J-A30025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ACERO PRECISION                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JAMES BONELLI AND VISTEK MEDICAL,
INC.

APPEAL OF: JAMES BONELLI
                                                       No. 667 EDA 2015


               Appeal from the Order Entered February 20, 2015
               In the Court of Common Pleas of Chester County
                    Civil Division at No(s): NO. 2014-05245


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                        FILED DECEMBER 15, 2015

        James Bonelli appeals from the order of the Chester County Court of

Common Pleas denying his request for attorney fees.            We reverse and

remand to the trial court for further proceedings.

        Bonelli worked for Acero Precision (“Acero”).     While employed with

Acero, Bonelli signed two agreements containing restrictive covenants, one

in 2010 and one in 2014. The 2014 agreement, which was less restrictive

than the 2010 agreement,1 contained the following attorney fees provision:

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 The 2010 agreement provided that Bonelli would not compete with Acero
within 100 miles of any Acero location for 2 years following his termination
unless he had the “express prior written consent” of Acero. Petition for
(Footnote Continued Next Page)
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“Should the employer or employee file a claim and[/]or lawsuit, the losing

party will pay the other parties’ attorney’s fees.” Answer with New Matter,

at Exh. A, at Remedies and Reformation.

      In April of 2014, Bonelli left his employment with Acero and began

working for Vistek Medical Inc. (“Vistek”), a company in the same medical

device industry as Acero. Decision, 10/15/2014, at 2, ¶¶ 3-4, 8-9. On June

5, 2014, Acero filed a complaint and preliminary injunction against Bonelli

and Vistek.     The parties conducted expedited discovery and agreed the

hearing on the petition for preliminary injunction would be a final hearing on

the merits.

      On October 15, 2014, the trial court entered judgment in favor of

Bonelli and Vistek and against Acero.             The trial court found the 2014

agreement was enforceable and Bonelli did not breach that agreement when

he accepted employment with Vistek. Decision, 10/15/2014, at 12, ¶ 2.

      The October 15, 2014 order entering judgment in favor of Bonelli said:

“[p]ursuant to the 2014 [a]greement, reasonable attorney’s fees are hereby

awarded to [Bonelli] as the prevailing party, to be assessed against [Acero].”

                       _______________________
(Footnote Continued)

Preliminary or Special Injunction Pursuant to Pa.R.C.P. No. 1531, at Exh. 3,
¶ 2 at Exh. 3 ¶ 3.

In contrast, the 2014 agreement provided Bonelli would not compete with
Acero only if, after receiving a thirty-day written notice from Bonelli, Acero
elected to continue to pay Bonelli following his termination. Answer with
New Matter, at Exh. A.



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Order, 10/15/2014, at ¶ 4. Following the issuance of this order, Bonelli filed

an initial fee petition. Bonelli attached to the petition two affidavits from his

counsel and subsequently filed affidavits from two experts. An affidavit from

Bonelli’s counsel submitted in support of the fee petition included the

following:

         10. [Counsel] has undertaken the joint representation of
         both Mr. Bonelli and Defendant Vistek, whose legal
         interests did not materially differ.

         11. No aspect of the defense of Vistek was materially
         distinguishable or varied from that of Mr. Bonelli.

         12. No action was taken in the defense of Vistek that
         would not have also been taken for the defense of Mr.
         Bonelli.

         13. The hourly rates and costs set forth in the attached
         monthly bills are the normal and customary rates charged
         by [counsel] and which represent the amount that has
         been charged for the defense of Mr. Bonelli in connection
         with the above-captioned action filed by Acero.

Defendant James Bonelli’s Initial Submission Regarding Attorney’s Frees

Pursuant to the Court’s October 15, 2014 Order at Exh. A, Declaration of

John A. Guernsey, Esq. The submission also included the attorney fee bills,

with the name of the client redacted. Id., at Exh. B.

      The trial court denied the request for attorney fees. In a footnote to

the order, the court found:

         The governing contract provides: “Should the employer or
         employee file a claim and/or lawsuit, the losing party will
         pay the other parties’ attorney’s fees.” The parties to the
         contract were [Acero] and [Bonelli], the losing and winning
         parties, respectively. There has been no demonstration
         that [Bonelli] had any attorneys’ fees, however. Instead,

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           it is pretty obvious that in this case all attorneys’ fees were
           billed to and paid by GEMCITY, the owner of Bonelli’s new
           employer, [Vistek], a non-signatory to the agreement.
           Bonelli is not out-of-pocket and, the court infers, has no
           intention of incurring legal liability for the fees. No award
           is warranted under these circumstances.

Order, 1/21/2015, at n.1.

      Bonelli filed a timely notice of appeal.      Both he and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following claims on appeal:

           I. Did the trial court err in not awarding [Bonelli] any
           attorney fees under the 2014 [a]greement when the plain
           and unambiguous language of the 2014 [a]greement
           contains no requirement that the attorney fees actually be
           paid by the prevailing party for an award of attorney fees?

           II. Did the trial court err by exercising discretion not
           authorized by Pennsylvania law or the 2014 [a]greement
           to evaluate whether [Bonelli] had a right to fees he has not
           yet paid or were paid by another?

Appellant’s Brief at 3. We will address Bonelli’s issues together, as they are

related.

      Whether Bonelli is entitled to attorney fees pursuant to the fee

provision contained the 2014 agreement is a question of law.         Our standard

of review is de novo and our scope of review is plenary. McMullen v. Kutz,

985 A.2d 769, 773 (Pa.Super.2009).

      The following principles apply to interpreting terms of a contract:

           In interpreting the language of a contract, we attempt to
           ascertain the intent of the parties and give it effect. When
           the words of an agreement are clear and unambiguous,
           the intent of the parties is to be ascertained from the



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          language used in the agreement, which will be given its
          commonly accepted and plain meaning.

LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa.2009)

(internal citation omitted).

       In Pennsylvania “[t]he general rule . . . is that each side is responsible

for the payment of its own costs and counsel fees absent bad faith or

vexatious conduct.”     McMullen, 985 A.2d at 775 (quoting Lucchino v.

Commonwealth, 809 A.2d 264, 267 (Pa.2002)). “This so-called ‘American

Rule’ holds true ‘unless there is express statutory authorization, a clear

agreement of the parties or some other established exception.’”                Id.

(quoting Mosaica Academy Charter School v. Com. Dept. of Educ., 813

A.2d   813,   822   (Pa.2002)).     In   McMullen,    the   Supreme    Court    of

Pennsylvania found a court may consider whether the fees claimed pursuant

to a contractual fee-shifting provision are reasonable, even if the contract’s

fee provision contains no reasonableness requirement.         985 A.2d at 776.

The provision at issue in McMullen, provided that the breaching party must

pay the attorney fees “‘incurred’ by the non-breaching party.” Id. at 775.

The Court found that the “potential for abuse” was “too high” if it were to

read the language to require payment of any and all fees incurred by the

non-breaching party.       Id.    It reasoned “[i]f we were to forbid a

reasonableness inquiry by a trial court, there would be no safety valve and

courts would be required to award attorney fees even when such fees are

clearly excessive.” Id. at 776.



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      The fee-shifting provision contained in the contract signed by Bonelli

and Acero provides: “Should the employer or employee file a claim or

lawsuit, the losing party will pay the other parties’ attorney’s fees.”

      We find the trial court erred in finding Bonelli was not entitled to

attorney fees. Bonelli established the attorney fees were incurred in defense

of the claim brought against him by Acero and that he was the prevailing

party. The contract provision contains no requirement that the fees be paid

by, or billed to, Bonelli. Further, unlike unreasonableness, there is no such

requirement implied in the contract. See Creeks v. Creeks, 619 A.2d 754,

756 (Pa.Super.1993) (“The court must construe the contract only as written

and may not modify the plain meaning of the words under the guise of

interpretation.”). As the non-prevailing party, Acero is liable pursuant to the

contract for Bonelli’s reasonable attorney fees accrued in defense of the

claim Acero filed against Bonelli.

      Order reversed. Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015




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