J-A01029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KIMMEL & SILVERMAN, PC AND                 :   IN THE SUPERIOR COURT OF
    ALEXANDER HOUCK                            :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1702 EDA 2019
    HYUNDAI MOTOR AMERICA                      :

                  Appeal from the Order Entered April 30, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                            No(s): No. 2016-11917


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 06, 2020

        Kimmel & Silverman, PC (Kimmel) and Alexander Houck (Houck)

(collectively, Appellants) appeal from the trial court’s order denying their

motion for attorneys’ fees and costs. We affirm.

        The trial court recounted the factual and procedural background as

follows:

               This case originated as a claim filed before a Magisterial
        District Judge on March 8, 2016, by [Kimmel], against [Hyundai
        Motor America (Appellee)]. On June 1, 2016, the Magisterial
        District Judge entered judgment in favor of [Appellee]. On June
        13, 2016, Kimmel filed an appeal to [the trial c]ourt. On March
        31, 2017, upon [p]raecipe filed by [Appellee], the [p]rothonotary
        entered a judgment of non-pros against Kimmel for failure to file
        a complaint. On April 7, 2017, Kimmel filed Plaintiff’s Petition to
        Reinstate the Complaint and/or for Relief from Judgment of Non
        Pros or by Default. By [o]rder of August 30, 2017, the [c]ourt, by
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     the Honorable Steven C. Tolliver, Sr., granted the [p]etition and
     ordered that the praecipe for non-pros be stricken and that
     Kimmel file a complaint within ten days.

            A [c]omplaint was filed on September 11, 2017. In addition
     to Kimmel, [Houck] was also named as a [p]laintiff.             The
     [c]omplaint averred that on or about January 1, 2008, [Houck]
     purchased a preowned Hyundai vehicle, which turned out to have
     serious defects. The [c]omplaint further averred that on or about
     April 7, 2011, a settlement was agreed to, under which [Appellee]
     was to pay $1,500 in damages to [] Houck and $1,500 in attorney
     fees to Kimmel. Attached to the [c]omplaint was an email
     exchange between counsel, in which [Appellee’s] attorney offered
     $3,000 in settlement and stated, “let me know and I can send a
     release this week,” and a Kimmel attorney replied, “[w]e are
     settled for the $3,000.” (Compl., Ex. B.)[.] The email exchange
     did not specify how the $3,000 figure was to be allocated between
     damages and counsel fees. [] Houck did not sign a Settlement
     Agreement and Release until February 19, 2016. (Compl., ¶ 12 &
     Ex. C.)[.] The [c]omplaint stated that [Appellee] had failed to pay
     the agreed-upon settlement amount of $3,000.

            The [c]omplaint was brought in three counts. Count 1,
     under the Magnuson-Moss Warranty — Federal Trade Commission
     Improvement Act, Pub. L. No. 93-637, 88 Stat. 2183 (1975)
     (codified at 15 U.S.C. §§ 2301-2312 and elsewhere) (“Magnuson-
     Moss Act”), and Count II, under the Unfair Trade Practices and
     Consumer Protection Law, 73 P.S. §§ 201-1 to -9.3 (“UTPCPL”),
     were brought on behalf of [] Houck alone. Count III, for breach
     of contract — i.e., the settlement agreement — was brought on
     behalf of [] Houck and Kimmel.

           On January 3, 2018, [Appellants] filed the Plaintiffs’ Motion
     to Enforce Settlement and for Resulting Counsel Fees. The
     [m]otion sought enforcement of the settlement agreement
     reached on April 7, 2011. Consistent with the title of the [m]otion,
     the supporting [m]emorandum contained, in the [c]onclusion
     section, a brief request for “attorney’s fees to file the instant
     motion.” (Mem., at 15)[. Appellee] filed an Opposition to the
     Motion, including a Cross-Motion for Summary Judgment.
     Following a hearing, the Honorable Arthur R. Tilson issued an
     [o]rder dated June 18, 2018 granting the Motion to Enforce
     Settlement and denying the Cross-Motion for Summary Judgment.


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             On September 4, 2018, [Appellants] filed the Plaintiffs’
      Motion for Resulting Counsel Fees and Costs []. The [m]otion
      sought an award of all counsel fees and expenses incurred in
      connection with the prosecution of the case before the Magisterial
      District Judge and [the trial c]ourt, for a total of $5,577.40. The
      [m]otion acknowledged that in response to Judge Tilson’s [o]rder,
      [Appellee] had paid the settlement amount of $3,000, of which
      $1,500 was for attorney fees. (Mot. For Fees, ¶ 10)[.] The only
      statutory authority cited as a basis for an additional award of
      counsel fees and expenses was the Magnuson-Moss Act —
      specifically, section [3]10(d)(2) of the Act, 15 U.S.C. §
      2310(d)(2). [Appellee] filed a [r]esponse in opposition to the
      [m]otion. On April 30, 2019, this [c]ourt issued an [o]rder
      denying the [m]otion for [f]ees.

            [Appellants] filed a timely [n]otice of [a]ppeal from that
      [o]rder on May 29, 2019. In a subsequently filed Statement of
      Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
      [Appellants] made clear that their appeal was limited to the denial
      of the [m]otion for [f]ees.

Trial Court Opinion, 7/29/19, at 1-3 (footnote omitted).

      On appeal, Appellants raise the following issue for review:

      Should a consumer be entitled to recover reasonable attorneys’
      fees and costs that he had to incur in order to secure payment on
      a valid and binding settlement of his claims under the Magnuson-
      Moss Warranty Act?

Appellants’ Brief at 3.

      To begin, we note that “[t]rial courts have great latitude and discretion

in awarding attorney fees when authorized by contract or statute.” Cummins

v. Atlas R.R. Const. Co., 814 A.2d 742, 746 (Pa. Super. 2002) (citations

omitted). “Generally, the denial of a request for attorneys’ fees is a matter

within the sound discretion of the trial court, which will be reversed on appeal

only for a clear abuse of discretion.” Id. (citations omitted).




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      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      of record, discretion is abused. We emphasize that an abuse of
      discretion may not be found merely because the appellate court
      might have reached a different conclusion, but requires a showing
      of manifest unreasonableness, or partiality, bias, or ill-will, or such
      lack of support as to be clearly erroneous.

Sommers v. UPMC, 185 A.3d 1065, 1071 (Pa. Super. 2018) (citation

omitted).

      Instantly, Appellants claim that the trial court erred when, “in its

discretion, deemed it inappropriate to award [Appellants’] any portion of the

[attorneys’] fees and costs necessarily attendant” to the litigation against

Appellee.   Appellants’ Brief at 6.     Appellants argue they are entitled to

attorneys’ fees under the Magnuson-Moss Act for Kimmel’s legal work done

on behalf of Houck to enforce the parties’ settlement agreement. Id. Upon

review, we are not persuaded the trial court abused its discretion.

      The relevant portion of the Magnuson-Moss Act provides:

      (d) Civil action by consumer for damages, etc.; jurisdiction;
      recovery of costs and expenses; cognizable claims

      (1) Subject to subsection (a)(3) and (e), a consumer who is
      damaged by the failure of a supplier, warrantor, or service
      contract, may bring suit for damages and other legal and equitable
      relief--

            (A) in any court of competent jurisdiction in any State
            or the District of Columbia; or

            (B) in an appropriate district court of the United
            States, subject to paragraph (3) of this subsection.



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J-A01029-20


      (2) 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 cost and expenses (including attorneys’ fees based on
      actual time expended) determined by the court to have been
      reasonably incurred by the plaintiff for or in connection with the
      commencement and prosecution of such action, unless the court
      in its discretion shall determine that such an award of
      attorneys’ fees would be inappropriate. . . .

15 U.S.C. § 2310(d)(1)-(2) (emphasis added).

      Referencing the Magnuson-Moss Act, our Supreme Court stated:

             Generally, where the award of attorneys’ fees is authorized
      by statute, an appellate court reviews the propriety of the amount
      awarded by the trial court under an abuse of discretion standard.
      . . . The authorizing statute here—[the Magnuson Moss Act]—is a
      federal statute. The construction of a federal statute is a matter
      of federal law. Pursuant to federal rules of statutory construction,
      the courts consider the particular statutory language, as well as
      the design of the statute and its purposes in determining the
      meaning of a federal statute. But if the [Magnuson Moss Act’s]
      language is clear, we should refrain from searching other sources
      in support of a contrary result.

Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011)

(citations omitted).

       Consistent with the foregoing, the trial court explained:

            In the present case, this [c]ourt determined, in its
      discretion, that the $1,500 paid to Kimmel as part of the
      settlement was sufficient and that an award of additional fees and
      expenses would be “inappropriate.” Although the settlement
      agreement in this case was reached in April 2011, [] Houck did
      not sign and deliver the written Settlement Agreement and
      Release until February 2016 — almost five years later.
      Throughout this litigation, [Appellee] took the position that the
      execution and delivery of that document within a reasonable time
      was a condition of the settlement agreement and that [Appellee]
      was discharged from its obligations under the settlement
      agreement by reason of the delay in signing and returning the


                                     -5-
J-A01029-20


      document. Throughout this litigation, [Appellants] did not proffer
      any explanation for their extraordinary delay. [Appellants] have
      insisted that execution and return of the document was not a
      condition of the settlement, but the fact remains that they did not
      commence this litigation until March 8, 2016 — eighteen days
      after [] Houck’s signature. [Appellee’s] interpretation of the
      settlement, although ultimately rejected by Judge Tilson, was by
      no means unreasonable.

            This [c]ourt concluded that the purpose of [S]ection
      110(d)(2) — to encourage consumers to pursue their rights under
      the Magnuson-Moss Act even when the amount at issue is small,
      see, e.g., Ernst v. Deere & Co., 886 A.2d 845, 849 (Conn. App.
      2005) — is fully vindicated by the recovery of $1,500 in counsel
      fees under the settlement. Where [Appellants], through their
      delay, bear a substantial part of the responsibility for what should
      have been unnecessary settlement-enforcement litigation, it
      would not serve the purposes of the Act to reward [Appellants]
      with an additional recovery of fees.

Trial Court Opinion, 7/29/19, at 4 (emphasis and footnote omitted).

      Based on our review of the record, we discern no error.              Section

2310(d)(2) of the Magnuson-Moss Act specifies that the allowance of

attorneys’ fees and costs is within the complete discretion of the trial court.

See 15 U.S.C. § 2310(d)(2). In exercising its discretion, the trial court may

decline to award fees and costs if it determines that such an award would be

inappropriate. Id.; see also Trost v. Porreco Motors, Inc., 443 A.2d 1179,

1181 (Pa. Super. 1982) (“[S]ection 2310(d)(2) of 15 U.S.C.A. specifies that

the allowance of [attorneys’ fees] is within the discretion of the court.”). In

denying Appellants’ motion, the trial court concluded that the “$1,500 paid to

Kimmel as part of the settlement was sufficient and that an award of additional

fees and expenses would be ‘inappropriate.’” Trial Court Opinion, 7/29/19, at

4. Appellants fail to identify, and our review does not reveal, a basis for finding


                                       -6-
J-A01029-20



that the trial court abused its discretion. We thus affirm the trial court’s order

denying Appellants’ motion.

     Order Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/20




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