Monday, September 05, 2005

consumer protection - atty. fees - additional damages - etc.

Neal v. Bavarian Motors, et al. - Pa. Superior Court, September 2, 2005

Plaintiff sued car dealer, finance company, etc, for damages she suffered as a result of defendants' having sold, financed, etc. a stolen car, which Plaintiff lost when it was impounded by the police.

Plaintiff was awarded actual damages, as well as treble damages and attorney fees under the state consumer protection law (CPL), 73 PS sec. 201-9.2, as well as damages under the UCC and the Motor Vehicle Sales Finance Act, and costs. Defendants appealed.

attorney fees - The majority reduced the award of attorney fees under the CPL. It "eliminate[d] from the award of attorney fees the efforts of counsel to recover on non-CPL theories....[A]bsent special circumstances, to permit plaintiff to recover counsel fees for all of the counts upon which she recovered damages would not only be inequitable, but would be contrary to the law.....'[A]n effort should be made to apportion the time spent by counsel on the distinct causes of action.'"

The concurring judge said that "determining the amount of CPL-related attorney fees is very fact-specific and should be assessed on a case-by-case basis." He said that "apportioning CPL-related damages 'may prove difficult given that these claims are based on a common core of facts and related legal theories,'" and noted that in other CPL cases, the court had refused to award attorney fees based on the % of CPL damages as distinguished from the total damage award. He said that it "may be inherently difficult to separate attorney fees based on a strict percentage" because some research "supported multiple legal theories."

treble damages and costs - The court said that "any violation of the CPL empowers the trial judge to consider the additional remedies provided thereunder...." such as treble damages. (emphasis added) In this case, the court found the appellants' conduct "egregious and their liability clear" and upheld the lower court.

joint and several liability - The court noted that Pennsylvania has adopted sec. 879 of the Restatement (2d) of Torts on this issue, holding that "if the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive." An arbitrary apportionment should not be made where there is no rational, logical or practical basis to divide the harm caused by multiple defendants.

remittitur - The court upheld the trial court's refusal to grant a larger remittitur, summarizing Pa. law as follows -- A remittitur should fix the highest amount any jury could properly award, giving due weight to all evidence offered. The question is whether the award falls within the uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejduce, mistake, or corruption.

Donald Marritz, staff attorney
MidPenn Legal Services -