J. A24042/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDREW JOHN KELLY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REPSOL OIL & GAS USA, LLC, :
AS SUCC. BY CONVERSION TO :
TALISMAN ENERGY USA, INC. :
AND NICHOLAS HALKIAS :
:
v. :
:
PAUL A. KELLY, INDIVIDUALLY AND :
AS AGENT FOR ANDREW JOHN KELLY : No. 420 MDA 2018
:
APPEAL OF: PAUL A. KELLY :
Appeal from the Order Entered February 20, 2018,
in the Court of Common Pleas of Susquehanna County
Civil Division at No. 2013-584 CP
ANDREW JOHN KELLY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REPSOL OIL & GAS USA, LLC, :
AS SUCC. BY CONVERSION TO :
TALISMAN ENERGY USA, INC. :
AND NICHOLAS HALKIAS :
:
v. :
:
PAUL A. KELLY, INDIVIDUALLY AND AS :
AGENT FOR ANDREW JOHN KELLY : No. 421 MDA 2018
:
APPEAL OF: ANDREW JOHN KELLY :
Appeal from the Order Entered February 20, 2018,
in the Court of Common Pleas of Susquehanna County
Civil Division at No. 2013-584
J. A24042/18
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 1, 2019
Andrew John Kelly and Paul Kelly, individually and in his capacity as
agent for Andrew John Kelly (collectively, “appellants”), appeal1 the order of
the Court of Common Pleas of Susquehanna County that ordered appellants
to pay $50,000 in counsel fees to Talisman Energy USA, Inc. (“appellee”).2
After careful review, we affirm.
The record reflects the following factual and procedural history: On
March 29, 2006, James Halkias purchased 431.24 acres of land (“Property”)
in Susquehanna County, Pennsylvania. On June 24, 2007, James Halkias and
his wife, Kerry Halkias, purportedly assigned to Andrew John Kelly 15% of
their interest in any royalties that might come due from any energy company
as a result of oil and gas production on their lands. On August 7, 2008,
James Halkias and Kerry Halkias entered into an oil and gas lease with
Alta Resources, Inc. (“Alta”). On September 22, 2010, James Halkias
executed a deed transferring the 431.24-acre parcel to Nicholas Halkias. On
February 16, 2012, WPX Energy, the successor in interest to Alta, assigned its
interest in the oil and gas lease to appellee. Sometime before February 19,
2013, appellee received notice that the Halkias family questioned the validity
1 April 25, 2018, this court consolidated the two appeals sua sponte.
2On December 30, 2016, Talisman was converted into Repsol Oil & Gas USA,
LLC.
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of the assignment to Andrew John Kelly. Appellee then placed royalty
payments for the Property in suspense.
On May 8, 2013, Andrew John Kelly filed a complaint against appellee
and sought the payment of unpaid royalties plus interest, filing fees, and costs.
On August 12, 2013, appellee petitioned to interplead Nicholas Halkias as a
party. The trial court granted the petition on October 28, 2013. On
December 23, 2013, Nicholas Halkias filed an interpleader complaint against
appellants. The trial court conducted a non-jury trial on January 18-19, 2017.3
During the trial, counsel for appellee requested counsel fees. The trial court
directed appellee to file a petition for counsel fees.
On or about February 23, 2017, appellee petitioned for counsel fees and
costs pursuant to 42 Pa.C.S.A. § 2503(4). Appellee sought recovery for fees
and costs in the amount of $48,165.80. In an order dated June 12, 2017, and
filed June 19, 2017, the trial court ruled in favor of appellee and against
Andrew John Kelly on Andrew John Kelly’s claims of conversion and
defamation of title against appellee that were set forth in the May 8, 2013
complaint. The trial court determined that appellee satisfied the elements of
42 Pa.C.S.A. § 2503(4) and was entitled to reasonable counsel fees. The trial
3 On June 19, 2017, the trial court ruled in favor of Nicholas Halkias and
determined the assignment was void, that Andrew John Kelly had to repay
any royalties he had received, and that appellee had to pay Nicholas Halkias
the royalties held in suspense. Appellants filed a joint motion for post-trial
relief that the trial court denied on December 6, 2017. Appellants have
appealed to this court at Nos. 37 and 83 MDA 2018.
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court stated that it could not determine the amount of the fees without a
hearing. The trial court held the hearing on November 2, 2017. Appellee
presented evidence that it incurred counsel fees totaling $61,165.51. On
February 20, 2018, the trial court ordered appellants to pay $50,000 in
counsel fees to appellee.
Paul Kelly appealed the February 20, 2018 order on March 5, 2018.
Andrew John Kelly appealed on March 6, 2018. On March 12, 2018, in
two separate orders, the trial court ordered each appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Each appellant complied with the order on April 3, 2018. On April 9, 2018,
appellee praeciped to enter judgment in favor of appellee and against
appellants. On April 19, 2018, the trial court issued a statement pursuant to
Pa.R.A.P. 1925(a).
On appeal, appellants4 raise the following issues for this court’s review:
[1.] Did the trial court commit an abuse of discretion
and reversible error when it found under
42 Pa.C.S.[A.] § 2503(4) [that appellee] had
met the requirements of the statute to be
awarded attorney’s fees from [appellants] and
[o]rdered them to pay one-hundred percent
(100%) of [appellee’s] [a]ttorney [f]ees?
[2.] Whether the trial court committed an abuse of
discretion and reversible error when it awarded
an excessive amount of attorney’s fees against
[appellants]?
4 Although appellants have filed separate briefs, the issues presented in the
briefs are identical.
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Paul Kelly’s brief at 3.
When reviewing an award of counsel fees, this court employs the
following standard of review:
Generally, where the award of attorneys' fees is
authorized by statute, an appellate court reviews the
propriety of the amount awarded by the trial court
under an abuse of discretion standard. We will not
find an abuse of discretion in the award of counsel fees
“merely because [we] might have reached a different
conclusion.” Rather, we require a showing of manifest
unreasonableness, partiality, prejudice, bias, ill-will,
or such lack of support in the law or record for the
award to be clearly erroneous. To the extent that the
issue before us is a question of statutory
interpretation, however, our scope of review is
plenary and the standard of review is de novo.
Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 51 (Pa. 2011)
(citations omitted).
Initially, appellants contend that the trial court abused its discretion
when it awarded an excessive amount of attorney’s fees be paid to appellee
by appellants. (Paul A. Kelly’s brief at 7.) Appellants assert that the record
reflects that Jessica Albert, Esq., counsel for appellee, testified that there was
little legal work performed for appellee prior to Nicholas Halkias’ filing his
motion to amend interpleader complaint and that in the petition for fees and
costs, appellee admitted that it did not actively participate in the case. (Id.
at 7-8.) Appellants further argue that there was no real legitimate purpose
for appellee’s counsel to be present at any of the proceedings following the
grant of its petition for interpleader. Essentially, appellants argue that the
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award of counsel fees was an abuse of discretion and an error as a matter of
law because the fees were incurred due to the actions and inactions of appellee
and the fees awarded were unreasonable. (Id. at 9.)
Appellee was permitted to petition for counsel fees pursuant to
Section 2503(4) of the Judicial Code, 42 Pa.C.S.A. § 2503(4).
Section 2503(4) provides:
The following participants shall be entitled to a
reasonable counsel fee as part of the taxable costs of
the matter:
....
(4) A possessor of property claimed by two or
more other persons, if the possessor
interpleads the rival claimants, disclaims
all interest in the property and disposes of
the property as the court may direct.
42 Pa.C.S.A. § 2503(4).
Appellants do not contest whether appellee interpleaded the rival
claimants and disclaimed all interest in the property. Appellants argue that
42 Pa.C.S.A. § 2503(4) must be read in conjunction with Rule 2307 of the
Pennsylvania Rules of Civil Procedure, which provides as follows:
(a) Upon granting a petition for interpleader, the
court shall make such order as may be deemed
just under the circumstances relating to the
payment or delivery into court, or to such
person as the court shall direct, of any money
or property in controversy disclaimed by the
defendant.
(b) When the defendant has complied with such
order, the court shall enter an order discharging
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the defendant of all liability to the plaintiff and
to any interpleaded claimant who has been
served as required by these rules in respect to
the money or property so paid or delivered. If
the defendant has disclaimed all interest in the
action the court in its order shall also discharge
the defendant from all liability for any costs
accruing after the entry of the order and shall
allow the defendant the costs incurred by him
or her in the action, to be paid from such money
or property in the first instance and taxed as
costs in the action.
(c) Upon granting the petition for interpleader or at
any time thereafter but prior to the final
determination thereof the court may make any
order relating to the sale or disposition of any
property in controversy.
Pa.R.Civ.P. 2307.
Appellants assert that appellee failed to exercise due diligence in
avoiding unnecessary counsel fees and expenses because it did not seek an
order of court to direct it as to where to pay the funds in controversy.
(Paul A. Kelly’s brief at 13.) However, Rule 2307(a) provides that the court
shall make such order as it may deem just under the circumstances relating
to the payment or delivery into court, or to such person as the court shall
direct, of any money or property in controversy disclaimed by the defendant.
Under the rule, it is in the trial court’s discretion to direct payment into court.
The trial court did not make such an order. From the record, it appears that
appellee was willing to pay the funds into court. In the petition for
interpleader, appellee stated that it “is able and willing to pay the monies in
controversy as to which it claims no interest into the court or to such person
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as the court may direct.” (Petition for interpleader, 8/12/13 at 2.) The trial
court did not order or direct appellee to do so.
The trial court explained its determination that appellee was entitled to
counsel fees:
[Appellants] contend the counsel fees [appellee]
seeks should be denied on the basis that they were
unreasonably incurred as a result of their own actions.
The Joint Motion argues that [appellee] should have
deposited the disputed funds into court, eliminating
the need for their involvement in the proceedings.
Indeed, Pa.R.C.P. 2307(a) provides for such a method
of paying funds into court during an interpleader
action when directed by a court order. Had this Court
ordered [appellee] to deposit the funds into court,
[appellee’s] liability would have been discharged and
the case moot as to them.
This Court did not issue an order directing [appellee]
to turn over the royalty payments to the court.
Therefore, the case was not moot as to [appellee],
and the need for their involvement, though limited,
was not eliminated. [Appellee], without a court order
directing the deposit of funds, was not discharged of
liability pursuant to Pa.R.C.P. 2307(b). [Appellee]
acted reasonably by attending, responding, or
otherwise participating in relevant parts of the
interpleader proceedings. Therefore, the Court finds
[appellee] is entitled to reasonable counsel fees and
costs pursuant to 42 Pa.C.S.A. § 2503.
Trial court opinion, 2/15/18 at 3.
This court concludes that the trial court did not abuse its discretion when
it determined that appellee was entitled to an award of counsel fees.
Appellants fail to cite to any rule, statute, or case law that required appellee
to seek an order from the trial court to pay the escrowed funds into court.
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Appellants next contend that the trial court abused its discretion and
committed an error of law because there is nothing in the trial court’s order
or opinion that would justify an award of counsel fees being paid directly by
appellants.
A review of each appellant’s concise statement of errors complained of
on appeal reveals that neither appellant raised this issue in his concise
statement. Consequently, this issue is waived. See Commonwealth v.
Deck, 954 A.2d 603, 610 (Pa.Super. 2008).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2019
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