author: JONES II, J.,

text:
    Mongeluzzi v. Pansini & Lessin

      Howard D. Scher, for plaintiff.

      Philip G. Kircher, for defendant.

      December 10, 2001
   JONES II, J.,

I. INTRODUCTION

This is a dispute between two law firms over the division of $6 million in attorneys’ fees generated by the settlement of three lawsuits that were filed against PECO Energy Company in the wake of a December 1995 gas explosion in Norristown, Pennsylvania. Plaintiffs Robert Mongeluzzi and Saltz Mongeluzzi Barrett & Bendesky, bring this action for unjust enrichment, and seek an accounting and the imposition of a constructive trust to recover their share of the fees received by defendants as generated by the PECO actions. Plaintiff Robert Mongeluzzi claims that he prepared a letter dated February 22, 1999, to confirm an oral “agreement to agree,” not a contract, reached at a meeting on February 16,1999 regarding the division of counsel fees, and that the letter defers agreement on that division until the cases were resolved.

Defendants Pansini & Lessin, Michael O. Pansini and Jeffrey R. Lessin, claim that they reached an enforceable oral contract with plaintiff Mongeluzzi at that same meeting of February 16,1999, and that plaintiff Mongeluzzi’s letter of February 22, 1999 was a written confirmation of some of the terms of the contract.

The critical issues presented are: (1) whether a contract exists. If so, all parties agree that plaintiffs’ action must be dismissed and judgment entered for defendants; (2) if a contract does not exist, whether plaintiffs are entitled to compensation based upon an hourly rate, or a percentage of the total sum of attorneys’ fees collected by the defendants, or an amount based upon “the value of the plaintiffs’ services.”

II. PROCEDURAL HISTORY

On October 4, 2001, upon consideration of plaintiffs’ motion to strike defendants’ jury demand, and the withdrawal of opposition thereto by the defendants, this court issued an order granting plaintiffs’ motion, and also ordered that all motions in limine currently held under advisement by this court were denied as drafted, however the substance of each motion would be addressed at the time of trial, which was scheduled for Tuesday, October 9,2001. See order dated October 4,2001. Plaintiffs were permitted to withdraw their contract, conversion, and replevin claims at law, and were permitted to proceed in equity. Plaintiffs concede that a finding that a contract exists would preclude recovery by them in this action. However, plaintiffs argue that a contract does not exist, and therefore request this court to order: (1) a constructive trust, (2) an accounting, and (3) a monetary award predicated on their claim of unjust enrichment (quantum meruit). N.T. 10/2/01, pp. 39-40, 42, 48, 56-57, 58-59.

The defendants seek a dismissal of plaintiffs’ claim based upon the following: (1) a contract exists, and that the existence of an enforceable contract precludes recovery under an unjust enrichment theory; (2) plaintiff Mongeluzzi is equitably estopped from denying that he should be paid for his time; (3) plaintiff Mongeluzzi’s “impact evidence,” meaning the impact his presence had upon the increase in the settlement value of the case, was speculative at best; (4) evidence of the “value of services” of plaintiff Mongeluzzi was insufficient; (5) plaintiff Mongeluzzi is limited to participating — if he is allowed to participate at all — only in the settlement proceeds of the Keysers, because they are the only parties for whom he entered an appearance; and, (6) plaintiff Mongeluzzi cannot seek the equitable relief he has requested because he has unclean hands.

Before trial, defendants moved in limine, inter alia, to preclude PECO’s counsel, William J. O’Brien or the mediator, former Judge David Murphy, from expressing any view on the “impact” of plaintiff Mongeluzzi on the settlement of the underlying PECO cases. This court ruled that it would not hear any “impact” evidence “unless a member of counsel who negotiated with or against Mr. Mongeluzzi is going to testify in this case ... unless the person or persons testified, it would not be admissible evidence.” N.T. 10/12/01 (a.m.), pp. 7-8. This court precluded the testimony of Bernard Smalley, Esquire regarding purported unethical conduct by the defendant Michael O. Pansini. Id. at 8. This court ruled that evidence of the value of services provided by plaintiffs was properly admissible at trial. Id. at 8. Last, this court ruled that the mediation privilege precludes evidence of communications made during and related to, mediations. Therefore, such evidence would not be admissible at the trial. N.T. 10/12/01 (p.m.), pp. 64-67.

III. FINDINGS OF FACT

(1) Defendants Pansini, Lessin, and Mezrow are personal injury attorneys. Defendant Pansini & Lessin is a partnership engaged in the practice of personal injury law. In February 1997, just before filing suit in the Costello/Keyser action, Pansini & Lessin hired a third, non-equity attorney, defendant Steven Mezrow. See N.T. 10/29/01 (a.m.), pp. 114-15; N.T. 11/14/01 (p.m.), p. 4.

(2) Norristown, Pennsylvania firemen James Costello and Craig Keyser, and Norristown resident Irvin Byrd, retained Pansini & Lessin to represent them in connection with the injuries they sustained in the Norristown explosion under written contingency fee agreements. These agreements entitled defendants to 40 percent of any recovery obtained by suit or post-litigation settlement, as well as “all costs and expenses incidental to any litigation or negotiation of settlement.” The agreements did not cover compensation for any potential appeals. See plaintiffs’ proposed finding of fact and conclusions of law, exhibits 153, 154, 155.

(3) In April 1997, James Costello and Craig Keyser filed suit in Philadelphia County against PECO. Venue in that particular action was subsequently transferred to Montgomery County. In August 1997, Irvin Byrd, a Norristown resident, also filed suit in Philadelphia County against PECO. In December 1997, Louise Byrd (Irvin Byrd’s mother) and Irvin Byrd filed suit against PECO in Federal District Court for the Eastern District of Pennsylvania. N.T. 10/23/01 (a.m.), pp. 3-5. In August 1998, James Costello, Craig Keyser and the Byrds, as well as several police and firefighter organizations, petitioned the Pennsylvania Public Utility Commission in connection with a prior PUC proceeding involving PECO. N.T. 10/23/01 (a.m.), p. 35.

(4) During the course of the PECO actions, Pansini & Lessin retained several other attorneys to assist with the prosecution of those cases. In each case, defendants chose these third-party counsel on the basis of their ability to lend their legal expertise or personal reputation and credibility to defendants’ efforts. William J. O’Brien, Esquire and Howard Kline, Esquire are attorneys and members of the law firm retained by PECO to represent its interests in the PECO actions, and other matters.

(5) In December 1997, defendants hired Frank Finch, Esquire, a civil rights practitioner, because they needed someone to draft the federal civil rights complaint and assist with the claim on behalf of the Byrds. Defendants do not practice civil rights law, and needed to retain someone who was familiar with that field. Defendant Mezrow recommended Finch to Pansini & Lessin because he knew that Finch had developed an “expertise” in that area, and indeed “that’s his specialty.” N.T. 11/14/01 (p.m.), pp. 38-39.

(6) Defendants entered into a written agreement with Finch whereby he was hired as an “independent contractor,” and was asked to prepare a “professionally drafted” civil rights complaint on behalf of the Byrds. Finch’s request for payment, based upon a percentage of the recovery, was specifically rejected by defendants. N.T. 10/23/01 (a.m.), p. 29. The retainer letter provided that Finch would receive an initial retainer of $350, and ongoing payments at a rate of $95 per hour. Finch submitted regular monthly bills in accordance with this written contract, detailing his time spent on the case, and received periodic payments in accordance with his bills. See defendants’ proposed findings and post-trial brief, exhibit 108.

(7) Between December 1997, when he was first retained, and March 1999, when the PECO actions settled, Finch worked a total of 32.8 hours on the federal civil rights action, and was paid a total of $3,124. See defendants’ proposed findings and post-trial brief, exhibit 108. Finch was never asked to work on any matter other than the federal civil rights case, nor did he participate in any mediation or settlement negotiations.

(8) On November 25,1998, defendants also retained Arlin Adams, Esquire, a former member of the United States Court of Appeals for the Third Circuit, to give them legal advice regarding punitive damages and the applicability of the “Fireman’s Rule” to the PECO actions. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 16. In a letter dated November 25, 1998, Adams wrote to defendants outlining: the nature of assistance defendants were seeking from him regarding punitive damages and the Firemen’s Act; the details of a retainer fee; and the nature of how he would charge for his services, including the fact that Adams was going to charge hourly rates for his services. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 16. (emphasis added) Defendants sent a letter in response thereto, indicating that they had signed Judge Adams’ letter of November 25,1998 and also enclosed an initialed copy of same, indicating a clear meeting of the minds as to performance and payment. See defendants’ proposed findings and posttrial brief, p. 85; N.T. 10/22/01 (p.m.), pp. 34-36. This was not done by defendants in response to plaintiff Mongeluzzi’s letter of February 22, 1999. Defendants hired Adams because they wanted “someone we respected” to give them an opinion on the validity of several defenses to punitive damages that PECO had raised. N.T. 10/23/01 (p.m.), pp. 45-48. Defendant Pansini knew Adams both by his reputation and from having hired him on a previous occasion as an expert witness. Id.

(9) Under their written fee agreement with Adams, defendants agreed to pay him at his “regular hourly rate” of $385 per hour, plus time spent by his associates and paralegals at their “regular hourly rates.” Adams also requested and obtained a retainer of $7,500 to be credited against fees accrued. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 16.

(10) In addition to legal research, defendants asked Adams to lend his personal credibility to their settlement demands, which PECO counsel Bill O’Brien clearly considered excessive and unwarranted. Defendants asked Adams to verify that defendants’ settlement demand, which at that time was $27.5 million, was credible given the facts of the case. Defendants chose Adams for this task because Adams was a “legend” who “had been around a long time” and, unlike defendants, had experience in large cases such as the Exxon Valdez lawsuits. N.T. 10/23/01 (p.m.), pp. 47-48, 56-57.

(11) Defendants hired Adams because they needed an “expert” “with some credibility” who could talk to O’Brien about the gravity of the case, and convince him that the PECO actions could result in a large punitive damages award that would not be reversed or reduced on appeal. N.T. 10/29/01 (a.m.), p. 17.

(12) The professional relationship between PECO counsel William J. O’Brien and defendants was contentious, offensive, and by acknowledgment of both during the instant trial, at times, wholly unprofessional and devoid of decorum and respect. O’Brien found defendants’ tactics inappropriate, counterproductive, and frustrating, and that they did nothing to advance the PECO actions towards either trial or settlement. N.T. 10/15/01(p.m.), pp. 19-20; N.T. 10/12/01 (p.m.), pp. 36-40. Defendant Pansini complained that O’Brien had been inconsistent in his approach to settlement, sometimes seeming interested in settling, while at other times refusing to speak to defendant Pansini regarding the issue.

(13) PECO counsel O’Brien preferred speaking with Adams rather than Pansini because he knew and respected Adams from having dealt with him in the past, and believed that Adams was a lawyer with whom he could “talk sense” about the case. N.T. 10/12/01 (p.m.), p. 72.

(14) PECO’s strategy in the PECO actions was to obstruct and delay the PECO plaintiffs’ (defendants’) discovery efforts. The defendants resisted this strategy by filing appropriate motions, responses, and engaging in in-court representation at all phases. However, defendant also employed many questionable tactics, including a press release regarding PECO president and CEO, Corbin A. McNeill Jr.’s pending deposition.

(15) The discovery process was also rife with discord and cross-allegations of noncompliance, discovery abuses and unethical conduct. After months of disagreements and lack of compliance with discovery requests, on August 7, 1998, the Pansini firm filed a motion seeking to compel certain discovery and also seeking sanctions for PECO’s bad faith in making its discovery responses. N.T. 10/15/01 (p.m.), p. 111. See also, defendants’ proposed findings and post-trial brief, exhibits 135,150. This motion was assigned in November of 1998 to a special discovery master, David Deardon, Esquire who was a Montgomery County lawyer. Mr. Deardon invited written submissions respecting this motion and he also conducted telephone conferences to hear argument of counsel. N.T. 10/15/01 (p.m.), p. 111. On December 24,1998, Mr. Deardon submitted a lengthy report and recommendation to Judge William R. Carpenter of the Montgomery County Court of Common Pleas.

(16) Defendants made their initial settlement demand in June 1997, less than 60 days after filing the complaint in the Costello/Keyser action. In a letter to Carl Hanzelik, Esquire, who represented PECO at the time, defendants demanded $25 million to settle the Costello/Keyser cases. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 158.

(17) Hanzelik and PECO refused to respond to this demand, stating in a September 1997 case management conference memorandum that “[plaintiffs’ demand is so excessive that no offer has been made.” See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 158.

(18) Defendants withdrew their $25 million demand in October 1997. On November 6, 1997, they increased the demand to $50 million. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 1.

(19) On December 23, 1997, PECO offered to settle all claims in the PECO actions for a total of $885,000. Defendant Pansini rejected the offer.

(20) The parties held a mediated settlement conference in February 1998. While defendants’ offer remained at $50 million, PECO raised its settlement offer to $2.6 million. Defendants rejected this offer. Plaintiffs’ proposed finding of fact and conclusions of law, exhibits 10, 11.

(21) Defendants reduced their demand in the PECO actions to $27.5 million on May 5,1998. Plaintiffs’ proposed finding of fact and conclusions of law, exhibit 12.

(22) Defendant Pansini threatened to hire James Beasley, Esquire during a 1998 conversation with O’Brien. N.T. 10/12/01 (p.m.),pp. 47-48,54-55. Defendant Pansini told O’Brien that the settlement demand would go up in the PECO cases if he brought Beasley on board, because Pansini would “have to pay him [Beasley] a referral fee.” N.T. 10/23/01 (p.m.), pp. 22-24; N.T. 10/12/01 (p.m.), pp. 54-55. Defendant Pansini testified that he chose to invoke Beasley, not because of his reputation and famous successes in the courtroom, but rather because he was an older attorney and a member of O’Brien’s generation. N.T. 10/23/01 (p.m.), p. 24.

(23) By January 1999, defendants had invested enormous amounts of time, talent, and energy (albeit some of which were inappropriate stimuli and responses) in the prosecution of the PECO actions. However, defendants were unable to move forward in the negotiation process.

(24) On February 11, 1999 Judge Carpenter issued, inter aha, an order setting the close of discovery for June 1,1999. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 165. At that point, defendants had not yet taken any depositions.

(25) Plaintiff Mongeluzzi was brought into the case as a result of a meeting between plaintiff Mongeluzzi and defendants Pansini and Lessin in Mongeluzzi’s office on February 16, 1999. Defendants requested plaintiff Mongeluzzi to assist with the PECO actions, but only in the limited role of a “catalyst” to help bring PECO’s attorneys back to the settlement table after talks had broken off in December 1998.

(26) Defendants Lessin and Pansini went together to plaintiff Mongeluzzi’s office to meet with him and discuss the PECO cases and Mr. Mongeluzzi’s involvement in them. Defendant Pansini explained to plaintiff Mongeluzzi the history of the cases and the detailed background of them, the Cognato settlements, the recent settlement discussions including the December 11,1998 mediation, the Adams-O’Brien discussions involving settlement overtures of $10.5-$12.6 million, and where Pansini believed PECO was regarding settlement. Mr. Pansini explained to Mr. Mongeluzzi his expectation that these cases would settle upon a second day of mediation taking place. His plan was to have another attorney, Mr. Mongeluzzi, send a letter to Bill O’Brien, drafted by the Pansini firm, yet written on Mongeluzzi’s firm’s letterhead, threatening a substantial number of PECO depositions to occur in the next several months, beginning with the deposition of Corbin McNeill. Mr. Pansini explained his expectation that, in response to this letter, Mr. O’Brien would almost certainly ask to resume the Murphy mediation. N.T. 10/23/01 (p.m.), pp. 102-15.

(27) Plaintiffs and defendants disagree diametrically as to the substance, if any, of the February 16,1999 meeting regarding payment of fees in exchange for plaintiffs’ participation in the requested representation. They also disagree as to whether there was an understanding as to whether plaintiffs would be compensated for some or all of the individual PECO plaintiffs’ settlement award.

(28) Plaintiffs and defendants agree that plaintiff Mongeluzzi sent defendants a letter dated February 22, 1999 relating to the conversations of February 16,1999. See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 29-A. See also, defendants’ proposed findings and post-trial brief, exhibit 1. However, the parties cannot agree to what the letter means.

(29) Defendants believe that the meeting of February 16,1999 produced a valid contract between the two, and that the writing of February 22, 1999 further articulated that a contract had been struck.

(30) Plaintiffs believe that no contract was ever formed between the parties, but instead, there was simply an agreement to agree on the division of fees at the conclusion of the PECO actions.

(31) Plaintiff Mongeluzzi invested, in his estimation, between 15 and 30 hours of time in participating in the case. See deposition of Robert J. Mongeluzzi, 12/20/00, p. 38. Plaintiff Mongeluzzi’s participation (value of services) included the use of his name and firm’s letterhead on certain written communications, as well as their content to PECO’s counsel William J. O’Brien.

(32) On February 19, 1999, defendants delivered to plaintiff a draft letter to be sent to PECO counsel O’Brien. The draft letter stated that as many as 107 depositions would be taken of PECO and former PECO personnel. In addition, defendants supplied a statement of facts for plaintiff Mongeluzzi’s use so that he would have a rudimentary knowledge of the cases when contacted by O’Brien. N.T. 10/18/01 (a.m.), pp. 71-72;10/24/01 (a.m.), pp. 20-26, 43-46. See also, defendants’ proposed findings and post-trial brief, exhibit 4. On February 22,1999, Mr. Mongeluzzi returned the draft letter with one substantive change. As instructed by Pansini, Mr. Mongeluzzi sent the letter that day to PECO’s counsel, O’Brien. N.T. 10/18/01 (p.m.), pp. 89-91.

(33) After plaintiff Mongeluzzi began his involvement, a meeting was arranged wherein all counsel in the PECO action would meet. N.T. 10/12/01 (p.m.), p. 94. On March 8,1999, prior to all counsel appearing together, plaintiff Mongeluzzi met alone with PECO counsel, William J. O’Brien, at the request of O’Brien. N.T. 10/18/00 (p.m.), pp. 4-5.

(34) At the March 8, 1999 meeting between plaintiff Mongeluzzi and O’Brien, there were no settlement negotiations, rather a short discussion about whether a second mediation session could be arranged. N.T. 10/15/01 (p.m.), p. 40. O’Brien expressed gratitude that his friend, teaching colleague, and former adversary was involved in the case as he (O’Brien) now had a trial lawyer who would discuss the case on the merits. N.T. 10/18/01 (p.m.), pp. 4-6. Also on that day, in preparation for the main meeting with O’Brien, there was a meeting between Michael Pansini, Steve Mezrow and Mr. Mongeluzzi at Mr. Mongeluzzi’s office. N.T. 10/25/01 (am.), pp. 94-95. Later that morning, at the meeting with O’Brien, it was confirmed that the parties would resume the Murphy mediation and would do so promptly. N.T. 10/18/01 (p.m.), pp. 6-8.

(35)On March 18,1999, the underlying cases settled for $15 million. The initial amount of attorneys’ fees at issue was $7,122,355.50. At trial, however, plaintiffs amended their complaint to waive any claim to recover any percentage or portion of the additional money that defendants accepted from the Costellos, and instead stipulated to restricting their claims to the $6 million that defendants received pursuant to their fee agreements with the PECO action plaintiffs. N.T. 10/18/01 (p.m.), pp. 20-21.

V. CONCLUSIONS OF LAW

(36) Sadly, this case is, in large measure, one wherein credibility is of paramount importance. It is characterized as sadly inasmuch as the case hinges upon deciding which of two members of the bar is more credible. The inescapable conclusion is, that upon reading their respective testimony, one or both may suffer tarnished reputations as not being honest or ethical in some respect.

(37) However, this court is both judge and jury. As both, its mission is not simply to do justice, but rather as a jury, must find the facts and the logical inferences arising therefrom, utilizing a variety of factors, including common sense and human experience. Apply the law to the facts found, and render a verdict according to the law and the evidence.

(38) Under Pennsylvania law, an agreement to agree is not an enforceable contract. See Onyx Oils & Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 816-17 (1951). “Where the existence of an informal contract is alleged, ‘it is essential to the enforcement of such an informal contract that the minds of the parties should meet on all the terms as well as the subject matter. If anything is left open for future [negotiation], the informal paper cannot form the basis of a binding contract.’ ” Defendants have stressed that an oral contract was entered between plaintiffs and defendants at a meeting on February 16, 1999. The record is replete with various inconsistent and diverse accounts of exactly what was stated by any and all persons present at that meeting. As to the material terms of the purported contract, all witnesses present at that meeting supplied one or more different terms at trial, denied the existence of terms, and disagreed as to the meaning of various terms purportedly referenced in a “follow-up” letter written by the plaintiff on February 22,1999. The content of that letter was disputed as being misinterpreted, misused, and not encompassing the entire purported contract of February 16,1999, and most importantly, defendants contend that the February 22, 1999 letter was not the contract.

(39) The only fact that is not in dispute is that plaintiff agreed to perform work at the request of defendants. Defendants argue that the “work” was to be a “catalyst” which would reinitiate the settlement discussions, and separately, the “work” was a host of possible additional tasks should defendants not settle the cases as hoped. Since there was no express written agreement as to what the job of “catalyst” entailed, the court looks to the conversations of February 16, 1999 which purportedly created a contract. At trial, defendants explained that plaintiff Mongeluzzi’s role of catalyst/trial attorney was conditioned upon the outcome of a variety of possible scenarios in futuro. That was nothing more than an agreement to perform some legal services, and a leap of faith that “down the road” the parties could amicably “work out” a payment arrangement for the services ultimately rendered. While this could be interpreted as a “barebones” contract, it was not. That is because both plaintiffs and defendants “hedged” their respective “bets” on whether it was “worth” the risk of losing a sizeable fee for then-prospective efforts, against insisting on an “all my way or nothing” approach to an express contract. Thus, there was in fact no meeting of the minds as to this, nor many other material terms. Many of the material terms, and their varied interpretations, surfaced only after direct or cross-examination raised the issues. Even then, answers consistently demonstrated no meeting of the minds or worse, no prior meaningful discussion relative to an identified term. The February 16,1999 discussions were between accomplished lawyers, not children bargaining among themselves to shovel snow from neighborhood sidewalks. All participants to the conversation had the ability to establish an express contract, orally or in writing, had they wished to do so.

(40) It is patently clear that the equitable doctrine of unjust enrichment cannot be used to compel payment where an express contract for same exists between the parties. See Coldwell Banker Phyllis Ruben Real Estate v. Romano, 422 Pa. Super. 319, 330, 619 A.2d 376, 381 (1993), appeal denied, 534 Pa. 635, 626 A.2d 1154 (1993); In re Penn Central Transportation Co., 831 F.2d 1221, 1229 (3d Cir. 1987). The problem with finding an express contract is the inescapable conclusion that the testimony was replete with ambiguous and disputed definitions of terms, as well as incomplete, inconsistent, and, at times, incredible testimony regarding material terms, all occurring during an oral conversation between three men on February 16, 1999. The evidence is woefully inadequate upon which to find that an express contract existed in the first instance. Therefore, any argument as to the ambiguity or non-ambiguity of a specific term, or its inability to invalidate an existing express contract, is meritless.

(41) It is noteworthy that while basic contract law requires an offer and acceptance, as well as a meeting of the minds on material terms, the evidence demonstrates that when defendants were presented with a writing by Judge Adams as to his “understanding of their agreement,” defendants initialed it and sent it back to indicate their acceptance of his written confirmation. No such action was taken by defendants with regard to the Mongeluzzi letter of February 22, 1999.

(42) While this court acknowledges that Banks Engineering Co. v. Polons, 561 Pa. 638, n.4, 752 A.2d 883, 886 n.4 (2000), approves by reference, the Restatement (Second) of Contracts §204, wherein a trial court is permitted to supply a missing term in an express written contract, it does not impose upon the trial court a duty to draft an express agreement where one never existed.

(43) This court further concludes that plaintiff is not barred on the basis of plaintiff’s judicial admissions or plaintiff’s allegedly “unclean hands.”

(44) In support of their argument to the contrary, defendants quote Durkin, Wilkerson, and Professors Packel and Poulin and state that: “Under Pennsylvania law, verified allegations in pleadings and verified answers to interrogatories constitute judicial admissions.” See Durkin v. Equine Clinics Inc., 376 Pa. Super. 557, 568, 546 A.2d 665, 670 (1988), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989); Wilkerson v. Allied Van Lines Inc., 360 Pa. Super. 523, 521 A.2d 25 (1987), appeal granted, 517 Pa. 594, 535 A.2d 81 (1987). “Judicial admissions are not evidence at all. Rather, they are formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Pennsylvania Evidence, Packel and Poulin (1999), § 127. As a result, judicial admissions are conclusive, and a party may not offer evidence to attempt to contradict or dispute the judicially admitted facts. See Pennsylvania Evidence, Packel and Poulin (1999), §127.

(45) There is no dispute that plaintiff, in his complaint, testimony, and interrogatories, admitted to an agreement. “An allegation in a pleading which is specifically denied in a defensive pleading does not constitute a judicial admission and may not be admitted into evidence.” General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 542, 635 A.2d 173, 181 (1993). In both their answer and amended answer, defendants denied, without exception, the allegations of each and every paragraph in the complaint in which the word “agreement” appears in any form. That such is not a contract is evidenced by the differing opinions as to what the agreement was. Plaintiffs argue the agreement was to perform work for a percentage of an anticipated multi-million dollar settlement or verdict, and defendants argue the agreement was performance of work in exchange for an hourly wage. The totality of the evidence belies any notion that plaintiff is barred from recovery by operation of law on this basis. A perceived agreement on a decision to perform work, resulting in a pleading acknowledging one side’s understanding relative thereto, does not preclude a jury from deciding the existence of an express contract. This is so when the pleadings and evidence strongly suggest that the agreement was an agreement to defer resolution of the issue of compensation. Moreover, if defendants disagree with plaintiffs’ interpretation or existence of the perceived pleaded agreement, a jury is required to resolve the issue.

(46) This court further concludes that plaintiff did not have “unclean hands.” Defendants have articulated five reasons for claiming that plaintiff has unclean hands. “The doctrine of unclean hands is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith.” See Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098, 1103 (1998). (citations omitted)

(47) That plaintiff arguably did not clear his calendar to an extent which would satisfy defendants as to plaintiffs’ ability to perform certain tasks, is not proof of unclean hands.

(48) That plaintiff met in secrecy likewise is not, in itself, proof of unclean hands. A permissible inference from said meeting is that it provided a benefit to the defendants.

(49) That PECO counsel may have voluntarily provided plaintiff with documents from the case is not proof of unclean hands. A permissible inference is that said discovery facilitated a settlement.

(50) That plaintiff failed to return one document out of legions is not proof of unclean hands. The speculative testimony in this regard was insufficient to prove unclean hands.

(51) The allegation that plaintiff and his expert witness, Roberta Pichini conspired to commit perjury was nothing more than that, an allegation. As such, said claim is meritless.

(52) Therefore, plaintiff is not barred from recovery by operation of law.

(53) This court further concludes that plaintiff is not precluded from sharing compensation in the Costello action. Plaintiffs performed work for defendants tantamount to an independent contractor or associated counsel status. Plaintiffs worked for defendants, and not individual PECO plaintiffs. The evidence suggests that when plaintiff Mongeluzzi approached O’Brien in the one on one meeting, O’Brien’s understanding was that plaintiff was going to bat for all PECO action plaintiffs to resolve all matters non-trial, or as the plaintiff Mongeluzzi’s letter of February 22, 1999, suggests: to depose a host of witnesses relative to PECO’s liability to all of the PECO plaintiffs. The Miernicki, Richter, and Ackermann cases cited by defendants are inapplicable. Hence, plaintiffs are not barred from sharing in the settlement proceeds from the Costello action.

(54) This court further concludes that plaintiffs’ letterhead is part and parcel of plaintiffs’ value. The record is satiated with the accomplishments and reputation of plaintiff Mongeluzzi and his firm. Essentially, like everything else in the service industry, the better the service, the higher the premium for the service. As with most, if not all areas of the professional service industry, if a lawyer produces unparalleled results, the lawyer can, and usually does, charge more for his or her services. This is true in all fields, whether they be orthopedic surgery, entertainment, sports, criminal defense attorneys, or civil plaintiffs and defense lawyers. Certainly, defendants would not dispute the fact that the value of the services of their firm, in light of their PECO action results, has increased substantially. And while regardless of reputation, a standard contingency fee is generally the same among plaintiff personal injury lawyers, the significance of the “big gun” syndrome is that it generates more of those contingency fees. Thus, common sense and human experience permits the logical inference that the services of plaintiffs added significant value to the PECO action cases. To argue that a new law school graduate with no experience could or would render comparable service is disingenuous and even ludicrous. The critical issue, however, is how to arrive at a legally sound figure requisite of the value of the plaintiffs’ services.

(55) “A large number of quantum meruit cases involve attorneys attempting to collect fees.” In re LaBrum & Doak LLP, 225 B.R. 93 (Bankr. E.D. Pa. 1998). If quantum meruit can be justified, plaintiffs must establish the elements of the 10-factor test announced in In re LaBrum & Doak, supra, citing LaRocca Estate, 431 Pa. 542, 546, 246 A.2d 337, 339 (1968):

(1) The amount of work performed: The record reflects that the amount of work performed by plaintiffs was between 15-30 hours.

(2) The character of the services rendered: The record establishes that plaintiffs contacted PECO counsel O’Brien in an effort to both encourage settlement and apprise him of pending depositions. Plaintiff Mongeluzzi also received and became acquainted with the facts of the case pertinent to his designated responsibilities as an attorney working on the same.

(3) The difficulty of the problems involved: Plaintiffs came into a case that, based upon the totality of the evidence, was at a virtual standoff and immovable. The record supports a finding that the relationship between counsel for PECO and defendants was “irretrievably broken.” A catalyst of immense proportion would be needed to rekindle the fires necessary for a non-trial resolution or a full blown trial. This is contrary to the defense position that any lawyer with a license could have fit the bill. Regardless, defendants didn’t seek just any lawyer, they sought and obtained the services of plaintiffs who, by the evidence, are renowned.

(4) The importance of the litigation: By all accounts, this litigation was the result of a catastrophic natural gas explosion which took lives, physically and mentally devastated many persons (including plaintiffs), and resulted in enormous property damage. There was great potential for punitive damages, as well as adverse publicity.

(5) The amount of money or value of the property in question: Defendants have estimated the worth of PECO in the “billions of dollars” category, and opined that just one percent in punitive damages would be enormous.

(6) The degree of responsibility incurred: Defendants argue that the tasks assigned to plaintiffs were barely more than ministerial. They have suggested that even a child could have performed the tasks. Again, however, it defies logic to conclude that if given the choice of a “somebody” or a “nobody,” when the tasks are virtually meaningless, why would one choose (and have to pay for) the “somebody?” Clearly, the tasks were not meaningless and in actuality, only a prominent and highly successful advocate fit the profile defendants wanted. The number of outstanding depositions alone, and relatively short amount of time within which to complete all of them, is a prime example of the degree of responsibility incurred by plaintiffs.

(7) Whether the fund involved was created by the attorney: The admissible evidence herein permits the reasonable inference that plaintiff Mongeluzzi’s participation increased the value of all of the PECO action cases from $12.6 million to $15 million.

(8) The professional skill and standing of the attorney in his profession: The testimony of plaintiff, Ms. Pichini, and Mr. O’Brien speaks for itself. Plaintiff Mongeluzzi has an established record of extreme prominence in his chosen field.

(9) The results plaintiff Mongeluzzi was able to obtain: While it is impossible to conclude with absolute certainty whether plaintiff’s participation as of February 16, 1999 resulted in a specific dollar amount, it is clear that if his duty was to be a “catalyst,” the record clearly supports the conclusion that his participation brought about PECO counsel O’Brien’s desire for a non-trial resolution of the PECO actions.

(10) The ability of the client to pay a reasonable fee for the services rendered. (Moot)

(56) By their unjust enrichment claim, plaintiffs seek quantum meruit damages representing the fair value of plaintiff Mongeluzzi’s services in helping both to bring about the settlement of the PECO actions and to increase the amount paid in settlement of those cases, thus providing a substantial benefit to defendants.

(57) Under the doctrine of unjust enrichment, a plaintiff is entitled to the quantum meruit value of services rendered to the defendant even in the absence of an enforceable contract. In such situations, the law will imply the existence of a contract and require the defendant to pay plaintiff the fair value of services rendered in order to prevent unjust enrichment.

(58) In order to recover quantum meruit damages, plaintiffs must show that defendants either wrongfully secured or passively received a benefit under circumstances such that it would be unconscionable for them to retain that benefit without compensating plaintiffs therefor. Specifically, plaintiffs must prove: (1) that they conferred a benefit upon defendants; (2) that defendants appreciated the benefit; and (3) that it would be inequitable for defendants to accept and retain the benefit without paying plaintiffs for the value of the benefit.

(59) Defendant Pansini admitted during trial that plaintiff Mongeluzzi conferred a benefit upon Pansini.

(60) Defendants’ letter to plaintiff Mongeluzzi dated March 19, 1999, and the accompanying gifts, clearly demonstrated that defendants appreciated the benefit conferred.

(61) It would be inequitable for defendants to accept and retain the benefit without paying plaintiffs for the value of the benefit received. It is inequitable to allow a client or co-counsel to retain the benefit of an attorney’s services without making a fair payment for those services. See LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968); Estate of Bruner, 456 Pa. Super. 705, 713, 691 A.2d 530, 533 (1997); Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 97, 666 A.2d 327, 328 (1995), alloc. denied, 544 Pa. 660, 676 A.2d 1200 (1996); Hiscott & Robinson v. King, 426 Pa. Super. 338, 626 A.2d 1235 (1993) (court directed verdict for defendant client on claim for breach of contingency fee agreement, but awarded relief to plaintiff attorney pursuant to quantum meruit theory).

(62) In Murdock v. Cohen, 762 P.2d 691, 692 (Colo. Ct. App. 1988), the court awarded the plaintiff attorney an award based upon quantum meruit when the defendant attorney received a fee from the underlying plaintiff and never distributed it to the plaintiff attorney, who he had hired to assist with the case. The court held that a “benefit was appreciated by the defendant” in that the plaintiff attorney served as co-counsel and provided substantial assistance to the defendant in defending the case. Id. at 692.

(63) Here, as in each of the cases cited above, defendants retained an attorney who rendered extraordinarily valuable assistance to them, yet they have failed to pay Mongeluzzi any part, whatsoever, of the attorney fees that his actions helped produce.

(64) Quantum meruit involves a class of obligations imposed by law, regardless of the intent of the parties, for reasons dictated by justice, and is based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby.

(65) Clearly, the factors to be applied in a particular dispute, and the weight to be given to those factors, depends upon the unique circumstances of each individual case.

(66) Thus, this court having fully weighed all of the admissible evidence, finds that defendants were unjustly enriched by the participation of plaintiffs in the PECO actions, and therefore plaintiffs are entitled to be compensated.

(67) Plaintiffs are additionally entitled to an accounting.

(68) Plaintiffs are entitled to the establishment of a constructive trust.

(69) The total sum at issue is $6 million. This court has carefully evaluated the plaintiffs’ contribution, as well as the defendants’ contribution as required by law.

Wherefore, this court awards plaintiffs the sum of $480,000, as well as pre-judgment interest on said amount at the statutory rate of six percent calculated from April 30, 1999 (the date on which defendants distributed the net settlement proceeds to the PECO action plaintiffs and retained the remainder).

      . See 42 Pa.C.S. §5949.

      . Defendants also represented Kathryn Costello, Joleen Keyser, and Louise Byrd, however no written fee agreements with those PECO action plaintiffs were identified or introduced at trial.

      . PECO moved to have both the Costello/Keyser and Byrd cases transferred out of Philadelphia County. N.T. 10/23/01 (a.m.), pp. 5, 21-22. The Costello/Keyser case was transferred to Montgomery County in August 1997, where it remained, while the Byrd case was transferred to Montgomery County in November 1997 but, on appeal, transferred back to Philadelphia County in November 1998. See N.T. 10/23/01 (a.m.), pp. 22-23; defendants’ proposed findings of fact and post-trial brief, exhibit 105.

      . Formally, these cases were: James Costello, Kathryn Costello h/w, Craig Keyser and Joleen Keyser h/w v. PECO Energy Co., Montgomery County Court of Common Pleas no. 97-16224 (the “Costello/Keyser” case); Irvin Byrd v. PECO Energy Co., Philadelphia County Court of Common Pleas, August Term 1997, no. 3517 (the “Irvin Byrd” case); and Irvin Byrd and Louise Byrd v. PECO Energy Company, United States District Court, Eastern District of Pennsylvania, no. 97-CV-7892 (the “federal civil rights” case) (collectively referred to as the “PECO actions,” “PECO plaintiffs,” and “PECO defendants”).

      . PECO was initially represented in the PECO plaintiffs’ actions by Bruce Kauffman and Carl Hanzelik of the Dilworth Paxson law firm. In mid-October 1997, Bruce Kauffman and Carl Hanzelik were replaced as PECO’s counsel by William J. O’Brien and Howard Klein of the Conrad O’Brien law firm.

      . Defendant Pansini ultimately terminated the relationship with Adams, as Pansini was displeased with two to three of Adams’ unauthorized and counter-productive actions. N.T. 10/16/01 (a.m.), p. 97; N.T. 10/22/01 (p.m.), pp. 78-79.

      . On December 23, 1997, PECO offered to settle all claims in the PECO actions for a total of $885,000. Defendant Pansini rejected the offer, telling O’Brien “I’m sure you know what PECO can do with the offers made,” and that “everything from hereon in is on [PECO].” See plaintiffs’ proposed finding of fact and conclusions of law, exhibits 7, 8.

      . The press release closed with the following comment:
      “It is interesting to note that Mr. McNeill’s deposition will take place as President Clinton’s trial in the Senate is set to begin. President Clinton is accused of having committed perjury by lying under oath at his civil deposition in the Paula Jones case when he denied having sexual relations with Monica Lewinsky. With that backdrop, Mr. McNeill’s deposition will be closely scrutinized for any perjurious statements after the close of his deposition on Wednesday, January 13,1999.” See plaintiffs’ proposed finding of fact and conclusions of law, exhibit 23.

      . Judge Carpenter adopted the recommendation of the discovery master concerning PECO’s response to defendants’ “extraordinary” number of interrogatories, and their subsequent eight-month refusal to review PECO’s documents. This order noted that:
      ‘To a very real degree, the plaintiffs [sic] excessive zeal has interfered with the very discovery that they sought. This should not be blamed on the defendant. The plaintiffs have set the tone in this litigation and they must take affirmative steps to return the process to a cordial basis so that amicable discovery can take place.”

      . Defendants have offered that they expended between 3,000 and 4,000 hours to prosecute the PECO actions from beginning to end.

      . As to what defendant Pansini’s understanding was if the matters did not settle as he anticipated, defendant Pansini opined that plaintiff Mongeluzzi would be handling the cases on behalf of Keyser and as co-counsel to the Byrds, which would include depositions and trial. N.T. 10/16/01 (p.m.), p. 3.

      . This name was given to a separate set of plaintiffs involved in a separate lawsuit against PECO as a result of the same explosion which injured the PECO plaintiffs. Neither instant plaintiffs nor defendants were involved in those matters.

      . In a letter dated February 19, 1999 from defendant Pansini to plaintiff Mongeluzzi, defendant states, inter alia: “I would very much appreciate a letter to Bill O’Brien indicating that you are trial counsel in this matter and that you would like to begin depositions immediately. ... I ask that you emphasize that they will get Jim Costello’s deposition as soon as the court ordered deposition of Corbin McNeill is completed.” Plaintiffs’ proposed findings of fact and conclusions of law, exhibit 28-A. (emphasis added)

      . See N.T. 10/18/01 (p.m.), p. 21. (Plaintiff Mongeluzzi’s explicit statement that he was not claiming to be entitled to any monies as a result of the Costellos’ expression of gratitude.)

      . GMH Associates Inc. v. Prudential Realty Group, 752 A.2d 889, 900 (Pa. Super. 2000), citing, Isenbergh v. Fleisher, 188 Pa. Super. 99, 106, 145 A.2d 903, 907 (1958).

      . See paragraph 8 hereinabove. See also, N.T. 10/16/01 (p.m.), p. 3, 10/16/01 (p.m.), pp. 3-34; N.T 10/23/01 (p.m.), pp. 98-115.

      . See defendants’ proposed findings and post-trial brief, p. 47.

      . See defendants’ proposed findings and post-trial brief, exhibit 7.

      . See N.T. 10/16/01 (p.m.), p. 3; N.T. 10/19/01 (p.m.), pp. 7-8.

      . See defendants’ proposed findings and post-trial brief, exhibit 7.

      . See e.g., “Response to ‘introduction’ in plaintiffs’ complaint.” Plaintiffs’ proposed findings of fact and conclusions of law, exhibit 2.

      . See defendants’ proposed findings and post-trial brief, pp. 80-83.

      . See Johnson v. Hunter, 2001 WL 1285886 (Tenn.Ct.App.) October 25, 2000.

      . See defendants’ proposed findings and post-trial brief at 73-75.

      . See N.T. 10/16/01 (p.m.), p. 3; N.T. 10/18/01(a.m.), pp. 3-9, for a list of plaintiff Mongeluzzi’s accomplishments.

      . See Schott v. Westinghouse Electric Corp., 436 Pa. 279, 290, 259 A.2d 443, 449 (1969).

      . See Torchia on Behalf of Torchia v. Torchia, 346 Pa. Super. 226, 233, 499 A.2d 581, 582-83 (1985).

      . See Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 97, 666 A.2d 327, 328 (1995), alloc. denied, 544 Pa. 660, 676 A.2d 1200 (1996).

      . See N.T. 10/16/01 (p.m.), p. 3; N.T. 10/24/01 (p.m.), p. 93.

      . See LaBrum, supra, wherein the court held that successor counsel appreciated the benefit conferred by enjoying or benefiting from the successful resolution of lawsuits that the plaintiff debtors had done substantial work on. Id. at 106.

      . See Bednar v. Marino, 435 Pa. Super. 417, 426, 646 A.2d 573, 578 (1994).

      . See Mulholland v. Kerns, 822 F. Supp. 1161, 1169 (E.D. Pa. 1993).


source: Caselaw Access Project

author: LEVIN, S.J.,

license: Public Domain

text:
    Jackowski v. Guardian Protection Services Inc.

      Edwin P. Smith, for plaintiffs.

      Raymond McGarry, for defendant.
    June 29, 2001
   LEVIN, S.J.,

INTRODUCTION

Patricia A. Jackowski and James Gaither, plaintiffs, bring claims for monetary damages on behalf of a proposed class of similarly situated individuals against Guardian Protection Services Inc., defendant, arising out of defendant’s alleged misrepresentation of material facts to plaintiffs and members of the class in connection with the marketing and sale of “free” home burglar alarm systems. Plaintiffs assert that defendant’s use of the word “free” amounted to a violation of the Consumer Protection Law. Specifically, plaintiffs argue that defendant’s use of the term “free” in its advertisements had a “tendency to deceive a substantial segment of the audience and was likely to have made a difference in the consumer’s purchasing decisions.” (Plaintiffs’ reply brief sur motion for class action at p. 3.)

Plaintiffs’ counsel offers two individuals as class representatives. The first class representative, Patricia Jackowski, completed defendant’s contest entry form at the Franklin Mills Mall in Philadelphia. Soon thereafter she received a telephone call at her home advising her that she “won” the “free” home security alarm system, and that a representative of defendant’s corporation would soon visit her home to install the security system. A representative from defendant’s company came to Ms. Jackowski’s home and installed the home security system. When the installation was completed, the installer asked Ms. Jackowski to sign a contract, which she initialed in two places and signed. She did not read the contract and therefore was unaware of the agreement into which she had just entered. Not until Ms. Jackowski received her first monthly monitoring bill about two weeks after installation did she realize that she was responsible for paying a monthly monitoring fee.

Having executed the monitoring agreement, Ms. Jackowski made one monthly payment of $27.95. After making the first payment, however, Ms. Jackowski did not make any more of the monthly payments. Thereafter, defendant corporation sued Ms. Jackowski before a district justice in Allegheny County. However, due to the intervention of her present legal counsel, defendant withdrew the action. Nevertheless, defendant sued Ms. Jackowski in the Municipal Court of Philadelphia, but withdrew the action upon the intervention of counsel.

The second class representative, James Gaither, completed one of defendant’s “entry” forms at the Franklin Mills Mall in early March 1996. Mr. Gaither was soon contacted by defendant and told that he had “won” the “contest” for a “free” installed home security system. Then, on March 27, 1996, defendant’s installer visited Mr. Gaither’s home when Mr. Gaither was not present. Mr. Gaither’s housemate, Sylenthia English, was home when the installer from defendant’s company arrived. After completing installation of the system the installer asked Ms. English to sign the monitoring agreement, which she did by handwriting her name and Mr. Gaither’s name at the top of the agreement, by initialing in two places, and by signing at the bottom of the contract.

Shortly thereafter, Mr. Gaither and Ms. English received a monthly monitoring bill from defendant. As Mr. Gaither had not personally signed the monthly monitoring agreement, he only became aware of his new obligation to defendant upon his receipt of the first monthly monitoring bill. Mr. Gaither made approximately five monthly payments of $27.95 to defendant, but ceased making any further payments. As a result, defendant sued both Mr. Gaither and Ms. English in a district court in Allegheny County. The court entered a default judgment in the amount of $2,213.80, which defendant later transferred to the Municipal Court of Philadelphia.

Plaintiffs claim that defendant has violated the Consumer Protection Law, 73 P. S. §211-2(4)(ix), relating to false advertising. Specifically, plaintiffs claim that defendant’s offer of a “free” alarm system was a material misrepresentation, “and was likely to have made a difference in the consumer’s purchasing decisions.” (Plaintiffs’ revised proposed findings of fact and conclusions of law, ¶4.) Plaintiffs assert that the defendant’s “contest” was “merely a sham for the purpose of obtaining sales leads, because defendant intended that every person who entered the ‘contest’ would be advised that they had won the ‘contest.’ ” (Plaintiffs’ motion for class certification, ¶6a.) Furthermore, plaintiffs assert that all the forms related to the offering of a “free” alarm system were unlawful because they failed to “adequately advise potential customers that the alarm system was not ‘free,’ but required] a monitoring contract in order to obtain said alarm system.” (Plaintiffs’ motion for class certification, ¶6^)

Plaintiffs assert that defendant has violated three specific sections of the CPL: (1) 73 P.S. §201-7 (notice of cancellation), (2) 73 P.S. §211-2(4)(ix), and (3) 73 P.S. §201-2(4)(xvii) and as amended section 201-2(4)(xxi) (fraudulent and deceptive conduct: catch all). (Plaintiffs’ seventh amended complaint.) Plaintiffs further argue that, by violating the CPL, defendant has thereby breached the terms of the assurance of voluntary compliance entered into between defendant and the Pennsylvania Attorney General.

The assurance is an agreement entered into on November 10, 1994, between defendant and the attorney general in which defendant agrees, inter alia, to “comply with the Pennsylvania Consumer Protection Law and pursuant thereto, the Federal Trade Commission Guidelines on the use of the term ‘free’ and related issues.” (See assurance of voluntary compliance, plaintiffs’ seventh amended class action complaint, exhibit “F” at p. 2.) Furthermore, plaintiffs argue that defendant has breached the FTC regulations relating to the term “free.” The FTC regulations state in pertinent part, “disclosure of the terms of the offer set forth in a footnote of an advertisement to which reference is made by an asterisk or other symbol placed next to the offer, is not regarded as making disclosure at the outset.” 16 C.F.R. §251.1(C).

Plaintiffs seek various equitable and legal damages for these alleged violations of the CPL. First, plaintiffs seek to have all Allegheny and Philadelphia judgments “stricken and the actions terminated and defendant be enjoined from continuing the aforesaid deceptive practices.” (Plaintiffs’ motion for class certification, |6f.) Plaintiffs further seek damages pursuant to 73 P.S. §201-9.2, which they claim entitles them to actual damages or $100 per violation of the CPL, whichever is greater, and to any additional relief that is necessary and proper. (Plaintiffs’ post-hearing memorandum, pp. 1-2). Third, plaintiffs seek restitution of any monies they have paid in monthly monitoring fees; and fourth, plaintiffs seek rescission of the contract. (Plaintiffs’ reply brief sur motion for class action at p. 8.)

The pleadings in this matter are closed, and plaintiffs’ motion for class certification was heard on November 28, 2000. Accordingly, this court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

(1) Plaintiffs are citizens of the Commonwealth of Pennsylvania who, on or after August 30,1994, entered into a contest sponsored by defendant to win, or were offered a “free” residential alarm system.

(2) Defendant is a corporation with its principle place of business in Allegheny County, Pennsylvania.

(3) Defendant is in the business of selling, maintaining, and monitoring residential alarm systems throughout the Commonwealth of Pennsylvania and other states.

(4) On August 30,1994, defendant’s Board of Governors agreed to enter into an assurance of voluntary compliance with the Office of Attorney General of the Commonwealth of Pennsylvania pursuant to the Unfair Trade Practices and Consumer Protection Law, 75 P.S. §201-5, and in lieu of statutory proceedings pursuant to section 201-4 of that law for prior conduct.

(5) Under the terms of the assurance, defendant agreed to comply with Federal Trade Commission guidelines on the “use of the word ‘free’ and similar representations,” 16 C.F.R. §251, and the Commonwealth’s “policy statement on ‘free’ and related issues,” as it pertained to all advertisements.

(6) Defendant engaged in a promotional scheme whereby defendant ran a contest offering a “free” home security system to all those “contestants” who fulfilled certain requirements.

(7) Every contestant who owned a home, had a phone, and agreed to a home monitoring contract, “won” the “contest.” (See N.T. 6/8/99 atpp. 20-21.)

(8) During the class period, all of defendant’s entry forms use an asterisk to disclose that each contestant must enter into a monitoring agreement in order to win the “contest.”

(9) At the time Patricia Jackowski completed defendant’s contest entry form at the Franklin Mills Mall in Philadelphia, she was unaware of the responsibility to pay a monthly monitoring fee if she “won” the “contest.”

(10) Soon thereafter Ms. Jackowski received a telephone call at her home advising her that she “won” the “free” home security alarm system, and that a representative of defendant’s corporation would soon visit her home to install the security system.

(11) On December 22, 1995, a representative from defendant’s company came to Ms. Jackowski’s home and installed the home security system.

(12) When the installation was completed the installer asked Jackowski to sign a sales and monitoring agreement, which she initialed in two places and signed.

(13) Ms. Jackowski did not read the contract and therefore was unaware of the monthly monitoring agreement into which she had just entered.

(14) Not until Ms. Jackowski received her first monthly monitoring bill about two weeks after installation did she realize that she was responsible for paying a monthly monitoring fee.

(15) Having executed the monitoring agreement, Ms. Jackowski made one monthly payment of $27.95. After making the first payment however, Ms. Jackowski did not make any more of the monthly payments due.

(16) Thereafter, defendant corporation sued Ms. Jackowski before a district justice in Allegheny County; however, due to the intervention of her present legal counsel, defendant withdrew the action.

(17) Nevertheless, defendant sued Ms. Jackowski in the Municipal Court of Philadelphia, but withdrew the action upon the intervention of counsel.

(18) At the time James Gaither completed one of defendant’s “entry” forms at the Franklin Mills Mall in early March 1996, he was unaware of the responsibility to pay a monthly monitoring fee if he “won” the “contest.”

(19) Mr. Gaither was not eligible to enter the contest because he did not own the home where he and his girlfriend lived (home ownership being one of the three requirements to enter the “contests”).

(20) When Mr. Gaither entered the contest he was unaware that he was ineligible to enter the contest.

(21) Mr. Gaither was soon contacted by defendant and told that he had “won” the “contest” for a “free” installed home security system.

(22) A representative from defendant’s company visited Mr. Gaither’s home as an initial consultation.

(23) Before installation, Mr. Gaither never spoke to his housemate/girlfriend about the alarm system.

(24) Then, on March 27, 1996, defendant’s installer visited Mr. Gaither’s home when Mr. Gaither was not present.

(25) Mr. Gaither’s housemate, Sylenthia English, was home when the installer from defendant’s company arrived. After completing installation of the system, the installer asked Ms. English to sign the sales and monitoring agreement.

(26) Ms. English signed the sales and monitoring agreement, signing both her name and Mr. Gaither’s.

(27) Shortly thereafter, Mr. Gaither and Ms. English received a monthly monitoring bill from defendant.

(28) Mr. Gaither at first became aware of his new obligation to defendant upon his receipt of this first monthly monitoring fee.

(29) Mr. Gaither made approximately five monthly payments of $27.95 to defendant, but ceased making any further payments.

(30) Defendant sued both Mr. Gaither and Ms. English in a district court in Allegheny County.

(31) The court entered a default judgment in the amount of $2,213.80, which defendant later transferred to the Municipal Court of Philadelphia.

(32) Plaintiffs seek class certification of their claims under two “sub-classes,” as follows:

Class I
“(a) All persons who, within the Commonwealth of Pennsylvania and on or after August 30, 1994, entered into a contest sponsored by defendant to win, or were offered a ‘free’ residential alarm system, upon forms supplied by defendant which were the same or similar to those attached under exhibit ‘A’ to the complaint and
“(b) Claimed by defendant to have executed or did execute a sales and monitoring agreement [with defendant], and
“(c) Have become indebted to or paid money to defendant as a result of the foregoing.
“Class II
“(a) All persons included in Class I and who were sued by defendant in Allegheny County based upon an alleged failure to pay for monitoring services, and
“(b) Defendant obtained judgment in Allegheny County based upon the failure of the person sued to appear and defend.”

CERTIFICATION

It is this court’s present responsibility to determine whether plaintiffs’ suit is properly certifiable as a class action. In this respect, our authority is limited by the Pennsylvania Rules of Civil Procedure: “[t]he hearing is confined to a consideration of the class action allegations and is not concerned with the merits of the controversy or with attacks on the other averments of the complaint. Its only purpose is to decide whether the action shall continue as a class action or as an action with individual parties only.” Pa.R.C.P. 1707 (Explanatory note-1977).

Thus, for the time being, we must refrain from ruling on plaintiffs’ ultimate right to recovery and on the merits of any defense raised.

Our decision at this stage is limited to whether plaintiffs have satisfied the requirements described in Pa.R.C.P. 1702:

“Rule 1702: Prerequisites to a class action
“One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
“(1) the class is so numerous that joinder of all the members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

In applying the rules described above, courts have uniformly held it is the Commonwealth of Pennsylvania’s policy that decisions in favor of maintaining a class action should be liberally made. D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 448, 500 A.2d 1137, 1141 (1985); Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976) (class suits enable the assertion of many meritorious claims that might not otherwise be litigated); accord, Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 128, 451 A.2d 451, 454 (1982).

With regard to class certification, trial courts are also vested with broad discretion in defining the class with respect to commonality of the issues and the propriety of maintaining the action on behalf of the class. Klemow v. Time Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976); accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); Prime Meats Inc. v. Yochim, 422 Pa. Super. 460, 467, 619 A.2d 769, 773 (1993); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa. Super. 219, 225, 438 A.2d 616, 619 (1981).

Following is a discussion of the factors this court weighed in ruling on class certification.

1. Numerosity

To determine if the numerosity requirement has been satisfied, a court should examine “whether the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants.” Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977); accord ABC Sewer, 293 Pa. Super, at 225, 438 A.2d at 619; Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 51, 435 A.2d 208, 214 (1981).

Plaintiffs seek class certification of their claims under two “sub-classes,” as follows:

Class I
“(a) All persons who, within the Commonwealth of Pennsylvania, and on or after August 30, 1994, entered into a contest sponsored by defendant to win, or were offered a ‘free’ residential alarm system, upon forms supplied by defendant which were the same or similar to those attached under exhibit ‘A’ to the complaint, and
“(b) Claimed by defendant to have executed or did execute a sales and monitoring agreement [with defendant], and
“(c) Have become indebted to or paid money to defendant as a result of the foregoing.
Class II
“(a) All persons included in Class I and who were sued by defendant in Allegheny County based upon an alleged failure to pay for monitoring services, and
“(b) Defendant obtained judgment in Allegheny County based upon the failure of the person sued to appear and defend.” (Plaintiffs’ revised proposed findings of fact and conclusions of law at p. 1.)

Thus, plaintiffs have divided themselves into two classes for class certification purposes. Class I consists of all those who entered the contest and signed a monitoring agreement with defendant. Class II consists of Class I members who were sued by defendant in Allegheny County. Plaintiffs assert that there are at least 133 persons in Class I, all who entered the “contest” at Franklin Mills Mall, and that at least 37 of those contestants were sued and had judgments entered against them. (Plaintiffs’ revised proposed findings of fact and conclusions of law, p. 5.)

This court is able to discern who the potential class members are in this case. This court is also satisfied that the proposed classes, were they to be certified, are sufficiently numerous such that the number of potential individual plaintiffs in this case would pose a great imposition on the resources of the court. At least 133 people won defendant’s “contest” and signed sales and monitoring agreements, perhaps many more. Therefore, this court is satisfied that plaintiffs’ proposed classes meet the numerosity requirement.

2. Commonality

For class certification, plaintiffs must also establish that their claim presents “questions of law or fact common to the class.” Pa.R.C.P. 1702(2). “The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all.” Allegheny County Housing Authority v. Berry, 338 Pa. Super. 338, 342, 487 A.2d 995, 997 (1985). While the existence of individual questions essential to a class member’s recovery is not necessarily fatal to the class, there must be a “predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 408-409, 615 A.2d 428, 431 (1992) (emphasis in original); D’Amelio, 347 Pa. Super, at 451, 500 A.2d at 1142; Janicik, 305 Pa. Super, at 132, 451 A.2d at 457; see also, Pa.R.C.P. 1708(a)(1).

Here, plaintiffs assert that common issues of law exist among members of the proposed class. Plaintiffs argue that “there are questions of law common to the class as well as common questions of fact surrounding the use of the false advertisements and unlawful contract forms ....” (Plaintiffs’ revised proposed findings of fact and conclusions of law, p. 11.)

Specifically, plaintiffs argue that defendant “used the same procedure of obtaining leads through the use of a sham contest, the same contracts, the same unlawful notice of cancellation forms, the same method of obtaining judgments against those who did not pay.” (Plaintiffs’ class action certification memorandum of law, p. 12.) Plaintiffs argue that defendant engaged in the “same” illegal conduct with regard to every class member, and therefore the requirement of commonality has been met.

The record here supports plaintiffs’ contention that defendant engaged in the same conduct with each and every class member. The responses to question no. 3 of plaintiffs’ “class action questionnaire” demonstrate that defendant acted consistently toward all plaintiffs at the time they entered the “contest.” Question 3 to the questionnaire asks, “[w]hen entering [the contest], did you know that if you won and had the system installed that you would be responsible to pay monthly monitoring charges? Yes or No.” All but one of the 38 respondents to this question answered “no” — indicating that at the time of entering the “contest” they did not know that if they won the “contest” and had the system installed that they would be responsible to pay monthly monitoring charges. Thus, it is clear from these 38 questionnaire responses that defendant engaged in the same conduct toward each individual class member at the time each class member entered defendant’s “contest.” Therefore, this court finds that common issues predominate among the members of the proposed class, thereby satisfying the requirement of commonality.

3. Typicality

Plaintiffs must also demonstrate that their “claims or defenses ... are typical of the claims or defenses of the class.” Pa.R.C.P. 1702(3). This factor requires that “the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members.” D’Amelio, 347 Pa. Super, at 458, 500 A.2d at 1146; Janicik, 305 Pa. Super, at 134, 451 A.2d at 457; Ablin, 291 Pa. Super, at 47, 435 A.2d at 212. See also, 1 Newberg on class actions § 1115a.

The typicality requirement is satisfied in this case. Plaintiffs offer two individuals as class representatives: James Gaither and Patricia Jackowski. These individuals’ positions on the common issues of non-disclosure and misrepresentation at the time of contest entry are aligned with that of the other proposed class members. Both Mr. Gaither and Ms. Jackowski, like the 37 of 38 respondents to question 3 of the questionnaire, did not know at the time they entered the “contest” that installation of the security system required payment of a monthly monitoring charge. (See Gaither deposition at pp. 20-21; Jackowski deposition atpp. 41,57.) Thus, Mr. Gaither and Ms. Jackowski’s positions are aligned with that of the absent class members.

The fact that Mr. Gaither and Ms. Jackowski’s positions are aligned with the absent class members is further demonstrated by the testimony of two proposed class members who testified at the certification hearing. These two proposed class members, Mr. Gary Taylor and Ms. Tina Myles, both testified at the certification hearing that, like Mr. Gaither, Ms. Jackowski, and the absent class members who responded “no” to question 3 of the questionnaire, they too were entirely unaware at the time they entered into defendant’s “contest” of their obligation to pay a monthly monitoring fee. (N.T. 11/28/00, pp. 13, 15.) Thus, this court finds that Mr. Gaither and Ms. Jackowski’s overall positions on the common issue of defendant’s purported tendency to deceive are sufficiently aligned with that of the absent class members to ensure that their pursuit of their own interests will advance those of the proposed class members. Accordingly, the requirement of typicality is satisfied in this case.

4. Adequacy of Representation

Next, for the classes to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). Adequate representation is evaluated under considerations set forth in Pa.R.C.P. 1709, which provides:

“Rule 1709: Criteria for certification. Determination of fair and adequate representation
“In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider among other matters
“whether the attorney for the representative parties will adequately represent the interests of the class;
“whether the representative parties have a conflict of interest in the maintenance of the class action and
“whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.”

As to the first consideration, generally, “until the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458; citing Dolgow v. Anderson, 43 F.R.D. 472, 496 (E.D.N.Y. 1968). This court finds that plaintiffs have retained counsel highly experienced in class action litigation to prosecute their claims and those of the class. Therefore, this court is satisfied that the attorney for the representative parties will adequately represent the interests of the class.

Second, there is nothing to suggest that the representative plaintiffs have any interest antagonistic to the vigorous pursuit of the class claims against the defendant. Plaintiffs share with the class the interest in establishing that the defendant’s marketing tactics violate the law. Third, as to the adequacy of plaintiffs’ ability to fund the litigation, counsel’s representation that it will advance the necessary costs is all that is required. Janicik, 305 Pa. Super, at 137-38, 451 A.2d at 459-60. Further, “[a] lack of funding by a representative plaintiff, without more, is not sufficient to warrant denial of class certification.” Janicik, 305 Pa. Super, at 138-39, 451 A.2d at 460. This court is satisfied that plaintiffs’ counsel here has sufficiently adequate financial resources to fund this litigation. Accordingly, the representative plaintiffs adequately represent the interests of the class.

5. Fair and Efficient Method for Adjudication

Finally, allowing plaintiff to proceed with adjudication of this suit as a class action would be both fair and efficient. The factors to be evaluated are set forth in Pa.R.P.C. 1708 as follows:

“Rule 1708. Criteria for certification. Determination of class action as fair and efficient method of adjudication
“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below].
“Where monetary recovery alone is sought, the court shall consider
“whether common questions of law or fact predominate over any questions affecting only individual members;
“the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“whether the prosecution of separate actions by or against individual members of the class would create a risk of
“inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“whether the particular forum is appropriate for the litigation of the claims of the entire class;
“whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions [and];
“whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.”

In determining fairness and efficiency, the court must balance the interests of the litigants, both present and absent, and of the court system. Janicik, 305 Pa. Super, at 141, 451 A.2d at 461. Courts should strike this balance mindful that the class action is inherently a “procedural device designed to promote efficiency and fairness in handling large numbers of similar claims.” Janicik, 305 Pa. Super, at 141, 451 A.2d at 461, citing Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976).

Consumer class actions such as the case at bar easily satisfy the fair and efficient method of adjudication requirement of Rule 1708. Defendant has allegedly violated the rights of a large number of geographically dispersed persons to such an extent that the cost of pursuing individual litigation to seek recovery against a well-financed adversary is not feasible. Thus, the alternatives to a class action are either no recourse for potentially hundreds of injured consumers, or even in the unlikely event that they all become aware of their rights and could locate counsel, a multiplicity of scattered suits resulting in the inefficient administration of litigation. Accordingly, a class action is a fair and efficient method for adjudication of this matter.

CONCLUSIONS OF LAW

(1) The class is sufficiently numerous that joinder of all its members, were the class to be certified, would be impracticable.

(2) There are questions of law and fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims belonging to absent class members.

(4) The representative parties will fairly and adequately assert and protect the interests of the class.

(5) The attorney for the representative parties will adequately represent the interests of the class.

(6) There is no conflict of interest between the representative parties and the class members which would impede the maintenance of a class action.

(7) The representative parties have or can acquire adequate financial resources to assure the class interests will not be harmed.

(8) The class action will provide a fair and efficient method for adjudicating this controversy.

(9) Common questions of law or fact predominate over any question affecting only individual members.

(10) There are no difficulties in case management which would preclude litigating this matter as a class action.

(11) Prosecution of separate actions by class members would create a risk of inconsistent and varying adjudications and might confront defendant with incompatible standards of conduct.

(12) Individual adjudications would, as a practical matter, dispose of the interests of other class members not parties to the adjudication, or would substantially impair their ability to protect such interests.

(13) This particular forum is appropriate for the litigation of the entire class’ claim.

(14) The complexities of the issues, the expenses of litigation, and the small amount of each individual class member’s claim make it impossible to support or justify the presentation of separate claims.

For the foregoing reasons, this court has determined that the instant case is appropriate for disposition as a class action, and enters the following order:

ORDER CERTIFYING A CLASS ACTION

And now, June 29, 2001, in consideration of plaintiffs’ motion for class certification and all submissions related thereto, it is hereby ordered that the above-captioned action is certified as a class action. The class shall consist of:

“Class I: (a) All persons who, within the Commonwealth of Pennsylvania, on or after August 30, 1994, entered into a contest sponsored by defendant to win, or were offered a ‘free’ residential alarm system, upon forms supplied by defendant which were the same or similar to those attached under exhibit ‘A’ to the seventh amended complaint, and (b) who executed or did execute a sales and monitoring agreement [with defendant], and (c) have become indebted to or paid money to defendant as a result of the foregoing; and,
“Class II: (a) All persons included in Class I who were sued by defendant in Allegheny County based upon an alleged failure to pay for monitoring services, and (b) against whom defendant obtained judgment in Allegheny County based upon the failure of the person sued to appear and defend.”

Every member of the above-defined class will be included unless such member files a written election to be excluded from the class within 30 days from the date of the class notification.

The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within 30 days from the date of this order.

Plaintiffs James Gaither and Patricia A. Jackowski shall serve as class representatives.

      . Plaintiffs also assert numerous claims regarding violations of the CPL, citing defect in (1) the form of the contract signed after installation, including the placement of the forum selection clause, (2) the notice of cancellation, and (3) the negotiable nature of some of the transactions in conjunction with the word “free.”

      . Lawrence E. Wargo, executive vice president of Guardian Protection Services, testified that all contestants who met the contest’s eligibility requirements won the “contest.” The eligibility requirements are stated on the contest form, and include being a homeowner, having a telephone, and agreeing to a home monitoring agreement. (N.T. 6/8/99 at pp. 20-21.)

      . Plaintiffs further cite 16 C.F.R. §251.1(g), which prohibits “free” offers in conjunction with “negotiated” sales.

      . The burden of proving that class certification is appropriate clearly falls upon the party seeking certification. D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 449, 500 A.2d 1137, 1141 (1985); Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 128, 451 A.2d 451, 454 (1982).

      . As all members of Class II are contained within Class I this analysis will focus on Class I members only, with the understanding that it also applies to Class II members. Furthermore, Class I members and Class II members shall be collectively referred to herein as the “class.”

      . Plaintiffs’ counsel conducted a mail survey titled “class action questionnaire.” The questionnaire contains eight questions. Each questionnaire is signed by the respondent. The 38 separate responses to the questionnaire were moved into evidence upon plaintiffs’ motion. (N.T. 6/8/99, p. 5.)


author: McINERNEY, J.,

text:
    Smith v. Brown

      Jeffrey Bradford Sibick and Richard Keim, for appellees.

      Barry Wayne Smiley, for appellants.
    April 23, 2001
   McINERNEY, J.,

Charles T. Brown appeals from this court’s order denying his petition for relief from judgment on award of arbitrators.

I. BACKGROUND

On December 18,1998, Brown’s vehicle collided with appellee Sabrina Smith’s vehicle and appellee sustained injuries as a result of the collision. On November 12, 1999, Sabrina and her passenger Sherman Smith filed suit against Brown. On February 23, 2000, American Independent Insurance Company filed suit against Brown in a related matter. On June 28,2000, the Honorable Gary S. Glazer consolidated the Smiths’ case with American Independent Insurance Company v. Charles T. Brown for purposes of discovery and arbitration only. On October 20,2000, an arbitration hearing was scheduled. The arbitrators found for plaintiffs and Brown appealed. Unfortunately, Brown filed a notice of appeal only in American Independent Insurance Company v. Charles T. Brown and no notice was filed for Sabrina Smith and Sherman Smith Jr. v. Charles T. Brown. On December 15,2000, judgment was entered on the award of arbitrators in favor of plaintiffs. On December 22,2000, Brown filed a petition for relief from judgment on award of arbitrators. That petition was denied and dismissed with prejudice by this court on February 2, 2001. It is from this court’s order of February 2, 2001, that Brown appeals.

In response to this court’s order pursuant to Rule 1925(b), Pa.R.A.R, 42 Pa.C.S., Brown filed a concise statement of matters complained of on appeal alleging the following:

“(1) The court committed error of law and abused its discretion in denying defendant’s petition for relief from judgment on award of arbitrators where a timely appeal had been filed but where the notice of appeal contained an incomplete court term and number.
“(2) The court committed error of law and abused its discretion in denying defendant’s petition for relief from judgment on award of arbitrators where it is clear that defendant intended to file an appeal from the award of arbitrators in the consolidated cases American Independent Insurance Company v. Charles T. Brown, PCCP November term 1999, no. 1992 when the timely filed notice of appeal contained the caption American Inde pendent Insurance Company & Sabrina Smith & Sherman Smith Jr. v. Charles T. Brown’ but contained only the court term and number of the lead case.
“(3) The trial court committed error of law and abused its discretion in denying defendant’s petition for relief from judgment on award of arbitrators in failing to apply the same considerations in the present mutter as those which are applicable in determining whether to open a default judgment.
“(4) The trial court committed error of law and abused its discretion in denying defendant’s petition for relief from judgment on the award of arbitrators where defendant undertook prompt action in attempting to correct the docket to reflect that an appeal was intended to be taken from both actions and not just the lead case.

II. DISCUSSION

The thrust of Brown’s argument is that this court abused its discretion and committed error of law by denying defendant’s petition for relief from judgment on award of arbitrators where Brown had every intent to appeal the Smiths’ award but mistakenly failed to file a second appeal including that court term and number.

Brown argues that his petition should not have been dismissed since the only flaw in the appeal was that it was filed under the wrong court term and number. Unfortunately for Brown, timing and procedures for taking an appeal are clear and unambiguous. Pa.R.C.P. 1308 provides a two-step procedure to perfect an appeal from a compulsory arbitration award. That two-step method requires (1) filing a notice of appeal with the prothonotary no later than 30 days after the entry of the award on the docket, and (2) payment to the prothonotary of the appropriate fee. Pa.R.C.P. 1308(a)(1) and (2). By filing an appeal under only one court term and number and not both, defendant failed to file an appeal for the instant case. It should also be noted that the report and award of arbitrators contains the following instruction, which is the standard language appearing at the bottom of the second page of every report below the “Notice of entry of award”:

“Separate appeals must be filed with the prothonotary pursuant to Pa.R.C.P. 1308, and the requisite fees paid, if two or more cases are consolidated for trial and/or discovery purposes. Only those cases which are appealed will be scheduled for a de novo hearing. Awards in cases not appealed will become final upon expiration of the appeal time.”

Brown argues that his petition for relief from the award of arbitrators should be analyzed under the three part test which governs opening default judgments. Brown’s argument is erroneous because the effect of opening the judgment following the arbitration would be to allow an appeal nunc pro tunc. Generally, in civil cases, an appeal nunc pro tunc is granted only where there was “fraud or a breakdown in the court’s operations through a default of its officers.” Union Electric Corporation v. Board of Property Assessment, Appeals and Review of Allegheny County, 560 Pa. 481, 486, 746 A.2d 581, 584 (2000).

A court may not extend the time period for filing an appeal “absent a showing that extraordinary circumstances involving fraud, or its equivalent, duress, or coercion caused the delay in filing an appeal.” Id. Not one of these factors is present here.

This court did not abuse its discretion because a timely appeal was not filed. Defendant failed to file an appeal and then petitioned this court to open judgment.

This court is not unsympathetic to Brown’s plight, however, the established rule in this Commonwealth clearly limits the ability of this court to afford Brown any relief. This is a case of attorney negligence. Negligence is not a sufficient reason to grant leave to file the appeal late. In re In the Interest of C.K., 369 Pa. Super. 445, 535 A.2d 634 (1987). “The negligence of an appellant, or an appellant’s counsel, or an agent of appellant’s counsel, has not been considered a sufficient excuse for failure to file a timely appeal.” Bass v. Commonwealth, 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979). Therefore, this court did not commit error or abuse its discretion by denying defendant’s petition.

For the foregoing reasons, this court’s order should be affirmed.

      . The consolidated cases are captioned American Independent Insurance Company v. Charles T. Brown, February term 2000, no. 2451; and Sabrina Smith and Sherman Smith Jr. v. Charles T. Brown, November term, no. 1992. The lead case is American Independent Insurance Company v. Charles T. Brown.