J-A30025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ACERO PRECISION IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES BONELLI AND VISTEK MEDICAL,

INC.

APPEAL OF: JAMES BONELLI

No. 667 EDA 2015

Appeal from the Order Entered February 20, 2015

In the Court of Common Pleas of Chester County

Civil Division at No(s): NO. 2014-05245

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

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

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

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

remand to the trial court for further proceedings.

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

Acero, Bonelli signed two agreements containing restrictive covenants, one 

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

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

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The 2010 agreement provided that Bonelli would not compete with Acero 

within 100 miles of any Acero location for 2 years following his termination 

unless he had the “express prior written consent” of Acero. Petition for 

(Footnote Continued Next Page)
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“Should the employer or employee file a claim and[/]or lawsuit, the losing 

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

at Exh. A, at Remedies and Reformation.

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

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

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

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

and Vistek. The parties conducted expedited discovery and agreed the 

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

the merits. 

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

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

agreement was enforceable and Bonelli did not breach that agreement when 

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

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

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

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

(Footnote Continued) _______________________

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

¶ 2 at Exh. 3 ¶ 3.

In contrast, the 2014 agreement provided Bonelli would not compete with 

Acero only if, after receiving a thirty-day written notice from Bonelli, Acero 

elected to continue to pay Bonelli following his termination. Answer with 

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

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

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

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

following:

10. [Counsel] has undertaken the joint representation of 

both Mr. Bonelli and Defendant Vistek, whose legal 

interests did not materially differ.

11. No aspect of the defense of Vistek was materially 

distinguishable or varied from that of Mr. Bonelli.

12. No action was taken in the defense of Vistek that 

would not have also been taken for the defense of Mr. 

Bonelli.

13. The hourly rates and costs set forth in the attached 

monthly bills are the normal and customary rates charged 

by [counsel] and which represent the amount that has 

been charged for the defense of Mr. Bonelli in connection 

with the above-captioned action filed by Acero.

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

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

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

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

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

the order, the court found:

The governing contract provides: “Should the employer or 

employee file a claim and/or lawsuit, the losing party will 

pay the other parties’ attorney’s fees.” The parties to the 

contract were [Acero] and [Bonelli], the losing and winning 

parties, respectively. There has been no demonstration 

that [Bonelli] had any attorneys’ fees, however. Instead, 
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it is pretty obvious that in this case all attorneys’ fees were 

billed to and paid by GEMCITY, the owner of Bonelli’s new 

employer, [Vistek], a non-signatory to the agreement. 

Bonelli is not out-of-pocket and, the court infers, has no 

intention of incurring legal liability for the fees. No award 

is warranted under these circumstances.

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

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

complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following claims on appeal:

I. Did the trial court err in not awarding [Bonelli] any 

attorney fees under the 2014 [a]greement when the plain 

and unambiguous language of the 2014 [a]greement 

contains no requirement that the attorney fees actually be 

paid by the prevailing party for an award of attorney fees?

II. Did the trial court err by exercising discretion not 

authorized by Pennsylvania law or the 2014 [a]greement 

to evaluate whether [Bonelli] had a right to fees he has not 

yet paid or were paid by another?

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

related.

Whether Bonelli is entitled to attorney fees pursuant to the fee 

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

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

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

The following principles apply to interpreting terms of a contract:

In interpreting the language of a contract, we attempt to 

ascertain the intent of the parties and give it effect. When 

the words of an agreement are clear and unambiguous, 

the intent of the parties is to be ascertained from the 
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language used in the agreement, which will be given its 

commonly accepted and plain meaning.

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

(internal citation omitted).

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

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

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

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

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

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

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

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

Pennsylvania found a court may consider whether the fees claimed pursuant 

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

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

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

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

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

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

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

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

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

clearly excessive.” Id. at 776. 
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The fee-shifting provision contained in the contract signed by Bonelli 

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

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

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

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

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

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

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

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

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

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

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

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

claim Acero filed against Bonelli. 

Order reversed. Case remanded for proceedings consistent with this 

opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2015
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