J-A01029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMMEL & SILVERMAN, PC AND : IN THE SUPERIOR COURT OF
ALEXANDER HOUCK : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1702 EDA 2019
HYUNDAI MOTOR AMERICA :
Appeal from the Order Entered April 30, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2016-11917
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 06, 2020
Kimmel & Silverman, PC (Kimmel) and Alexander Houck (Houck)
(collectively, Appellants) appeal from the trial court’s order denying their
motion for attorneys’ fees and costs. We affirm.
The trial court recounted the factual and procedural background as
follows:
This case originated as a claim filed before a Magisterial
District Judge on March 8, 2016, by [Kimmel], against [Hyundai
Motor America (Appellee)]. On June 1, 2016, the Magisterial
District Judge entered judgment in favor of [Appellee]. On June
13, 2016, Kimmel filed an appeal to [the trial c]ourt. On March
31, 2017, upon [p]raecipe filed by [Appellee], the [p]rothonotary
entered a judgment of non-pros against Kimmel for failure to file
a complaint. On April 7, 2017, Kimmel filed Plaintiff’s Petition to
Reinstate the Complaint and/or for Relief from Judgment of Non
Pros or by Default. By [o]rder of August 30, 2017, the [c]ourt, by
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* Retired Senior Judge assigned to the Superior Court.
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the Honorable Steven C. Tolliver, Sr., granted the [p]etition and
ordered that the praecipe for non-pros be stricken and that
Kimmel file a complaint within ten days.
A [c]omplaint was filed on September 11, 2017. In addition
to Kimmel, [Houck] was also named as a [p]laintiff. The
[c]omplaint averred that on or about January 1, 2008, [Houck]
purchased a preowned Hyundai vehicle, which turned out to have
serious defects. The [c]omplaint further averred that on or about
April 7, 2011, a settlement was agreed to, under which [Appellee]
was to pay $1,500 in damages to [] Houck and $1,500 in attorney
fees to Kimmel. Attached to the [c]omplaint was an email
exchange between counsel, in which [Appellee’s] attorney offered
$3,000 in settlement and stated, “let me know and I can send a
release this week,” and a Kimmel attorney replied, “[w]e are
settled for the $3,000.” (Compl., Ex. B.)[.] The email exchange
did not specify how the $3,000 figure was to be allocated between
damages and counsel fees. [] Houck did not sign a Settlement
Agreement and Release until February 19, 2016. (Compl., ¶ 12 &
Ex. C.)[.] The [c]omplaint stated that [Appellee] had failed to pay
the agreed-upon settlement amount of $3,000.
The [c]omplaint was brought in three counts. Count 1,
under the Magnuson-Moss Warranty — Federal Trade Commission
Improvement Act, Pub. L. No. 93-637, 88 Stat. 2183 (1975)
(codified at 15 U.S.C. §§ 2301-2312 and elsewhere) (“Magnuson-
Moss Act”), and Count II, under the Unfair Trade Practices and
Consumer Protection Law, 73 P.S. §§ 201-1 to -9.3 (“UTPCPL”),
were brought on behalf of [] Houck alone. Count III, for breach
of contract — i.e., the settlement agreement — was brought on
behalf of [] Houck and Kimmel.
On January 3, 2018, [Appellants] filed the Plaintiffs’ Motion
to Enforce Settlement and for Resulting Counsel Fees. The
[m]otion sought enforcement of the settlement agreement
reached on April 7, 2011. Consistent with the title of the [m]otion,
the supporting [m]emorandum contained, in the [c]onclusion
section, a brief request for “attorney’s fees to file the instant
motion.” (Mem., at 15)[. Appellee] filed an Opposition to the
Motion, including a Cross-Motion for Summary Judgment.
Following a hearing, the Honorable Arthur R. Tilson issued an
[o]rder dated June 18, 2018 granting the Motion to Enforce
Settlement and denying the Cross-Motion for Summary Judgment.
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On September 4, 2018, [Appellants] filed the Plaintiffs’
Motion for Resulting Counsel Fees and Costs []. The [m]otion
sought an award of all counsel fees and expenses incurred in
connection with the prosecution of the case before the Magisterial
District Judge and [the trial c]ourt, for a total of $5,577.40. The
[m]otion acknowledged that in response to Judge Tilson’s [o]rder,
[Appellee] had paid the settlement amount of $3,000, of which
$1,500 was for attorney fees. (Mot. For Fees, ¶ 10)[.] The only
statutory authority cited as a basis for an additional award of
counsel fees and expenses was the Magnuson-Moss Act —
specifically, section [3]10(d)(2) of the Act, 15 U.S.C. §
2310(d)(2). [Appellee] filed a [r]esponse in opposition to the
[m]otion. On April 30, 2019, this [c]ourt issued an [o]rder
denying the [m]otion for [f]ees.
[Appellants] filed a timely [n]otice of [a]ppeal from that
[o]rder on May 29, 2019. In a subsequently filed Statement of
Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
[Appellants] made clear that their appeal was limited to the denial
of the [m]otion for [f]ees.
Trial Court Opinion, 7/29/19, at 1-3 (footnote omitted).
On appeal, Appellants raise the following issue for review:
Should a consumer be entitled to recover reasonable attorneys’
fees and costs that he had to incur in order to secure payment on
a valid and binding settlement of his claims under the Magnuson-
Moss Warranty Act?
Appellants’ Brief at 3.
To begin, we note that “[t]rial courts have great latitude and discretion
in awarding attorney fees when authorized by contract or statute.” Cummins
v. Atlas R.R. Const. Co., 814 A.2d 742, 746 (Pa. Super. 2002) (citations
omitted). “Generally, the denial of a request for attorneys’ fees is a matter
within the sound discretion of the trial court, which will be reversed on appeal
only for a clear abuse of discretion.” Id. (citations omitted).
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An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
of record, discretion is abused. We emphasize that an abuse of
discretion may not be found merely because the appellate court
might have reached a different conclusion, but requires a showing
of manifest unreasonableness, or partiality, bias, or ill-will, or such
lack of support as to be clearly erroneous.
Sommers v. UPMC, 185 A.3d 1065, 1071 (Pa. Super. 2018) (citation
omitted).
Instantly, Appellants claim that the trial court erred when, “in its
discretion, deemed it inappropriate to award [Appellants’] any portion of the
[attorneys’] fees and costs necessarily attendant” to the litigation against
Appellee. Appellants’ Brief at 6. Appellants argue they are entitled to
attorneys’ fees under the Magnuson-Moss Act for Kimmel’s legal work done
on behalf of Houck to enforce the parties’ settlement agreement. Id. Upon
review, we are not persuaded the trial court abused its discretion.
The relevant portion of the Magnuson-Moss Act provides:
(d) Civil action by consumer for damages, etc.; jurisdiction;
recovery of costs and expenses; cognizable claims
(1) Subject to subsection (a)(3) and (e), a consumer who is
damaged by the failure of a supplier, warrantor, or service
contract, may bring suit for damages and other legal and equitable
relief--
(A) in any court of competent jurisdiction in any State
or the District of Columbia; or
(B) in an appropriate district court of the United
States, subject to paragraph (3) of this subsection.
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(2) If a consumer finally prevails in any action brought under
paragraph (1) of this subsection, he may be allowed by the court
to recover as part of the judgment a sum equal to the aggregate
amount of cost and expenses (including attorneys’ fees based on
actual time expended) determined by the court to have been
reasonably incurred by the plaintiff for or in connection with the
commencement and prosecution of such action, unless the court
in its discretion shall determine that such an award of
attorneys’ fees would be inappropriate. . . .
15 U.S.C. § 2310(d)(1)-(2) (emphasis added).
Referencing the Magnuson-Moss Act, our Supreme Court stated:
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.
. . . The authorizing statute here—[the Magnuson Moss Act]—is a
federal statute. The construction of a federal statute is a matter
of federal law. Pursuant to federal rules of statutory construction,
the courts consider the particular statutory language, as well as
the design of the statute and its purposes in determining the
meaning of a federal statute. But if the [Magnuson Moss Act’s]
language is clear, we should refrain from searching other sources
in support of a contrary result.
Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011)
(citations omitted).
Consistent with the foregoing, the trial court explained:
In the present case, this [c]ourt determined, in its
discretion, that the $1,500 paid to Kimmel as part of the
settlement was sufficient and that an award of additional fees and
expenses would be “inappropriate.” Although the settlement
agreement in this case was reached in April 2011, [] Houck did
not sign and deliver the written Settlement Agreement and
Release until February 2016 — almost five years later.
Throughout this litigation, [Appellee] took the position that the
execution and delivery of that document within a reasonable time
was a condition of the settlement agreement and that [Appellee]
was discharged from its obligations under the settlement
agreement by reason of the delay in signing and returning the
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document. Throughout this litigation, [Appellants] did not proffer
any explanation for their extraordinary delay. [Appellants] have
insisted that execution and return of the document was not a
condition of the settlement, but the fact remains that they did not
commence this litigation until March 8, 2016 — eighteen days
after [] Houck’s signature. [Appellee’s] interpretation of the
settlement, although ultimately rejected by Judge Tilson, was by
no means unreasonable.
This [c]ourt concluded that the purpose of [S]ection
110(d)(2) — to encourage consumers to pursue their rights under
the Magnuson-Moss Act even when the amount at issue is small,
see, e.g., Ernst v. Deere & Co., 886 A.2d 845, 849 (Conn. App.
2005) — is fully vindicated by the recovery of $1,500 in counsel
fees under the settlement. Where [Appellants], through their
delay, bear a substantial part of the responsibility for what should
have been unnecessary settlement-enforcement litigation, it
would not serve the purposes of the Act to reward [Appellants]
with an additional recovery of fees.
Trial Court Opinion, 7/29/19, at 4 (emphasis and footnote omitted).
Based on our review of the record, we discern no error. Section
2310(d)(2) of the Magnuson-Moss Act specifies that the allowance of
attorneys’ fees and costs is within the complete discretion of the trial court.
See 15 U.S.C. § 2310(d)(2). In exercising its discretion, the trial court may
decline to award fees and costs if it determines that such an award would be
inappropriate. Id.; see also Trost v. Porreco Motors, Inc., 443 A.2d 1179,
1181 (Pa. Super. 1982) (“[S]ection 2310(d)(2) of 15 U.S.C.A. specifies that
the allowance of [attorneys’ fees] is within the discretion of the court.”). In
denying Appellants’ motion, the trial court concluded that the “$1,500 paid to
Kimmel as part of the settlement was sufficient and that an award of additional
fees and expenses would be ‘inappropriate.’” Trial Court Opinion, 7/29/19, at
4. Appellants fail to identify, and our review does not reveal, a basis for finding
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that the trial court abused its discretion. We thus affirm the trial court’s order
denying Appellants’ motion.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/20
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