The Arches Condominium Association v. L. Robinson ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Arches Condominium :
Association :
:
v. : No. 361 C.D. 2015
:
Lawrence Robinson, : Argued: October 5, 2015
:
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: December 29, 2015
Lawrence Robinson appeals from the May 15, 2014 Order of the Court of
Common Pleas of Philadelphia County (trial court) that found in favor of The
Arches Condominium Association (Association) and awarded the Association
$27,355.68, $26,206.68 of which was for attorney’s fees related to the
Association’s action to collect unpaid condominium (condo) fees and assessments.
Robinson challenges the award of attorney’s fees. Also before this Court is the
Association’s Motion to Strike Brief and Quash Appeal (Motion to Quash), which
asserts that Robinson waived all of his issues for appellate consideration by not
filing a timely Motion for Post-Trial Relief (post-trial motion) as required by
Pennsylvania Rule of Civil Procedure No. 227.1(c) but filed, instead, a Motion for
Reconsideration (Reconsideration Motion) from the trial court’s May 15, 2014
Order. For the following reasons, we deny the Motion to Quash and affirm the
trial court’s award of attorney’s fees to the Association.
I. Background
Robinson owns a condo in The Arches. The Association is the entity
responsible for maintaining The Arches and enforcing the Uniform Condominium
Act1 (Act) and The Arches’ By-Laws and Declaration. The Association, through
its management company, charges condo owners monthly condo fees, as well as
occasional special assessments. In February 2011, the Association sent Robinson a
demand letter seeking payment of $939.83 in assessments, late fees, and collection
costs. This letter also advised Robinson that, if he did not pay and the matter was
litigated, he would be responsible for the Association’s attorney’s fees. Robinson
did not pay the outstanding fees.
In 2011, the Association filed a civil complaint in the Philadelphia
Municipal Court (municipal court) seeking $3,942.44. It obtained a judgment
against Robinson on January 31, 2012 from the municipal court in the amount of
$1,539.36, which included outstanding assessments, late fees, and attorney’s fees.
Robinson appealed that judgment and filed a praecipe for the Association to file a
complaint or risk Judgment Non Pros. In response, the Association filed a civil
complaint (Complaint) in the trial court asserting that Robinson had unpaid condo
fees and assessments, late fees, and attorney’s fees in the amount of $12,380.66,
which included the original $3,942.44. A three year long legal battle ensued in
which the Association ultimately asserted that Robinson owed it $215,357 in
1
68 Pa. C.S. §§ 3101-3414.
2
unpaid condo fees, special assessments, and late fees from 2008 through 2014.2 In
addition to the proceedings described above, during this three year period: the
Association obtained two default judgments against Robinson due to his failure to
timely answer the Complaint, which were ultimately opened; an arbitration panel
found in the Association’s favor, but awarded it only $2,477.00, which the
Association appealed to the trial court; the Association sought summary judgment
but was denied; and the matter went to trial on May 13, 2014. By the time the trial
ended, the Association’s attorney’s fees had reached $26,206.68.
The trial court held a non-jury trial, during which the Association presented
documentary evidence and the testimony of the president of its management
company, Kevin McGrath, who described the outstanding fees and his belief,
based on his thirty-five years as a property manager, that the attorney’s fees
incurred to collect those fees were reasonable. In defense, Robinson offered his
own testimony and documentary evidence. During the trial, the parties partially
agreed to some of the outstanding fees. Following the trial, the trial court entered
the May 15, 2014 Order, which stated that the: “Court enters judgment in favor
[of] Plaintiff and against Defendant in the amount of $27,355.68. The Court
calculated the amount of judgment as follows: $239 assessment shortfall, $500
snow removal assessment, $300 capital investment assessment, $104 late fee and
$26,206.68 attorney’s fees.” (Trial Ct. Order.)
2
The unpaid fees were the result of Robinson underpaying his monthly condo fee by
amounts ranging from five dollars to nineteen dollars per month between those years. The
Association averred that Robinson also did not pay a special garage assessment of $625, a capital
assessment of $300, and a snow assessment of $500. Additionally, the Association sought the
payment of late fees and interest on the outstanding amounts, as well as attorney’s fees, pursuant
to the Act and The Arches’ By-Laws and Declaration.
3
On May 28, 2014, Robinson filed the Reconsideration Motion asking the
trial court to reconsider awarding the Association the full $26,206.68 in attorney’s
fees, to which the Association responded. While the Reconsideration Motion was
outstanding, Robinson filed this appeal on June 16, 2014.3 The trial court denied
the Reconsideration Motion on June 19, 2014. On July 8, 2014, the trial court
directed Robinson to file a Concise Statement of Errors Complained of on Appeal
(Statement) pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Robinson’s Statement claimed that the trial court abused its discretion and erred in
awarding the full amount of the Association’s attorney’s fees because: the
Association did not prove that those fees were reasonable; the trial court awarded
only a small amount of the damages sought; and a substantial portion of those fees
were incurred pursuing invalid charges.
In its 1925(a) opinion supporting its Order, the trial court explained that it
acted well within its discretion by awarding attorney’s fees because both the Act
and The Arches’ Declaration expressly gave the Association the right to collect
reasonable attorney’s fees and Mr. McGrath’s credited testimony established that
both the rate charged and the time spent were reasonable and competitive for this
type of work. Citing Mountain View Condominium Association v. Bomersbach,
734 A.2d 468 (Pa. Cmwlth. 1999), the trial court rejected Robinson’s argument
that the fees were disproportionate, concluding that the full amount of attorney’s
fees were warranted because the litigation had lasted for at least three years,
Robinson received numerous notices about the delinquencies and did nothing
3
The appeal was filed in the Superior Court, which transferred the matter to this Court on
February 6, 2015.
4
about them, and there were numerous delays as a result of Robinson’s failure to
timely respond to the Complaint. Finally, the trial court concluded that Robinson
had waived all of his issues on appeal by not timely filing a post-trial motion
pursuant to Rule 227.1(c) and, instead, filing the Reconsideration Motion. The
trial court noted that while this Court, in Linder v. City of Chester, 78 A.3d 694,
698 (Pa. Cmwlth. 2013) (single judge op.), held that a motion for reconsideration
can function as a post-trial motion for the purposes of preserving issues for
appellate review, the Supreme Court had not yet adopted that position, but has
stated that “a motion for reconsideration is not a post-trial motion,” Moore v.
Moore, 634 A.2d 163, 167 (Pa. 1993). The trial court further noted that the
Reconsideration Motion was not filed within ten days of the May 15, 2014 Order.
Robinson’s appeal is now ready for this Court’s review. However, before
we consider the merits of Robinson’s appeal, we must first address the
Association’s Motion to Quash.
II. Motion to Quash
On July 6, 2015, the Association filed the Motion to Quash requesting that
this Court strike Robinson’s brief and quash his appeal because he did not timely
file the post-trial motion required by Rule 227.1(c) and, therefore, did not preserve
any issues for appellate consideration. Robinson responded that he had preserved
his issues for appellate review because the Reconsideration Motion was timely and
functioned as a post-trial motion. Rule 227.1(c) requires, in relevant part, that a
party that wishes to appeal shall file post-trial motions within ten days after a
5
verdict “or the filing of the decision in the case of a trial without jury.”4 Pa. R.C.P.
No. 227.1(c).
4
The fact that the trial court’s Order uses the term “judgment” is not dispositive. Our
Supreme Court and the Superior Court have held that where a trial court issues a decision or
verdict following a trial, at which evidence was presented, thereby requiring the trial court to
make findings of fact and conclusions of law based on that evidence, post-trial motions are
required to be filed in order to preserve issues for appellate review. Motorists Mutual Insurance
Company v. Pinkerton, 830 A.2d 958, 962-63 (Pa. 2003); Chalkey v. Roush, 805 A.2d 491, 495-
96 (Pa. 2002); Baughman v. State Farm Mutual Automobile Insurance Company, 656 A.2d 931,
932-33 (Pa. Super. 1995). See also Newman Development Group of Pottstown, LLC v.
Genuardi’s Family Markets, 52 A.3d 1233, 1248-49, 1251 (Pa. 2012) (holding that issues are not
waived for failing to file post-trial motions from a remand proceeding where no evidence was
presented because no post-trial motions were required under those circumstances). This is so
even if a trial court’s order erroneously indicates that it is a judgment, rather than a verdict.
Shonberger v. Oswell, 530 A.2d 112, 113 n.1 (Pa. Super. 1987). Here, the trial court held a non-
jury trial at which the Association and Robinson presented evidence from which the trial court
had to make findings of fact and conclusions of law regarding Robinson’s liability to the
Association. Accordingly, the trial court’s Order was a verdict or decision from which post-trial
motions were required to be filed.
We will address the merits of the appeal, although it does not appear from the docket that
the trial court has entered a final order in this matter as required by Pennsylvania Rule of
Appellate Procedure 301(a). “It is the order of the trial court disposing of a motion for post-trial
relief that has been reduced to judgment which comprises the final order in the case from which
an appeal must be filed within thirty days.” McCormick v. Northeastern Bank of Pennsylvania,
561 A.2d 328, 330 (Pa. 1989). Technically, the June 19, 2014 order did not enter judgment, but
merely denied reconsideration and, therefore, it appears that the appeal on the merits could be
quashed for lack of an entry of judgment. However, our Courts have held, in a case where “the
decision of the trial court dismissing appellants’ motion for post-trial relief was not reduced to
judgment by praecipe of either party as required by [Pa. R.A.P. 301]” that, “in the interests of
judicial economy, we shall ‘regard as done that which ought to have been done.’” McCormick,
561 A.2d at 330 n.1 (quoting Commonwealth v. Allen, 420 A.2d 653, 654 n.3 (Pa. Super.
1980)); Southeastern Pennsylvania Transportation Authority v. Hussey, 588 A.2d 110, 110 n.1
(Pa. Cmwlth. 1991). This is particularly so where, as here, the procedural irregularities “have
not significantly hampered our ability to review the issues raised.” Gemini Equipment Company
v. Pennsy Supply, Inc., 595 A.2d 1211, 1213 n.2 (Pa. Super. 1991).
6
Robinson argues that case law establishes that a motion for reconsideration
can function as a post-trial motion for the purposes of preserving issues for
appellate review and that the Rules of Civil Procedure should not be “construe[d] .
. . so narrowly as to allow a minor procedural error to affect the substantive rights
of the litigants.” Gemini Equipment Company v. Pennsy Supply, Inc., 595 A.2d
1211, 1214 (Pa. Super. 1991); see also Linder, 78 A.3d at 696-97. Robinson
asserts that the trial court’s reliance on Moore is misplaced because that case
involved the Superior Court erroneously treating a mother’s motion for
reconsideration, which is permitted in custody matters, as a post-trial motion,
which is not permitted in custody matters. According to Robinson, his
Reconsideration Motion requested relief that were proper bases for a post-trial
motion under Rule 227.1(a)(4) - the modification of or change to the trial court’s
award of attorney’s fees. Pa. R.C.P. No. 227.1(a)(4).
Robinson further asserts that his Reconsideration Motion should be treated
as timely because the Rules of Civil Procedure should be liberally construed and
the Reconsideration Motion was filed “well within the period to give the trial court
sufficient time to reconsider and/or modify its order.” (Robinson’s Br. at 33.)
Robinson contends that even when post-trial motions are filed beyond the ten-day
period, if the trial court chooses to address them and the opposing party does not
set forth objections alleging specific facts demonstrating prejudice, an appellate
court should not review the trial court’s decision to address the “untimely” post-
trial motions. Millard v. Nagle, 587 A.2d 10, 11-12 (Pa. Super. 1991). Here,
Robinson points out, the Association has not alleged that it would be prejudiced
and, therefore, we should decline to quash his appeal due merely to a technical
violation of the rules.
7
The Association responds that the Reconsideration Motion, filed more than
ten days after the May 15, 2014 Order, was not a timely post-trial motion and,
therefore, Robinson’s issues are not preserved for appellate review. According to
the Association, Linder and Gemini Equipment do not support the conclusion that
the Reconsideration Motion here should be treated as a timely post-trial motion
because, in those cases, the motions were timely filed within the ten-day period set
forth in Rule 227.1(c).
In Linder this Court held, in a reported single-judge opinion, that a motion
for reconsideration can fulfill the issue-preservation function of a post-trial motion.
Linder, 78 A.3d at 695, 698.5 Linder reviewed persuasive authority from the
Superior Court holding “that courts should be flexible in considering whether
filings may be construed as motions for post-trial relief, although not styled as
such.” Id. at 696 (citing De Lage Landen Financial Services, Inc. v. Rozentsvit,
939 A.2d 915, 922-23 (Pa. Super. 2007); Mackall v. Fleegle, 801 A.2d 577, 580
n.1 (Pa. Super. 2002); Gemini Equipment, 595 A.2d at 1213). Specifically, Linder
noted that, in Gemini Equipment, the Superior Court held, pursuant to Rule
227.1(a)(4), that “‘a post-trial motion may ask the court to affirm, modify or
change its decision’” and because “the motion for reconsideration served this
function . . . [it] preserve[d] Gemini Equipment’s issues.” Linder, 78 A.3d at 696(quoting Gemini Equipment, 595 A.2d at 1214). Linder further distinguished
Moore in the manner Robinson does in this appeal – that the Superior Court erred
in treating a permissible motion for reconsideration as an impermissible post-trial
5
Pursuant to this Court’s internal operating procedures, “a single-judge opinion . . ., even
if reported, shall be cited only for its persuasive value and not as a binding precedent” except in
election law matters. 210 Pa. Code § 69.414(b), (d).
8
motion in a custody case. Id. at 697. We find Linder and the Superior Court’s
analysis on this issue persuasive and conclude that the Reconsideration Motion
functioned as a post-trial motion because, as in Gemini Equipment, it requested
relief in accordance with Rule 227.1(a)(4).
However, this does not end our analysis because, unlike in the above cases
where the motions were filed within the ten (10) day period set forth in Rule
227.1(c), the Reconsideration Motion here was filed thirteen (13) days after the
May 15, 2014 Order and, thus, was not timely. Robinson essentially argues that
the timing of his filing is not determinative because trial courts may consider an
untimely post-trial motion, so long as it still has jurisdiction, absent an objection
from the opposing party that sets forth how it will be prejudiced, and there was no
objection here. Millard, 587 A.2d at 11-12.
Robinson is correct that a trial court “has discretion to consider untimely
motions for [post-trial] relief because the ten-day time period is not a jurisdictional
requirement but merely a procedural rule, thereby permitting the court to disregard
any defect or error of procedure that does not affect the parties’ substantial rights.”
King v. Riverwatch Condominium Owners Association, 27 A.3d 276, 278 (Pa.
Cmwlth. 2011). In situations “where a party files untimely post-trial motions and
the opposing party objects, the trial court must consider the nature of the derelict
party’s default as well as the resulting prejudice to the objecting party.” Id. (citing
Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 166 (Pa. Super. 1997)). “[A] trial
court may elect to overlook the procedural default if no objection is made,” but
“[i]f objections are lodged, . . . the trial court may still, in its discretion, elect to
entertain the motion or dismiss the motion, but must first consider whether the
9
objecting party would be prejudiced by the court’s ruling.” Carlos R. Leffler, Inc.,
696 A.2d at 166. For example, a post-trial motion filed one day late did not “upset
effective court procedure or prejudice[] the adverse parties” and, therefore, the trial
court should have considered the merits of the post-trial motion. Id. at 166-67.
Thus, where post-trial motions are untimely, a trial court need not address the
merits and, if it does not, all issues are waived on appeal. Kennel v. Thomas, 804
A.2d 667, 668 (Pa. Super. 2002). However, if the trial court, acting in its
discretion, accepts the untimely post-trial motions and rules on the merits thereof,
the appellate court should treat the issues as having been properly preserved for
appellate review. Behar v. Frazier, 724 A.2d 943, 945-46 (Pa. Super. 1999).
Here, the Association did not object to the Reconsideration Motion as being
either the wrong motion or untimely, and did not allege prejudice, but instead
responded to its merits. Although the trial court issued the order denying the
Reconsideration Motion on June 19, 2014, three days after Robinson filed his
appeal, the trial court did not express a reason for the denial. The trial court
subsequently directed Robinson to file the Statement. Then, in its 1925(a) opinion,
the trial court specifically addressed the merits of the issues raised in the
Statement,6 which were generally included in the Reconsideration Motion, while
also concluding that all of the issues were waived because Robinson had not filed
timely post-trial motions to the May 15, 2014 Order. It is not clear from its
6
We acknowledge that the waiver resulting from the failure to file post-trial motions is
not remedied by listing the issue in a statement of errors complained of on appeal because, when
the trial court addresses the issues in the statement, it no longer has jurisdiction to change its
rulings. The Ridings at Whitpain Homeowners Association v. Schiller, 811 A.2d 1111, 1114 n.4
(Pa. Cmwlth. 2002); Diener Brick Company v. Mastro Masonry Contractor, 885 A.2d 1034,
1039 (Pa. Super. 2005).
10
1925(a) opinion whether the trial court considered the Reconsideration Motion a
post-trial motion. Finally, we observe that the purpose of filing post-trial motions
is to allow the trial court the opportunity, while it still has jurisdiction, to correct
the errors asserted therein without expending the time and judicial energy in filing
an appeal to the appellate courts. Diamond Reo Truck Company v. Mid-Pacific
Industries, Inc., 806 A.2d 423, 430 (Pa. Super. 2002). The trial court concluded, in
its 1925(a) opinion, that it did not abuse its discretion or make any errors that
needed to be corrected. Given these factors we conclude that, under these
circumstances, the Reconsideration Motion filed here can be considered a proper
post-trial motion that preserved Robinson’s issues for appellate review. Behar, 724
A.2d at 945-46. Accordingly, we deny the Motion to Quash and now consider the
merits of Robinson’s appeal.
III. Trial Court’s Award of Attorney’s Fees
Robinson argues that the trial court abused its discretion in awarding
attorney’s fees in this matter because the Association did not meet its burden,
through the presentation of expert testimony, of proving the reasonableness of
those fees. Robinson asserts that Mr. McGrath’s testimony is not sufficient
because he is not an attorney with knowledge or experience of court proceedings or
the time and expense involved in such proceedings. Robinson alternatively argues
that the trial court should not have awarded the full amount of attorney’s fees
because: it awarded the Association only a fraction of the amount requested; the
Association, not Robinson, drew out the litigation; and the Association violated
Section 3314(b) of the Act, 68 Pa. C.S. § 3314(b), by charging interest, in the form
of a late fee, at a rate exceeding the amount permitted, which inflated the amount
the Association sought from Robinson. Awarding attorney’s fees under these
11
circumstances, Robinson asserts, produces a windfall for the attorney and
encourages condo associations to seek inflated charges against its members.
The Association counters that the trial court’s award of the full amount of
attorney’s fees was warranted because recovery of the fees are expressly permitted
by the Act and The Arches’ Declaration, it took three years of litigation to get
Robinson to pay any outstanding condo fees and assessments, and the fees
requested are fair and reasonable. The Association contends that, pursuant to
Mountain View, 734 A.2d at 471, it is not required to accept less than the full sum
to which it is entitled and the fact that the fees may be disproportionate to the
amount actually awarded does not mean the trial court abused its discretion. As to
the amount awarded, the Association asserts that this is a matter for the trial court’s
discretion and it was not required to present expert testimony regarding the
reasonableness of the fees requested. Here, according to the Association, the trial
court reviewed the evidence, including the history of the litigation, Mr. McGrath’s
testimony that, in his decades of experience the rate charged was reasonable and
competitive for the work involved and the majority of the fees had been paid, and
concluded that the attorney’s fees were fair and reasonable.
“When reviewing the decision of a trial court in a non-jury trial, we must
determine whether the findings of the trial court are supported by competent
evidence and whether the trial court committed an error of law.” The Ridings at
Whitpain Homeowners Association v. Schiller, 811 A.2d 1111, 1113 n.2 (Pa.
Cmwlth. 2002). However, “‘[a]ppellate review of a trial court’s order awarding
attorney’s fees to a litigant is limited solely to determining whether the trial court
12
palpably abused its discretion in making a fee award.’” Id. at 1116 (quoting
Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996)) (emphasis added).
Section 3302(a)(4) permits condo associations to “[i]nstitute, defend or
intervene in litigation . . . in its own name on behalf of itself . . . on matters
affecting the condominium” and Section 3315(a) gives the Association the
authority to recover “reasonable costs and expenses of the association, including
legal fees, incurred in connection with collection of any sums due the association
by the unit owner.” 68 Pa. C.S. §§ 3302(a)(4), 3315(a). Section 3315(f) states that
“[a] judgment or decree in any action or suit brought under this section shall
include costs and reasonable attorney’s fees for the prevailing party.” 68 Pa. C.S.
§ 3315(f) (emphasis added). Similarly, The Arches’ Declaration authorizes the
Association to collect “all expenses of the Executive Board, including reasonable
attorneys’ fees, incurred in the collection of the delinquent assessment by legal
proceedings or otherwise.” (Declaration, Article XIV, Section 14.6.)
In reviewing the reasonableness of attorney’s fees, our Supreme Court has
explained that the amount of attorney’s fees is
peculiarly within the discretion of the court of first instance. Its
opportunities of judging the exact amount of labor, skill and
responsibility involved, as well as its knowledge of the rate of
professional compensation usual at the time and place, are
necessarily greater than ours, and its judgment should not be
interfered with except for plain error. . . . [T]he allowance or
disallowance of counsel fees rests generally in the judgment of the
court of first instance and its decision will not be interfered with
except for palpable error.
13
In re LaRocca’s Trust Estate, 246 A.2d 337, 340 (Pa. 1968) (internal quotation
marks and citations omitted) (emphasis added). The Supreme Court further
instructed that, in determining whether attorney’s fees are reasonable, a trial court
must consider numerous factors, including:
the amount of work performed; the character of the services rendered;
the difficulty of the problems involved; the importance of the
litigation; the amount of money or value of the property in question;
the degree of responsibility incurred; whether the fund involved was
‘created’ by the attorney; the professional skill and standing of the
attorney in his profession; the results he was able to obtain; the ability
of the client to pay a reasonable fee for the services rendered; and,
very importantly, the amount of money or the value of property in
question.
Id. at 339.
This Court has addressed a trial court’s award of attorney’s fees in condo fee
disputes where the fee was disproportionate to the amount awarded or the condo
association did not prevail on all of its issues, focusing on the level of discretion a
trial court exercises in such matters. In Mountain View, a condo association
brought an action for damages in the amount of $1,200 in past due assessments.
Mountain View, 734 A.2d at 469. Because of the nature of the ten year long
litigation, which was described as “trench warfare,” we held that the trial court did
not abuse its discretion in awarding the condo association $46,548.64 in attorney’s
fees pursuant to Section 3315. Id. at 471. The trial court credited the testimony of
the condo association’s witness that the rates and time expended for the work
product were fair and reasonable, held that the condo association had reasonably
incurred the attorney’s fees, and directed the owner to pay the fees with interest
and costs. Id. at 469-70. In affirming, we observed, as the trial court did, that the
14
nature of the litigation warranted the full award, that Section 3315 and the condo’s
declaration were “crystal clear and unequivocally established” the condo
association’s right to collect attorney’s fees, and the condo association was not
“bound to accept something less than the full sum to which it was entitled.” Id. at
471. We further held that the expenditure of $46,548.64 in attorney’s fees was not
unreasonable to recover $1,200 in outstanding condo association fees because of
the nature of the litigation.7 Id.However, we have also held that a trial court does not abuse its discretion in
awarding a homeowners’ association only a portion of its fees where the
association did not prevail on all of its claims and where the trial court conducted a
thorough review of the record, which included a detailed worksheet on litigation
expenses. The Ridings at Whitpain, 811 A.2d at 1116; accord Township of South
Whitehall v. Karoly, 891 A.2d 780, 785 (Pa. Cmwlth. 2006) (holding that The
Ridings at Whitpain does “not require a reduction in an attorney fee award for an
unsuccessful complaint, but simply concluded that a trial court was justified in
reducing the award if the record supported such a decision”). By contrast, we
concluded that a trial court abused its discretion in awarding a $10,000 attorney fee
by “arbitrarily choosing a figure unrelated to the actual expenses involved” rather
than the actual amount incurred by a condo association to enforce the condo’s
7
The dissent, in Mountain View, would have adopted a rationale from federal case law
requiring that there had to “be some rational relationship between the amount of loss suffered
and attorney fees incurred in attempting to recover the loss” and a consideration of “the extent of
a party’s success.” Mountain View, 734 A.2d at 472 (Smith, J., dissenting) (citing Hensley v.
Eckerhart, 461 U.S. 424, 434-35 (1983); Hilferty v. Chevrolet Motor Division of the General
Motors Corporation, No. CIV. A. 95-5324, 1996 WL 287276 (E.D. Pa. 1996)).
15
declaration. Centennial Station Condominium Association v. Schaefer Company
Builders, Inc., 800 A.2d 379, 386 (Pa. Cmwlth. 2002).
This precedent indicates that, as long as the trial court reviews the record
and considers factors such as the nature and length of the litigation, the
responsibilities of the parties in affecting the nature and length of the litigation, and
the competitiveness of the rate and time expended, it is difficult for an appellate
court to hold that a trial court abused its discretion in issuing a particular award of
attorney’s fees. Here, the trial court reviewed the record and considered these
factors to conclude that the amount of attorney’s fees claimed in this matter was
fair and reasonable.
Although Robinson asserts that the Association could only establish the
reasonableness of the requested attorney’s fees through another attorney’s expert
testimony, he cites no authority to support this position.8 Moreover, while Mr.
McGrath is not an attorney, he testified that, in his thirty-five years of experience
in property management, he had worked with other law firms in the Philadelphia
region who handled this type of collection work and the rate charged and the time
expended in the three years of attempting to collect the delinquent condo fees,
assessments, and late charges were reasonable and competitive. (Hr’g Tr. at 45-47,
R.R. at 37a-38a.) Mr. McGrath further testified about the Association’s attempts
to collect delinquent assessments and fees from Robinson since 2011 and the
8
Robinson cites Wrenfield Homeowners Association, Inc. v. DeYoung, 600 A.2d 960,
964 (Pa. Super. 1991), for the standard for reviewing reasonable attorney’s fees and notes that, in
that case, the homeowners’ association presented expert testimony. However, there is no
indication in Wrenfield that expert testimony of an attorney is the only way to establish the
reasonableness of attorney’s fees.
16
litigation that ensued. (Hr’g Tr. at 48-49, R.R. at 39a.) The Association also
presented evidence describing the time its counsel and others spent on this matter,
which indicated that between February 3, 2011 and May 12, 2014 counsel’s firm
charged $125 per hour for its legal staff and $175 per hour for its attorneys, for a
total of $26,206.68 in billable fees and $6,372.76 in unbillable fees. (Hr’g Tr. at
43-46, R.R. at 36a-38a.) The trial court reviewed this evidence and, using its
particular “knowledge of the rate of professional compensation usual at the time
and place,” In re LaRocca’s Trust Estate, 246 A.2d at 340 (citation omitted),
concluded that the fees were reasonable and fair. This litigation may not have been
as lengthy and contentious as that in Mountain View and may have not been
“trench warfare,” but the trial court accurately described it as a “litigious and
tortuous battle.” (Trial Ct. Op. at 2.)
The trial court cited the delays in this matter and Robinson’s repeated
opportunities to remedy the delinquencies before and during the litigation as
reasons why its award of attorney’s fees was warranted. (Trial Ct. Op. at 5-6.)
However, Robinson asserts that it was the Association, not him, that caused the
lengthy litigation in this matter and the Association should not be rewarded for its
tactics. Robinson does not dispute that he did not pay his full monthly condo fees
or the special assessments, which were the basis of the initial February 2011
demand letter from the Association. He asserts that he challenged the
Association’s actions in order not to have to make payment of what he considered
“overinflated” fees.
However, the February 2011 demand letter requested just $939.83, inclusive
of late fees and attorney’s fees, to resolve the delinquency. Robinson did not pay
17
those fees, which required the Association to file the civil complaint with the
municipal court at additional legal cost to the Association. After the municipal
court directed Robinson to pay $1,539.36, Robinson appealed and, in filing the
praecipe to file a complaint, demanded the Association file the Complaint or risk
entry of Judgment Non Pros. The Association did so, now requesting $12,380.66
in delinquent fees and litigation costs.
In filing the Complaint in response to Robinson’s appeal and demand for a
complaint, the Association incurred additional legal fees that were compounded by
Robinson’s failure to timely respond to the Complaint and the entry and opening of
multiple default judgments.9 Although Robinson complains that the default
judgments were because the Complaint and various documents were served at the
wrong address, the docket and record indicates that the Association used the
address that Robinson gave as his address in his appeal from the municipal court
judgment.
The matter proceeded to arbitration in July 2013, and the arbitrators awarded
the Association $2,477.00, including attorney’s fees, an amount far less than the
$12,380.66 the Association believed it was entitled to under the Act and its
governing documents. The Association, which does not have to compromise “its
rights under [its] Declaration and . . . decisional law,” Mountain View, 734 A.2d at
471 (internal quotation marks omitted), appealed that decision. Seeking to end the
9
When the first default judgment was opened, the trial court directed Robinson to file a
response within twenty days of its August 31, 2012 order, which he did not do, and default
judgment was again entered. This resulted in a second petition to open judgment, filed three
months later, that was subject to oral argument before the judgment was opened.
18
litigation in December 2013, the Association filed a motion for summary judgment
on the last day permitted by the trial court’s case management order before the
parties were directed to schedule pre-trial conferences, but that motion was
denied.10 The matter then proceeded to a bench trial in May 2014, which resulted
in the Order presently before the Court.
Reviewing these circumstances, particularly Robinson’s actions in requiring
the Association to file the civil complaints in both the municipal court and trial
court in an effort to obtain any payment from Robinson, with the level of deference
to the trial court required by In re LaRocca’s Trust Estate, 246 A.2d at 340, we
conclude that there was no palpable error in the trial court’s finding that the
Association was entitled to its full legal fees in this matter. That the Association
appealed the arbitrators’ award that it believed was unfavorable under the Act, The
Arches’ Declaration, and case law does not place responsibility on the Association
for the lengthy litigation in this matter.
Robinson further emphasizes that the trial court awarded only a small
amount of the outstanding fees and assessments requested to support that the trial
court abused its discretion in awarding the full amount of attorney’s fees. The
value of the judgment is a factor that should be considered in determining the
reasonableness of the attorney’s fee. Id. at 339. It is not, however, the only factor.
Id. As discussed above, the trial court reviewed the record, including the other
10
The Association’s motion for summary judgment appears to be the first instance in
which it sought more than the $12,380.66 demanded in the Complaint. Therein, the Association
indicated that it now requested $129,708.23 in condo fees, assessments, late fees, and attorney’s
fees.
19
factors discussed in In re LaRocca’s Trust Estate and concluded, in its discretion,
that the attorney’s fees were reasonable. While we have held that a trial court does
not abuse its discretion if it reduces an award of attorney’s fees based on the
respective success of an association’s attempt to recover fees, we also have held
that no such reduction is required. Township of South Whitehall, 891 A.2d at 784;
The Ridings at Whitpain, 811 A.2d at 1116.
As stated, a condo association is not required to compromise but may “stand
on principal . . . to uphold the law” and “its rights under [its] Declaration and the
decisional law” and is entitled to have its “attorney’s fees be covered” when it does
so. Mountain View, 734 A.2d at 471 (internal quotation marks omitted). “Any
holding to the contrary would cause chaos in Condominium Associations whose
compliant members would have to bear the cost of dealing with non-compliant
members.” Id. (internal quotation marks omitted). To require the other members
of the Association to pay the attorney’s fees associated with recovering the
monthly condo fees and special assessments Robinson has a legal obligation to pay
is contrary to the language in Section 3315(f), which requires the inclusion of
“costs and reasonable attorney’s fees for the prevailing party” on a judgment. 68
Pa. C.S. § 3315(f).
Finally, Robinson contends that all of the attorney’s fees should not have
been awarded because the Association attempted to collect more interest than
permitted by Section 3314(b) by labeling the interest a late fee. Section 3314(b)
states:
Except for assessments under subsection (c), common expenses
shall be assessed against all the units in accordance with the common
20
expense liability allocated to each unit (section 3208) in the case of
general common expenses and in accordance with subsection (c) in
the case of special allocations of expenses. Any past due assessment
or installment thereof shall bear interest at the rate established by the
association not exceeding 15% per year.
68 Pa. C.S. § 3314(b).
Section 3302(a)(11) permits condo associations to “[i]mpose charges for late
payment of assessments and, after notice and opportunity to be heard, levy
reasonable fines for violations of the declaration, bylaws and rules and regulations
of the association.” 68 Pa. C.S. § 3302(a)(11). The Association’s Rules and
Regulations permit it to charge a 10% late fee on any outstanding balance, which
Robinson acknowledges. (Hr’g Tr. at 27-28, R.R. at 27a-28a; Robinson’s Br. at
27-28.) However, this Court has expressed some disapproval of charging a
compounded rate as a monthly late fee. Latch’s Lane Owners Association v.
Bazargani (Pa. Cmwlth., 2408 C.D. 2009, filed April 13, 2010), slip op. at 6
(holding that, although the “calculations may appear to result in [the a]ssociation
charging her 74% per year if [it] had levied a compounded charge of 7% per month
on the overdue installment,” the condo association did not violate Section 3314(b)
because it only charged the owner a one-time penalty of 7% of her outstanding
payment).11 Robinson contends that the charging of a monthly 10% late fee on the
outstanding balance results in a compounded interest rate much higher than the
15% rate permitted by Section 3314(b) and disapproved of in Latch’s Lane.
11
Pursuant to Section 414 of this Court’s Internal Operating Procedures, an unreported
panel decision issued by this Court after January 15, 2008 may be cited “for its persuasive value,
but not as binding precedent.” 210 Pa. Code § 69.414.
21
When this litigation began in February 2011, the Association requested only
$939.83, which represented all of the outstanding amounts Robinson owed,
including the collection costs as of that time. (Letter from Association’s Counsel
to Robinson (February 17, 2011).) At that time, the Association was not charging
the late fee in the manner asserted by Robinson, but began doing so only after the
accountant’s auditor reviewed the Association’s accounts in 2012 and indicated
that the Association had not been calculating its late fees correctly.12 (Hr’g Tr. at
68-69, R.R. at 50a.) Moreover, the Association was not awarded any late fee
beyond that calculated on the actual amount the trial court awarded in the May 15,
2014 Order. As observed by the trial court, “the same amount of legal work is
required to collect $1,000 or $50,000.” (Trial Ct. Op. at 6-7.) Thus, while the
Association’s manner of calculating its late fees may be questionable, this is not a
reason to find that the trial court palpably abused its discretion in awarding the full
amount of attorney’s fees in this matter.
For the foregoing reasons, the Association’s Motion to Quash is denied, and
the trial court’s Order is affirmed.
________________________________
RENÉE COHN JUBELIRER, Judge
12
It appears that, at this time, the Association retroactively applied the late fee as directed
by the auditor. (Hr’g Tr. at 68-69, R.R. at 50a.)
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Arches Condominium :
Association :
:
v. : No. 361 C.D. 2015
:
Lawrence Robinson, :
:
Appellant :
ORDER
NOW, December 29, 2015, the Motion to Strike Brief and Quash Appeal
filed by The Arches Condominium Association is hereby DENIED, and the Order
of the Court of Common Pleas of Philadelphia County, entered in the above-
captioned matter, is hereby AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge