Mountain View Condominium Ass'n v. Bomersbach

SMITH, Judge,

dissenting.

I respectfully dissent from the majority decision to affirm the order of the Court of Common Pleas of Chester County awarding $46,548.64 for attorney fees incurred by Mountain View Condominium Association (Appellee) to collect a $500 attorney fee it charged Maria P. Bomersbach (Appellant) to recover her delinquent association assessments. Appellant apparently placed in escrow in 1989 all assessments due pending an accounting from Appellee to justify its increase in the Association’s monthly assessment. It is totally unreasonable, and perhaps unconscionable, to allow $46,548.64 in attorney fees in this case when the record leaves absolutely no doubt that Appellee shares responsibility *472with Appellant for the continuation of this litigation now in its tenth year.

On remand of this matter, the trial court (Judge Gavin) commented that the docket entries reveal a defendant (Appellant) engaged in “trench warfare” and that the “veritable pleadings onslaught” would have left any competent collection lawyer shell-shocked. The apparent frustration of the trial judge is understandable; however, the docket entries and case history cannot erase the fact that both parties bear responsibility for the “trench warfare” in this case and that the attorney fees awarded do not bear a reasonable relation to the result obtained or to the loss suffered by Appel-lee.

Appellee originally appealed to this Court from the August 1995 decision of another judge of the Court of Common Pleas (Judge Melody) who granted partial summary judgment to Appellant in the January 1989 lawsuit filed against her by Appellee to recover the delinquent assessments. The trial judge refused to allow attorney fees incurred by Appellee after March 3, 1989 because the fees after that date were unconscionable and unreasonable; however, Appellee was entitled to reasonable attorney fees incurred before March 3, 1989, the date on which Appellant tendered a check to Appellee, which it rejected, to settle the outstanding past-due assessments plus interest. This Court affirmed the trial court by opinion and order filed in April 1997 but allowed Appellee to litigate the reasonableness of fees incurred before November 29, 1980, when Appellee ultimately accepted Appellant’s payment of all outstanding assessments and late fees. However, upon reconsideration at the request of Appellee, the Court withdrew its April 1997 opinion and order and issued a new decision in July 1997 reversing Judge Melody and remanding the case to the trial court to litigate the “reasonableness” of the attorney fees incurred by Appellee in this action. The Supreme Court denied allocatur. On remand the trial court (Judge Gavin) awarded Appellee its full demand of $46,548.64.

While not authority, the federal district court decision in Hilferty v. Chevrolet Motors, 1996 WL 287276 (E.D.Pa.), aff'd without opinion, 116 F.3d 468 (3d Cir.1997), cited by Appellant, is persuasive. In that ease the plaintiffs sought to recover their attorney fees in connection with the entry of judgment in their favor, valued at $4,070. The applicable statutory standard governing the recovery of the plaintiffs attorney fees was one of “reasonableness.” The court stated that no reasonable person would pay $12,750 in attorney fees to recover a $4,070 claim in a case alleging violations, inter alia, of Pennsylvania’s Automobile Lemon Law, Act of March 28, 1984, P.L. 150, 73 P.S. §§ 1951-1963, and that there must be some rational relationship between the amount of loss suffered and attorney fees incurred in attempting to recover the loss. The court awarded far less than the plaintiffs sought in attorney fees.

The U.S. Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), might offer further guidance in this situation. The Court vacated an attorney fees award and remanded the case for the district court to award fees allowable by federal statute in accordance with specifically stated standards. It noted that the extent of a party’s success is the most critical factor in determining a proper award for attorney fees and that an award should be reasonable in relation to the result obtained by the prevailing party. Other factors, among many, to consider in determining the reasonableness of attorney fees include time and labor required to perform the task, novelty and difficulty of the question presented and whether the attorney fee is fixed or contingent. Id. See also Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

I believe that it is simply irrational for a litigant to incur $46,548.64 in attorney fees to collect $500, particularly when the mat*473ter could have been resolved many years ago, the delinquent assessments were placed in escrow pending resolution of a routine accounting dispute, and after tender the delinquent assessments plus interest were rejected by Appellee because the $500 attorney fee was not simultaneously offered. I would reverse the trial court and return case to the court to enter an award for reasonable attorney fees considering all pertinent factors in arriving at a just decision. There is no need for an additional hearing.