United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM OPINION 
CYNTHIA REED EDDY UNITED STATES MAGISTRATE JUDGE
before the court is Plaintiff Darrell Harris' petition
for damages and fees. The petition has been fully briefed and
a hearing on the matter was held on January 20, 2017. For the
reasons that follow, Plaintiffs petition is granted in part
and denied in part.
the court writes primarily for the parties, only the
background necessary for the disposition of the fee petition
will be addressed here. The court previously granted summary
judgment in Plaintiffs favor for his breach of contract
claims for Vitran Express Inc.'s ("VEI's")
failure to pay severance and retention compensation and on
his Pennsylvania Wage Payment and Collection Law
("WPCL") claim pursuant to Federal Rule of Civil
Procedure 56(f), after giving the parties the opportunity to
brief the matter, and the matter having been so briefed, but
did not make a determination as to the amount of damages to
be awarded to Plaintiff under the Employment Agreement and
Retention Incentive Agreement. Consistent with that decision,
the court ordered the parties to brief the issue of
attorneys' fees and damages applicable under the WPCL
along with other costs and prejudgment interest. Each topic
will be discussed separately.
FINDINGS OF FACT
Harris' Termination of Employment and Relevant Employment
Agreement Provisions Regarding Damages
Plaintiff, Darrel Harris, was recruited by Defendant Vitran
Express, Inc, ("VEI") with six other senior
executives to lead a turnaround of VEI's troubled United
States truck-based freight operations.
Plaintiff began his employment with VEI on August 1, 2012 in
the capacity of Senior Vice-President of Sales and
January 23, 2013, Plaintiff and VEI entered into an Executive
Employment Agreement ("Employment Agreement").
Employment Agreement provided Plaintiff with an annual base
salary of $250, 000 which was to continue until Harris'
employment with VEI otherwise ended pursuant to the terms and
conditions set forth in the Employment Agreement.
Paragraph 3(b)(ii) of Plaintiff s Employment Agreement would
entitle Plaintiff to twelve (12) months' worth of
compensation ($250, 000) if his employment was termination
letter dates October 17, 2013 from Moroun to Plaintiff,
Moroun terminated Plaintiffs employment.
Memorandum Opinion dated November 2, 2016, the Court held
that VEI terminated Plaintiff on October 17, 2013
"without cause, " as that term is defined in the
June 25, 2013, VEI, Vitran Corporation Inc. and Plaintiff
entered into a Retention Incentive Agreement.
Retention Incentive Agreement provides that Plaintiff is
entitled to an amount of $62, 500 if he remained continuously
employed with VEI through December 31, 2013, and an amount of
$125, 000 if he remained continuously employed with VEI
through April 30, 2014.
The agreement provides in pertinent part that:
(c) . . . the Executive shall remain entitled to receive the
First Retention Payment and the Second Retention Payment if
the Executive ceases to be an active employee of the Company
or an affiliate of the Company at any time prior to the
Second Retention Date [(or April 30, 2014)]: (i) on account
of the Executive's termination by the Company or its
applicable affiliate without "cause for
termination" in which case payment of both the First
Retention Payment and the Second Retention Payment, if and to
the extent not then paid, shall be made by the Company or,
failing payment by the Company, by Parent to the Executive
within five (5) business days after the date of the
Executive's termination by the Company or its applicable
Retention Incentive Agreement § l(c)(i) [ECF No. 75-1].
Employment Agreement provides for two separate severance
amounts: (1) if Plaintiff was terminated "without cause,
" he is "entitled to a lump sum amount equivalent
to twelve (12) months' compensation[;]" and (2) if
Plaintiff was terminated "without cause" within 365
days following a "change of control" of VEI,
Plaintiff is entitled to "a lump sum amount equivalent
to eighteen (18) months' compensation." Employment
Agreement [ECF No. 71-5] at § 3(b)(iii), (b)(iv).
While there are different definitions of "change in
control" under the agreement, Plaintiff relies on
Section 3(c)(B)(ii) in arguing he is entitled to eighteen
months' severance compensation:
(B) as a result of a takeover bid, merger, consolidation or
other business combination, or sale of assets of the Parent,
that in each case is supported by a majority of the directors
of the Parent, . . . (ii) the persons who were the directors
of the Parent immediately before the transaction, cease to
constitute a majority of the board of directors of the Parent
either directly, or indirectly, as a result of the applicable
Id. at § 3(c)(B)(ii).
Section 2(a) of the Employment Agreement defines
"Parent" as Vitran Corporation, Inc., a Canadian
October 7, 2013, and pursuant to the Stock Sale and Purchase
Agreement, Data Processing, LLC purchased the stock of Vitran
Corporation - a Nevada corporation - from Parent VEI.
Moroun is the sole owner/member of Data Processing, LLC.
The Butler County Action
Prior to Plaintiff filing the present federal action, VEI
filed an Action for Declaratory Relief in the Court of Common
Pleas of Butler County on November ...