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Mark W. Ambrose and Ronald A. v. Citizens National Bank of Evans

September 17, 2010

MARK W. AMBROSE AND RONALD A.
KRAMER,
APPELLEES
v.
CITIZENS NATIONAL BANK OF EVANS
CITY, PENNSYLVANIA,
APPELLANT



Appeal from the Order of April 17, 2009, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 04-021511.

The opinion of the court was delivered by: Bowes, J.

BEFORE: BENDER, BOWES, and COLVILLE*, JJ.

OPINION BY

Citizens National Bank of Evans City, Pennsylvania ("CNB") appeals the order dated April 17, 2009 and entered on April 20, 2009, wherein the trial court clarified its April 18, 2009 award of attorneys' fees totaling $201,704.79 to Mark W. Ambrose and Ronald A. Kramer, hereinafter collectively referred to as Appellees. We affirm. Appellees were formerly employed by CNB in affiliation with a registered securities broker, Commonwealth Equity Services, Inc. ("Commonwealth"). Appellees were not Commonwealth employees. Their compensation from CNB consisted of a combination of salary and bonuses based upon commissions. During February 2004, Appellees resigned from * Retired Senior Judge assigned to the Superior Court.

CNB to work for a competitor and contacted CNB customers to advise them of their departure.

This matter originally came before this Court on CNB's prior appeal in this action from the award of compensatory damages and attorneys' fees for Appellees pursuant to the Wage Payment and Collection Law ("WPCL"), 43 P.S. § 260.1 et seq. At that time, we summarized the pertinent facts and procedural history as follows: On September 8, 2004, Ambrose and Kramer filed a complaint alleging CNB had violated the WP[CL] and breached the terms of their employment contracts by failing to pay commissions which the two had earned while working [under the brokerage arrangement]. The complaint sought compensation for the commissions, interest, liquidated damages, and attorneys' fees. See 43 P.S. § 260.9a(f), Civil remedies and penalties; see also 43 P.S. § 260.10, Liquidated damages. On November 5, 2004, CNB field an answer denying it had ever agreed to commission payments as part of Ambrose and Kramer's compensation packages. The answer also raised counter claims alleging Ambrose and Kramer had engaged in unfair competition, breached their fiduciary duties, and engaged in a conspiracy when they informed customers they were leaving . . . for another firm.

On November 28, 2005, a non-jury trial was commenced, with the proceedings lasting eight days. After considering the evidence presented, the trial court issued [an order] finding in favor of Ambrose and Kramer and, conversely, finding CNB was not entitled to recovery on its counterclaims. [The trial court awarded wages, liquidated damages, and legal interest totaling $72,105.39.] The Opinion stated that the trial court would fix the amount of attorneys' fees to be awarded after considering affidavits from the parties. On June 9, 2006, the trial court reached a decision and awarded Ambrose and Kramer all of the counsel fees they had incurred in both prosecuting their own claims and in defending against CNB's counterclaims [($152,040.79)].

On June 21, 2006, CNB filed a post-trial motion seeking a new trial or judgment notwithstanding the verdict, and remittitur. The trial court denied CNB's motion on August 31, 2006. CNB filed a timely notice of appeal. Ambrose v. Citizens National Bank, 938 A.2d 1106 (Pa.Super. 2007) (unpublished memorandum at 3-5) (emphases in original) (citation to certified record omitted).

We affirmed the trial court's compensatory award pursuant to the WPCL; however, we found the amount of the award for attorneys' fees was "presumptively unreasonable." See Ambrose, supra (unpublished memorandum at 12). Noting "that Section 260.9a(f) does not give an indication as to how a trial court should determine whether an attorney's charges are 'reasonable,'" we remanded the matter for the trial court to fashion an award of attorneys' fees pursuant to the factors outlined in 41 P.S. 503,1 which governs counsel fees recoverable by aggrieved 1 Section 503 provides, in pertinent part as follows: In determining the amount of the fee, the court may consider: (1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case[;] (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 debtors. Id. at 11, 13-15. In remanding the matter "for a careful analysis of what constitutes 'reasonable attorneys' fees[,]" the prior panel of this Court made the factual finding that CNB had pursued its counterclaims in good faith. Id. at 11, 14. Significantly, however, the nature of CNB's conduct was not an issue before this Court on appeal, and it was not necessary to our decision.2 Accordingly, the parties never briefed that issue or submitted legal argument relating to it. We simply noted our "belie[f]" that the counterclaims were pursued in good faith. Id. at 11.

In addition, the panel was not persuaded by the trial court's explanation that the fees associated with prosecuting the WPCL claim were intertwined inextricably with the fees incurred in defending CNB's counterclaims. The panel reasoned, "[A]ppellees must carry the burden of proving what fees were incurred in prosecuting their WP[CL] claims, not CNB." Id. at 11.

On remand, the trial court reviewed the parties' affidavits regarding the requested attorneys' fees and entered the above-referenced order on April 20, 2009. The trial court issued a thorough opinion wherein it cogently explained its rationale. Specifically referencing our prior foray into fact-

services[; and] (4) The contingency or the certainty of the compensation. Thus, even to the extent the certified record might support our supposition, it is obiter dictum. finding, the trial court recounted the panel's dicta that CNB had acted in good faith in pursuing counterclaims against Appellees. The trial court indicated that had it been directed to address the nature of CNB's counterclaims during trial, which it had not, it would have pointed out that CNB's "entire defense and counterclaims were pled . . . solely to discourage [Appellees] from continuing with the valid claims and without any basis in fact." Trial Court Opinion, 8/10/09, at 4. The trial court noted that CNB "chose to fight a clearly meritorious wage claim without any evidence to back up its contention that it was justified in withholding [Appellees'] wages . . ." Id. The trial court further observed that CNB withdrew two of its three counterclaims prior to the non-jury trial and it failed to adduce any evidence in support of the damages element of the only remaining counterclaim. Id. Hence, the trial court reasoned that, notwithstanding our presumption to the contrary, the record revealed that CNB's counterclaims against Appellees were a sham advanced solely to intimidate Appellees into dropping their meritorious claims. Id. at 2, 5, 28. The trial court contended that, since the specious assertions leveled in the counterclaim were intertwined with CNB's defenses, Appellees were entitled to counsel fees for having to respond to both aspects of this action. Id. at 2-3.

The trial court followed our directive and weighed the applicable factors outlined in § 503. The trial court determined that § 503 supported the award of attorneys' fees totaling $201,704.79, including counsel fees associated with CNB's appeal, CNB's attempts to avoid execution of the judgment without posting a bond, and the proceedings on remand. Id. at 37-38.

This timely appeal followed the denial of CNB's motion for post-trial relief.3 CNB complied with the trial court's directive to file a concise statement of matters ...


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