GIDDINGS v. BROWN & BROWN GENERAL CONTRACTORS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELBERT ANTHONY GIDDINGS, et al. : CIVIL ACTION

:

v. : No. 16-4917

:

BROWN & BROWN GENERAL :

CONTRACTORS, INC., et al. :

MEMORANDUM

Juan R. Sánchez, C.J. October 13, 2020

After Defendants Joel Brown and Brown & Brown General Contractors, Inc. (collectively,

Brown) failed to appear in this consumer protection case, the Court entered default judgment

against Brown in the amount of $48,405. In its March 23, 2020, Memorandum granting default

judgment, the Court exercised its discretion to award Plaintiffs attorney fees pursuant to the

Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) and granted

Plaintiffs leave to file a request for reasonable attorney fees. On April 20, 2020, Plaintiffs filed the

instant motion seeking $47,734.24 in attorney fees and costs. To date, Brown has not filed a

response. The Court will grant the motion but will only award a total amount of $35,973.75, which

includes $34,817.50 in attorney fees and $1,156.25 in costs.

BACKGROUND

Plaintiffs Elbert Anthony Giddings, Eunice Isaac, and Pullen A. Osagie hired Brown to

complete home improvement projects on their respective properties. Unbeknownst to Plaintiffs,

Brown was not a Pennsylvania licensed contractor and did not comply with several statutory

requirements for home improvement contracts in Pennsylvania. After Plaintiffs paid Brown

substantial deposits, Brown failed to complete the projects.

On September 12, 2016, Plaintiffs sued Brown claiming violations of the UTPCPL and the

Home Improvement Consumer Protection Act (HICPA) and seeking damages. After personally

serving Brown twice, Brown failed to appear. At Plaintiffs’ request, the Clerk of Court entered

Brown’s default. Plaintiffs moved for default judgment

On January 7, 2020, the Court held a hearing on the motion for default judgment. At that

hearing, Brown appeared for the first time. The Court held a second hearing on January 22, 2020.

After hearing testimony and reviewing both parties’ evidence regarding damages, the Court

granted Plaintiffs’ motion for default judgment and awarded actual damages totaling $16,135 and

treble damages totaling $25,270.

In granting the motion for default judgment, the Court also exercised its discretion to award

Plaintiffs attorney fees. However, because Plaintiffs had not yet filed an accounting of their

attorney fees, the Court was unable to determine a reasonable award. As a result, the Court granted

Plaintiffs leave to file a request for attorney fees pursuant to 73 Pa. Cons. Stat. § 201-9.2.

On April 20, 2020, Plaintiffs’ attorneys, Gary Schapkopf and Matthew Weisberg, filed the

instant motion for attorney fees. The attorneys represented Plaintiffs on a contingent-based fee but

request $530 per hour for their services. Plaintiffs’ attorneys each have approximately 20 years of

experience. Pls.’ Mot. for Att’y Fees & Costs Exs. A, B. Invoices attached to the motion show the

attorneys spent approximately 88 hours on their representation of Plaintiffs over four years. Id. at

Exs. D, E. The invoices provide associated costs and detailed descriptions of the services

performed, the date for each service, and the quantity of hours spent on each service. Id. In total,

Plaintiffs request $47,734.24, which includes $46,577.99 in attorney fees and $1,156.25 in costs.

DISCUSSION

The Court will grant attorney fees and costs but only award a total of $35,973.75 in attorney

fees and costs. Pursuant to the UTPCPL, “[t]he court may award to the plaintiff, in addition to

other relief provided in this section, costs and reasonable attorney fees.” 73 Pa. Cons. Stat. § 201-

9.2(a). There are four factors to consider in determining reasonable attorney fees:

(1) [t]he time and labor required, the novelty and difficulty of the questions

involved and the skill requisite to properly conduct the case; (2) [t]he customary

charges of the members of the bar for similar services; (3) [t]he amount involved

in the controversy and the benefits resulting to the clients from the services,

including ensuring that there is a sense of proportionality between the award of

damages and the award of attorneys’ fees; and (4) [t]he contingency or certainty of

the compensation.

Richards v. Ameriprise Fin., Inc., 217 A.3d 854, 868 (Pa. Super. Ct. 2019) (internal citations

omitted).

“Prior to awarding counsel fees to a plaintiff on a UTPCPL claim, the defendant must have

a ‘fair opportunity to address’ the legitimacy of the claim.” Neal v. Bavarian Motors, Inc., 882

A.2d 1022, 1031 (quoting McCauslin v. Reliance Fin. Co., 751 A.2d 683, 685 (Pa. Super. Ct.

2000)). The purpose of awarding attorney fees and costs under the UTPCPL is “to punish and deter

unfair and deceptive business practices and to encourage experienced attorneys to litigate such

cases, even where recovery is uncertain.” Richards, 217 A.3d at 871 (internal quotation marks and

citations omitted).

Here, Brown has had a fair chance to address the legitimacy of Plaintiffs’ claim. Brown

attended both default judgment hearings and had a fair opportunity to challenge Plaintiffs’ claims.

Also, Plaintiffs filed their motion for attorney fees on April 20, 2020, and Brown has failed to

oppose or otherwise respond to the motion. Because Brown has had a fair chance to address

Plaintiffs’ claim, the Court therefore turns to the reasonableness factors. See McCauslin, 751 A.2d

at 685 (stating defendant must have fair opportunity to address the claim for attorney fees but

declining to require a hearing when defendant did not request one).

As for the first factor, the Court finds this case did not involve complicated questions of

law or extensive litigation to warrant excessive hours by Plaintiffs’ attorneys. It is the role of the

court to “thoroughly scrutinize the specific line items that are challenged, generally evaluate the

reasonableness of the expenditure of time for the services listed in the fee petition, make

adjustments when they are warranted, and explain its reasons for the award.” Id. at 872. When

deciding whether the expended time is reasonable, the court must consider only the time spent on

the UTPCPL claims, although attorneys may be reimbursed for the time spent on HICPA claims

because a violation of the HICPA is inherently a violation of the UTPCPL. See 73 Pa. Cons Stat.

§ 517.10 (“[A] violation of any of the provisions of [HICPA] shall be deemed a violation of . . .

the [UTPCPL].”). Finally, attorneys may be compensated for a reasonable amount of time spent

preparing the fee petition. See Richards, 217 A.3d at 872 (finding attorney fees for time spent

preparing fee petitions is permitted, but the recorded 85 hours spent doing so was unreasonable for

an experienced attorney).

Here, Plaintiffs’ attorneys have submitted detailed invoices showing the amount of time

spent on this case. The attorneys’ time, which details the date services were provided, the services

performed, and the quantity of hours spent on each service, is considered in its entirety because

this case involved only HICPA and UTPCPL violations. The descriptions include but are not

limited to: meeting with and calling clients, researching, drafting documents, and attending

hearings. Specifically, phone calls with clients ranged between .10 hours and .50 hours, meetings

ranged between one to seven hours, and document drafting ranged from .60 hours to seven hours.

See Pls.’ Mot. for Att’y Fees & Costs Exs. D, E. The attorneys have also included invoices for

preparing and filing the fee petition, which the attorneys spent approximately nine hours working

on combined.

Plaintiffs’ attorney Gary Schapkopf logged 49.8 hours for this case. His line items provide

that he met and discussed the case with Plaintiffs, drafted the complaint, prepared and filed the

requests for entry of default and default judgment, and attended the two default judgment hearings.

See Pls.’ Mot. for Att’y Fees. Because this was a default judgment case, there was little substantive

litigation on the merits of the UTPCPL claims. Attorney Schapkopf’s entry of hours reasonably

shows the complexity and length of this case. Upon review of the line items, the Court concludes

Attorney Schapkopf spent a reasonable amount of time on this case.

The Court, however, has identified certain disparities and embellishments on certain line

items for Plaintiffs’ Attorney Matthew Weisberg, who has requested fees for 37 hours of work.

Although Attorney Weisberg and Attorney Schapkopf have comparative experience, the two

attorneys logged different hours for the same tasks. For instance, both attorneys reviewed

correspondence with the Court and Court orders. While Attorney Schapkopf documented spending

0.10 hours reviewing each order, Attorney Weisberg documented spending between 0.30 and 0.40

hours reviewing each order.1 Compare Ex. D, with Ex. E. One particularly large disparity occurred

when Attorney Schapkopf spent approximately 0.30 hours reviewing the Court’s March 23, 2020,

Memorandum and Order, while Attorney Weisberg spent 2.50 hours reviewing the same

documents. Considering the attorneys have similar experience, and the task only requires reading

the documents, the length of time Attorney Weisberg spent is questionable.

The Court also notes an unreasonable amount of time spent drafting Plaintiffs’ motion for

default judgment. According to Attorney Weisberg’s timesheet, he spent 2.50 hours drafting the

motion. However, upon reviewing the motion, it contains only three sentences. See Mot. for J.,

1 The Court orders reviewed by Attorney Weisberg and Attorney Schapkopf were scheduling

orders and other orders of with minimal direction to the Plaintiffs.

July 12, 2017, ECF No. 18. The Court doubts 2.50 hours was spent drafting this bare bones motion.

The Court will thus reduce the time spent on this motion to 0.50 hours.

The motion for default judgment is not the only short, non-substantive motion that Attorney

Weisberg claims excessive hours. For drafting this motion, Attorney Weisberg logged seven hours.

The motion, however, contains only eight sentences and does not address the standard for awarding

reasonable attorney fees (which the Court specifically noted in its Memorandum granting default

judgment). Again, the Court doubts this motion required seven hours of drafting by an experienced

attorney. Considering the minimal effort that went into the motion, the Court will reduce the hours

Attorney Weisberg spent on it to one hour.2

Because of the unreasonable time Attorney Weisber spent on certain tasks, the Court will

reduce his requested hours from 37 hours to 23.5 hours. “Where time was not reasonably expended

. . . the court may exclude it from calculation of the lodestar.” Hall v. Am. Honda Motor Co., No.

96-8103, 1997 WL 732458, at *2 (E.D. Pa. Nov. 24, 1997). The Court will reduce Attorney

Weisberg’s hours as follows3:

Date Task Recorded Reduced Time

9/12/16 Review docketing of complaint exhibits .30 .10

10/11/16 Review affidavits of service T.i3m0 e .10

11/2/16 Review order to answer .30 .10

1/3/17 Review order of dismissal .40 .10

1/26/17 Review order of suspense .30 .10

4/27/17 Review order lifting stay .40 .10

5/2/17 Review affidavit of service .30 .10

7/12/17 Draft motion for judgment 2.50 .50

10/4/17 Review order of reassignment .20 .10

10/13/17 Review order for hearing .30 .10

2 Because Attorney Schapkopf logged two hours for drafting this motion, and the Court has already

found Attorney Schapkopf’s time reasonable, the Court will merely reduce Attorney Weisberg’s

seven hours to one hour for a total of three hours spent on the motion.

3 The Court reaches these hours by reducing Attorney Weisberg’s hours as discussed above and

reducing certain line items to match the time Attorney Schapkopf spent on the same.

10/26/17 Review order for hearing .30 .10

11/28/17 Review order for suspense .20 .10

9/17/19 Review order for status report .30 .10

11/5/19 Review order for status conference .40 .10

11/21/19 Review order for hearing on judgment .40 .10

1/7/20 Review notice of appearance .20 .10

1/7/20 Review order for hearing on judgment .30 .10

3/23/20 Review memo and order on judgment 2.50 .30

Review order for extension on attorney

4/6/20 .30 .10

fees and costs

4/19/20 Draft motion for attorney fees 7.00 1.0

See Huu Nam Tran v. Metro. Life Ins. Co., No. 01-262, 2006 WL 2623230, at *3–4 (W.D. Pa.

Sept. 12, 2006) (reproducing attorneys’ line items and reducing requested hours that were

excessive, redundant, or unnecessary). Therefore, having found Attorney Schapkopf’s 49.8 hours

reasonable and reduced Attorney Weisberg’s hours to 23.5, the Court reduces the total requested

hours to 73.3 hours.

As for the second factor, Plaintiffs’ attorneys have charged a customary amount that is

within the range of hourly rates for attorneys with similar experience. However, the amount

requested, $530, is the highest rate available in that range. Given the simplicity of this case, which

did not require Plaintiffs’ attorneys to address the merits of the case, the Court will reduce the rate

to $475, the lowest amount within the customary range. Pennsylvania courts have considered

evidence of the prevailing market rates and the experience and expertise of the specific lawyers to

determine if the request is reasonable. Richards, 217 A.3d at 869–70 (internal citations omitted).

For an attorney with 16 to 20 years of experience, the prevailing market rate is between $475 and

$530 per hour. See Attorney Fees, Cmty. Legal Servs. of Phila., https://clsphila.org/about-

community-legal-services/attorney-fees/ (last visited Oct. 8, 2020) (providing attorney fee rates

“based on Philadelphia law firm market survey data and increases in the Consumer Price Index”).

Although Plaintiffs’ attorneys each have approximately 20 years of experience, this case

only required procedural work and did not reach the merits or applicable law. Their request for

$530 per hour is within the customary range for attorneys with similar experience but is not

reasonable given the substantive work completed in the case. Some of the work done by Plaintiffs’

attorneys, including drafting procedural documents and requesting default, is work commonly

done by associates who are billed at a lower rate. The Court thus finds it appropriate to reduce the

hourly rate to $475. See Hall, 1997 WL 732458, at *3 (reducing amount of attorney fees awarded

where counsel used form documents in the case and “many of the billing entries [were] duties

which are more appropriately assigned to support staff”).

Next, the amount in controversy and the benefits to Plaintiffs are proportional to and

properly reflect the fee awarded by using the lodestar formula. The lodestar formula requires

“multiplying the number of hours reasonably expended by a reasonable rate.” Loughner v. Univ.

of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2012). There is no maximum ratio setting the boundaries

of proportionality but there must be some “sense of proportionality” between damages and attorney

fees. Neal, 882 A.2d at 1031 (internal citations omitted). Generally, once the lodestar formula is

used, there is no proportionality concern if the attorney fees do not exceed twice the amount of

damages. See Baynes v. George E. Mason Funeral Home, Inc., No. 09-153, 2012 WL 993293, at

*6 (W.D. Pa. Mar. 23, 2012). However, a lodestar calculation “does not end the inquiry [because]

[t]here remain other considerations that may lead the district court to adjust the fee upward or

downward . . . .” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564

(1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)) (internal quotation marks

omitted).

Here, Plaintiffs’ attorneys used the lodestar formula to calculate their requested fees but,

as discussed, claimed excessive hours at a high rate of pay. Because this case was not overly

complex, the Court will reduce the requested lodestar calculation to match the reasonable number

of hours and the reasonable rate stated above. See Sec. & Data Techs. v. Sch. Dist. of Phila., No.

12-2393, 2016 WL 7427758, at *16 (E.D. Pa. Dec. 20, 2016) (using a lodestar calculation to

determine reasonable attorneys’ fees but lowering the number of hours and hourly rate to be used).

By multiplying 73.3 reasonable hours by a reasonable rate of $475, the Court determines the

reasonable attorney fee in this case is $34,817.50.

Turning to the fourth factor, the attorneys originally worked under a contingent-fee

agreement. This factor considers the original terms the attorneys were hired under compared to the

request for attorney fees and costs. “[A] contingency agreement is just one of many factors to

consider in arriving at an award for reasonable attorney[] fees.” Boehm v. Riversource Life Ins.

Co., 117 A.3d 308, 337 (Pa. Super. Ct. 2015). An original contingency fee arrangement does not

act as a “ceiling . . . on the recovery of attorney[] fees under a fee-shifting provision of a remedial

statute.” Krebs v. United Ref. Co., 893 A.2d 776, 791 (Pa. Super. Ct. 2006). However, the fee-

shifting provision of the UTPCPL is not “intended to provide a claimant, or his attorney, with a

windfall or bonanza should he or she be successful.” McCauslin, 751 A.2d at 686.

The original contingency agreement showed Plaintiffs’ attorneys were willing to work on

the case with the risk of receiving no payment. The fee-shifting provision of the UTPCPL is used

to ensure experienced attorneys litigate UTPCPL claims. See Boehm, 117 A.3d at 336 (“[T]he fee-

shifting statutory provision of the UTPCPL is designed to promote its purpose of punishing and

deterring unfair and deceptive business practices and to encourage experienced attorneys to litigate

such cases, even where recovery is uncertain.” (citation omitted)). In considering this factor, the

Court finds awarding attorney fees furthers the purpose of the statute. Also, awarding the requested

fees will not result in a “bonanza” to Plaintiffs’ attorneys because the Court used an adjusted

lodestar calculation to determine reasonable fees. See Boehm, 117 A.3d at 336–37 (awarding

reasonable attorney fees even though attorneys used a contingency-fee agreement because the

award would further the purpose of the statute and not result in a “bonanza” to plaintiffs). As a

result, even though Plaintiffs’ attorneys worked under a contingency-fee arrangement, the Court

finds that they are still entitled to reasonable attorney fees and costs.4

CONCLUSION

In sum, after consideration of the four reasonableness factors, the Court will grant

Plaintiffs’ motion for attorney fees. The Court will award a reasonable amount of $34,817.50 in

attorney fees and $1,156.25 in costs.

BY THE COURT:

/s/ Juan R. Sánchez

Juan R. Sánchez, C.J.

4 The Court finds Plaintiffs’ request for costs—$1,156.25—reasonable. This amount includes the

costs for filing the case and serving Brown on multiple occasions, see Ex. E, and is thus reasonable,

see Gadley v. Ellis, No. 13-17, 2016 WL 1090654, at *8 (W.D. Pa. Mar. 18, 2016) (finding costs

reasonable including filing fees and service charges, among other fees).