REMEDIES & DAMAGES

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

ATTORNEY’S FEES

 

Parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of parties, or some other recognized exception.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.).

 

Attorney fees which are reasonable and actually incurred by the residential mortgage lender may be charged to the residential mortgage debtor.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

After recognizing the prior alimony pendente lite payments, and the substantial equitable distribution payment to be made by the plaintiff to the defendant, the court required each party to pay his or her own attorney's fees, and to share the costs and expenses of the proceedings.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

With regard to attorney's fees, the settled law of this Commonwealth is that attorney's fees are recoverable from an adverse party only when provided for by statute, or when clearly agreed to by the parties.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). 

 

41 P.S. §406(2) provides that attorney's fees which are reasonable and actually incurred by the residential mortgage lender may be charged to the residential mortgage debtor.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). 

 

42 Pa.C.S.A. §2503(9) provides that attorney's fees are permitted in cases involving bad faith.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The general rule concerning counsel fees is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

42 Pa.C.S.A. §2503(9) provides that participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter where the attorney fee is awarded because of the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The party requesting counsel fees pursuant to section 2503(9) of the Judicial Code [42 Pa.C.S.A. § 2503(9)] has the burden of proof that the actions of the other party were arbitrary , vexatious, or in bad faith.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

"Vexatious," has been defined as instituted without sufficient grounds and serving only to cause annoyance.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

"Bad faith," as that term has been defined, is fraud, dishonesty, or corruption.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

"Arbitrary," means based on random or convenient selection or choice rather than on reason or nature.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

DAMAGES GENERALLY

 

The relative certainty of opinion required to establish causation is not required when proving damages for future consequences of admitted injury.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike)

 

EQUITY

 

The burden of proving circumstances warranting the exercise of the court's equitable powers is on the applicant, and the application to set aside a sheriff's sale may be refused because of the insufficiency of proof to support the material allegations of the application which are generally required to be established by clear evidence.  North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). 

 

Courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.  North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). 

 

When the remedy at law is inadequate, a court of equity should take jurisdiction over the     entire controversy in order to do complete justice and to avoid piecemeal litigation.  King v. Buck, 60 Som.L.J. 456

 

ESTOPPEL

 

Estoppel applies where a person's actions are relied upon to prevent that person from denying a fact that his actions establish as true and correct.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

In discussing the doctrine of estoppel, the Pennsylvania Supreme Court has stated that estoppel in paternity actions is merely the legal determination that because of a person's conduct, that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child's mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

Judicial estoppel provides that a party to an action will be precluded from asserting a position inconsistent with his claim in a previous action if that position was successfully maintained.  Commonwealth v. McCusker, 60 SLJ 416m (August 15, 2003) (J.Cascio)

 

INJUNCTIONS – PRELIMINARY INJUNCTIONS

 

Before granting a preliminary injunction, the court must be satisfied that: (1) it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; (2) greater injury would result from refusal than grant; and (3) the parties will be properly restored to their status as it existed immediately prior to the alleged wrongful conduct.  Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity.  Generally, a preliminary injunction will not be awarded unless the plaintiff's right is clear and the wrong manifest.  Mark III Industries, Ltd. v. Borough of Indian Lake, 54 Som. L.J. 265 (July 26, 1996)  (Fike P.J.) 

 

A preliminary injunction should issue only where there is urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of the plaintiff are clear.  Also, it should in no event ever be issued unless greater injury will be done by refusing it than granting it.  Mark III Industries, Ltd. v. Borough of Indian Lake, 54 Som. L.J. 265 (July 26, 1996)  (Fike P.J.) 

 

Where evidence indicates that water damage to the plaintiff's house due to water run off caused by the installation of a new and larger drainage pipe that abuts the plaintiff's property is greater than prior to the installation of the new drainage pipe, and the lack of evidence that indicates injury would occur by removal of the new pipe, it can be concluded that refusing to grant a preliminary injunction could cause more injury than the granting of a preliminary injunction, and, therefore, the injunction requesting the removal of the pipe is reasonably suited to abate the complained of potential harm.  Mark III Industries, Ltd. v. Borough of Indian Lake, 54 Som. L.J. 265 (July 26, 1996) (Fike P.J.) 

 

Immediate and irreparable harm necessary for awarding a preliminary injunction does not exist when the plaintiff's property has experienced flooding during an extremely heavy and possibly unique rainstorm, there is no evidence that a similar flow of water will occur during other rainstorms, plaintiff's property experienced flooding prior to installation of the larger drainage pipe, and the court does not know whether in the future plaintiff's property will experience flooding only to the same extend as existed previously during other rainstorms.  Mark III Industries, Ltd. v. Borough of Indian Lake, 54 Som. L.J. 265 (July 26, 1996) (Fike P.J.)

 

MANDAMUS

 

Mandamus will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate and appropriate remedy at law.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

The law is clear that mandamus will only lie to compel public officials to perform their duties in accordance with the law when those duties are ministerial in character and not discretionary.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

A ministerial act has been defined as one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.).

 

PAIN AND SUFFERING

 

The law in Pennsylvania is clear that where a decedent dies instantaneously, there can be no recovery for pain and suffering, and that same rule applies when the decedent is not conscious between the time of injury and the time of death.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

Pain and suffering is an appropriate item of damages when plaintiffs present sufficient evidence to support a conclusion that death was not instantaneous.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

PRE / POST-JUDGMENT INTEREST

 

Interest shall be awarded on a judgment from the date of verdict or award, costs follow a verdict and it is permissible for Plaintiff to include these matters in the ad damnum clause of the Complaint.  Shaffer v. Miller & Miller, 50 Som.L.J. 116

 

A prevailing party in a litigation is entitled to the costs and post-judgment interest without specific mention in the verdict.  Trent v. Dramesi, et al., 60 Som.L.J. 108 (2000) (Fike, P.J.).

 

When determining a party's right to interest, Pennsylvania courts have followed the Restatement (Second) of Contracts, Section 354.  Diamond Reo v. Mid Pacific Industries, Inc. v. Osterlund, Inc., 59 Som.L.J. 282 (2001) (Gibson, J.). 

 

A party is entitled to pre-judgment interest only in certain circumstances.  Trent v. Dramesi, et al., 60 Som.L.J. 108 (2000) (Fike, P.J.). 

 

Where the court found that an amount of money claimed by a party was not liquidated and the parties claim for breach of contract did not consist of a failure to pay a definite sum in money, that party is not entitled to a prejudgment interest.  Trent v. Dramesi, et al., 60 Som.L.J. 108 (2000) (Fike, P.J.). 

 

In addition, a discretionary award of pre-judgment interest was not warranted on general concepts of justice under Restatement (Second) Contracts § 354 (2).  Trent v. Dramesi, et al., 60 Som.L.J. 108 (2000) (Fike, P.J.). 

 

PUNITIVE DAMAGES

 

Punitive damages can be awarded only when the defendant deliberately proceeds to act or fails to act in conscious disregard of, or indifference to, a high degree of risk of physical harm to another of which the actor knows or has reason to know.  The required state of mind is more aptly described as an indifference to a known risk, rather than failure to appreciate the degree of risk from a known danger.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

To warrant the imposition of a penalty, the act must have been committed with a view to oppress; the conduct must involve some element of outrage similar to that usually found in a crime.  Such conduct does not exist unless the actor knows, or must have been aware of the specific high degree of risk.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

There was no evidence that the defendant was aware, or must have been aware, of the specific risk to the traveling public to be caused by the overloading of the truck in the amount involved in this case, and that he then deliberately or recklessly chose to disregard that risk.  The most that was proved was a case of negligence.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

Section 908(2) of the Restatement (second) of Torts regarding punitive damages permits punitive damages for conduct that is "outrageous because of the defendant's evil motives or his reckless indifference to the rights of other."  Reckner v. Baker, 59 Som.L.J. 327 (200) (Gibson, J.). 

 

A court may award punitive damages only if the conduct was malicious, wanton, reckless, willful, or oppressive.  Reckner v. Baker, 59 Som.L.J. 327 (200) (Gibson, J.). 

 

Under Pennsylvania law, a request for punitive damages does not constitute a cause of action in and of itself.  Rather, a request for punitive damages is merely incidental to a cause of action.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

With regard to punitive damages, Section 908 (2) of the Restatement (Second) of Torts has been adopted as the law in Pennsylvania.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

A plaintiff may recover punitive damages when the defendant's acts are the result of reckless indifference to the rights of others or an evil or malicious motive.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

Reckless indifference to the interests of others' means that the actor has intentionally done an act of an unreasonable character, in disregard to a risk known to him or so obvious that he must be taken to have been more aware of it, and so great as to make it highly probable that harm would follow. 

 

Conduct that is outrageous because of the defendant's evil motive or his reckless indifference to the rights of others, and conscious action in a deliberate disregard of them, may provide the necessary state of mind to justify punitive damages.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).   

 

A request for punitive damages does not constitute a cause of action in and of itself.  Rather, a request for punitive damages is merely incidental to a cause of action.  Therefore, if there are no direct claims that are viable, the claim for punitive damages must fail.  Cugini v. Kearcher and Mardis Ford-Lincoln-Mercury, Inc., 60 Som. L.J. 402 (2002) (Cascio, J.). 

 

In determining the amount of punitive damage awards, juries are to consider (1) the character of the act; (2) the nature and extent of the harm; and (3) the wealth of the defendant.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Cascio, J.) 

 

The jury should consider all of the circumstances surrounding the matter, including the relation between the parties, the wrongdoers' motives, the nature and seriousness of his or her conduct, and the provocation or want of provocation therefor.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Cascio, J.) 

 

When punitive damages are claimed in a medical malpractice action, the requisite factual basis must appear in the complaint and the pleading requirements are strict.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

RESTITUTION

 

Any amount sought in recovery as restitution must flow from (or have a nexus with) the defendant’s criminal conduct. Commonwealth v. Charles Burnsworth, 63 Som.L.J. 263 (2006) (Cascio, P.J.)

 

The death of a defendant’s passenger clearly flows from his careless disregard for the safety of other persons, and thus restitution may be imposed to compensate passenger’s family following defendant’s conviction for careless driving. Commonwealth v. Charles Burnsworth, 63 Som.L.J. 263 (2006) (Cascio, P.J.)

 

The phrase “funeral expenses” is a broad expression encompassing all expenses necessarily and reasonably incurred in procuring the burial, cremation, or other disposition of the corpse, including the funeral or other ceremonial rite, a coffin and vault, a monument or tombstone, a burial plot and its care, and a wake. Commonwealth v. Charles Burnsworth, 63 Som.L.J. 263 (2006) (Cascio, P.J.)

 

SPECIFIC PERFORMANCE

 

A decree of specific performance is not a matter of right, but of grace.  Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). 

 

A decree of specific performance will only be granted if the plaintiff is clearly entitled to such relief, there is no adequate remedy at law, and the chancellor believes that justice requires such a decree.  Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.).