Carmen Enterprises, Inc. v. Murpenter, LLC ( 2015 )

J-A06012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARMEN ENTERPRISES, INC., F/D/B/A IN THE SUPERIOR COURT OF
CRUISE HOLIDAYS OF NORRISTOWN & PENNSYLVANIA
BYEBYENOW.COM TRAVEL STORE
Appellee
v.
MURPENTER, LLC, D/B/A UNIGLOBE
WINGS TRAVEL
Appellant No. 950 EDA 2014
Appeal from the Judgment Entered March 26, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 02-07223
CARMEN ENTERPRISES, INC., F/D/B/A IN THE SUPERIOR COURT OF
CRUISE HOLIDAYS OF NORRISTOWN & PENNSYLVANIA
BYEBYENOW. COM TRAVEL STORE
Appellee
v.
MURPENTER, LLC, D/B/A UNIGLOBE
WINGS TRAVEL
Appellant No. 1115 EDA 2014
Appeal from the Judgment Entered March 26, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): 02-7223
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
CONCURRING AND DISSENTING MEMORANDUM BY JENKINS, J.
FILED AUGUST 12, 2015
J-A06012-15
I agree with the learned Majority’s determinations that Murpenter is
not entitled to relief on its cross-appeal claim and that Carmen’s sanctions
claim merits no relief. However, I respectfully disagree with and dissent
from the Majority’s conclusion that Carmen is entitled to attorney’s fees for
legal work performed by Bruce Chasan on its behalf.
“[A]n award of counsel fees is intended to reimburse an innocent
litigant for expenses made necessary by the conduct of his opponent.”
Westmoreland Cnty. Indus. Dev. Auth. v. Allegheny Cnty. Bd. of
Prop. Assessment, 723 A.2d 1084, 1086-87 (Pa.Commw.Ct.1999).1 A pro
se litigant may not recover counsel fees. Westmoreland, 723 A.2d at 1087
(“[42 Pa.C.S. § 2503] does not provide authority for an award of a “pro se
equivalent” of counsel fees to a pro se litigant.”). This is so because no
agency relationship can exist in pro se litigation. Kay v. Ehrler, 499 U.S.
432, 111 S. Ct. 1435 (1991). As the Supreme Court of the United States has
explained after noting that the definition of the word “attorney” universally
contemplates one individual acting on behalf of another:
Even a skilled lawyer who represents himself is at a
disadvantage in contested litigation. Ethical considerations may
make it inappropriate for him to appear as a witness. He is
deprived of the judgment of an independent third party in
framing the theory of the case, evaluating alternative methods
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1
“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 n.9 (Pa.Super.2014)
(citation omitted).
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of presenting the evidence, cross-examining hostile witnesses,
formulating legal arguments, and in making sure that reason,
rather than emotion, dictates the proper tactical response to
unforeseen developments in the courtroom. The adage that “a
lawyer who represents himself has a fool for a client” is the
product of years of experience by seasoned litigators.
Kay, 499 U.S. at 437-38, 111 S. Ct. at 1438 (footnote omitted).
Bruce Chasan, Esquire, was Carmen’s sole shareholder throughout the
majority of this litigation.2 Along with other attorneys, Chasan represented
Carmen in this matter and claimed in excess of $905,000.00 for legal work
performed on Carmen’s behalf.3 See Plaintiff’s Motion to Mold the Verdict
(Decision), p. 2, R.R. 755a; N.T. 2/10/2014, p.21, R.R. 1534a. However,
Chasan produced no fee agreement between himself and Carmen, no
invoices from Carmen for his legal work, and no checks evidencing payment
to him from Carmen therefore. See N.T. 2/10/2014, pp. 95-97, R.R. 1552a-
1553a.
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2
Chasan now holds only 90% of Carmen’s shares. Chasan’s two children
hold the remaining 10% of Carmen’s shares, 5% each. See N.T. 2/10/2014,
p. 90-91, R.R. 1551a.
3
The trial court awarded reasonable attorney’s fees to Carmen’s other
counsel in this matter as follows:
Gilbert J. Scutti: $48,868.17
Stephen A. Sheinen: $ 4,600.00
Gary Mezzy: $ 2,013.34
Alan B. Kane: $ 4,140.00
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Chasan’s portion of Carmen’s representation is de facto pro se
representation for which neither he nor Carmen may recover attorney’s fees.
That Carmen is a corporation – an entity that is incapable of representing
itself – as opposed to an individual representing himself, does not change
the analysis. Although this Court has not ruled on the issue, the
Commonwealth Court determined that a company represented by an
attorney owner may not recover attorney’s fees. See Maurice A.
Nernberg & Associates v. Coyne, 920 A.2d 967, 972
(Pa.Commw.Ct.2007) (law firm represented by its attorney owner not
entitled to recover attorney’s fees for work legal representation by owner).
Therefore, Carmen cannot recover attorney’s fees for the portion of its
representation provided by attorney owner Chasan.4 See Westmoreland,
supra; Nernberg, supra.
I understand and appreciate the Majority’s position that a contract
provision, not a fee-shifting statute, governed the attorney’s fees in this
matter. See Majority Memorandum, pp. 8-11. However, I do not believe
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4
Further, the trial court “observed the marked difference in the conduct of
co-counsel, [] who acted with an independent and reasoned approach at trial
in contrast to co-counsel, Bruce Chasan, Esq. who (understandably) was
emotionally and personally embroiled in the controversy.” Trial Court
Pa.R.A.P. 1925(a) Opinion, dated June 9, 2014, p. 14 n.9. The trial court’s
observation illustrates the exact conflict discussed by the Supreme Court in
Kay, supra.
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this distinction alters the analysis of Carmen’s entitlement to attorney’s fees
for Chasan’s pro se representation.5
For these reasons, I would find the trial court properly precluded
attorney owner Chasan from recovering attorney’s fees for his
representation of Carmen. As a result, I would affirm the trial court’s order
in its entirety. Accordingly, I am compelled to dissent.
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5
I note with approval that the trial court awarded fees to multiple other
attorneys who represented Carmen pursuant to the contractual provision
noted by the Majority. See Note 3, supra.
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