a Cruise

Holidays of Norristown & Byebyenow.com Travel Store, and Appellee,

Murpenter,1 LLC, d/b/a Uniglobe Wings Travel, both challenge the award of

counsel fees in this collection case. Bruce J. Chasan, Esq., the chief litigator

for Carmen in this long running suit, was also the president and sole

shareholder of Carmen. The trial court awarded Carmen over $45,000 for

breach of contract. Carmen also sought legal fees, for Chasan’s services, of

more than a million dollars. Murpenter maintained that Chasan, as Carmen’s

principal counsel and owner, was essentially representing himself and Carmen

is not entitled to counsel fees for pro se representation. The trial court denied

the fee request, citing a similar conclusion by a preceding judge, as the law of

the case. On appeal, a majority of a panel of this Court disagreed. It affirmed

the rest of the trial court’s verdict, but reversed the denial of fees for Chasan,

and remanded for the trial court to determine a reasonable fee.2 After

hearings, the trial court awarded Carmen $450,400 for legal fees. Both parties

appealed. We discern no plain error or palpable abuse of discretion in the trial

court’s award. Accordingly, we affirm.

____________________________________________

1Murpenter is an apparent contraction of the surnames of the two principals,
Kate Murphy and R. Douglas Carpenter. Murphy and Carpenter appear to be
husband and wife.

2 (See Carmen Enterprises, Inc. v. Murpenter, LLC, No. 1115 EDA 2014,
(Pa. Super. filed August 12, 2015) (unpublished memorandum), appeal
denied, 141 A.3d 477 (Pa. 2016)).

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This convoluted case has continued for sixteen years. We limit our

discussion of the facts, as far as practicable, to those most relevant to the

issues raised in this appeal. We derive these facts from the trial court’s

opinions, our predecessor panel’s memorandum decision, the bankruptcy

court decisions, and our independent review of the record.

The cross-appellants were adversaries in a vigorously contested,

lengthy collection case arising out of the sale and purchase of various

designated assets of Carmen’s travel agency, formerly the Chasan “family

business.”3 (Carmen’s Brief, at 30). In late 2001, Carmen sold the assets to

Murpenter. The Purchase and Sale Agreement, dated October 31, 2001, set

the consideration at $15,000 (plus certain commissions), and payment by

Murpenter to Carmen in more or less monthly installments of $7,500 from

September 23, 2001 to April 1, 2002. (See Purchase and Sale Agreement,

10/31/01, at ¶¶ 6, 7). The fixed payments were subject to adjustment based

on multiple formulas for various categories of paid bookings.

Of special pertinence to this appeal, the agreement also included a

provision charging Murpenter with a penalty for late payments and the costs

____________________________________________

3Carmen is the first name of Chasan’s “former first wife.” (Appellant’s Brief,
at 30). Originally, they both worked in the business. There is no dispute that
at the time of the sale the former family business was solely owned by Chasan
as a result of the divorce. He later gave five percent to each of his two
children. (See N.T. Hearing to Mold Attorneys’ Fees, 2/10/14, at 91).

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of collection for any unpaid installments, including “reasonable attorney’s

fees.” (Id. at ¶ 13).4

Included in the assets sold was an “Active Client Mailing List of over

1900 names and addresses on ‘My Advanced Mail List’ software.” (Id. at

¶ 2.C). About a month after the sale, Murpenter (through Murphy) complained

it could not access the customer list, which it also maintained was 35% short.

It appears that the entire list was actually available, even though it was in two

parts, one on a computer disk accessible through the “My Advanced Mail List

Software” and the other on software in the office computer. (See Carmen

Enterprises, 8/12/15, supra at *17).

The trial court would eventually find that Carmen had properly

performed its duty to deliver the customer list under the terms of the purchase

and sale agreement. (See Trial Court Opinion, 6/09/14, at 20-21).

Nevertheless, Murpenter objected that the list was deficient. It did not make

the installment payment due April 1, 2002, alleging that Carmen had not

____________________________________________

4 In its entirety, Section 13 provides as follows:

13. Late Fees and Costs of Collection: Any payment
that is more than five calendar days late is subject to an automatic
10 percent late fee. Buyer agrees to pay the cost of any collection
suit, including reasonable attorney’s fees.

(Purchase and Sale Agreement, ¶ 13).

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provided the list of 1900 active customers, as promised in the agreement.

(See Carmen Enterprises, 8/12/15, supra at *1).

For a portion of the time relevant to this litigation, Chasan was employed

as a patent lawyer in a Center City Philadelphia intellectual property law firm.5

On April 17, 2002, Chasan filed suit against Murpenter on behalf of Carmen.

The complaint contained fifteen allegations ranging from non-payment of the

April installment to spilled coffee.6 As our predecessor panel diplomatically

put it, “[e]xtensive discovery and motions proceedings ensued.” (Id. at 5).

An avalanche of motions, answers, supplements to motions, demands for

discovery, demands for sanctions, motions in limine and counterclaims

ensued. Murpenter counterclaimed, inter alia, for fraud. It also moved

____________________________________________

5 In 2012, Chasan left the firm and began a solo practice.

6 The fifteen counts included seven counts for various allegations of breach of
contract (failure to pay monthly installment, late payment of installments,
failure to forward commissions paid, failure to pay pro-rated rent and utilities,
etc.), one count for failure of specific performance (failure to pay for yellow
pages advertising), replevin (failure to return computer disk containing
customer mailing list), another count for failure of specific performance
(failure to provide Saturday access to monthly sales reports for audit by
Chasan), breach of “implied contract” (failure to do client mailings to promote
bookings), trespass/property damage (replacement of computer keyboard
due to coffee spill), conversion (use of one ream of Carmen/Cruise Holiday
letterhead without permission), and interference with contractual obligations
(alleging “willful, obstinate and outrageous” withholding of client files Chasan
wanted to see on Saturdays to audit commissions owed to former Carmen
employees). (See Complaint, 4/17/02, at 1-12).

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unsuccessfully to have Chasan removed as counsel for Carmen. Carmen’s

motion for summary judgment was denied. And so on.

Annoyed at what he appears to have viewed as Murpenter’s overly-

aggressive defense tactics, early on in the suit Chasan wrote Murpenter’s chief

counsel, Ely Goldin, Esq., and in effect, threatened him with the prospect of a

“very large award of attorney’s fees” at the “very substantial” hourly rate set

for him at his law firm. (Carmen’s Brief, at 14) (record citation omitted).7

A week before trial was originally set to begin, Murpenter filed for

bankruptcy. After seven weeks or so, the automatic stay was lifted. The

bankruptcy court ultimately found that Murpenter had filed its petition in bad

faith.8

____________________________________________

7(See also Appellant’s Brief, at 33) (“Chasan is indeed angered by the
meritless defense tactics in this case, which have dragged this matter out
more than [fifteen] years.”).

8 Additionally, of particular interest for the issues in this review, Attorney
Chasan received an explicit rebuke from the bankruptcy judge for a
sanctions request billed in excess of $85,000 for his attorney time, which the
judge characterized as “astronomical.” (In re Murpenter, LLC, Case No.
2012, 13296-ELF, 7/30/12, at *13). The judge estimated that Attorney
Chasan’s request was about ten times what a proficient bankruptcy
practitioner would charge for the same services. He awarded $4,694.00. On
appeal, the district court affirmed. The Chief Judge added specifically that
Chasan’s motion was “overly lengthy, rambling, and yes, ‘prolix’.” (In re
Murpenter LLC, No. 12-CV-5060, 2012 WL 6645538, at *5 (E.D. Pa. Dec.
21, 2012) (unpublished memorandum), affirmed, 550 F. App’x 114 (3d Cir.
2014)). Furthermore, the court found Attorney Chasan’s timesheets to be
“beyond excessive and so disproportionate to the concept of
reasonableness as to raise significant questions regarding Carmen’s

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Eleven years after the original complaint, and numerous delays,

(including the bankruptcy), the parties proceeded to a three-day bench trial

in April of 2013. Chasan testified as a witness. Otherwise, he acted as

Carmen’s chief trial counsel.

The trial court awarded Carmen $45,057.47.9 Carmen filed a motion to

mold the verdict to include attorney fees for Chasan’s legal services, in excess

of one million dollars.10 The trial court denied the motion. The parties cross-

appealed.

On that appeal, as previously mentioned, a predecessor panel of this

Court reversed the denial of legal fees for Chasan’s services, and remanded

for the trial court to determine a reasonable fee. (See Carmen Enterprises,

8/12/15, supra at *11). Notably, in all other respects, this Court affirmed.

(See id. at *18).11 On remand, after two days of hearings, the trial court set

____________________________________________

counsel’s judgment and his own good faith.” (Id.). (emphasis added)
(footnote omitted).

9 The final order of judgment totaled $160, 833.34. (See Trial Ct. Op., at 9
n.7).

10 Specifically, Carmen requested a fee of $1,180,710 for Chasan’s legal
services, 2,623.8 hours expended at a billable rate of $450 an hour. (See
Memorandum and Order, filed 6/16/17, at 5). This is over twenty-six times
the underlying award.

11 The panel also concluded there was insufficient evidence to support the
grant of Carmen’s post-verdict motion for sanctions. (See Carmen
Enterprises, 8/12/15, supra at *14).

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Chasan’s fees at $405,400.00. (See Memorandum and Order, dated June 15,

2017, filed 6/16/17, at 10).

The award reflected a deduction of billable hours for a variety of

activities claimed by Chasan (e.g., 45.9 hours at $450 an hour, or $20,655,

for in-person hand delivery by Chasan to the courthouse of motions and

other documents for filing). Among numerous other claims, Carmen sought

$226,215 in fees (over five times the underlying award) for services rendered

by Chasan following the trial (even though he had engaged other counsel for

the appeal). The trial court observed that “[t]he amount of hours Chasan is

claiming he performed on appeal strains credulity.” (Id. at 9) (emphasis

added).

The trial court also reduced, sua sponte, Chasan’s claimed hourly billing

rate from $450 an hour to $200.00 an hour. Two hundred dollars an hour

was the hourly rate Chasan paid to other lawyers, (e.g., Gary Mezzy, Esq. and

Alan Kane, Esq.), who assisted him in this case. (See Id. at 6; see also

Carmen’s Brief, at 27).

Chasan testified (and continues to maintain through Carmen on appeal)

that $450.00 an hour was the billing rate set for his work as a patent lawyer

in 2009 when he made partner in the Center City Philadelphia intellectual

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property law firm. (See Appellant’s Brief, at 15).12 He testified further that

he did the work for Carmen on evenings and weekends, to avoid problems

with other members of his firm.13 (See Memorandum and Order, supra at 6

n.13).

After the trial court filed its order on the fee issue, Murpenter filed a

notice of appeal. Carmen filed a motion for reconsideration and a self-

designated “protective” notice of appeal.

Both parties filed a statement of errors pursuant to Pennsylvania Rule

of Appellate Procedure 1925. The trial court filed a letter on September 20,

2017, directing the attention of this Court to its Memorandum and Order dated

June 15, 2017 for the reasons underlying its decision. See Pa.R.A.P. 1925.

Carmen presents nine questions for our review:

1. Whether the Order appealed from is a final, appealable
order[?]

2. Whether the [c]ourt erred in not adding other contractual
damages including the post-2/10/2014 attorney’s fees of Messrs.
Scutti, Backstrom and Judge Klein (Ret.), and also expenses, and
in not re-molding the verdict (decision)[sic][?]

____________________________________________

12 Carmen reports Chasan’s prior billing rate as an associate, from 2002 to
2009, was $340 an hour. (See Appellant’s Brief, at 15). Chasan did not
testify to and Carmen did not provide any other evidence of the billing rate for
legal work performed in Chasan’s solo practice. (See Memorandum and
Order, at 5).

13Nevertheless, the correspondence and document filings in the record from
the bankruptcy proceedings bear the letterhead of the law firm where Chasan
then worked.

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J-A03039-18

3. Whether the [c]ourt erred in reducing Chasan’s billing
rate from $450/hour to $200/hour because (a) there was
substantial evidence supporting the $450 rate; (b) Murpenter did
not contest the $450 rate; (c) Murpenter offered no evidence to
support any other rate; and (d) other grounds enumerated in
Plaintiff’s Motion and Brief in Support for Partial
Reconsideration[?]

4. Whether the [c]ourt erred in reducing Chasan’s claimed
hours by 15.5 hours in connection with an interlocutory appeal
because Carmen did not, in fact, claim the 15.5 hours[?]

5. Whether the [c]ourt erred in reducing Chasan’s claimed
hours by 25 hours for preparation of jury instructions “in a non-
jury case,” and by 71.7 hours for preparation of motions in limine
“in a bench trial,” because the work was timely performed
pursuant to scheduling orders by Judge Bertin for a jury trial, and
it was only later the parties agreed to a non jury trial[?]

6. Whether the [c]ourt erred in reducing Chasan’s claimed
hours by 13.1 hours for review of documents in preparation for
depositions of Murpenter’s principals (Murphy and Carpenter) in
October 2002 where 94 exhibits were marked and inquired
about[?]

7. Whether the [c]ourt erred in reducing Chasan’s claimed
hours by 244.8 hours for “excessive, serial and unsuccessful”
motions for sanctions (quoting Murpenter’s brief on
“reasonableness”) because the [c]ourt misapprehended the
record; because it held it was necessary for Carmen to file
discovery motions due to Murpenter’s disregard of discovery rules
and multiple violations of court orders; because the 244.8 hours
were not sufficiently identified by Murpenter, and said hours also
included hours that Carmen did not claim (e.g., post-trial
sanctions motions); and because Murpenter concealed the Nov.
28 disk and misled the [c]ourt[?]

8. Whether the [c]ourt erred in reducing Chasan’s claimed
hours by 14.3 hours for preparation for a sanctions hearing in
June-July 2004[?]

9. Whether the [c]ourt erred in reducing Chasan’s hours
spent on the appeal from 308.5 hours to only 150 hours because
the [c]ourt misapprehended the record (regarding the 502.7

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J-A03039-18

hours on the timesheet between 3/8/2014 and 9/4/2016);
because the [c]ourt erred by excluding 92.5 hours that were
unrelated to the appeal, and because the 401 hours that were
claimed included both trial court work and appellate work (not
502.7 hours as misstated by the [c]ourt, as the [c]ourt overlooked
that 102.9 hours were not claimed by Carmen because they
related to the post-trial sanctions motions that were denied)[?]

(Carmen’s Brief, at 3-4).

Murpenter presents five counter-questions on appeal:

1. Did the [t]rial [c]ourt commit an error of law or abuse its
discretion in awarding Carmen an amount of attorney’s fees above
zero dollars for Mr. Bruce J. Chasan ("Chasan") when Carmen and
Chasan had no written fee agreement, no invoices were sent by
Chasan to Carmen, no fees were charged by Chasan, and such
fees were not actually incurred or paid by Carmen as costs?

2. Did the [t]rial [c]ourt commit an error or [sic] law or
abuse its discretion in awarding Carmen an amount of attorney’s
fees for Chasan that applied to non-contractual claims for which
Carmen did not recover at trial and defenses to Murpenter’s
counterclaims?

3. Did the [t]rial [c]ourt commit an error or [sic] law or
abuse its discretion in failing to adopt the correct test for
evaluating fee requests and awarding Carmen an amount of
attorney’s fees for Chasan that Carmen did not prove to be
reasonable, grossly exceeded the underlying contractual damages
in this case, and did not properly account for all of the factors
recognized by the Pennsylvania Supreme Court for evaluating fee
requests?

4. Was the [t]rial [c]ourt within its discretion to reduce
Chasan’s hourly rate in determining the attorney’s fees awarded
to Carmen for Chasan’s time?

5. Is the Fee Order a final and appealable order when this
Court remanded this matter to the [t]rial [c]ourt for a
reasonableness determination of Chasan’s fees and the [t]rial
[c]ourt determined those fees?

(Appellee’s Brief, at 5-6).

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Preliminarily, with particular regard to Carmen’s claims, we are

reminded of the observation by the late Honorable Ruggero J. Aldisert,

formerly Senior Circuit Judge of the United States Court of Appeals for the

Third Circuit, that this Court has often previously cited:

When I read an appellant’s brief that contains ten or
twelve points, a presumption arises that there is no merit to
any of them. I do not say that it is an irrebuttable
presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy
is measured by effectiveness, not loquaciousness.

see also Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa.
Super. 2005) (“[T]he effectiveness of appellate advocacy may
suffer when counsel raises numerous issues, to the point where a
presumption arises that there is no merit to any of them.”).

J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 409–10 (Pa.

Super. 2012) (some citations omitted) (emphasis added).

Carmen’s first claim is that the order appealed from is not a final,

appealable order. (See Appellant’s Brief, at 3). Carmen asserts that the order

did not dispose of all claims and all parties. (See id. at 11). It maintains that

both appeals should be quashed. (See id. at 9, 58). We disagree.

“The extent to which the order of a trial court is appealable raises a

question of law; thus, our scope of review is plenary and our standard of

review is de novo.” Fastuca v. L.W. Molnar & Assocs., 950 A.2d 980, 986

(Pa. Super. 2008), affirmed, 10 A.3d 1230 (Pa. 2011) (citation omitted).

“Moreover, ‘[b]ecause the question of appealability implicates the

jurisdiction of [this] Court, a non-waivable matter, we are not only permitted

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but required to determine the appealability of the order that we have been

asked to review.’” Knisel v. Oaks, 645 A.2d 253, 255 (Pa. Super. 1994)

(citation omitted).

Carmen argues that the order is not final and appealable, giving the trial

court jurisdiction to consider its motion for reconsideration. (See Appellant’s

Brief, at 12). This Court remanded to the trial court for the determination of

a reasonable fee for Chasan’s legal services. The trial court did so. “An order

allowing counsel fees is a final, appealable order.” In re Roos’ Estate, 451

A.2d 255, 255 n.1 (Pa. Super. 1982) (citing Henderson v. Henderson, 327

A.2d 60 (Pa. 1974)).14

Furthermore, the claim would not merit relief because our predecessor

panel affirmed the trial court’s decision on Carmen’s claims in all respects,

(including fees for other counsel), except for Carmen’s claim for Chasan’s legal

fees. (See Carmen Enterprises, 8/12/15, supra at *6-7, *15, *18). Thus,

once Chasan’s fee claim was decided, there was no other issue left to resolve.

(See id. at *18).

The trial court’s final order, which disposed of the only remaining issue,

was entered in the docket on June 16, 2017. Where judgment is entered in

____________________________________________

14 See also Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 520 (Pa.
Super. 1999) (“mere filing of a petition requesting reconsideration of a final
order of the trial court does not toll the normal 30-day period for appeal from
the final order”).

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the underlying litigation before the trial court rules on a motion for counsel

fees, the order on counsel fees is appealable when entered without the need

for entry of judgment on it. See Miller Elec. Co. v. DeWeese, 918 A.2d

114, 114 (Pa. 2007). Carmen’s first claim would fail on the merits.

In its second claim, Carmen assigns error to the trial court for not re-

molding the verdict to include attorney fees for Chasan’s services, and for not

adding in other damages. (See Carmen’s Brief, at 3, 13). We disagree.

The issue of whether a trial court properly interpreted the scope of a

remand order is a matter of law. See In re Lokuta, 11 A.3d 427, 438 (Pa.

2011), cert. denied, 565 U.S. 878 (2011). As in all appeals raising matters of

law, “our standard of review is de novo, and our scope of review is plenary.”

Schwartz v. Rockey, 932 A.2d 885, 891 (Pa. 2007).

“[A] trial court has an obligation to comply scrupulously, meticulously,

and completely with an order of [the appellate court] remanding a case to the

trial court.” Commonwealth v. Williams, 877 A.2d 471, 474 (Pa. Super.

2005), appeal denied, 895 A.2d 1261 (Pa. 2006) (citation omitted). The trial

court is required to “strictly comply with the mandate of the appellate court.”

Id. at 474–75 (citation omitted). Issues not included in the mandate cannot

be considered by the trial court. See id. at 475.

Here, the trial court properly addressed the issue remanded by our

predecessor panel, Carmen’s claim to a fee for Chasan’s legal services. Issues

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beyond Chasan’s fee are beyond the mandate for review. Carmen’s second

issue does not merit relief.

The remainder of Carmen’s issues challenge the reduction of the fees it

claimed for Chasan’s legal services. Our standard of review and the factors

to be considered in a claim for legal fees are well-settled.

What is a fair and reasonable fee is sometimes a delicate,
and at times a difficult question. The facts and factors to be taken
into consideration in determining the fee or compensation payable
to an attorney include: the amount of work performed; the
character of the services rendered; the difficulty of the problems
involved; the importance of the litigation; the amount of money
or value of the property in question; the degree of responsibility
incurred; whether the fund involved was “created” by the
attorney; the professional skill and standing of the attorney in his
profession; the results he was able to obtain; the ability of the
client to pay a reasonable fee for the services rendered; and, very
importantly, the amount of money or the value of the property in
question. A larger fee than usual is likewise frequently awarded
when an attorney “creates” a fund.

By now it is hornbook law that the reasonableness of
the fee is a matter for the sound discretion of the lower
Court and will be changed by an appellate Court only when
there is a clear abuse of discretion.

In re LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968) (citations and

footnote omitted) (emphasis added). This Court has further explained:

We have a limited power of review of court awarded fees.
As the Supreme Court has so frequently stated, the responsibility
for setting such fees lies primarily with the trial court and we have
the power to reverse its exercise of discretion only where there is
plain error. Plain error is found where the award is based either
on factual findings for which there is no evidentiary support or on
legal factors other than those that are relevant to such an award.
The rationale behind this limited scope of review is sound. It is
the trial court that has the best opportunity to judge the
attorney’s skills, the effort that was required and actually

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put forth in the matter at hand, and the value of that effort
at the time and place involved.

Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1108–09 (Pa. Super.

1990) (citations omitted) (emphasis added).

As noted by the trial court, the burden is on the claimant to justify a fee

request. (See Memorandum and Order, at *4 (citing Gilmore, supra at

1110)). The trial court does not have to address every LaRocca factor. See

Gilmore, supra at 1110 (“Consideration of any one or a combination of

the LaRocca factors may convince the court that a different fee is justified.”)

(emphasis added).

Additionally, it has long been the law of Pennsylvania that attorney’s

“[f]ees should be on a moderate scale of compensation, and none should be

allowed but such as are fair and just.” In re Huffman’s Estate, 36 A.2d 640,

643 (Pa. 1944) (citations omitted).

In its third claim, Carmen challenges the trial court’s sua sponte

reduction in the billable hourly rate claimed by Chasan, from $450 an hour, to

$200 an hour. (See Carmen’s Brief, at 13-34). Carmen argues chiefly that

the $450 rate was uncontested, because Murpenter’s counsel stipulated

generally to the rates claimed for Carmen’s counsel, and, Carmen contends,

the rate was supported by substantial evidence. (See id. at 18). We disagree.

Most importantly, Carmen misapprehends our standard of review, which

is deferential and reviews the trial court’s award only for an abuse of

discretion. See LaRocca, supra at 339; Gilmore, supra at 1108–09.

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Contrary to Carmen’s assumption, the acquiescence of opponent’s counsel,

(see Hearing to Mold Attorneys’ Fees, 2/10/14, at 113), is not dispositive of

what amount the trial court may decide is “fair and reasonable,” and is not

responsive to the abuse of discretion standard of review.

Furthermore, it bears noting that in this case opposing counsel’s

“concession” on Chasan’s billing rate came in the context of her over-arching

argument that Carmen was not entitled to any attorneys’ fees at all, and

her companion argument that Carmen had failed to meet its burden of

proof on whether the services provided by Chasan were reasonable and

necessary. (See id. at 112-13). Viewed in that context, counsel obviously

chose to focus on the reasonableness of the hours claimed, rather than dilute

the force of her argument by also contesting hourly rates.

Counsel was entitled to make this choice as a matter of litigation

strategy. However, her strategic choice did not, as Carmen claims, preclude

the trial court from performing its judicial duty to decide the reasonableness

and the fairness of the fee request. Nor does it constrain our appellate review.

In support of its fee claim, Carmen also offered a rate sheet from

Chasan’s former law firm, and a fee schedule from Philadelphia Community

Legal Services (CLS). (See Carmen’s Brief, at 14-15, 17-18). Carmen offered

no expert testimony in support of Chasan’s claim to $450 an hour. Carmen

had no written fee agreement with Chasan, and Chasan never submitted an

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invoice to Carmen for his services.15 (See Memorandum and Order, at 1; see

also N.T. Hearing to Mold Attorneys’ Fees, 2/10/14, at 96-97).

Carmen’s argument that the CLS fee schedule should apply to Chasan

because “‘[t]he law’ certainly encompasses fee-shifting contracts as well as

fee-shifting statutes[,]” (Carmen’s Brief, at 18), is totally unsupported and

equally unpersuasive. The CLS fee schedule is primarily for the benefit of CLS,

and secondarily a reference for lawyers who have prevailed in a public interest

cause of action. See Maldonado v. Houstoun, 256 F.3d 181, 183-84 (3d

Cir. 2001) (providing, in court’s discretion, a reasonable attorney’s fee to

prevailing party in 28 U.S.C. § 1983 civil rights action); see also Rainey v.

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15 We have not overlooked Carmen and Chasan’s apparent general disregard,
as evident in the record before us, for the observance of proper formalities in
the conduct of Carmen’s corporate activities, as argued by Murpenter. (See
Appellee’s Brief, at 19); see also Appellant’s Brief, at 15: (“Any written
agreement would have been artificial and unnecessary.”). Carmen even
appears on occasion to use their names almost interchangeably. (See, e.g.,
Appellant’s Brief, at 32 (at “trial . . . Carmen decided Chasan would handle
the other witnesses”); id. at 40, (“Carmen concedes it was disappointed
. . . .”) (emphases added)). It is axiomatic that a corporation can act only
though its officers, employees, and other agents. See Scampone v. Grane
Healthcare Co., 169 A.3d 600, 608 (Pa. Super. 2017). Absent any evidence
of proper formal authorization of corporate action, (e.g., a corporate
resolution, minutes of shareholder’s meeting, etc.), most of Chasan’s efforts
to simulate proper and valid corporate action by imputing human acts to
Carmen are legally frivolous and verge on the ludicrous. (See e.g. Carmen’s
Brief, at 14) (“Carmen and Chasan had a mutual understanding . . .”); (id. at
15 (“Carmen decided to file a complaint”); (“Carmen and Chasan agreed to
terms, including an agreed billing rate.”). Nevertheless, it appears that
Murpenter did not present and develop any “alter ego” issue at trial, or seek
to pierce the corporate veil. Therefore, we disregard further consideration of
corporate veil or alter ego issues for the purpose of our analysis and decision.

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Philadelphia Hous. Auth., 832 F. Supp. 127, 129 (E.D. Pa. 1993) (also a

§ 1983 action).

Here, Carmen’s suit involved a purely private commercial claim. There

is no statutory basis for the award of attorney fees, such as found in the Unfair

Trade Practices and Consumer Protection Law (UTPCPL), (73 P.S. § 201—

9.2(a)), much less a civil rights claim or the vindication of a constitutional

right. Compare Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1026 (Pa.

Super. 2005), appeal denied, 907 A.2d 1103 (Pa. 2006) (UTPCPL); Solebury

Twp. v. Dep't of Envtl. Prot., 928 A.2d 990, 998 (Pa. 2007) (Clean Streams

Law).

Carmen’s unsupported claim of a state mandate to enforce a purely

contractual fee claim is frivolous. The trial court correctly concluded that

Carmen’s and “Chasan’s reference to the fee schedule used by Community

Legal Services of Philadelphia in statutory fee-shifting cases is not applicable

here.” (Memorandum and Order, at 6 n.14).

Similarly, the affidavit of another attorney employed by Chasan,

recounting what fee he received in an entirely unrelated case, does not meet

Carmen’s burden of proof or substitute for legal analysis and argument in

support of Carmen’s claim that Chasan’s request for legal fees in this case is

fair and reasonable. (See Affidavit of Alan B. Kane, Esq. In Support of

Plaintiff’s Motion for Partial Reconsideration, etc., 6/22/17, at 3-4; see also

Appellant’s Brief, at 19-20).

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J-A03039-18

As already noted, Carmen claims the benefit of Chasan’s rate at his

former law firm. However, what Chasan’s former law firm may have chosen

to charge for his specialized services as a patent lawyer, in 2009, in

unspecified market conditions, with the tacit necessity of paying for the firm’s

support staff and other overhead, bears little to no relevance here.

Preliminarily, this is not a patent case. Whether Chasan’s claimed rate

as an intellectual property lawyer was reasonable for the general legal work

he chose to perform himself for his own wholly-owned corporation, on

evenings and weekends, in the litigation of this rather straightforward

collection case was still an issue for the trial court to decide. The trial court

properly took into consideration Chasan’s testimony that his representation of

Carmen was totally separate and unconnected to his work at the intellectual

property firm.

Even more importantly, Carmen attempts to justify the $450 hourly rate

by citing a federal case, not binding on this Court, holding that the applicable

rate for an attorney’s fee is the rate at the time of the filing of the fee

petition (on a theory of delayed compensation). (See Appellant’s Brief, at

28 (citing Lanni v. State of New Jersey, 259 F.3d 146, 149) (3d. Cir. 2001).

Carmen filed the fee request on July 19, 2013. Notably, by his own admission

Chasan left his former law firm in 2012, a year earlier.

Applying Lanni, as Carmen would have us do, Chasan’s rate at the time

of the filing of the petition was not his former firm rate. Instead, it would

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have been the rate he charged in his solo practice. Notably, Chasan did not

present evidence of his solo practice billing rate to the trial court. (See

Memorandum and Order, at 5). Carmen was not entitled to reference

Chasan’s 2009 patent law rate to support his fee claim in the 2013 petition.

Carmen’s brief also makes much of Chasan’s patent litigation skills and

the length of time he has been in practice. (See Appellant’s Brief, at 17, 27-

28, 33). However, the de facto self-assessment (often at the expense of the

other lawyers who assisted him)16 is moot, because the issues here did not

involve patent law. Similarly, generalized references to Chasan’s “numerous

career accomplishments,” and “numerous achievements” in the brief,

(Appellant’s Brief, at 33), do not, and cannot, substitute for a well-reasoned,

dispassionate examination of the fairness and reasonableness of the fees

claimed in light of the LaRocca factors.

Furthermore, it was well within the broad discretion of the trial court to

reduce Chasan’s claimed partner-level hourly rate for non-specialized

administrative tasks he chose to do himself, such as his personal delivery of

court filings or routine document preparation and review. (See Memorandum

and Order, at 8); see also In re Huffman’s Estate, supra at 643 (“Fees

should be on a moderate scale of compensation, and none should be allowed

____________________________________________

16(See, e.g., Appellant’s Brief, at 17) (“[N]either Backstrum nor Scutti has
ever tried a patent infringement case, which Chasan has.”).

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J-A03039-18

but such as are fair and just.”) (citations omitted); LaRocca, supra at 339

(“factors include . . . the character of the services rendered”).

On independent review, we have no difficulty or hesitation in concluding

that the trial court acted well within the scope of its discretion in finding

Carmen’s claims unsupported by proper evidence, and in deciding to reduce

Chasan’s billing rate for the purposes of this collection case litigation.

Carmen’s third claim fails.

All of Carmen’s remaining claims, questions four through nine inclusive,

challenge the trial court’s reduction in the number of hours claimed. (See

Carmen’s Brief, at 3-5). We address them together. None merits relief.

The common themes of Carmen’s argument are that the trial court erred

in reducing the number of Chasan’s hours because the work was much more

complex than the trial court appreciated; that the trial court misapprehended

pertinent facts of record, or what services were in fact rendered; and that

much of Chasan’s reasonable work was necessitated by the “obstreperous and

obstinate” trench warfare tactics of Murpenter’s chief defense counsel, Ely

Goldin, Esq.17 (Appellant’s Brief, at 23, 24; see also id. at 34-58). We

disagree.

____________________________________________

17(See, e.g., Appellant’s Brief, at 26) (“The real story here is not Chasan’s
reasonable fees; it is the tactics of defense attorney Ely Goldin.”).

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J-A03039-18

Preliminarily, we note that Carmen fails to develop an argument in

support of its fee claim based on hours worked in light of the LaRocca factors.

To the contrary, Carmen maintains that the LaRocca factors are inapplicable.

(See id. at 23) (“Clearly, applying the LaRocca factors mechanically to a

contract fee-shifting case is trying to fit a square peg into a round hole.”).

Carmen misapprehends the pertinent law.

Furthermore, it is unnecessary, and we decline, to engage in the line-

by-line method of analysis employed by Carmen. See Twp. of Millcreek v.

Angela Cres Trust of June 25, 1998, 142 A.3d 948, 962 (Pa. Cmwlth.

2016), appeal denied, 166 A.3d 1236 (Pa. 2017) (citing In re Appeal of

Silverman, 90 A.3d 771, 785 (Pa. Cmwlth. 2014)) (trial court not required to

delineate with specificity to counsel’s satisfaction every reason for every

disallowance of every aspect of fee request; it is enough if trial court explains

its decision in manner sufficient to enable appellate review).18

On independent review of the trial court’s award in light of the LaRocca

factors, we find no basis to conclude any error of law or abuse of discretion.

Notably, at the fee hearing, Chasan conceded that the amount he sought was

____________________________________________

18 “Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.” Charlie
v. Erie Ins. Exch., 100 A.3d 244, 253 n.9 (Pa. Super. 2014) (citation
omitted).

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J-A03039-18

less than $50,000, and about the amount of the actual verdict of $45,000.

(See N.T. Hearing, 2/10/14, at 86-87).

Therefore, the threshold issue for Carmen (and Chasan) throughout the

litigation had to be (or should have been) the amount of money obtainable in

relation to the amount of fees for the reasonable legal services necessary to

obtain it. See LaRocca, supra at 339 (“The facts and factors to be taken

into consideration in determining the fee or compensation payable to an

attorney include . . . the amount of money or value of the property in

question[.]”).

On independent review, most of the other LaRocca factors do not

specifically apply here or are not in Carmen’s favor. See LaRocca, supra at

339. The collection case did not “make new law.” It had no intrinsic

importance other than to the parties involved. Carmen (and Chasan) did not

“create a fund” from which others could benefit. The character of the services

performed, and the results counsel obtained, were not objectively remarkable.

Of the nineteen motions Chasan filed, Carmen only obtained the relief

requested in two. (See Carmen Enterprises, supra at *12 n.7; see also

Appellant’s Brief, at 39). The amount of the underlying award was in line with

Chasan’s conceded expectation.

About the only distinctive feature of this case is the ferocity with which

the legal opponents appear to have pursued it. Carmen claims it was forced

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J-A03039-18

to engage in multiple maneuvers to respond to the recalcitrance of Murpenter

and its counsel.

We note that the trial court expressly acknowledged that “[I]t was

necessary for Chasan to file pre-trial discovery motions due to Murpenter’s

disregard for the rules governing discovery and multiple violations of court

orders.” (Memorandum and Order, at 7).

However, after a recitation of the legal services rendered by Chasan for

Carmen, (and challenged by Murpenter), the trial court concluded:

Although some of the above services may have been helpful or
even necessary, Carmen failed to convince the [trial] court that
the total hours claimed for these services are reasonable or
justified. Accordingly, the court will not include these 511.1 hours
in determining a reasonable fee.

(Id. at 8) (emphases added).

Moreover, the need-to-respond explanation does not account for

Carmen’s original fifteen-count complaint, which included not only a count

for non-payment, but also one count for a ream of letterhead and one for

coffee spilled on a keyboard. Carmen filed the opening salvo. It cannot now

expect to be rescued from the consequences of its misfired strategy through

the expedient of an exorbitant fee request.

On independent review, we discern no error or abuse of discretion in the

trial court’s ruling. None of Carmen’s numerous complaints, many

unsupported, marginal or trivial, justify disturbing the decision of the trial

court. Carmen’s claims merit no further relief.

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J-A03039-18

Murpenter presents five counter-claims. (See Appellee’s Brief, at 5-6).

We have already addressed the fourth (reduction of Chasan’s hourly rate) and

fifth (final and appealable order) questions in our foregoing review.

Murpenter’s remaining three questions do not merit independent relief.

In its first claim, Murpenter challenges any fee award over zero. Our

predecessor panel has already decided that Carmen was entitled to a

reasonable fee for Chasan’s services. (See Carmen Enterprises, supra at

*3). Therefore, under the coordinate jurisdiction rule, that decision is the law

of the case and binding on us. See Commonwealth v. Rolan, 964 A.2d 398,

404 (Pa. Super. 2008). The first claim merits no relief.

In its second claim, Murpenter posits that Carmen could not recover

under the contractual fee shifting provision for any claim other than unpaid

installments. We disagree.

The record supports the trial court’s conclusion that “Murpenter’s

litigation efforts extended the time and effort required for Carmen to be

successful [in its collection claim].” (Memorandum and Order, at 5).

Therefore, once Murpenter decided to counterclaim for fraud, deny receipt of

the customer mailing list disk until virtually the end of trial, file for bankruptcy

in bad faith, resist discovery, ignore court orders, and so forth, its assorted

counterclaims became inextricably intertwined with Carmen’s collection case.

We discern no abuse of discretion in the trial court’s conclusion that

Murpenter’s multiple litigation efforts extended the time and effort required

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J-A03039-18

for Carmen to be successful in what was at root a “garden variety” collection

claim. Carmen is entitled to the fair and reasonable legal fees associated

with responding to Murpenter’s conduct. Murpenter’s second claim merits no

relief.

Murpenter’s third claim, with six sub-parts, posits that Carmen did not

prove its claim to be reasonable under the LaRocca test. (See Appellee’s

Brief, at ii-iii, 39-64). Murpenter misapprehends our standard of review,

which reviews the trial court’s award for abuse of discretion. We conclude

that the trial court properly applied the LaRocca test. We discern no abuse

of discretion in the trial court’s verdict. Murpenter’s third claim does not merit

relief.

In particular, Murpenter’s insistence that the trial court did not apply the

appropriate test for determining reasonable attorney fees, by supposedly

failing to consider all of the LaRocca factors, is belied by the record, and,

frankly, frivolous. Moreover, Murpenter’s elongated and contorted argument,

(especially its idiosyncratic, implausible and unpersuasive definition of “cost”

as limited to fees already paid and collected, precluding an award of attorney

fees), is unsupported by pertinent, persuasive authority, and ignores our

standard of review.19 (See Appellee’s Brief, at 20-29). In effect, Murpenter

____________________________________________

19 E.g., Appellee cites, out of context, an unpublished federal district court
judgment order, not binding on this Court, Wynn v. Lukoil N. Am. LLC, No.
15-1`66, slip op. at 5-7 (E.D. Pa. filed October 8, 2015). (See Appellee’s

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J-A03039-18

simply invites us to re-weigh the evidence of record, and reduce the fee

awarded by the trial court. This we decline to do.

Our standard of review accords the trial court great deference. See

LaRocca, supra at 339 (“reasonableness of the fee is a matter for the sound

discretion of the lower Court and will be changed by an appellate Court only

when there is a clear abuse of discretion.”). This time-honored standard of

review reflects a long-standing rule of law, not a single checklist to be applied

in the mechanistic fashion envisioned by Appellee. The LaRocca Court,

quoting In re Good’s Estate, 24 A. 623 (Pa. 1892), explained:

The amount of fees to be allowed to counsel, always a subject of
delicacy if not difficulty, is one peculiarly within the discretion of
the court of first instance. Its opportunities of judging the exact
amount of labor, skill and responsibility involved, as well as its
knowledge of the rate of professional compensation usual at the
time and place, are necessarily greater than ours, and its
judgment should not be interfered with except for plain error[.]

LaRocca, supra at 548 (collecting cases).

Here, the record strongly supports the inference that Chasan “over-

worked” the case, and invited retaliation with his ill-conceived strategy of

piling on filings and threatening high legal fees, in apparent hope of forcing a

quick settlement or even outright capitulation. However, it also supports the

inference that Murpenter’s own dilatory tactics, bad faith bankruptcy filing,

____________________________________________

Brief, at 24; and Addendum E, at 5-7). Even a cursory reading of this case
confirms that the court’s decision was based primarily on the absence of
evidence for the reasonableness of the fees claimed. See Wynn, supra at
*5.

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J-A03039-18

obstruction of discovery, and numerous other deflect-and-delay stratagems,

prolonged and compounded what could have been, (and probably should have

been), a relatively straightforward $45,000.00 collection case. Murpenter

cannot and should not escape the consequences of its actions any more than

Carmen can.

Under our standard of review, we defer to the trial court for the

determination of how much those tactics affected the size of the fee award.

On independent review, we discern no error of law and no abuse of discretion

in the decision of the trial court. See LaRocca, supra at 339; Huffman’s

Estate, supra at 643; Gilmore, supra at 1108–09.

Our reasoning differs slightly from the trial court on certain issues.

However, we can affirm the trial court’s order on any basis if the result is

correct. See Lerner v. Lerner, 954 A.2d 1229, 1240 (Pa. Super. 2008)

(affirming trial court’s order on different grounds).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/18

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