Roethlein v. PORTNOFF LAW ASSOCIATES, LTD.

25 A.3d 1274, 2011 Pa. Commw. LEXIS 329, 2011 WL 2732223

• Court: Commonwealth Court of Pennsylvania
• Decided: July 15, 2011
• Docket: 1573 C.D. 2009
• Status: Published

Opinions

OPINION BY

Judge BUTLER.

Portnoff Law Associates, Ltd. and Michelle R. Portnoff, Esquire (collectively Portnoff) appeal the July 8, 2009 and November 6, 2009 orders of the Court of Common Pleas of Philadelphia County (trial court) awarding attorney’s fees and expenses in the amount of $1,288,309.36 in favor of the Plaintiff Class (Taxpayers) and against Portnoff, and correcting the computation of damages from $1,588,045.65 to $1,058,697.10, respectively. Portnoff raises seven issues before the Court: (1) whether the Pennsylvania Loan Interest and Protection Law (Act 6)¹ applies to a class action to recover charges paid in connection with the collection of delinquent real estate taxes; (2) whether a private tax collector can be held liable for unjust enrichment when the charges were remitted to the municipalities, the municipalities were not parties to the action, and statutory remedies exist; (3) whether the expenses incurred in providing the required notice are recoverable from the delinquent taxpayer; (4) whether the principal of a corporation can be held liable for the acts of the corporation; (5) whether an order for an accounting is proper under the facts of this case; (6) whether delinquent taxpayers can challenge a judgment already entered in favor of the municipalities for charges and interest in a separate action to recover charges and interest; and (7) whether the prevailing party can be awarded fees incurred in connection with the claims upon which the party did not prevail, and fees unreasonably and unnecessarily incurred. For the reasons that follow, we affirm the orders of the trial court.

On November 26, 2002, taxpayer Beverly Roethlein filed a class action complaint against Dawn Schmidt, Michelle Portnoff, and Portnoff Law Associates seeking judgment for unjust enrichment and violation of Act 6. On March 11, 2008, the trial court entered an order finding for the Taxpayers and against Portnoff in the total amount of $5,213,670.08. On June 8, 2008, post trial motions were granted and the Court vacated its original order and awarded $1,588,045.65, plus statutory interest and attorneys’ fees.

On July 8, 2009, the trial court amended its award from $1,588,045.65 to $1,058,697.10. On November 6, 2009, the trial court granted Taxpayers’ motion for attorneys’ fees and administrative expenses and awarded $1,267,386.25 for attorneys’ fees and $20,923.11 for expenses. Portnoff appealed the July 8, 2009 and November 6, 2009 orders to this Court.²

Portnoff argues that Act 6 does not apply to a class action to recover charges paid in connection with the collection of delinquent real estate taxes. Specifically, Portnoff contends that Act 6 is a usury statute, and that the plain language of Act 6, case law, and the legislative history all mandate a finding that the statute’s application is limited to claims in connection with loans or the use of money. Thus, Portnoff contends, Act 6 cannot be used to recover charges paid in connection with delinquent tax payments that do not involve agreements for loans or the use of money. Portnoff further contends that notwithstanding the above contentions, Act 6 only applies to actions filed by individuals, not class actions. We disagree with all of the above contentions.

Section 502 of Act 6, 41 P.S. § 502, is titled: “Usury and excess charges recoverable.” (Emphasis added). Section 502 of Act 6 specifically states: “A person who has paid ... charges prohibited or in excess of those allowed by ... law may recover triple the amount of such excess interest or charges in a suit at law against the person who has collected such excess ... charges.... ” (Emphasis added). By the plain language of the statute, this action is permitted. We conclude that Portnoff was not permitted to collect administrative fees or interest thereon, that the administrative fees and interest were excess charges not allowed by law, and that said charges were, therefore, recoverable under Act 6.

Further, while Section 504 of Act 6 specifically states: “Any person affected by a violation of the act shall have the substantive right to bring an action on behalf of himself individually[,]”³ Act 6 does not preclude such individuals from complaining collectively in the form of a class action. See Toolan v. Trevose Fed. Sav. and Loan Ass’n, 501 Pa. 477, 462 A.2d 224 (1983) (wherein a class action suit was brought under Act 6, and the Supreme Court of Pennsylvania specifically held that the right of plaintiffs to bring their original cause of action derived from Section 504 of Act 6). Thus, Taxpayers’ class action is appropriate under the law. Accordingly, the trial court did not err in allowing Taxpayers to file their action for Act 6 violations.

Portnoff next argues that a private tax collector cannot be held liable for unjust enrichment when the charges were remitted to the municipalities, the municipalities were not joined as indispensible parties to the action, and statutory remedies are available to Taxpayers. We disagree.

Initially, “[ujnjust enrichment is shown by benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Filippi v. City of Erie, 968 A.2d 289, 242 (Pa.Cmwlth.2009) (quotation marks omitted). Here, Portnoff charged a fee, paid by Taxpayers that went directly to Portnoff, not to the municipalities as claimed by Portnoff.⁴ Thus, regardless of Portnoff s claim that Portnoff did not appreciate the benefits conferred by Taxpayers, the elements of unjust enrichment are clearly satisfied in this case.

Regarding the issue of whether the municipalities were indispensible parties in the instant action, we note:

The criteria used to determine whether an absent party is indispensable are:

1. Do absent parties have a right or interest related to the claim?

2. If so, what is the nature of the right or interest?

8. Is that right or interest essential to the merits of the issue?

4. Can justice be afforded without violating due process rights of absent parties?

Del. Cnty. v. J.P. Morgan Chase & Co., 827 A.2d 594, 598 (Pa.Cmwlth.2003). Here, the taxes owed to the municipalities are separate and distinct from the administrative fees paid by Taxpayers to Port-noff over and above said taxes. Thus, the municipalities have no right or interest in Portnoffs collected fees, and the municipalities were not indispensible parties to this action.

Lastly, the proposed exclusive statutory remedies that Portnoff claims preclude the claim of unjust enrichment, i.e., scire facias, and the refund statute, do not apply. Section 16 of the Municipal Claims Act (MCA)⁵ provides that a party “may file” a notice of scire facias where appropriate. Thus, scire facias is a discretionary remedy as evidenced by the use of the word “may.” Moreover, according to Section 1(a) of the Tax Refund Law,⁶ the refund statute specifically applies to monies actually paid to the taxing authorities, i.e., specifically paid “into the treasury of any political subdivision.” The administrative fees collected by Portnoff remained with Portnoff. Thus, the refund statute is not applicable, and unjust enrichment is a viable claim. Accordingly, the trial court did not err in allowing the claim against Portnoff for unjust enrichment.

Portnoff next argues that the expenses Portnoff incurred in providing the required notice are properly recoverable from a delinquent taxpayer. Specifically, Portnoff argues it is a charge, expense, or fee, incurred by the taxing authority in the collection of delinquent taxes, and that it can lawfully be recouped under the MCA. We disagree.

Section 2 of the MCA specifically states:

All taxes which may hereafter be lawfully imposed or assessed on any property in this Commonwealth, and all taxes heretofore lawfully imposed or assessed by any municipality on any property in this Commonwealth ... shall be and they are hereby declared to be a first lien on said property, together with all charges, expenses, and fees added thereto for failure to pay promptly....

53 P.S. § 7103. This Court held in Pentlong Corporation v. GLS Capital, Inc., 780 A.2d 734 (Pa.Cmwlth.2001)⁷ that under Section 2 of the MCA, the term “costs” specifically refers to charges, expenses or fees that “were actually incurred and could have been taxed as costs” by the taxing authority. Id. at 749 (stating that a tax lien assignee “is not entitled to any costs that the County did not actually incur”). Here, the administrative fee charged by Portnoff was not such a cost because the related costs, i.e., the expenses Portnoff incurred, were incurred by Portnoff directly and never incurred by the taxing authority. Accordingly, the trial court did not err in finding that the administrative fees were not recoverable from Taxpayers.

Portnoff next argues that the principal of a corporation cannot be held liable for the acts of the corporation without evidence providing a basis to pierce the corporate veil. Specifically, Portnoff contends that there was no evidence that Michelle Portnoff, in her individual capacity, collected the administrative fees, received any payments from Taxpayers or retained the fees. Further, Portnoff contends that the evidence showed that all of the collection activity was undertaken by the corporation, and that all fees collected by the corporation were remitted by the corporation to the municipalities. We disagree.

In addition to potential liability under the doctrine of piercing the corporate veil, shareholders, officers and directors can be held liable upon the establishment of requisite factors under the “participation theory.” Com. ex rel. Corbett v. Snyder, 977 A.2d 28 (Pa.Cmwlth.2009). “Under the ‘participation theory,’ the court imposes liability on the participating individual as an actor, not as an owner. To impose liability under the participation theory, a plaintiff must establish the individual engaged in misfeasance.” Id. at 46 (citation omitted).

Here, Michelle Portnoff actively participated in the tax collection process at every stage. She supervised, developed and approved the collection practices of the corporation. In addition, she had personal involvement with Taxpayers, i.e., mailing correspondence to them, and preparing and filing pleadings against them, thus, establishing that Michelle Portnoff engaged in misfeasance as a participating individual. Accordingly, the trial court did not err in finding Michelle Portnoff personally liable for her actions.

Portnoff next argues that the order for an accounting was not proper. Specifically, Portnoff contends that to order an equitable accounting, a plaintiff must show there is no remedy at law. Portnoff further contends that Taxpayers could have obtained the information sought through discovery. In addition, Portnoff argues that to establish a right to legal accounting, a plaintiff must show a valid contract that imposes a legal obligation to account for monies received, and that no such contract exists. We disagree with all of the above contentions.

“The action of account is a writ brought against one, who by means of ... some money he has received from another, is obliged to render an account to another, but refuses to do so.” Kohr v. Kohr, 271 Pa.Super. 321, 413 A.2d 687, 691 (1979). “Where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred.” Limbach Co., LLC v. City of Phila., 905 A.2d 567, 575 (Pa.Cmwlth.2006). Thus, by receiving the benefit of unjust administrative fees, Portnoff is obligated to give an account. Here, Taxpayers do not know the value of the benefit conferred. We hold that they are entitled to an accounting to determine the precise amounts of interest assessed on the penalties imposed and assessed on the principal that Taxpayers paid to Portnoff. See PNC Bank v. Kerr, 802 A.2d 634 (Pa.Super.2002). And since the trial court properly determined that Portnoff was unjustly enriched, the law is clear that a contract is implied. Accordingly, the trial court did not err in ordering an accounting.

Portnoff next argues that delinquent taxpayers cannot challenge the judgments already entered in favor of the municipalities for charges and interest in a separate action to recover charges and interest. Specifically, Portnoff contends that the municipalities sued Taxpayers under scire facias for unpaid taxes; thus, the judgment against Taxpayers in that case precludes this litigation under the doctrine of res judicata. We disagree.

Res judicata will preclude a court from considering a second identical application for relief.... In order to apply, a litigant must establish the identity of four elements in the matter for which the relief is sought:

(1) Identity of the thing sued for;

(2) Identity of the cause of action;

(3) Identity of persons and parties to the action; and

(4) Identity of the quality in the persons for or against whom the claim is made.

Dubois Dutch, LLC v. Sandy Twp. Bd. of Supervisors, 940 A.2d 576, 580 (Pa.Cmwlth.2007). While the thing sued for in the prior cases involving the municipalities was unpaid taxes, here the thing sued for was administrative fees and interest thereon. The cause of action in the prior cases was scire facias, while in the present case it involves Act 6 violations and unjust enrichment. Finally, since Portnoff was not a party in the prior cases, there is no identity of persons and parties, and no identity of quality of persons. Thus, res judicata is not applicable on the facts at hand. Accordingly, the trial court did not err in its determination that Taxpayers were not precluded from bringing this action.

Lastly, Portnoff argues that the prevailing party cannot be awarded counsel fees incurred in connection with the claims upon which the party did not prevail, and fees unreasonably and unnecessarily incurred. Specifically, Portnoff contends that Taxpayers previously lost on their key issue, thus recovering about 20% of the damages originally sought: in fact, the award of attorneys’ fees was 240% of the compensable damages awarded. In addition, Portnoff contends that the trial court awarded fees that were unreasonably and unnecessarily incurred because the case should have been stayed while one of the issues was on appeal, but Taxpayers opposed the stay and wasted a majority of the trial trying to prove a cause of action that became moot when the appeal was final. We disagree with all of Portnoff s contentions.

As noted, Taxpayers brought the instant action pursuant to Act 6. Under that act, the award of attorneys’ fees is mandatory. Section 503 of Act 6, 41 P.S. § 503. Moreover, whenever attorneys’ fees are awarded, Pa.R.C.P. No. 1716 is implicated.

PaJt.C.P. No. 1716 specifically states:

In all cases where the court is authorized under applicable law to fix the amount of counsel fees it shall consider, among other things, the following factors:

(1) the time and effort reasonably expended by the attorney in the litigation;

(2) the quality of the services rendered;

(3) the results achieved and benefits conferred upon the class or upon the public;

(4) the magnitude, complexity and uniqueness of the litigation; and

(5) whether the receipt of a fee was contingent on success.

Here, the trial court took all of these factors into consideration. The starting point for awarding fees is the lodestar method which consists of multiplying reasonable fees by reasonable hours expended. See Dep’t of Envtl. Res. v. PBS Coals, Inc., 677 A.2d 868 (Pa.Cmwlth.1996). The reasonableness of the hourly rate of counsel for Taxpayers was not contested. Counsel spent seven years, and thousands of hours, litigating this class action suit. That stated, the award of attorneys’ fees was appropriate under the law. Accordingly, the trial court did not err in its award of attorneys’ fees.

For all of the above reasons, the orders of the trial court are affirmed.

President Judge LEADBETTER did not participate in the decision in this case.

ORDER

AND NOW, this 15th day of July, 2011, the July 8, 2009 and November 6, 2009 orders of the Court of Common Pleas of Philadelphia County are affirmed.

1 . Act of January 30, 1974, P.L. 13, as amended, 41 P.S. §§ 101-605.

2 . "This Court’s standard of review of a verdict following a non-jury trial is limited to determining whether the findings of the trial court are supported by competent evidence and whether the trial judge committed error in the application of law.” M & D Props., Inc. v. Borough of Port Vue, 893 A.2d 858, 861 n. 4 (Pa.Cmwlth.2006).

3 . 41 P.S. § 504.

4 .Although Michelle Portnoff testified that the administrative fees were remitted to the municipalities, the trial court clearly did not find her credible, and chose to reject her testimony.

It is well settled that the trial court, sitting as fact finder, is free to believe all, part, or none of the evidence presented, to make all of the credibility determinations, and to resolve any conflicts in the evidence. Thus, when acting as a fact finder, the trial court is free to reject even uncontradicted evidence that it finds lacking in credibility. As a result, when presented with conflicting evidence, the trial court does not abuse its discretion nor commit an error of law by choosing to accept one party's evidence over the other party’s evidence.

Boro Const., Inc. v. Ridley Sch. Dist., 992 A.2d 208, 218 n. 16 (Pa.Cmwlth.2010) (citations omitted).

5 . Act of May 16, 1923, P.L. 207, as amended, 53 P.S. § 7184.

6 . Act of May 21, 1943, P.L. 349, as amended, 72 P.S. § 5566b(a) (commonly known as the Tax Refund Law).

7 . Affirmed in part, Reversed in part (on other grounds) by Pentlong Corp. v. GLS Capital, Inc., 573 Pa. 34, 820 A.2d 1240 (2003).