Neal v. Bavarian Motors, Inc.

KELLY, J.,

Concurring.

¶ 1 I join the well-reasoned and thorough majority opinion, but I write separately because I disagree with my esteemed colleagues’ recommendation that attorney fees should be directly proportional to the percentage of UTPCPL-relat-ed damages from the whole. Instead, I would emphasize that determining the amount of UTPCPL-related attorney fees is very fact-specific and should be assessed on a case-by-case basis. Furthermore, because Appellees were awarded treble damages based on Appellants’ UTPCPL violations, I would suggest these treble damages should also be taken into consideration in awarding additional attorney fees.

¶ 2 As the majority aptly notes, in assessing attorney fees, a court may consider:

(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite [] to conduct the case [properly]; (2) The customary charges of the members of the bar for similar services; (3) The amount involved in the controversy and the benefits resulting to the client or clients from the services[;] and (4) The contingency or certainty of the compensation.

Croft v. P & W Foreign Car Service, Inc., 383 Pa.Super. 435, 557 A.2d 18, 20 (1989) (quoting 41 P.S. § 503). However, the Croft Court also noted apportioning UTPCPL-related damages “may prove difficult given that these claims are based on a common core of facts and related legal theories.” Id. Recognizing this difficulty, this Court remanded because the trial court used the jury award as a cap on attorney fees instead of investigating the reasonableness of the fees in light of the aforementioned elements. Id.

¶ 3 Similarly, in Sewak v. Lockhart, 699 A.2d 755 (Pa.Super.1997), this Court affirmed the trial court’s award of $5,000 in attorney fees, even though the claimed fees exceeded $22,000. The trial court followed the test in Croft, noting “the time and labor required was not considerable, and that no novel or difficult legal issues were presented ... [and] Buyers’ counsel spent unnecessary time researching the admissibility of a summary offense.” Id. at 763. The trial court also had “familiarity with customary charges of Bucks County attorneys for similar cases” and found $180 an hour to be excessive. Id. Thus, in both Croft and Sewak, this Court refused to award attorney fees based on the per*1034centage of UTPCPL damages as distinguished from the total damage award.

¶ 4 In the instant case, the trial court was provided with Appellee’s itemized billed hours and the Community Legal Services Attorney Fees Schedule of Hourly Rates.14 The trial court was also provided with verifications of qualifications from Appellee’s counsel. The trial court was not provided with the original fee agreement, although it was included for us in the reproduced record. The trial court’s justification for awarding $42,599.50 in attorney fees was based on the fact that Appellants refused to refund the money and insisted on continuing in court. While this finding would undoubtedly increase the hours Appellee’s counsel worked on the case in pursuing UTPCPL-related damages, there is no mention of any statutory exception or agreement by the parties to justify awarding the full amount of attorney fees. See Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999). Therefore, the trial court must still separate UTPCPL from non-UTPCPL billed hours.

¶ 5 The majority states that since the UTPCPL damages represent 21.6% of the adjusted remitted verdict, “it would not be unreasonable for the judge on remand to apply that percentage to the plaintiff’s request for attorney fees.” (Majority Opinion at 16 n. 12). Because of the similarity of strategies between UTPCPL and non-UTPCPL damages, however, it may be inherently difficult to separate attorney fees based on a strict percentage because research was undoubtedly performed by counsel in support of multiple theories. Thus, I believe awarding UTPCPL attorney fees based on a strict percentage would not accurately reflect the amount of time spent actually pursuing UTPCPL-re-lated theories. See Croft, supra at 20.

¶ 6 In its reassessment of the attorney fees, I would instruct the trial court to take into consideration the information provided to it by Appellee, including the original fee agreement. The trial court should be especially mindful that research performed by counsel supported multiple legal theories. The fact that Appellee was awarded treble damages would also suggest the award of attorney fees should increase accordingly.

¶ 7 On a further note, I agree the “hybrid agreement” should be scrutinized. (See Majority Opinion at 1033 n. 12). I would further advise the trial court to inquire as to whether Appellee’s counsel would be willing to withdraw the 10% recovery contingency in lieu of receiving the hourly rate. In determining Appellee’s counsels’ rate per hour “reasonable for an experienced law attorney with [six] to [ten] years of experience,” the trial court makes no mention of the 10% contingency added to the billable hours. (See Trial Court Opinion, filed September 28, 2004, at 4). Had the trial court been aware of such a contingency, the hourly rate may not have seemed as reasonable.

¶ 8 In all other respects, I join the majority opinion.

. I note, however, that the date of the schedule took effect on November 18, 2003, while Appellee's billable hours began in July, 2002.