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JAMES D. MALESH AND STEVE S. HAWRYLIAK v. JOSEPH P. CHECHAK AND ISABELLA M. CHECHAK (05/17/85)

filed: May 17, 1985.

JAMES D. MALESH AND STEVE S. HAWRYLIAK
v.
JOSEPH P. CHECHAK AND ISABELLA M. CHECHAK, HIS WIFE, APPELLANTS



Appeal from the Orders of October 26, 1982 and November 15, 1982, in the Court of Common Pleas of Butler County at No. 78-222.

COUNSEL

Darrell L. Kadunce, Butler, for appellants.

Silvio P. Cerchie, Butler, for appellees.

Brosky, Watkins and Hester, JJ.

Author: Watkins

[ 342 Pa. Super. Page 449]

This case comes to us from separate orders entered by the Butler County Court of Common Pleas. On October 26, 1982, the lower court entered an order denying appellants' motions for new trial, judgment n.o.v., and arrest of judgment. On November 15, 1982, the court below entered an order awarding counsel fees to counsel for plaintiffs (appellees). Separate appeals were filed to this Court, but have been consolidated for appeal purposes.

On or about the middle of November, 1977, the appellants and appellees entered into an oral agreement whereby the appellees would provide the labor for certain cement and concrete work requested by the appellants in a cattle barn located on appellants' property. This oral agreement was subsequently reduced to writing on or about November 19, 1977. On or about December 22, 1977, the appellants dismissed appellees and directed them not to return to his premises or to perform any further work under the terms of the November 19, 1977 agreement. Appellants had advanced the sum of Three Hundred ($300.00) Dollars to appellee at the start of work. The completed contract price was One Thousand, Three Hundred ($1300.00) Dollars.

Appellees filed suit in the Court of Common Pleas of Butler County for the sum of $910.00 representing the amount allegedly owed to them for work performed. Appellants filed a counterclaim alleging improper workmanship and necessary repairs to the work performed.

The case was heard by a panel of arbitrators in Butler County and an award of $910.00 was made in favor of the appellees. Appellants subsequently filed an appeal requesting a jury trial which was held on September 28 and 29, 1982. The jury verdict was in favor of the appellees for the sum of $910.00.

[ 342 Pa. Super. Page 450]

Upon discharge of the jury on September 29, 1982, the lower court, on its own motion, advised appellants that a further hearing was to be held on the awarding of counsel fees pursuant to 42 Pa.C.S.A. 2503(9). Shortly after the verdict, the appellants obtained new counsel who filed motions for new trial, judgment n.o.v. and in arrest of judgment which were subsequently denied by the court on October 26, 1982.

On November 15, 1982 following a hearing scheduled by the court, an order was entered awarding counsel fees in the amount of Four Hundred ($400.00) Dollars to counsel for the appellees.

On appeal, the appellants first contend that the trial court erred in its determination that counsel fees should be assessed against the appellants for vexatious or bad faith conduct during the course of litigation below solely on the basis that an appeal from compulsory arbitration was affirmed by a jury at a subsequent de novo trial.

Following dismissal of the jury in the case below, the court, on its own motion, addressed appellant Joseph Chechak and read to him Section 2503 of the Judicial Code which provides: "Participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter. Subsection 9. Any participant who is awarded counsel fees because the conduct of another party in commencing the matter, or otherwise, was arbitrary, vexatious, or in bad faith;" The court then continued stating that "inasmuch as the verdict of the jury is identical with the arbitration award, and that you (referring to appellants) had an opportunity to settle this for Five Hundred Dollars, I find your conduct in this case was arbitrary and vexatious."

Subsequently, a hearing was held on November 15, 1982. No motion, either oral or written, had been presented by appellees' counsel requesting the granting of counsel fees pursuant to 42 Pa.C.S.A. 2503(9).

The court below concluded in its order as follows: "Its been my practice . . . and this is ...


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