J-A15035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICHOLAS POULIDES,                             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
     Appellant

                   v.

AMERICAN THEATRE ARTS FOR YOUTH,
INC. AND LAURIE WAGMAN,

     Appellees                                 Nos. 2586 EDA 2013



             Appeal from the Judgment Entered July 23, 2013
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 120501883

BEFORE: PANELLA, J., LAZARUS, J., AND JENKINS, J.

MEMORANDUM BY: JENKINS, J.                    FILED SEPTEMBER 12, 2014

     The issue in this appeal is whether the lower court abused its

discretion in denying attorney fees to Nicholas Poulides after Poulides

prevailed in his action under the Wage Payment and Collection Law

                             et seq.   We conclude that the court properly

denied attorney fees to Poulides, and we affirm.

     Poulides filed an action under the civil remedy section of the WPCL, 43

P.S. § 260.9a, against his employer, American Theater Arts for Youth, Inc.

                                              rie Wagman, seeking unpaid

wages of $35,000.00, liquidated damages1 of $8,750.00 and attorney fees.



1
  The WPCL
follows:
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J-A15035-14


Since Poulides demanded less than $50,000.00, the case proceeded to

compulsory    arbitration.    The   board   of   arbitrators   awarded   Poulides

$4,902.03 in unpaid wages. Poulides did not request attorney fees during

the arbitration, and neither side took a de novo appeal from the award of the

board of arbitrators to the trial division of the Court of Common Pleas.

      After the 30-day appeal period expired, Poulides reduced the award to

judgment. Seven days later, Poulides filed a bill of costs seeking $27,000 in

attorney fees under the fee-shifting provision of the WPCL, 43 P.S. §

260.9a(f)2




             Where wages remain unpaid for thirty days beyond
             the regularly scheduled payday, or, in the case
             where no regularly scheduled payday is applicable,
             for sixty days beyond the filing by the employe of a
             proper claim or for sixty days beyond the date of the
             agreement, award or other act making wages
             payable, or where shortages in the wage payments
             made exceed five percent (5%) of the gross wages
             payable on any two regularly scheduled paydays in
             the same calendar quarter, and no good faith contest
             or dispute of any wage claim including the good faith
             assertion of a right of set-off or counter-claim exists
             accounting for such non-payment, the employe shall
             be entitled to claim, in addition, as liquidated
             damages an amount equal to twenty-five percent
             (25%) of the total amount of wages due, or five
             hundred dollars ($500), whichever is greater.

43 P.S. §260.10. This appeal does not involve any issues concerning
liquidated damages.
2
                               The court in any action brought under this
[civil remedy] section [of the WPCL] shall, in addition to any judgment
                                       2
J-A15035-14


of costs claiming that Poulides was not entitled to attorney fees, and the

prothonotary       sustained   these   exceptions.   Poulides   appealed   the



Division of the Court of Common Pleas.        The Motions Court affirmed the



appeal to this Court.

      Poulides filed a timely 5-page Pa.R.A.P. 1925(b) statement in which he

raised 3 issues:

            1. The prothonotary erred in stating it did not have
               the power to tax counsel fees.

            2. If the failure to award fees by either the
               prothonotary or this Honorable Court was due to
               timeliness of the application for fees, such was
               error.

            3. This Honorable Court should have determined and
               awarded reasonable fees upon
               the bill of costs order.

The Motions Court issued a Pa.R.A.P. 1925(a) opinion stating that Poulides

waived all issues because his concise statement was excessively long:

                                                                  ges to raise



has precluded this Court from providing a clear and meaningful review of its



the merits of the issues.

awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys'
fees of any nature to be paid by
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all issues in his Pa.R.A.P. 1925(b) statement. Waiver issues such as this are

issues of law; thus, our standard of review is de novo.     Pocono Manor

Investors, LP v. Pennsylvania Gaming Control Board, 927 A.2d 209,

216 (Pa.2007).

     In view of our recent decision in Maya v. Johnson & Johnson

McNeil PPC, Inc., -- A.3d --, 2014 WL 3586390 (Pa.Super., July 22,

                                                                   es waived

the issues articulated in his Pa.R.A.P. 1925(b) statement. In Maya, the trial

court determined that the appellant waived all issues on appeal because his

Pa.R.A.P. 1925(b) statement was 11 pages long with 23 paragraphs and



Musmanno, disagreed, reasoning:

           The trial court advocates waiver, citing this court's
           decision in Kanter v. Epstein, 866 A.2d 394
           (Pa.Super.2004), appeal denied, 880 A.2d 1239
           (Pa.2005), cert. denied, Spector, Gadon &
           Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006), in
           which this court held that where an appellant's
           concise statement raises an unduly large number of
           issues (104 in Kanter), the purpose of Rule 1925 is
           effectively subverted. However, Rule 1925(b) was
                                                               -
           redundant, non-frivolous issues are set forth in an
           appropriately concise manner, the number of errors

           Pa.R.A.P. 1925(b)(4)(iv). In addition, in Eiser v.
           Brown & Williamson Tobacco Corp., 938 A.2d
           417 (Pa.2007) (plurality), our Supreme Court held
           that a litigant will not suffer the loss of appellate
           review due to the volume of issues raised in the

                                     4
J-A15035-14


            absence of bad faith. The Eiser court also
            distinguished Kanter on the basis that Kanter was a
            relatively straightforward breach of contract action
            while the lawsuit in Eiser was a complicated one
            with a voluminous record. The court in Eiser
                                      occasions a party may, in
            good faith, believe that a large number of issues are
                                              Id. at 427 (footnote
            omitted). Instantly, as in Eiser, the subject lawsuit
            is complex and the record contains thousands of
            pages of testimony. Furthermore, there is no
            evidence of bad faith or an attempt to thwart the
            appellate process. We note that McNeil did winnow
            down the number of issues actually argued in its
            brief on appeal. Therefore, we decline to find waiver.

Id., 2014 WL at 3586390,

is far more concise than the 11-page, 23-paragraph Pa.R.A.P. 1925(b)

statement that the Maya court found acceptable. Poulides raises only three

non-redundant, non-frivolous issues and describes each issue in detail in his

Pa.R.A.P. 1925(b) statement.       His statement does not impede appellate

review.

      Turning to the merits of this appeal, we review a trial court's

determination regarding the award of attorney fees for an abuse of

discretion. Kraft v. Downey, 68 A.3d 329, 332 (Pa.Super.2013) (citation

omitted). An abuse of discretion requires more than a difference of opinion



conclusion, the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,

                                        Id. at 332-33.


                                        5
J-A15035-14


        Relying on Connor v. DaimlerChrysler Corp., 820 A.2d 1266

(Pa.Super.2003), the Motions Court held that Poulides forfeited his right to

obtain attorney fees by failing to request them during compulsory arbitration

and failing to file a de novo

                                                       Connor filed a compulsory

arbitration action under the Magnuson-

U.S.C. § 2301 et seq., and the Unfair Trade Practices and Consumer



arbitration.    The arbitration panel awarded him $2,000, and neither side

appealed. The plaintiff then filed a motion seeking attorney fees under the

MMWA3 and the UTPCPL4. The Court of Common Pleas of Allegheny County

ruled against plaintiff, and this Court affirmed. We determined that the term




3
                                        If a consumer finally prevails in any
action brought under paragraph (1) of this subsection, he may be allowed by
the court to recover as part of the judgment a sum equal to the aggregate
amount of costs and expenses (including attorneys' fees based on actual


4
    The UTPCPL states in relevant part:

               The court may, in its discretion, award up to three
               times the actual damages sustained, but not less
               than one hundred dollars ($100), and may provide
               such additional relief as it deems necessary or
               proper. The court may award to the plaintiff, in
               addition to other relief provided in this section, costs
               and reasonable attorney fees.

73 P.S. § 201-9.2(a) (emphasis added).
                                          6
J-A15035-14




of evidence, resolution of factual questions and assessment of damages.

Id., 820 A.2d at 1271. No reason existed to treat the question of attorney

fees differently from any other question that arbitrators customarily decide

in a case. Id. Therefore, the plaintiff waived his right to attorney fees by

failing to request them before the arbitration board or to appeal de novo to

the Court of Common Pleas. Id. at 1270-71.

                 reasoning applies to this case, because the statutes that

Connor construed are similar to the WPCL.       The WPCL, as stated above,

provides that the court



260.9a(f).    In view of                                                     s

arbitration boards, Poulides was required either to request attorney fees

before the arbitration board or to appeal de novo5 to the Court of Common

Pleas. Connor, supra, at 1270-71. His failure to take either step precludes

him from recovery of attorney fees.




5
    The Rules of Civil Procedure define a de novo appeal from the board of

party shall be deemed an appeal by all parties as to all issues unless

           de novo
bears the burden of proving unpaid wages and liquidated damages and must
also request attorney fees at a timely juncture in the trial process. This case
does not call upon us to decide the point in de novo trial proceedings when
the plaintiff must request WPCL attorney fees.
                                      7
J-A15035-14


      We note that in two decisions, one of which post-dates Connor, our



         See Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa.2003); Wertz v.

Chapman Township, 741 A.2d 1272 (Pa.1999). In Mishoe, for example,

the Court held that there was no right to a jury trial in a bad faith insurance

action under 42 Pa.C.S.A. § 8371.         Section 8371

action arising under an insurance policy, if the court finds that the insurer

has acted in bad faith toward the insured, the court

punitive damages, and court costs and fees. 42 Pa.C.S.A. § 8371 (emphasis

added). Mishoe reasoned that there was no right to a jury trial because the

                                                         Id., 824 A.2d at 1156.

The Mishoe court gathered multiple authorities for the proposition that

                                       synonymous for purposes of section



Id. at 1157-58 & n. 5, 7.

      But while Mishoe

                                                   are also synonymous, the

issue resolved in Connor. Therefore, Connor continues to remain good law

notwithstanding the decision in Mishoe.

      Poulides also argues that the Motions Court could have awarded

attorney fees following his appeal from the Prothonota

the demand for attorney fees in his bill of costs. We agree with the Motions


                                      8
J-A15035-14

Court that under Connor, an appeal from the prothonotary is not the proper

procedure for obtaining attorney fees in a WPCL action that begins as an

arbitration action.   In such circumstances, Connor requires the WPCL

plaintiff to seek attorney fees either before the arbitration panel or in a de

novo appeal from the arbitration board to the trial division. Since Poulides

failed to take either step, he waived his right to attorney fees.

      Order denying attorney fees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2014




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