GENESS v. COUNTY OF FAYETTE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CRAIG GENESS : CIVIL ACTION

:

v. : NO. 16-876

:

COMMONWEALTH OF :

PENNSYLVANIA :

MEMORANDUM

KEARNEY, J. July 29, 2020

Craig Geness is a fifty-three-year-old mentally disabled man who spent nearly ten years in

Fayette County custody (rather than in an appropriate facility supervised by the Pennsylvania

Department of Human Services) awaiting a repeatedly postponed hearing on his competence to

stand trial for a charged homicide the Commonwealth later conceded it could not prove. After

spending months attempting to pursue an untimely civil rights claim filed in Fall 2016, his

experienced counsel persuaded our Court of Appeals to remand so we may explore a possible

disabilities act claim against the Commonwealth. His counsel then sued several Commonwealth

parties before adding the Department in March 2019 under the Americans with Disabilities Act.

After we denied the Department’s motion to dismiss last summer, Mr. Geness’s counsel negotiated

a $375,000 payment from the Department in exchange for releasing the Department. He continues

to proceed towards trial against the remaining defendants Commonwealth and Administrative

Office of Pennsylvania Courts. We earlier denied Mr. Geness’s first motion for approval.

We today evaluate a more fulsome attempt to persuade us as to the fairness of a proposed

$375,000 partial settlement. After considering the newly appointed Limited Guardian’s sworn

representations based on the type of investigation we expected when we first denied this request

in December 2019, we approved this partial settlement in a July 16, 2020 Order. This

compensation paid in exchange for a release of one of three defendants provides funds deposited

into a special needs trust for his long-term or catastrophic care as it appears his present needs are

met by state programs. Mr. Geness’s counsel believes he can supplement the special needs trust

with later recoveries from the remaining defendants.

The tougher question is how much of this partial settlement will be paid into the special

needs trust. All must agree more money into Mr. Geness’s special needs trust is better than less.

While we approve the partial settlement, we are not persuaded as to the fairness of deducting a

forty percent contingent attorney’s fee without a valid agreement or to a quantum meruit fee award

for work with no relationship to the Department’s potential liability. Counsel suggests a forty

percent contingency is fair compared to his invested time. We ordered counsel to submit

timesheets for our in camera review. Counsel responded he does not maintain contemporaneous

time records but “reconstructs” them. We find no basis to dispute the reasonableness of counsel’s

normal hourly rate. We did witness counsel’s efforts. He undertook a difficult case against the

Department and obtained a fair partial settlement. We cannot guess whether he will recover

further. Based on our case management and witness to counsel’s efforts, we today direct payment

to Mr. Geness’s counsel for the reasonable hours and costs incurred in obtaining the benefit of this

settlement from the Department which can be partially discerned from inappropriately

reconstructed billing. We also direct counsel to share with Mr. Geness in the eminently reasonable

payment owed to the new Limited Guardian for his extraordinary service.

We already partially granted the parties’ motion to approve the settlement and required the

Department pay the $375,000 to the escrow account of the Limited Guardian. Under the

accompanying Order, the Limited Guardian shall now pay a total of $116,883.57 to Mr. Geness’s

counsel representing quantum meruit compensation for services and reasonable costs to date to

secure this settlement. This total compensation includes $8,000 for the reasonable time invested

since counsel presented reconstructed bills nine months ago and accounts for our decision to

deduct $6,000 from his reasonable time to account for counsel’s 20% obligation to pay the Limited

Guardian’s compromised fees. The Limited Guardian shall then pay his law firm the $30,000

reduced invoice from the remaining settlement funds. The Limited Guardian shall then escrow

$5,000 in an interest bearing escrow account for future as yet-unbilled fees and costs billed to

ensure Mr. Geness’s protection through the special needs trust including fees for creating and

counseling on the trust which shall be paid by the Limited Guardian only upon suitable evidence

of the reasonableness and necessity of these payments. The Limited Guardian shall then approve

the tender of the balance of the settlement funds of $223,116.43 to the administrator of the special

needs trust and timely file a certificate of compliance with this distribution.

I. Facts1

Mr. Geness lived at an assisted living facility for intellectually disabled individuals in

2006.2 On October 27, 2006, another resident fell from the facility’s front porch and eventually

died from his injuries.3 Three contemporaneous records demonstrated the resident accidentally

fell, but police investigated, obtained a confession from Mr. Geness on November 16, 2006 and

charged him with aggravated assault on November 17, 2006.4 After the resident died of his injuries,

police charged Mr. Geness with criminal homicide.5

Mr. Geness then entered custody and control of the Pennsylvania criminal justice system

for nearly ten years without a trial. As our Court of Appeals observed, “[t]he administration of

justice went awry for [Mr.] Geness from the outset.”6 The state court did not schedule a preliminary

hearing for over five months.7 Mr. Geness’s public defender moved the Court of Common Pleas

of Fayette County for habeas relief, asserting police obtained Mr. Geness’s confession in violation

of his constitutional rights.8 Fayette County Common Pleas Judge Leskinen declined to rule,

opining Mr. Geness “was ‘not at the present time competent to stand trial.’”9 Ten months passed

after his arrest before a state doctor performed a psychological examination of Mr. Geness.10

Described by our Court of Appeals as a “cycle of indifference” in the Court of Common

Pleas of Fayette County and the offices of its district attorney and public defenders, Mr. Geness

spent nearly ten years in prison.11 After finally being released on nolle prossed charges, Mr.

Geness’s attorney Bernadette Tummons met with Attorney Joel Sansone to discuss a possible civil

rights suit on behalf of Mr. Geness. Attorney Sansone agreed to represent Mr. Geness and brought

a civil rights claim on his behalf. Attorney Sansone and Mr. Geness signed a contingent fee

agreement (“Fee Agreement”) providing a forty percent fee of the amount of recovery, but it did

not include the later added defendant Pennsylvania Department of Human Services (the

“Department”). Attorney Sansone apparently did not consider a need for a limited guardian for

Mr. Geness. He presumably thought he could have an enforceable fee contract with Mr. Geness

without an independent guardian’s review.

On June 17, 2016, Mr. Geness, represented by Attorney Sansone, sued the City of

Uniontown, Fayette County, arresting officer Detective Jason Cox, and the owners of Mr. Geness’s

assisted living facility.12 He alleged they violated the Americans with Disabilities Act;13 his

constitutional rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendment for

malicious prosecution, false arrest, false imprisonment, reckless investigation, violation of Mr.

Geness’s right to equal protection as a disabled person; and for conspiracy under 42 U.S.C. §§

1983 and 1985; a Monell municipal liability civil rights claim;14 and, a state law claim for

intentional infliction of emotional distress. Many of these claims allow a court to order defendants

to pay reasonable fees and costs incurred by counsel for a prevailing plaintiff who can demonstrate

the work effort.

Detective Cox and the City of Uniontown moved to dismiss for failure to state a claim.15

Mr. Geness withdrew his claims against Uniontown during oral argument and we dismissed

Uniontown from the action.16 We dismissed the equal protection and malicious prosecution claims

against Detective Cox because we could not then determine if Detective Cox enjoyed qualified

immunity.17 Detective Cox answered Mr. Geness’s complaint, denying all claims and asserting

affirmative defenses.18 On February 10, 2017, we referred the case to mediation.19 The parties did

not resolve the case.20 No guardian represented Mr. Geness’s interests in this mediation.

On March 1, 2017, Attorney Sansone voluntarily dismissed the owners of the assisted

living facility. Attorney Sansone then sought to amend the complaint to add the Commonwealth

as a defendant on an Americans with Disabilities Act claim. After our earlier rulings in the case

and Mr. Geness’s voluntary dismissal of defendants, only Detective Cox remained as a defendant.

Mr. Geness’s proposed amended complaint named only Detective Cox and the Commonwealth of

Pennsylvania. We granted Mr. Geness leave to amend his complaint to remove his conspiracy

claim but denied him leave to add an Americans With Disabilities Act claim against the

Commonwealth.21 Mr. Geness filed his amended complaint naming only Detective Cox.22 We

granted Detective Cox’s motion for summary judgment and closed the case.23 Attorney Sansone

filed a notice of appeal.24 He sought to reverse our dismissal of the civil rights claims and reverse

our decision denying him leave to amend to add the Commonwealth as a defendant on a disabilities

claim.

In May 2017, after we closed the case and Attorney Sansone appealed, Attorney Sansone

asked Attorney Tummons for help to locate a suitable guardian for Mr. Geness. Attorney

Tummons located Attorney Karen Kiefer, a lawyer in good standing in Fayette County but who

now resides in Stuart, Florida. Attorney Kiefer agreed to represent Mr. Geness pro bono. The

Fayette County Orphan’s Court entered a decree on July 6, 2017 appointing Attorney Kiefer as a

“Limited Guardian of the person and Estate of Craig A. Geness for the specific purpose of assisting

in the prosecution of the federal lawsuit and making decisions with regard to all matters related

thereto.”25

In August 2018, our Court of Appeals affirmed our dismissal of Mr. Geness’s civil rights

claims as either time-barred or insufficiently substantiated through discovery.26 It affirmed our

dismissal of Mr. Geness’s malicious prosecution claim.27 But it reversed our denial of Mr.

Geness’s request to amend,28 holding Mr. Geness’s proposed amended complaint to add

Americans with Disabilities Act and Due Process claims against the Commonwealth may not be

futile.29 It remanded to allow Mr. Geness to “reinstate his claims against the Commonwealth.”30

Mr. Geness filed an amended complaint on October 8, 2018 against the Administrative

Office of Pennsylvania Courts, the Commonwealth of Pennsylvania, judges of the Court of

Common Pleas of Fayette County, Fayette County district attorneys and a public defender.31 He

did not sue the Department of Human Services.

Six months later, we allowed Mr. Geness leave to amend his complaint to add the

Pennsylvania Department of Human Services in March 2019.32 Finding Mr. Geness’s second

amended complaint stated claims under the Americans with Disabilities Act against the

Commonwealth, the Administrative Office of Pennsylvania Courts, and the Department, we

ordered the parties to mediation. Mr. Geness and the Department reached a partial settlement. We

stayed resolving summary judgment motions involving the Commonwealth’s potential liability

while our Court of Appeals evaluates the Administrative Office’s appeal of our denial of its motion

to dismiss on immediately appealable immunity grounds. We are presently awaiting the decision

of our Court of Appeals and will then progress towards trial against remaining defendants.

We denied the parties’ first motion to approve a signed settlement agreement.

The settlement agreement releases the Department from all liability in exchange for a

payment of $375,000.00. The parties also recited they would allocate $214,363.26 to a special

needs trust established for Mr. Geness and $160,636.74 to Attorney Sansone and his firm for

attorney’s fees and costs under the Fee Agreement. The parties included a severance clause

confirming a court’s rejection of one aspect of the settlement would not affect the parties’ release

and payment obligations.

The parties moved for approval of this settlement last October.33 Attorney Sansone

submitted the affidavit of Attorney Karen Kiefer, appointed by the state court as the limited

guardian for Mr. Geness.34 Limited Guardian Kiefer swears she participated in the parties’

mediation on August 30, 2019 by telephone; participated in negotiations between Mr. Geness and

all parties including the Department; she agreed to the $375,000 settlement with the Department;

she believes the settlement amount with the Department is commensurate with its liability in the

action; and, she reviewed the settlement agreement and believes the terms and conditions are

acceptable and reflect the agreement between the parties.35 Limited Guardian Kiefer swore the

money obtained from the settlement will be placed in a special needs trust “to finance any health

issues [Mr. Geness] may experience, as well as for any of [Mr. Geness’s] daily living needs [and]

if feasible, the money may be used to place Mr. Geness in a more accommodating living facility.”36

Limited Guardian Kiefer did not explain the basis for concluding the settlement amount is

reasonable or the fairness of the fees to be paid to Attorney Sansone other than the terms reflect

an agreement between the parties.

Concerned with a partial settlement awarding substantial fees to Attorney Sansone arising

from limited work involving the Department since March 27, 2019, we ordered Attorney Sansone

produce an in camera copy of the signed Fee Agreement. In the same October 25, 2019 Order,

we directed Attorney Sansone and Limited Guardian Kiefer to address three questions:

1. What is the standard for approval of this contingent attorney’s fee given Mr. Geness’s

ability to contract or appreciate the use of the funds particularly in a fee shifting claim

under the Americans with Disabilities Act;

2. Why does the guardian view the forty percent contingent fee as fair mindful we possibly

have not reached a “gross” settlement amount or should we hold the fee in escrow until

final order; and,

3. Why should the consideration paid by the Department of Human Services satisfy

counsel’s out of pocket costs incurred to date when only one of several Defendants settled

and for costs incurred before adding the Department to the case on March 24, 2019 (ECF

Doc. No. 183).37

Dissatisfied with Attorney Sansone’s response and having no response from Limited

Guardian Kiefer to our questions, we lacked sufficient evidence to (1) determine the fairness of

the proposed settlement agreement with the Department; and, (2) approve attorney’s fees to be

apportioned from the settlement amount.38 We noted a lack of evidence regarding: Mr. Geness’s

current health condition; status of his current living arrangements and daily living needs; and the

possibility of moving Mr. Geness to “a more accommodating living facility,” if feasible, as sworn

to by Limited Guardian Kiefer.39 With regard to attorney’s fees, we noted: Limited Guardian

Kiefer did not affirm she reviewed or approved the Fee Agreement, and, even if she did approve

it, provide an explanation why Attorney Sansone’s forty percent contingent fee is appropriate; the

absence of a fee agreement for any recovery against the Department; and, considering the

appropriateness of Attorney Sansone’s fees under a quantum meruit theory, we lacked evidence

from Limited Guardian Kiefer on the appropriateness of the attorney’s fees absent a written fee

agreement.40

On December 5, 2010, we denied the parties’ motion to approve the partial settlement

“without prejudice to be renewed with more sufficient evidence either through affidavit and

possibly in testimony at a requested hearing in our Philadelphia courtroom (if warranted) from the

limited guardian explaining the fairness of the total settlement amount given Mr. Geness’s present

condition relative to the claims against the Department of Human Services and the proposed

settlement’s possible effect on the remaining claims and on the appropriate attorney’s fee absent a

written retainer agreement governing claims against the Department of Human Services unrelated

to conduct by other parties occurring on November 17, 2006.”41

Appointment of new limited guardian and renewed motion to approve settlement.

In response to our December 5, 2019 Order, Attorney Sansone sought a new limited

guardian for Mr. Geness.42 On March 18, 2020, the Orphans Court Division of the Court of

Common Pleas of Fayette County appointed the Honorable Lawrence F. Stengel, retired chief

judge of the United States District Court for the Eastern District of Pennsylvania and formerly a

judge serving on the Court of Common Pleas of Lancaster County, as limited guardian for Mr.

Geness.43

Judge Stengel reviewed documents, including medical records, our October 25, 2019 Order

and our December 5, 2019 memorandum, the decision from our Court of Appeals, and attorney

affidavits, and interviewed Mr. Geness, staff at the group home where he currently resides, and

Mental Health of Fayette County.44 Judge Stengel thoroughly reviewed the factual and procedural

background of the case, developed an understanding of Mr. Geness’s mental and physical health,

current needs, and current living arrangement.45

After Judge Stengel’s review, the parties renewed their motion for approval of the

settlement, attaching Judge Stengel’s affidavit and memorandum approving the proposed

settlement agreement. Based on detailed findings from his investigation, Judge Stengel concludes

the proposed settlement with the Department is in the best interests of Mr. Geness, the amount is

substantial and can be used to supplement services already provided to him. Placed in a special

needs trust, the settlement funds will be available to supplement his care, furnish his home, provide

entertainment and, “most importantly,” finance long term care if he needs skilled care as he ages.46

On the issue of attorney’s fees, Judge Stengel concluded the fee agreement is without effect

because of Mr. Geness’s lack of mental capacity. Judge Stengel then reviewed Attorney Sansone’s

and his firm’s time records, concluding the fees claimed are within a reasonable range and a forty

percent contingent fee is appropriate under the circumstances.47

Supplemental memoranda addressing our concerns regarding the proposed settlement.

Our review of the renewed motion raised three areas of concern. We granted Mr. Geness’s

counsel leave to file supplemental Memoranda answering whether: (1) Medicaid will continue to

pay if the Plaintiff deposits the settlement proceeds in a special needs trust or, for example, will

the Plaintiff need to spend down the amount presently allocated for a special needs trust from the

settlement proceeds and then resort to Medicaid; (2) Plaintiff is seeking reimbursement of fees

owed to the earlier limited guardian and the present limited guardian and what is the present

amount of costs Plaintiff seeks to reimburse from the settlement; and, (3) We should direct the

limited guardian to hold all or a portion of the awarded fees or costs in an interest-bearing escrow

until a final Order which may then include settlement proceeds from the Administrative Office of

Pennsylvania Courts and the Commonwealth as we are not aware of a present need for these funds

and the extent of ongoing costs.48

Attorney Sansone responded with a supplemental memorandum and supplemental affidavit

of Judge Stengel.49 In response to our Medicaid question, Judge Stengel confirmed Mr. Geness’s

Medicaid payments will not be interrupted as long as the proceeds from the settlement are placed

in a special needs trust; Attorney Sansone engaged the firm of NFP Structured Settlements

(“NFP”), a Pittsburgh-based firm specializing in structured settlements; NFP engaged Pittsburgh

law firm Tucker Arensberg to create the trust; attorney Nora Gieg Chatha of the Tucker Arensberg

firm swore Medicaid assistance to Mr. Geness will not be interrupted if the settlement funds are

placed in a special needs trust as long as there are no third-party Medicaid liens; and, Attorney

Sansone’s firm confirmed with the third-party provider for Mr. Geness’s Medicaid benefits there

are no liens.50

In response to our second concern regarding costs, Attorney Sansone represents the original

limited guardian Kiefer rendered her fees and costs pro bono.51 Judge Stengel, the current limited

guardian, attests his fees and those of an associate attorney and paralegal assisting him amount to

$34,925 which he will reduce to $30,000.52 Attorney Sansone’s firm seeks costs, incurred before

Judge Stengel’s services, of $10,636.74.53

In response to our third concern regarding whether we should direct Judge Stengel to hold

all or a portion of the awarded fees or costs in escrow until the entry of a final order which may

include settlement proceeds from the Administrative Office and the Commonwealth, Judge

Stengel believes the current settlement funds should be released now. Judge Stengel attests: he

anticipates any costs in connection with any settlement proposal with the Administrative Office of

the Pennsylvania Courts will be substantially less given his work to date understanding Mr.

Geness’s history, background, condition, and circumstances; if the case against the AOPC goes to

trial, his fees will depend on the amount of time spent working with Mr. Geness and his counsel

in preparation for trial and participation in trial, if that is appropriate; and factors weigh in favor

of releasing settlement funds now, including counsel for Mr. Geness have not been compensated

for their time or costs since litigation began in 2016, the approximate $10,000 in costs incurred to

date are reasonable, substantially greater costs going forward are unlikely, and Mr. Geness is

presently well-cared for, there is adequate funding to ensure his care continues, he has no

immediate financial needs for basic food, clothing and shelter, the settlement with the Department

will be sufficient to supplement his social security benefits with the majority of the funds placed

in a special needs trust to provide for his personal and medical care as the required levels of care,

and the attendant costs, increase in the future.54

II. Analysis

We again review the proposed settlement agreement releasing the Department from all

liability in exchange for it paying $375,000.00. The Limited Guardian opines allocating

$214,363.26 to a special needs trust established for Mr. Geness and $160,636.74 to Attorney

Sansone for attorney’s fees and costs is appropriate. 55

We begin by recognizing the unique plaintiff before us. We have an inherent duty to

protect the interests of minors and incompetents who appear before us.56 “As part of that duty, the

court must determine the fairness of any settlement agreement and the reasonableness of any

attorneys’ fees to be paid from the settlement amount in a suit brought on behalf of a minor or

incompetent.”57 Our Local Rule 17.1 requires court approval for settlement of actions involving

minors or incompetent persons: “No action to which a minor is a party shall be compromised,

settled, discontinued or dismissed except after approval by the Court pursuant to a petition

presented by the guardian of the minor or the natural guardian of the minor, such as the

circumstances might require.”58 The minor or incompetent’s attorney “shall file with the Clerk of

the Court, as part of the record, a petition containing (1) a statement of the nature of the evidence

relied on to show liability, (2) the elements of damage, (3) a statement of the services rendered by

counsel, (4) the expenses incurred or to be incurred and (5) the amount of fees requested. The

petition shall contain written statements of minor’s attending physicians, setting forth the nature

of the injuries and the extent of recovery. If required by the Judge, such statements of attending

physicians shall be in affidavit form. The petition shall be verified by the affidavit of the minor’s

counsel. …”59 “The determination of the fairness of a settlement agreement involving a minor and

the reasonableness of the amount to be apportioned from the proceeds of that settlement agreement

in payment of attorneys’ fees implicates the parties’ substantive rights.”60

Federal courts exercising federal question jurisdiction, as we are today, apply federal law

to substantive rights except where “federal law does not expressly establish a rule of decision.”61

In that case, “where the state law on the issue is well-developed and the application of state law

will not impinge upon any federal interest, the court may ‘borrow’ state law to fill the gap in the

federal statutory scheme.”62

Mr. Geness asserted claims against the Department under the Americans with Disabilities

Act. There is nothing in the Act providing a standard to evaluate a minor’s or incompetent person’s

compromise. Like the courts in Nice and Johnson assessing minors’ compromise in federal civil

rights litigation, we will borrow Pennsylvania law to determine the fairness of the Proposed

Settlement Agreement. 63

Pennsylvania Rule of Civil Procedure 2064 requires court approval for a settlement of an

incapacitated person’s claim: “[n]o action to which an incapacitated person is a party shall be

compromised, settled, or discontinued except after approval by the court pursuant to a petition

presented by any party in interest.”64 “When a compromise or settlement has been approved by

the court, or when a judgment has been entered upon a verdict or by agreement, the court, upon

petition by the guardian or the guardian ad litem or any party to the action, shall make an order

approving or disapproving any agreement entered into by the guardian or the guardian ad litem for

the payment of counsel fees and other expenses out of the fund created by the compromise,

settlement or judgment; or the court may make such order as it deems proper fixing counsel fees

and other proper expenses. The balance of the fund shall be paid to the guardian of the estate of

the incapacitated person qualified to receive the fund, if there is one or one is to be appointed. The

balance of the fund payable to the guardian of the estate may include a structured settlement

underwritten by a financially responsible entity that assumes responsibility for future payments or

a trust as described in subdivision (b)(4) of this rule.”65

We may evaluate the reasonableness of Attorney Sansone’s fees and costs under both Rule

2064 and Local Rule 17.1.66 The court in Johnson applied both Pennsylvania law and Local Rule

17.1 because “the Commonwealth’s jurisprudence in this area is well-developed, and Pennsylvania

where the alleged civil rights violations occurred clearly has an interest in safeguarding the affairs

of minor litigants.”67 We see no authority to distinguish the settlement of minor’s claims from the

settlement of an incompetent person’s claims and the parties do not contest the issue.

Pennsylvania courts are “given the mandate to supervise all aspects of settlements in which

a minor is a party in interest, … and in considering whether to approve a settlement, the Court is

charged with the best interests of the minor.”68 “In considering petitions to approve compromise

settlement and distribution, the court must assess the following: (1) the sufficiency of the petition;

(2) the fairness of the proposed settlement amount; and (3) the reasonableness of the requested

counsel fees.”69

Applying these standards, we consider the sufficiency of the renewed motion to approve

the settlement agreement and attorney’s fees to address the fairness of the proposed settlement

agreement and the reasonableness of the requested attorney’s fees.

A. Judge Stengel fully answered our evidentiary concerns to sufficiently evaluate

and approve the fairness of the settlement agreement.

In our evaluation of the first motion to approve settlement, we found a lack of evidence

regarding Mr. Geness’s current health condition, living arrangements, and needs of daily living

prohibited our determination of the fairness of the settlement agreement. Whatever concerns we

had then have been thoroughly addressed by Judge Stengel’s investigation.

Judge Stengel interviewed Mr. Geness by video conference and spoke to his caregivers and

staff in the home where he currently resides. Mr. Geness has several physical and mental health

conditions for which he is prescribed twelve medications. He resides in a private home within a

residential neighborhood owned by Fayette Resources, a company owning and staffing homes for

disabled people in Western Pennsylvania. Mr. Geness receives twenty-four-hour care seven days

a week and relies on his caregivers in the home to prepare his meals, do his laundry, clean the

home, keep him company and keep him safe.70

Mr. Geness receives Supplemental Security Income (“SSI”). The Mental Health

Association of Fayette County is the representative payee and forwards money to Fayette

Resources monthly to pay for Mr. Geness’s room and board. Judge Stengel interviewed staff at

Fayette Resources who pays the bills for Mr. Geness and staff at the Mental Health Association of

Fayette County who oversees payments to Fayette Resources. Judge Stengel reports there is

money available to pay for Mr. Geness’s basis needs and the funding source seems to be secure.71

Judge Stengel reports Mr. Geness’s medical care is provided through Medicaid and, as he

ages and needs additional care, a portion of care will be paid by SSI. If Mr. Geness’s needs require

a skilled care facility, he will be required to pay additional funds himself. Judge Stengel opines

an important use of the settlement proceeds, placed in a special needs trust under the terms of the

settlement agreement, will be the payment of these additional funds. The settlement proceeds may

also be used to enhance his living conditions now, for example, purchasing new bedroom furniture

(which staff indicated he needs), vacation time, entertainment, and sporting events.72

Mr. Geness’s caregivers report his current needs are being met. Judge Stengel’s inquiries

confirm Mr. Geness is currently safe, healthy and appears to be happy in his current living

conditions. Funding for his full-time care comes from state funding, administered through Fayette

Resources, which provides his care. Mr. Geness has no savings or assets, nor does he have long

term care insurance.73

Based on his investigation, Judge Stengel concludes the proposed settlement agreement

with the Department providing a partial settlement is in the best interests of Mr. Geness. Judge

Stengel finds the settlement amount substantial and can be used to supplement Mr. Geness’s care,

furnish his home, provide entertainment, and finance long term care if he so needs in the future.74

Placed in a special needs trust, the funds will not affect or reduce SSI funding or Medicaid benefits,

Mr. Geness will not be required to “spend down” the monies in the special needs trust to continue

eligibility for Medicaid, and there are no Medicaid liens to be satisfied.75

Judge Stengel’s thorough affidavit and counsel’s memorandum supplementing the

affidavit addresses the concerns we raised in our December 5, 2019 memorandum. Consistent with

our inherent duty to protect Mr. Geness, we find the proposed settlement fair as a partial settlement

mindful Mr. Geness will proceed in his claims against others. We next consider the reasonableness

of the attorney’s fees to be apportioned from the settlement.

B. We deny a forty percent contingent fee.

Mr. Geness’s counsel now seeks to have Mr. Geness pay forty percent of this recovery to

him. He bases this request on a contingency fee agreement signed by an admittedly incompetent

man which related to a lawsuit against different parties on a different theory. Judge Stengel, as a

Limited Guardian, recognized enforcing this contingency fee agreement on its terms creates

problems. But Mr. Geness’s counsel inexplicably undertook an incompetent person on a civil

rights case and decided not to keep contemporaneous time records. He must have known we would

need to eventually review his time. He still decided not to keep time records. He is left trying to

enforce a forty percent contingency fee. We will not enforce this contingency fee agreement as

there is no evidence of assent or basic contract formation. The terms apply to a different

representation.

The question is the fair compensation for Mr. Geness’s counsel for obtaining an appropriate

settlement from the Department. Counsel should be paid for their work. We must evaluate this

compensation based on the services counsel invested in representing Mr. Geness and aware of Mr.

Geness’s incapacity.

In our October 25, 2019 Order and December 5, 2019 memorandum, we expressed concern

about a forty percent contingent fee apportioned from the partial settlement, including whether the

fee agreement applied because it did not include claims against the Department and Mr. Geness’s

capacity to sign such an agreement. Addressing our concerns, Judge Stengel opined even if the

Fee Agreement applies to claims against the Department, it should not be given weight as evidence

of Mr. Geness’s intent given his mental incapacity. Based on his review, Judge Stengel still

approves the forty percent contingency for work performed by Mr. Sansone and his firm on behalf

of Mr. Geness. Judge Stengel considered the effectiveness of Mr. Sansone’s performance and a

presumptive loadstar as we discussed in our December 5, 2019 memorandum.76

We disagree with Judge Stengel as to a forty percent fee. We must consider several factors:

“(1) the amount of work performed; (2) the character of the services rendered; (3) the difficulty of

problems involved; (4) the importance of the litigation; (5) the degree of responsibility incurred;

(6) whether the fund involved was ‘created’ by the attorney; (7) the professional skill and standing

of the attorney in her profession; (8) the result the attorney was able to obtain; (9) the ability of the

client to pay a reasonable fee for the services rendered; and (10) ‘very importantly’ the amount of

money in question.”77

Applying these Nice factors, Judge Stengel concluded Attorney Tummons and Attorney

Sansone and his firm “performed a high level of legal work over a period of years in difficult and

challenging litigation”; “called into question the performance of four (4) judges of the Fayette

County Court of Common Pleas, the District Attorney of Fayette County, the investigating

detective and his police department and reviewed medical and mental health records dating back

to 2004”; fully litigated in the district court, including a creative claim under the Americans with

Disabilities Act; took a successful appeal to our Court of Appeals; and put the case in a position

for settlement. Judge Stengel found the claims brought by counsel on behalf of Mr. Geness against

the Fayette County bench, its District Attorney, and law enforcement community “was a daunting

and uphill battle” which, from his experience, “would not have been easy at any step and they had

to know they were asserting claims that would be, and in fact were, vigorously contested.”78 He

found the case is not only important to Mr. Geness, but also as a public service in exposing a

“glaring weakness in the Fayette County criminal justice system, at least insofar as it intersects

with the mental health system.”79

Based on these factors, as well as a review of the affidavits submitted by prominent

plaintiffs’ counsel in civil rights litigation, Judge Stengel concludes a forty percent contingency is

appropriate under the circumstances. He concluded there is a substantial recovery from the

Department with a potentially large recovery from the Administrative Office of Pennsylvania

Courts currently in litigation, leaving more than adequate funds for Mr. Geness’s needs.

Addressing our concern regarding costs, Judge Stengel noted costs will come out of the

settlement, but the costs do not appear to be high or inconsistent with the complexity and duration

of the case and, if paid out of the Department’s settlement, there will be little, if any costs

remaining unpaid from a potential settlement with the Administrative Office.80 Counsel requests

we hold another $35,000 in escrow to cover his costs moving forward which represents over three

times the amount of costs incurred to date.

We find no basis to award a forty percent contingency fee. Our concern is with the amount

of fees sought by Mr. Geness’s counsel for work done to secure this partial settlement. Judge

Stengel’s analysis is entirely proper if we reviewed a settlement with original parties or had the

benefit of a competent contracting party in a fee agreement.

We do not have such a case. Mr. Geness’s counsel sued the Department in March 2019

after beginning this suit in June 2016. He sued other state actors under a disabilities theory in

October 2018. According to his submitted reconstructed “invoices,” Mr. Geness’s counsel began

working on a claim against the Department in March 2019. We denied the Department’s motion

to dismiss last June. The parties proceeded to mediation on August 30, 2019 and Mr. Geness’s

counsel and his then-court-appointed limited guardian Kiefer agreed to release Mr. Geness’s claim

against the Department in exchange for $375,000.

C. We award fees following a quantum meruit analysis.

We will evaluate an award of fees based on a quantum meruit contractual analysis. We

give a substantial amount of weight to Mr. Geness’s incapacity. An attorney representing an

incapacitated person is charged with a great responsibility.81 Like other courts, we recognize

representation of incapacitated individuals is a “necessary” legal service compensable on a

quantum meruit basis based on the relevant adduced facts.82

Because legal fees involving incapacitated individuals are of special concern, we must

evaluate “all the circumstances under which the services were rendered have been established in

due course of law."83 For example, the Pennsylvania Superior Court concluded in Feely when

there is a contract for legal services with an incompetent party, the legal fees need to be determined

on a fact-based quantum meruit basis.84 "[It is] essential to show that the legal services rendered

were reasonably necessary for the welfare of the incompetent before a recovery therefore on the

theory that they are necessaries will be allowed."85 In Bradley v. GMAC, our Court of Appeals

affirmed the district court requiring an hourly accounting and excluding 41.9 hours of counsel’s

work from consideration of counsel fees.86

An action in quantum meruit “sounds in quasi-contract or contract implied in law and seeks

the equitable remedy of restitution where one person has been unjustly enriched by the services of

another.”87 The determination of the proper amount of a quantum meruit award is left to our sound

discretion.88 Fees are “limited to the reasonable value of the services performed.”89 Questions arise

when we attempt to determine the methodology for measuring the value of services performed by

counsel.

Pennsylvania does not have a specific method for determining attorney’s fees in quantum

meruit.90 Pennsylvania courts use the standard lodestar approach: multiply the number of hours

worked by the attorney’s reasonable fee.91 Another method suggests a court may have more

flexibility in fashioning a quantum meruit attorney’s fee award. The Pennsylvania Superior Court

noted “a quantum meruit recovery need not be limited to an hours and expenses analysis,” and

“principles of fairness should prevail.”92

A judge in the United States District Court for the Eastern District of Pennsylvania

applying Pennsylvania law recently addressed the amount of fees owed in quantum meruit to

counsel.93 In Mirarchi Legal Servs., P.C. v. Thorpe, the court began by looking to section 374 of

the Restatement (Second) of Contracts to determine the proper fee.94 “In effect, the Restatement

presents a formula for calculating the recovery: the full value of the services a party provided,

minus any losses the party inflicted by his own breach.”95 The court first looked to apply the

lodestar method but, like here, counsel did not keep contemporaneous time records.96 The court

reasoned the lack of time records undercut the reliability of the calculated lodestar approach.97 The

court found counsel’s estimations were an “unverified approximation that he appears to have

compiled over four years after he finished working on the case.”98

Mr. Geness’s counsel admits he uses a “‘reconstruction’ method on the rare occasion that

calls for filing a fee request in a case such as this.” 99 . Counsel cites cases from our Court of

Appeals and this district, including a 2018 decision from our Court of Appeals, Clemens v. New

York Central Mutual Fire Insurance Co.100

In Clemens, our Court of Appeals examined a petition for attorney’s fees under

Pennsylvania’s fee-shifting bad faith statute. The court affirmed the district court’s denial of the

fee petition in its entirety based on its “reasoning that it was not adequately supported and that the

requested amount was grossly excessive given the nature of the case.”101 Finding no abuse of

discretion by the district court, our Court of Appeals affirmed, “in doing so, [took] the opportunity

to formally endorse a view already adopted by several other circuits—that is, where a fee-shifting

statute provides a court discretion to award attorney’s fees, such discretion includes the ability to

deny a fee request altogether when, under the circumstances, the amount requested is ‘outrageously

excessive.’”102 The court recognized the lodestar is the method used to calculate attorney’s fees

under fee-shifting statutes. The court noted counsel “did not maintain contemporaneous time

records for most of the litigation. Instead, by their own admission, counsel ‘recreate[d]’ all of the

records provided as part of the fee petition, using an electronic case management system that did

not keep track of the amount of time expended on particular tasks. … Even worse, the

responsibility of reconstructing the time records was left to a single attorney, who retrospectively

estimated not only the length of time she herself had spent on each individual task, but also the

amount of time others had spent on particular tasks, including colleagues who could not be

consulted because they had left the firm by the time the fee petition was filed.”103 And while our

Court of Appeals stated while “[w]e have never strictly required that fee petitions be supported by

contemporaneous records,” it “[has] long been ‘the preferred practice.’ Thus, although

reconstructed records in and of themselves do not justify complete disallowance of a fee award,

they may warrant ‘more exacting scrutiny than we would bring to contemporaneous and detailed

records.’”104

This is hardly a ringing endorsement of counsel’s “reconstruction” method. Without

reliable contemporaneous time records, the court in Mirarchi Legal Servs., P.C. v. Thorpe decided

to use a qualitative holistic approach to measure counsel’s services and gave weight to a variety of

factors used to determine the value of an attorney’s service.105 The court found other relevant

factors include the character of the services rendered; the difficulty of the problems involved; the

importance of the litigation; the degree of responsibility incurred; the professional skill and

standing of the attorney in his profession; the results he was able to obtain; the ability of the client

to pay a reasonable fee for the services rendered; and, the amount of money in question.106 Taking

into account all of these principles, the court found counsel entitled to a fee based off his

contingency fee and then deducted awards after reviewing relevant factors.

Applying a required holistic approach to measure Mr. Geness’s counsels’ services, we first

agree with Judge Stengel as to the importance of counsels’ representation. Nothing in our Order

today is or should be intended to be a disincentive or discouragement for the important work

performed by Mr. Geness’s counsel in obtaining this partial settlement from the Department. The

system in Fayette County appears to have failed Mr. Geness at many levels but particularly in his

legal representation. Mr. Geness’s counsel undertook an unpopular case and, after considerable

time pursing the wrong parties on the wrong theories, moved to add the Commonwealth on a

disabilities act claim. He successfully persuaded our Court of Appeals to recognize the potential

for such a claim against the Commonwealth in a novel precedential extension of the Americans

with Disabilities Act against state actors. Counsel then sued a variety of Commonwealth agents

and eventually the Administrative Office of Pennsylvania Courts. He then sued the Department

six months later.

Counsel faced several difficult problems in getting to March 2019. Even after suing the

Department, he addressed the Department’s substantial and thoughtful Motion to dismiss. He

prepared for a mediation resulting in a proper settlement with the Department. The questions

involved are among the most difficult at the intersection of mental health and the administration

of justice. Mr. Geness’s counsel undertook this representation against these difficult odds. Given

Mr. Geness’s incompetence and the apparent absent guardianship belatedly afforded by his earlier

limited guardian, Mr. Geness’s counsel took on a significant responsibility. We are also aware of

the professional standing of Mr. Geness’s counsel in this District. He has often succeeded in

difficult cases. His interactions have been professional and consistent with his obligation to Mr.

Geness. He zealously represented Mr. Geness before our Court and the United States Court of

Appeals. He eventually selected a limited guardian beyond reproach who provided the necessary

investigation to approve a settlement against one of three potential defendants. He obtained a

suitable result against the Department. He again represented to us this is a partial settlement and

he expects to recover from the Commonwealth and possibly the Administrative Office. His client

is otherwise unable to pay anything for these vigorous services. He recovered a suitable amount

under today’s analysis, but we should not suggest a jury could not return a much larger verdict

against responsible parties. The amount of money involved in this case could easily be a multiple

of today’s settlement following a jury verdict. But there is risk in getting to that verdict as to who

will be responsible.

Several months into the case, Mr. Geness’s counsel turned his attention to a potential

responsible party in theory when he moved to amend his flawed civil rights claims to bring in the

Commonwealth on a disabilities theory. He succeeded with this claim before the Court of Appeals.

But he did not add the Department or review its liability (if we accept his reconstructed time

records), until March 2019. He has invested substantial hours since then.

We have no basis to dispute the hourly rates he represents to us as being his normal hourly

rates. No one objects to these hourly rates including, most importantly, the Limited Guardian. We

will apply the hourly rates of $600 for Attorney Sansone, $300 to Attorney Terzigni, $225 for

Attorney Tuttle, and $85 for non-attorney staff.

But we will not provide hourly payment for services unrelated to the Department or which

are so poorly identified in reconstructed bills we cannot fairly describe them as compensable. For

example, we will not pay two hours for a “staff meeting.”107 There is no way to determine what is

done there. We will not compensate counsel for costs of depositions before he recognized a theory

allowing today’s recovery. For example, we will not allow costs for a deposition in 2017.

We cannot rely upon counsel’s reconstructed block billing in a fee shifting case. We are

not suggesting they did not work. We witnessed their vigorous advocacy. They never gave up and

still have not. Mr. Geness is fortunate to have this counsel undertake this difficult case. We will

accept the reconstructed block billing only as a guidepost to remind us of the work effort. We are

also aware of the efforts since this reconstructed billing in obtaining our July 16, 2020 Order

approving the settlement and will award $8,000 in fees for those services.

Applying these factors to arrive at a holistic quantum meruit fee, we award counsel

$118,260, representing payment of $8,000 for the services in presenting this Motion and leading

to today’s approval, plus 114.85 hours for Attorney Sansone’s time, 75.85 hours for Attorney

Terzigni’s time, 66.40 hours for Attorney Tuttle’s time, and 43 hours for paralegal services.

Except for limited instances of vague block billing during the relevant time, we find the services

identified in counsel’s reconstructed invoices fairly represent a benefit to Mr. Geness. We are not

including appellate practice. But we are including all time invested in pursuing recovery against

all the defendants in this Court during this time frame.108 We will not double count this fee in a

quantum meruit analysis if Mr. Geness later obtains a recovery from the Administrative Office or

the Commonwealth.

Mr. Geness’s counsel further moves for reasonable costs which he claims Mr. Geness

incurred under a fee agreement. We found the Fee Agreement is not enforceable against Mr.

Geness at least as to the claims against the Department. But Mr. Geness received the benefit of

some of these services in this recovery. But he received no benefit for costs incurred before the

filing of the amended Complaint in March 2019 other than the filing fee which started this case.

We award reasonable costs of $4,623.57 incurred since Mr. Geness sued the Department

plus the filing fee. We deduct costs for the appeal, depositions in the dismissed claims, and

copying charges from before 2019. Those deducted costs may be partially recoverable from the

other recoveries on a quantum meruit basis depending on the benefit shown then.

D. Mr. Geness and his counsel shall partially share in the obligation to pay the

Limited Guardian.

Mr. Geness’s counsel requests we direct Mr. Geness to pay Judge Stengel’s compromised

invoice. We agree Mr. Geness should pay $24,000 of Judge Stengel’s compromise invoice but

require counsel pay $6,000 from the $118,260 in awarded fees.

Counsel is correct Judge Stengel provided the value to Mr. Geness and should

understandably pay for this benefit. But we are also mindful Mr. Geness would not have to pay

for this benefit with the original limited guardian Kiefer selected for him by his counsel. The

earlier limited guardian agreed to provide these services pro bono. After reading our December 5,

2019 memorandum, Mr. Geness’s counsel decided his client would be better served with another

limited guardian. In doing so, he appreciated the need for a limited guardian with the reputation

and experienced judgment of Judge Stengel. But this level of expertise may involve reasonable

fees. Judge Stengel and his firm billed in excess of $34,000 but, mindful of the public importance

of this case and as a courtesy to Mr. Geness, is reducing his bill to $30,000. Today’s Order requires

payment in full of this compromised invoice.

Rather than seeking input from the court-appointed lawyer serving as Mr. Geness’s limited

guardian who provided these services without seeking a fee for several years with no new learning

curve, Mr. Geness’s counsel chose to change tactics and moved the Fayette County Orphans Court

for appointment of an eminently fair and thoughtful limited guardian. We have the highest regard

for Judge Stengel. We appreciate his thoughtful and experienced judgment. Counsel chose wisely

and Mr. Geness is fortunate to have Judge Stengel’s review. But he chose to pay for Judge

Stengel’s learning curve and top-level services when the earlier court-appointed guardian did not

charge fees.

While we see ample basis for Mr. Geness to pay his share, he should not be forced to pay

for the entire benefit. Mr. Geness’s counsel’s original choice of a limited guardian did not meet

the necessary review. We allocate Judge Stengel’s invoice with eighty percent ($24,000) paid

from the settlement fund and the remaining twenty percent ($6,000) deducted from the $118,260

in fees we awarded to Mr. Geness’s counsel.

E. The Limited Guardian shall escrow $5,000 to pay demonstrated reasonable

costs attendant to administering the special needs trust in the future.

Mr. Geness’s counsel requests we escrow $35,000 of the Department’s settlement for costs

he may incur in pursuing other defendants. He has no contractual basis for this reach. It also

seems to evidence a lack of recognition for our role. Counsel may recover future costs from future

recoveries. And, as Judge Stengel notes, counsel expects most of the out-of-pocket costs are

behind us. We see no basis to keep this money from Mr. Geness.

But there is a basis for escrowing $5,000 to ensure the proper administration of the special

needs trust now funded by the Department’s settlement. Counsel explained he hired counsel to

arrange the trust. We are not aware of a need for further work. We are also not aware whether

Judge Stengel will need to invest further time in ensuring distribution under today’s Order. We

leave those decisions to counsel and Judge Stengel. Judge Stengel shall escrow $5,000 from the

settlement fund in an interest-bearing account to pay invoices relating to administering the special

needs trust which Judge Stengel finds are reasonable and necessary for Mr. Geness’s best interest.

III. Conclusion

The private enforcement of our civil rights laws requires experienced counsel to sue state

actors and others we trust with power to represent us. Congress allows lawyers undertaking these

important cases to recover their reasonable fees and costs from the state actors if they prevail. We

today evaluate the efforts of an experienced civil rights lawyer in this District who undertook to

bring a civil rights case at the crux of the mental health and the criminal justice systems in Fayette

County. Referred to him by a local lawyer, the Pittsburgh civil rights lawyer undertook substantial

effort and vigorously fought for his mentally impaired client’s interest. He did not prevail on his

initial theories during the first couple of years of his case but eventually decided to proceed on a

disabilities act claim against the Commonwealth, the Administrative Office of Pennsylvania

Courts and eventually the Department of Human Services. He has now obtained a partial

settlement of his mentally impaired client’s issues for the Department of Human Services. Judge

Stengel’s exhaustive analysis persuades us to approve the settlement understanding all funds not

paid to Mr. Geness’s lawyer and Limited Guardian will be deposited into a special needs trust to

support Mr. Geness as he ages in a group home designed to protect him. Mr. Geness must still

proceed against the Commonwealth and the Administrative Office of Pennsylvania Courts through

summary judgment, trial, and possibly appeals. We found his settlement to be fair. And he should

be paid for his efforts from this settlement.

But to do so he must show a basis for his requested fee. We will not accept an initial

contingency fee agreement with a mentally impaired adult who could not capably assent to contract

terms. The lawyer then failed to keep contemporaneous time records even though he knew he was

bringing claims with statutory fee shifting. Absent an enforceable fee agreement and now relying

on “reconstructed” billing, we today scrutinize the quantum meruit fee for the lawyer.

We see no basis to set a lodestar based on admittedly reconstructed time records. Applying

recognized factors in setting a quantum meruit value for counsel’s services, we award reasonable

fees and costs earned by counsel in securing this partial settlement from the Department. We also

direct payment of Judge Stengel’s compromised limited guardian invoice with Mr. Geness

responsible for 80% of the fee and his counsel responsible for 20% of the fee. Judge Stengel shall

further hold $5,000 in an interest-bearing escrow account to satisfy demonstrated and as-yet

unbilled reasonable fees and costs attendant solely to administering the special needs trust. The

remainder of the partial settlement fund shall be forwarded to the administrator of the special needs

trust and, if not applied towards the costs of the special needs trust, shall be paid to Mr. Geness’s

special needs trust.

1 Our December 5, 2019 memorandum denying the parties’ first motion to approve settlement

agreement provides further details largely unrelated to today’s decision. See ECF Doc. No. 285.

2 Geness v. Cox, 902 F.3d 344, 349 (3d Cir. 2018).

3 Id.

4 ECF Doc. No. 1 at ¶ 27.

5 Id. at ¶ 29.

6 Geness, 902 F.3d at 350.

7 Id. at 351.

8 Id.

9 Id.

10 Id.

11 Id.

12 ECF Doc. No. 1.

13 42 U.S.C. § 12131 et seq.

14 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

15 ECF Doc. No. 15.

16 ECF Doc. No. 30.

17 ECF Doc. No. 31 at 11.

18 ECF Doc. No. 36.

19 ECF Doc. No. 64.

20 ECF Doc. No. 99.

21 ECF Doc. Nos. 92, 93.

22 ECF Doc. No. 100.

23 ECF Doc. Nos. 110, 111.

24 ECF Doc. Nos. 113, 115.

25 ECF Doc. No. 246-2, Affidavit of Karen Kiefer at ¶ 2.

26 Geness, 902 F.3d at 354.

27 Id. at 359.

28 ECF Doc. Nos. 67, 69.

29 Geness, 902 F.3d at 360.

30 Id. at 365.

31 ECF Doc. No. 121. Mr. Geness later withdrew his claims against the judges of the Court of

Common Pleas of Fayette County and one claim against the Administrative Office of Pennsylvania

Courts. ECF Doc. No. 150.

32 ECF Doc. No. 183.

33 ECF Doc. No. 246.

34 ECF Doc. No. 246-2.

35 Id.at ¶¶ 3-6, 9.

36 Id. at ¶ 8.

37 ECF Doc. No. 248.

38 ECF Doc. No. 285.

39 Id. at 18-19.

40 Id. at 19-23.

41 ECF Doc. No. 286.

42 ECF Doc. No. 313 at ¶¶ 4-5.

43 Id. at ¶ 5; ECF Doc. No. 313-1 at ¶ 1 (Affidavit of Lawrence F. Stengel).

44 ECF Doc. No. 313-1 at ¶ 2.

45 Id. at ¶¶ 3-5.

46 Id. at ¶ 11.

47 Id. at ¶¶ 19-22.

48 ECF Doc. No. 314.

49 ECF Doc. No. 319.

50 Id. at 2-3.

51 Id. at 3.

52 ECF Doc. No. 319-1 at ¶ 7.

53 ECF Doc. No. 313 at n. 1.

54 ECF Doc. No. 319-1 at ¶ 10.

55 ECF Doc. No. 246-1 at 2, ¶ 2.

56 Nice v. Centennial Area Sch. Dist., 98 F. Supp. 2d 665, 667 (E.D. Pa. 2000) (citing Eagan by

Keith v. Jackson, 855 F. Supp. 765, 775 (E.D. Pa. 1994)).

57 Id.

58 Local R. Civ. P. 17.1(A).

59 Id. at 17.1(B).

60 Nice, 98 F. Supp. 2d at 667 (citing Calvert v. Gen. Accident Ins. Co., No. 99-3599, 2000 WL

124570 at * 5 (E.D. Pa. Feb. 2, 2000)).

61 Id.

62 Id. at 668.

63 In Nice, the court applied Pennsylvania law to evaluate a minor’s compromise of claims asserting

violations of federal civil rights and attorney’s fees to be apportioned from the settlement. The

court found nothing in the civil rights statutes at issue, 42 U.S.C. §§ 1983-1988, “supplies the rule

of decision by which a minor’s compromise of a civil rights claim should be reviewed by a court.”

Id. at 669 (footnote omitted). In Johnson v. Clearfield Area School District, the court applied

Pennsylvania law to determine the fairness of minor’s compromise and requested attorney’s fees

in action claiming denial of free appropriate public education under federal statute. including the

ADA. Johnson, 319 F. Supp. 2d 583, 589 (W.D. Pa. 2004). In Eagan, the court sitting in diversity

applied New Jersey law to evaluate the settlement of claims brought by the guardian of an accident

victim rendered incompetent. Eagan, 855 F. Supp. at 776.

64 Pa. R. Civ. P. 2064(a). Pennsylvania Rule of Civil Procedure 2039(a) similarly provides “[n]o

action to which a minor is a party shall be compromised, settled or discontinued except after

approval by the court pursuant to a petition presented by the guardian of the minor.” Pa. R. Civ.

P. 2039(a).

65 Pa. R. Civ. P. 2064(b).

66 In Johnson, the court considered the reasonableness of the request for attorney’s fees drawn

from the settlement amount under both Rule 2039(b) and Local Rule 17.1 “as both have been

interpreted to include the same discretionary requirement.” Johnson, 319 F. Supp. 2d at 588, n.4.

67 Id. at 586, n.3 (citations omitted).

68 Id. at 586 (citing Power by Power v. Tomarchio, 701 A.2d 1371, 1374 (Pa. Super. Ct. 1997)).

69 Id. (citing Calvert, 2000 WL 124570 at * 5-6).

70 ECF Doc. No. 313-1 at ¶ 5.f.

71 Id. at ¶ 5.b.

72 Id. at ¶ 5.d.

73 Id. at ¶ 5.g.

74 Id. at ¶ 11.

75 ECF Doc. No. 319-2; ECF Doc. No. 319-3.

76 See Johnson, 319 F. Supp. 2d at 589, n.7 (“[V]arious other counties in Pennsylvania have

adopted a presumptive lodestar for fees involving the settlement of a minor’s claims); Nice, 98 F.

Supp. 2d at 670-71 (adopting the presumptive lodestar of twenty-five percent promulgated by the

Court of Common Pleas of Bucks County); Stecyk v. Bell Helicopter Textron, Inc., 53 F. Supp. 2d

794, 801 (E.D. Pa. 1999) (adopting the Delaware County presumptive lodestar of twenty-five

percent); Gilmore by Gilmore v. Dondaro, 582 A.2d 1106, 1109-10 (Pa. Super. Ct. 1990)

(approving trial court’s application in determining fee award, of the then-in-place Chester County

Court of Common Pleas local rule providing for a twenty-five percent presumptive lodestar);

Henderson ex rel. Bethea v. Nationwide Mut. Ins. Co., No. 00-1215, 2001 WL 43648, at *2 (E.D.

Pa. Jan. 4, 2001) (adopting the Philadelphia County local rule providing for a presumptive lodestar

of one-third of the amount of the net fund recovered).

77 Nice, 98 F. Supp. 2d at 671 (citing Gilmore, 582 A.2d at 1109-10).

78 ECF Doc. No. 313-2 at 16.

79 Id. at 17.

80 Id. at 17-19.

81 In re Estate of Gregory, No. 1265, 2006 WL 3041968, at *22 (Phila. Cnty. Court of Common

Pleas May 31, 2006).

82 Id. at *21-*22.

83 In re Weightman’s Estate, 190 A. 552, 554-557 (Pa. Super. Ct. 1937).

84 In re Feely Estate, 98 A.2d 738, 742 (Pa. Super. Ct. 1953).

85 Id.

86 Bradley v. GMAC Ins. Co., 320 F. App’x 125 (3d Cir. 2008).

87 Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C.,

137 A.3d 1247, 1250 n.4 (Pa. 2016) (citing Shafer Elec. & Constr. v. Mantia, 96 A.3d 989, 992

n.3 (Pa. 2014)). In Shafer Electric, the Pennsylvania Supreme Court explained a claim for damages

in quantum meruit is fundamentally an equitable claim of unjust enrichment in which the party

seeking recovery must demonstrate: “(1) [the] benefits conferred on defendant by plaintiff; (2)

appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under

such circumstances that it would be inequitable for defendant to retain the benefit without payment

of value. The application of the doctrine depends on the particular factual circumstances of the

case at issue. In determining if the doctrine applies, our focus is not on the intention of the parties,

but rather on whether the defendant has been unjustly enriched.” Shafer Electric, 96 A.3d at 993

(quoting Durst v. Milroy Gen. Contracting, Inc., 52 A.3d 357, 360 (Pa. Super. Ct. 2012)).

88 Mager v. Bultena, 797 A.2d 948, 961 (Pa. Super. Ct. 2002) (citing Robbins v. Weinstein, 17

A.2d 629, 633 (Pa. Super. Ct. 1941)).

89 Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., 137 A.3d at 1250.

90 Mulholland v. Kerns, 822 F. Supp. 1161, 1169 (E.D. Pa. 1993).

91 See e.g., Krishnan v. Cutler Grp., Inc., 171 A.3d 856, 903 (Pa. Super. Ct. 2017) (“In general,

‘the manner by which attorneys’ fees are determined in this Commonwealth, under fee-shifting

provisions, is the lodestar approach’” (quoting Krebs v. United Refining Co. of Pennsylvania, 893

A.2d 776, 792-93 (Pa. Super. Ct. 2006)); Hiscott & Robinson v. King, 626 A.2d 1235, 1238 (Pa.

Super. Ct. 1993) (in dispute over attorney’s fees, applying quantum meruit theory to recovery of

fees by multiplying hours worked at the hourly rate).

92 Joseph Q. Mirarchi Legal Servs., P.C. v. Thorpe, No. 19-3102, 2020 WL 2030036, at *6 (E.D.

Pa. Apr. 28, 2020) (quoting Angino & Rovner v. Jeffrey R. Lessin & Assocs., 131 A.3d 502, 511

(Pa. Super. Ct. 2016)).

93 Id. at *1.

94 Id. at *2. The text of the court’s opinion cites the Restatement (Second) of Torts § 374. It appears

this is a typographical error and the court meant to refer to the Restatement (Second) of Contracts

§ 374. Section 374, Restitution in Favor of Party in Breach, provides:

(1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the

ground that his remaining duties of performance have been discharged by the other party's breach,

the party in breach is entitled to restitution for any benefit that he has conferred by way of part

performance or reliance in excess of the loss that he has caused by his own breach.

(2) To the extent that, under the manifested assent of the parties, a party's performance is to be

retained in the case of breach, that party is not entitled to restitution if the value of the performance

as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the

breach and the difficulties of proof of loss.

Restatement (Second) of Contracts § 374 (1981).

95 Id. at *4.

96 Id. at *5. Counsel asserts he spent a certain number of hours working on the dispute and shared

his reasonable hourly fee.

97 Id. at *5-*6.

98 Id. at *5. The court explained the record on the issue on fees is too sparse to accurately

approximate the value of the benefits the counsel conferred.

99 ECF Doc. No. 323 at 3, n. 3.

100 903 F.3d 396 (3d Cir. 2018).

101 Id. at 398.

102 Id.

103 Id. at 400-01 (internal citation to the record omitted) (footnote omitted).

104 Id. (citations omitted).

105 Joseph Q. Mirarchi Legal Servs., P.C., 2020 WL 2030036 at *7.

106 Id. at *6-*7 (quoting In re LaRocca Estate, 246 A.2d 337, 339 (Pa. 1968)).

107 Time entry, July 18, 2019, ECF Doc. No. 251-2 at 14 of 41 (using the pagination supplied by

the CM/ECF docketing system).

108 E.g., May 1, 2019 time entry “Review brief in response to AOPC MD [motion to dismiss], ECF

Doc. No. 251-2, p. 35 of 41; August 22, 2019 time entry “Review AOPC document production re:

Criminal Justice Advisory Board. (200 pages)”, ECF 251-2 at 15 of 41.