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.
BREAKING NEWS: SHUTDOWN ORDER LIFTED FOR CONSTRUCTION INDUSTRY
The Commonwealth of Pennsylvania has amended the previous Order barring “non-life sustaining” work from proceeding. EFFECTIVE MAY 8, 2020 “… limited construction activity is authorized to commence in-person operations statewide.”
In commencing such operations, employers and employees are still obligated to perform such work pursuant to CDC and DPH guidelines for mitigating the spread of COVID-19, including without limitation social distancing practices.
EMPLOYERS RETURNING TO WORK SHOULD:
SUBMIT, if not already, any delay and/or cost notices for changed job site conditions or delays due to COVID-19 related delays and/or inefficiencies.
Prepare, PRIOR TO APPEARING ON SITE, a safety plan for implementing CDC/DPH guidelines, and identify who will be providing hand washing stations, site cleaning, PPE and/or employee screenings to avoid any duplicate efforts and duplicate costs. Communicate with tiers as to any costs or time extensions they may request or need to submit a comprehensive upstream request.
COVID-19 IS A RECORDABLE OSHA ILLNESS, subject to interim guidelines. Under these interim guidelines, Employers must record an employee’s confirmed COVID-19 case that results in days away from work, treatment beyond first aid or other applicable criteria, IF THERE IS ALSO:
- Objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees
If your contract provides for a waiver of the immunity provided to an employer paying worker’s compensation to an employee, evaluate if you want to request amending your contract to void that waiver for COVID-19 related claims that may be presented to you for indemnification by an upstream party.
If you would like more information on issues raised by returning to work in the COVID-19 environment, please click on this link for a 1-hour webinar we provided with CFMA PHILADELPHIA.
ESTABLISH A SITE PLAN FOR IMPLEMENTING PROPER COVID-19 MITIGATION MEASURES BEFORE APPEARING AND ESTABLISH WHO AT THE SITE IS RESPONSIBLE FOR PROVIDING PPE, HAND WASHING, AND ANY EMPLOYEE SCREENINGS.
Welcome our newest addition: Paul Fanelli!
Paul practices in the areas of commercial litigation, commercial real estate, construction law, debt collection, labor law and many others. Paul has an extensive background in complex litigation and real estate matters in Pennsylvania and New Jersey. Prior to joining the firm, Paul focused his practice on representing lenders and financial institutions in loan default actions, loan restructuring and workouts, residential and commercial foreclosure actions, and defending consumer claims brought under RESPA, TILA, FDCPA, Consumer Fraud Statutes, and other federal and state consumer protection statutes. Paul also represented the rights of financial institutions in bankruptcy cases filed under Chapters 7, 11 and 13 and in adversary proceedings.
Admitted to practice in: Pennsylvania; the U.S. District Court for the Eastern District of Pennsylvania; the U.S. District Court for the Middle District of Pennsylvania; the U.S. District Court for the Western District of Pennsylvania; New Jersey; and the U.S. District Court for District of New Jersey.
Email me: firstname.lastname@example.org
JOHN DORSEY AND DAVID MAKARA JOINED CARLO FERRI OF KRESICHER MILLER FOR A SEMINAR FOCUSING ON THE TAX PLANNING BENEFITS OF PAY IF PAID PROVISIONS. For construction contractors, having the ability to manage and preserve working capital is critical. One of the many ways a contractor can successfully do this is to incorporate thoughtful tax planning strategies which impact the timing of income tax obligations for the business and its owners. Click here to watch the video recap!
NEW YEAR. NEW NAME.
Same great commitment to service and results that has defined us for over 30 years.
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|DAVIS BUCCO APPOINTED TO CODE APPEALS BOARD|
Davis Bucco is pleased to announce that one of it’s associates, Mark Bonavitacola, has been appointed to sit on the Conshohocken Board of Code Appeals. Mark’s practice focuses on transactional and litigation matters, including matters subject to municipal regulation. He will use his professional experience now in considering code violation appeals, or other relief within the Board’s jurisdiction. The appointment is an example of Davis Bucco’s range of experience and community involvement.
|DAVIS BUCCO FEATURED AS GUEST LECTURERS AT AIA DOCUMENTS FORUM|
Davis Bucco was recently featured in a lecture series in Harrisburg Pennsylvania regarding construction contracts and AIA contract forms. Davis Bucco was represented by John Dorsey and Mark Bonavitacola. The lectures focused on contract formation and interpretation. Attorney, Bonavitacola, then lectured on particular issues and recent changes in the different AIA contract forms. Please feel free to review the lectures on our website by viewing this link. Davis Bucco is regularly featured as lecturers, and often provides legal trainings in client or industry trade group settings. If you would like Davis Bucco to provide a presentation on contracts or other legal issues, please do not hesitate to contact our office at 610-238-0880
|DAVIS BUCCO NAMED TO DREXEL UNIVERSITY’S CONSTRUCTION MANAGEMENT PROGRAM|
Davis Bucco is pleased to announce that it has been named again to the faculty of Drexel University’s Construction Management Program. The Firm will develop and teach a Real Estate law class for the program and the class will be led by John Dorsey, Esquire. Davis Bucco welcomes this opportunity to engage with a program that has prepared so many professionals for work in the construction industry. We look forward to sharing our practical and legal knowledge with people enrolled in the program.
|WELCOME NEW HIRE, PETER MAGANAS!|
We would like to welcome Peter Maganas to the Davis Bucco team! Pete works on complex litigation matters including construction law and corporate shareholder disputes. Pete grew up in Chester County and is a graduate of Temple University. We’re happy to have Pete join us here at Davis Bucco!