DAVIS BUCCO MAKARA & DORSEY FAVORABLE SUPERIOR COURT DECISION GETS NATIONAL ATTENTION

Law360 (November 15, 2021, 2:37 PM EST) — A suburban Philadelphia court clerk exceeded its legal authority when adding more than $1.37 million in attorney fees and costs to a $34,224 judgment in a contract dispute between a father and son over ownership of a manufacturing company, a Pennsylvania appeals court ruled Friday.

The state’s Superior Court wrote that it was undisputed that a Delaware County Court of Common Pleas judge agreed to award Thomas Tomei more than $34,224 as a result of his successful claims of conversion against his father, Vincent, in an ongoing dispute over ownership of the company.

But what that court should award Thomas in costs and fees related to the alleged breach of his employment contract after he was fired as president had yet to be decided, the panel said.

The panel wrote that while the court had directed the Office of Judicial Support — an
administrative office performing duties of the court clerk — to enter a judgment in Thomas’ favor on those conversion and contract claims, “the court made no specific factual finding as to the sum certain amount of Vincent’s liability,” the panel wrote.

The trial court also hadn’t determined the reasonableness of those fees or Thomas’ entitlement to them, the panel wrote.


“Hence, we vacate the judgment and remand this case to the trial court for a hearing to
determine the reasonableness, accuracy and appropriateness of the fees and costs to make a specific finding as to the amount of fees and costs that should be awarded under the rules,” the panel wrote.


In 2013, Vincent and H&H Manufacturing Co. sued Thomas for breach of contract and conversion after the once-president of the organization owned by his father was fired by its board of directors and refused to return business ledgers and records, which was required as part of the termination. Vincent claimed in that action that Thomas had been using company funds for his own purposes and as president failed to pay Vincent’s salary.

But Thomas countered in an answer to those allegations that his firing as H&H Manufacturing’s president without ample notice violated a 2004 agreement he had with the company. He also claimed that Vincent had misappropriated company funds for personal use, while Thomas’ wife, Jeanette, filed a separate answer denying any liability for the alleged conversion.


The panel wrote that after the trial court’s decision in favor of those counterclaims, Thomas and Jeanette filed a praecipe for judgment requesting a $34,224 award for the conversion challenge, along with $1,373,524 in attorney fees and costs.


While the pair submitted an affidavit from their counsel with that praecipe, the document didn’t outline why the fee request ran beyond $1 million or submit any evidence that the bill was reasonable, the panel wrote.

“When the prothonotary entered a judgment $34,224.58, plus $1,373,524.49 in attorneys’ fees and costs that was not previously rendered by the trial court, it was based solely on the affidavit of Thomas and Jeanette’s counsel,” the panel wrote.


David Makara, a Davis Bucco Makara & Dorsey partner representing the plaintiffs, and Eric
Feldhake, a Kulzer & DiPadova PA shareholder representing the defendants, did not return
requests for comment Monday.


The plaintiffs are represented by David Makara of Davis Bucco Makara & Dorsey.


The defendants are represented by Eric Feldhake of Kulzer & DiPadova PA.


The case is H&H Manufacturing Co. Inc. et al. v. Thomas R. Tomei et al., case number 1982 EDA 2020, in the Superior Court of Pennsylvania.
–Editing by Philip Shea.

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