J-A15035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS POULIDES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
AMERICAN THEATRE ARTS FOR YOUTH, INC. AND LAURIE WAGMAN,
Appellees Nos. 2586 EDA 2013
Appeal from the Judgment Entered July 23, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 120501883
BEFORE: PANELLA, J., LAZARUS, J., AND JENKINS, J.
MEMORANDUM BY: JENKINS, J. FILED SEPTEMBER 12, 2014
The issue in this appeal is whether the lower court abused its
discretion in denying attorney fees to Nicholas Poulides after Poulides
prevailed in his action under the Wage Payment and Collection Law
et seq. We conclude that the court properly
denied attorney fees to Poulides, and we affirm.
Poulides filed an action under the civil remedy section of the WPCL, 43
P.S. § 260.9a, against his employer, American Theater Arts for Youth, Inc.
rie Wagman, seeking unpaid
wages of $35,000.00, liquidated damages1 of $8,750.00 and attorney fees.
1 The WPCL follows: 1 J-A15035-14
Since Poulides demanded less than $50,000.00, the case proceeded to
compulsory arbitration. The board of arbitrators awarded Poulides
$4,902.03 in unpaid wages. Poulides did not request attorney fees during
the arbitration, and neither side took a de novo appeal from the award of the
board of arbitrators to the trial division of the Court of Common Pleas.
After the 30-day appeal period expired, Poulides reduced the award to
judgment. Seven days later, Poulides filed a bill of costs seeking $27,000 in
attorney fees under the fee-shifting provision of the WPCL, 43 P.S. §
260.9a(f)2
Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employe of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater.
43 P.S. §260.10. This appeal does not involve any issues concerning liquidated damages. 2 The court in any action brought under this [civil remedy] section [of the WPCL] shall, in addition to any judgment 2 J-A15035-14
of costs claiming that Poulides was not entitled to attorney fees, and the
prothonotary sustained these exceptions. Poulides appealed the
Division of the Court of Common Pleas. The Motions Court affirmed the
appeal to this Court.
Poulides filed a timely 5-page Pa.R.A.P. 1925(b) statement in which he
raised 3 issues:
1. The prothonotary erred in stating it did not have the power to tax counsel fees.
2. If the failure to award fees by either the prothonotary or this Honorable Court was due to timeliness of the application for fees, such was error.
3. This Honorable Court should have determined and awarded reasonable fees upon the bill of costs order.
The Motions Court issued a Pa.R.A.P. 1925(a) opinion stating that Poulides
waived all issues because his concise statement was excessively long:
ges to raise
has precluded this Court from providing a clear and meaningful review of its
the merits of the issues.
awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys' fees of any nature to be paid by 3 J-A15035-14
all issues in his Pa.R.A.P. 1925(b) statement. Waiver issues such as this are
issues of law; thus, our standard of review is de novo. Pocono Manor
Investors, LP v. Pennsylvania Gaming Control Board, 927 A.2d 209,
216 (Pa.2007).
In view of our recent decision in Maya v. Johnson & Johnson
McNeil PPC, Inc., -- A.3d --, 2014 WL 3586390 (Pa.Super., July 22,
es waived
the issues articulated in his Pa.R.A.P. 1925(b) statement. In Maya, the trial
court determined that the appellant waived all issues on appeal because his
Pa.R.A.P. 1925(b) statement was 11 pages long with 23 paragraphs and
Musmanno, disagreed, reasoning:
The trial court advocates waiver, citing this court's decision in Kanter v. Epstein, 866 A.2d 394 (Pa.Super.2004), appeal denied, 880 A.2d 1239 (Pa.2005), cert. denied, Spector, Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006), in which this court held that where an appellant's concise statement raises an unduly large number of issues (104 in Kanter), the purpose of Rule 1925 is effectively subverted. However, Rule 1925(b) was - redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors
Pa.R.A.P. 1925(b)(4)(iv). In addition, in Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa.2007) (plurality), our Supreme Court held that a litigant will not suffer the loss of appellate review due to the volume of issues raised in the
4 J-A15035-14
absence of bad faith. The Eiser court also distinguished Kanter on the basis that Kanter was a relatively straightforward breach of contract action while the lawsuit in Eiser was a complicated one with a voluminous record. The court in Eiser occasions a party may, in good faith, believe that a large number of issues are Id. at 427 (footnote omitted). Instantly, as in Eiser, the subject lawsuit is complex and the record contains thousands of pages of testimony. Furthermore, there is no evidence of bad faith or an attempt to thwart the appellate process. We note that McNeil did winnow down the number of issues actually argued in its brief on appeal. Therefore, we decline to find waiver.
Id., 2014 WL at 3586390,
is far more concise than the 11-page, 23-paragraph Pa.R.A.P. 1925(b)
statement that the Maya court found acceptable. Poulides raises only three
non-redundant, non-frivolous issues and describes each issue in detail in his
Pa.R.A.P. 1925(b) statement. His statement does not impede appellate
review.
Turning to the merits of this appeal, we review a trial court's
determination regarding the award of attorney fees for an abuse of
discretion. Kraft v. Downey, 68 A.3d 329, 332 (Pa.Super.2013) (citation
omitted). An abuse of discretion requires more than a difference of opinion
conclusion, the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
Id. at 332-33.
5 J-A15035-14
Relying on Connor v. DaimlerChrysler Corp., 820 A.2d 1266
(Pa.Super.2003), the Motions Court held that Poulides forfeited his right to
obtain attorney fees by failing to request them during compulsory arbitration
and failing to file a de novo
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J-A15035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS POULIDES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
AMERICAN THEATRE ARTS FOR YOUTH, INC. AND LAURIE WAGMAN,
Appellees Nos. 2586 EDA 2013
Appeal from the Judgment Entered July 23, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 120501883
BEFORE: PANELLA, J., LAZARUS, J., AND JENKINS, J.
MEMORANDUM BY: JENKINS, J. FILED SEPTEMBER 12, 2014
The issue in this appeal is whether the lower court abused its
discretion in denying attorney fees to Nicholas Poulides after Poulides
prevailed in his action under the Wage Payment and Collection Law
et seq. We conclude that the court properly
denied attorney fees to Poulides, and we affirm.
Poulides filed an action under the civil remedy section of the WPCL, 43
P.S. § 260.9a, against his employer, American Theater Arts for Youth, Inc.
rie Wagman, seeking unpaid
wages of $35,000.00, liquidated damages1 of $8,750.00 and attorney fees.
1 The WPCL follows: 1 J-A15035-14
Since Poulides demanded less than $50,000.00, the case proceeded to
compulsory arbitration. The board of arbitrators awarded Poulides
$4,902.03 in unpaid wages. Poulides did not request attorney fees during
the arbitration, and neither side took a de novo appeal from the award of the
board of arbitrators to the trial division of the Court of Common Pleas.
After the 30-day appeal period expired, Poulides reduced the award to
judgment. Seven days later, Poulides filed a bill of costs seeking $27,000 in
attorney fees under the fee-shifting provision of the WPCL, 43 P.S. §
260.9a(f)2
Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employe of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater.
43 P.S. §260.10. This appeal does not involve any issues concerning liquidated damages. 2 The court in any action brought under this [civil remedy] section [of the WPCL] shall, in addition to any judgment 2 J-A15035-14
of costs claiming that Poulides was not entitled to attorney fees, and the
prothonotary sustained these exceptions. Poulides appealed the
Division of the Court of Common Pleas. The Motions Court affirmed the
appeal to this Court.
Poulides filed a timely 5-page Pa.R.A.P. 1925(b) statement in which he
raised 3 issues:
1. The prothonotary erred in stating it did not have the power to tax counsel fees.
2. If the failure to award fees by either the prothonotary or this Honorable Court was due to timeliness of the application for fees, such was error.
3. This Honorable Court should have determined and awarded reasonable fees upon the bill of costs order.
The Motions Court issued a Pa.R.A.P. 1925(a) opinion stating that Poulides
waived all issues because his concise statement was excessively long:
ges to raise
has precluded this Court from providing a clear and meaningful review of its
the merits of the issues.
awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys' fees of any nature to be paid by 3 J-A15035-14
all issues in his Pa.R.A.P. 1925(b) statement. Waiver issues such as this are
issues of law; thus, our standard of review is de novo. Pocono Manor
Investors, LP v. Pennsylvania Gaming Control Board, 927 A.2d 209,
216 (Pa.2007).
In view of our recent decision in Maya v. Johnson & Johnson
McNeil PPC, Inc., -- A.3d --, 2014 WL 3586390 (Pa.Super., July 22,
es waived
the issues articulated in his Pa.R.A.P. 1925(b) statement. In Maya, the trial
court determined that the appellant waived all issues on appeal because his
Pa.R.A.P. 1925(b) statement was 11 pages long with 23 paragraphs and
Musmanno, disagreed, reasoning:
The trial court advocates waiver, citing this court's decision in Kanter v. Epstein, 866 A.2d 394 (Pa.Super.2004), appeal denied, 880 A.2d 1239 (Pa.2005), cert. denied, Spector, Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006), in which this court held that where an appellant's concise statement raises an unduly large number of issues (104 in Kanter), the purpose of Rule 1925 is effectively subverted. However, Rule 1925(b) was - redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors
Pa.R.A.P. 1925(b)(4)(iv). In addition, in Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa.2007) (plurality), our Supreme Court held that a litigant will not suffer the loss of appellate review due to the volume of issues raised in the
4 J-A15035-14
absence of bad faith. The Eiser court also distinguished Kanter on the basis that Kanter was a relatively straightforward breach of contract action while the lawsuit in Eiser was a complicated one with a voluminous record. The court in Eiser occasions a party may, in good faith, believe that a large number of issues are Id. at 427 (footnote omitted). Instantly, as in Eiser, the subject lawsuit is complex and the record contains thousands of pages of testimony. Furthermore, there is no evidence of bad faith or an attempt to thwart the appellate process. We note that McNeil did winnow down the number of issues actually argued in its brief on appeal. Therefore, we decline to find waiver.
Id., 2014 WL at 3586390,
is far more concise than the 11-page, 23-paragraph Pa.R.A.P. 1925(b)
statement that the Maya court found acceptable. Poulides raises only three
non-redundant, non-frivolous issues and describes each issue in detail in his
Pa.R.A.P. 1925(b) statement. His statement does not impede appellate
review.
Turning to the merits of this appeal, we review a trial court's
determination regarding the award of attorney fees for an abuse of
discretion. Kraft v. Downey, 68 A.3d 329, 332 (Pa.Super.2013) (citation
omitted). An abuse of discretion requires more than a difference of opinion
conclusion, the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
Id. at 332-33.
5 J-A15035-14
Relying on Connor v. DaimlerChrysler Corp., 820 A.2d 1266
(Pa.Super.2003), the Motions Court held that Poulides forfeited his right to
obtain attorney fees by failing to request them during compulsory arbitration
and failing to file a de novo
Connor filed a compulsory
arbitration action under the Magnuson-
U.S.C. § 2301 et seq., and the Unfair Trade Practices and Consumer
arbitration. The arbitration panel awarded him $2,000, and neither side
appealed. The plaintiff then filed a motion seeking attorney fees under the
MMWA3 and the UTPCPL4. The Court of Common Pleas of Allegheny County
ruled against plaintiff, and this Court affirmed. We determined that the term
3 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 costs and expenses (including attorneys' fees based on actual
4 The UTPCPL states in relevant part:
The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.
73 P.S. § 201-9.2(a) (emphasis added). 6 J-A15035-14
of evidence, resolution of factual questions and assessment of damages.
Id., 820 A.2d at 1271. No reason existed to treat the question of attorney
fees differently from any other question that arbitrators customarily decide
in a case. Id. Therefore, the plaintiff waived his right to attorney fees by
failing to request them before the arbitration board or to appeal de novo to
the Court of Common Pleas. Id. at 1270-71.
reasoning applies to this case, because the statutes that
Connor construed are similar to the WPCL. The WPCL, as stated above,
provides that the court
260.9a(f). In view of s
arbitration boards, Poulides was required either to request attorney fees
before the arbitration board or to appeal de novo5 to the Court of Common
Pleas. Connor, supra, at 1270-71. His failure to take either step precludes
him from recovery of attorney fees.
5 The Rules of Civil Procedure define a de novo appeal from the board of
party shall be deemed an appeal by all parties as to all issues unless
de novo bears the burden of proving unpaid wages and liquidated damages and must also request attorney fees at a timely juncture in the trial process. This case does not call upon us to decide the point in de novo trial proceedings when the plaintiff must request WPCL attorney fees. 7 J-A15035-14
We note that in two decisions, one of which post-dates Connor, our
See Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa.2003); Wertz v.
Chapman Township, 741 A.2d 1272 (Pa.1999). In Mishoe, for example,
the Court held that there was no right to a jury trial in a bad faith insurance
action under 42 Pa.C.S.A. § 8371. Section 8371
action arising under an insurance policy, if the court finds that the insurer
has acted in bad faith toward the insured, the court
punitive damages, and court costs and fees. 42 Pa.C.S.A. § 8371 (emphasis
added). Mishoe reasoned that there was no right to a jury trial because the
Id., 824 A.2d at 1156.
The Mishoe court gathered multiple authorities for the proposition that
synonymous for purposes of section
Id. at 1157-58 & n. 5, 7.
But while Mishoe
are also synonymous, the
issue resolved in Connor. Therefore, Connor continues to remain good law
notwithstanding the decision in Mishoe.
Poulides also argues that the Motions Court could have awarded
attorney fees following his appeal from the Prothonota
the demand for attorney fees in his bill of costs. We agree with the Motions
8 J-A15035-14
Court that under Connor, an appeal from the prothonotary is not the proper
procedure for obtaining attorney fees in a WPCL action that begins as an
arbitration action. In such circumstances, Connor requires the WPCL
plaintiff to seek attorney fees either before the arbitration panel or in a de
novo appeal from the arbitration board to the trial division. Since Poulides
failed to take either step, he waived his right to attorney fees.
Order denying attorney fees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/12/2014