Appeal from the Judgment entered March 16, 1988 in the Court of Common Pleas of Allegheny County, Civil Division, at No. AD85-1760. Appeal from the Judgment entered April 11, 1988 in the Court of Common Pleas of Allegheny County, Civil Division, at No. Ad85-1760.
Gary M. Davis, Pittsburgh, for appellant.
Bradley S. Gelder, Pittsburgh, for appellee.
Rowley, Del Sole and Montgomery, JJ. Montgomery, J., files a dissenting statement.
[ 383 Pa. Super. Page 436]
This is an appeal of a judgment*fn1 entered against Appellee, P & W Foreign Car Service, Inc., [P & W], ordering P &
[ 383 Pa. Super. Page 437]
W to pay counsel fees in the amount of one thousand dollars, and costs in the amount of one thousand, four hundred and forty-five dollars to Appellant.
Appellant claims that the trial court abused its discretion by failing to award counsel fees based on the time actually expended in pursuing Appellant's claims for damages arising from her purchase of a car from P & W with a broken odometer. Appellant filed the instant suit against P & W and a separate action against J.J. and Lawrence Gumberg, previous owners of the car. P & W then joined the Gumbergs as co-defendants, but prior to trial agreed to their dismissal. Subsequently, the two cases were consolidated for trial.
Appellant claimed at trial that P & W breached its express warranty, and its implied warranty of merchantability pursuant to the Magnuson-Moss Warranty Act [Act]. She also claimed P & W violated the Pennsylvania Unfair Trade Practices Act, and committed fraud. Nonsuits were granted in favor of P & W on all of the theories of recovery except implied warranty of merchantability under the Act. A non-suit was also granted dismissing all claims against the Gumbergs. No appeal was taken from the grant of the non-suit in the separate action against the Gumbergs.
The jury found in favor of Appellant at trial, and awarded three thousand dollars ($3,000) in damages. Plaintiff subsequently filed a Petition for Counsel Fees requesting compensation in the amount of $7,539.00 and costs in the amount of $1,445.74 pursuant to statutory authorization for counsel fees outlined in the Magnuson-Moss Act. The Court awarded Appellant's counsel one thousand dollars ($1,000) and full costs.*fn2 This appeal followed.
The Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(2) states:
If a consumer finally prevails in any action, [brought under this Act], he may be ...