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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 NICHOLAS POULIDES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. AMERICAN THEATRE ARTS FOR YOUTH, INC. AND LAURIE WAGMAN, Appellees Nos. 2586 EDA 2013

Appeal from the Judgment Entered July 23, 2013 In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 120501883 BEFORE: PANELLA, J., LAZARUS, J., AND JENKINS, J. MEMORANDUM BY: JENKINS, J. FILED SEPTEMBER 12, 2014 The issue in this appeal is whether the lower court a bused its discretion in denying attorney fees to Nicholas Poulid es after Poulides prevailed in his action under the Wage Payment and Co llection Law (“WPCL”), 43 P.S. § 260.1 et seq . We conclude that the court properly denied attorney fees to Poulides, and we affirm. Poulides filed an action under the civil remedy sectio n of the WPCL, 43 P.S. § 260.9a, against his employer, American Theater Arts for Youth, Inc. (“American Theatre”) and its president, Lau rie Wagman, seeking unpaid wages of $35,000.00, liquidated damages 1 of $8,750.00 and attorney fees.

1 The WPCL defines the plaintiff’s right to recover liquidated da mages as follows:J-A15035- 14

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Since Poulides demanded less than $50,000.00, the case p roceeded to compulsory arbitration. The board of arbitrators awar ded Poulides $4,902.03 in unpaid wages. Poulides did not request a ttorney fees during the arbitration, and neither side took a de novo appeal from the award of the board of arbitrators to the trial division of the Co urt of Common Pleas. After the 30-day appeal period expired, Poulides red uced the award to judgment. Seven days later, Poulides filed a bill of costs seeking $27,000 in attorney fees under the fee-shifting provision of the WPCL, 43 P.S. § 260.9a(f) 2 . American Theatre and Wagman filed exceptions to Po ulides’ bill

Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employe of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater. 43 P.S. §260.10. This appeal does not involve any issu es concerning liquidated damages.

2 Section 260.9a(f) provides: “ The court in any action brought under this [civil remedy] section [of the WPCL] shall, in addition to any judgmentJ-A15035- 14

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of costs claiming that Poulides was not entitled to atto rney fees, and the prothonotary sustained these exceptions. Poulides appea led the prothonotary’s decision by filing a motion in the Moti ons Court of the Civil Division of the Court of Common Pleas. The Motions Court affirmed the prothonotary’s decision denying attorney fees, and Poul ides filed a timely appeal to this Court. Poulides filed a timely 5-page Pa.R.A.P. 1925(b) stat ement in which he raised 3 issues:

1. The prothonotary erred in stating it did not have the power to tax counsel fees.
2. If the failure to award fees by either the prothonotary or this Honorable Court was due to timeliness of the application for fees, such was error. 3. This Honorable Court should have determined and awarded reasonable fees upon plaintiff’s appeal of the bill of costs order. The Motions Court issued a Pa.R.A.P. 1925(a) opinion s tating that Poulides waived all issues because his concise statement was excessive ly long: “[Poulides’] 1925(b) Statement is five (5) pages long, yet mana ges to raise three (3) issues. . . [Poulides’] inability to comply wi th Pa. R.A.P. 1925(b) has precluded this Court from providing a clear and mea ningful review of its claims.” Despite this alleged deficiency, the Motions Co urt went on to review the merits of the issues. awarded to the plaintiff or plaintiffs, allow costs fo r reasonable attorneys' fees of any nature to be paid by the defendant.”J-A15035- 14

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We first address the Motions Court’s conclusion that Pouli des waived all issues in his Pa.R.A.P. 1925(b) statement. Waiver i ssues such as this are issues of law; thus, our standard of review is de novo

. Pocono Manor Investors, LP v. Pennsylvania Gaming Control Board , 927 A.2d 209, 216 (Pa.2007). In view of our recent decision in Maya v. Johnson & Johnson McNeil – PPC, Inc. , -- A.3d

-- , 2014 WL 3586390 (Pa.Super., July 22, 2014), we disagree with the Motions Court’s conclusion t hat Poulid es waived the issues articulated in his Pa.R.A.P. 1925(b) statement . In Maya , the trial court determined that the appellant waived all issues o n appeal because his Pa.R.A.P. 1925(b) statement was 11 pages long with 23 paragraphs and “numerous subparagraphs.” Judge Ford Elliott, joined by Judges Wecht and Musmanno, disagreed, reasoning:

The trial court advocates waiver, citing this court's decision in Kanter v. Epstein , 866 A.2d 394 (Pa.Super.2004) , appeal denied , 880 A.2d 1239 (Pa.2005) , cert. denied, Spector, Gadon & Rosen, P.C. v. Kanter , 546 U.S. 1092 (2006), in which this court held that where an appellant's concise statement raises an unduly large number of issues (104 in Kanter ), the purpose of Rule 1925 is effectively subverted. However, Rule 1925(b) was revised in 2007 and now states, ‘Where non

redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver. ’ Pa.R.A.P. 1925(b)(4)(iv). In addition, in Eiser v. Brown & Williamson Tobacco Corp. , 938 A.2d 417 (Pa.2007) (plurality), our Supreme Court held that a litigant will not suffer the loss of appellate review due to the volume of issues raised in theJ-A15035- 14

5 absence of bad faith. The Eiser court also distinguished Kanter on the basis that Kanter was a relatively straightforward breach of contract action while the lawsuit in Eiser was a complicated one with a voluminous record. The court in Eiser observed that ‘on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal.’ Id

. at 427 (footnote omitted). Instantly, as in Eiser , the subject lawsuit is complex and the record contains thousands of pages of testimony. Furthermore, there is no evidence of bad faith or an attempt to thwart the appellate process. We note that McNeil did winnow down the number of issues actually argued in its brief on appeal. Therefore, we decline to find waive r. Id . , 2014 WL at 3586390, *4, n. 4. Poulides’ Pa.R.A.P. 1925(b) statement is far more concise than the 11-page, 23-paragraph Pa. R.A.P. 1925(b) statement that the Maya court found acceptable. Poulides raises only three non-redundant, non-frivolous issues and describes each issu e in detail in his Pa.R.A.P. 1925(b) statement. His statement does not im pede appellate
review. Turning to the merits of this appeal, we review a tri al court's determination regarding the award of attorney fees f or an abuse of discretion. Kraft v. Downey , 68 A.3d 329, 332 (Pa.Super.2013) (citation omitted). An abuse of discretion requires more than a difference of opinion as to the conclusion reached; rather, discretion is abused “i f in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record.” Id. at 332- 33.J-A15035- 14

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Relying on Connor v. DaimlerChrysler Corp. , 820 A.2d 1266 (Pa.Super.2003), the Motions Court held that Poulide s forfeited his right to obtain attorney fees by failing to request them durin g compulsory arbitration and failing to file a de novo appeal from the arbitrators’ award. We agree with the Motions Court’s analysis. The plaintiff in Connor filed a compulsory arbitration action under the Magnuson- Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq ., and the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), but he failed to request at torney fees during the arbitration. The arbitration panel awarded him $2, 000, and neither side appealed. The plaintiff then filed a motion seeking attorney fees under the
MMWA 3 and the UTPCPL 4 . The Court of Common Pleas of Allegheny County ruled against plaintiff, and this Court affirmed. W e determined that the term “court” in the MMWA and UTPCPL includes arbitration boa rds, since

3 The MMWA provides in relevant part: “ If a consumer finally prevails in any action brought under paragraph (1) of this subsection, h e may be allowed by the court

to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses (including attorneys' fees b ased on actual time expended). . .” 15 U.S.C. § 2310(d)(2) (empha sis added).

4 The UTPCPL states in relevant part:

The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court

may award to the plaintiff, in addition to other relief provided in this section, cost s and reasonable attorney fees. 73 P.S. § 201-9.2(a) (emphasis added).J-A15035- 14

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arbitration boards “routinely undertake[] ‘court’ fun ctions” such as admission of evidence, resolution of factual questions and assessmen t of damages. Id ., 820 A.2d at 1271. No reason existed to treat the question of attorney fees differently from any other question that arbitra tors customarily decide
in a case. Id. Therefore, the plaintiff waived his right to attorne y fees by failing to request them before the arbitration board or to appeal de novo to the Court of Common Pleas. Id . at 1270-71. Connor’s reasoning applies to this case, because the statutes that Connor construed are similar to the WPCL. The WPCL, as stated ab ove, provides that “ the court ” shall allow reasonable attorney fees in addition to any judgment awarded under the WPCL’s civil remedy sta tute. 43 P.S. § 260.9a(f). In view of Connor’s determination that “court” include s arbitration boards, Poulides was required either to request attorney fees before the arbitration board or to appeal de novo 5 to the Court of Common Pleas. Connor , supra , at 1270-71. His failure to take either step preclud es him from recovery of attorney fees.

5 The Rules of Civil Procedure define a de novo appeal from the board of arbitrators in a compulsory arbitration case as follows: “An appeal by any party shall be deemed an appeal by all parties as to a ll issues unless otherwise stipulated in writing by all parties.” Pa.R. Civ.P. 1309. The trial “shall be de novo .” Pa.R.Civ.P. 1311(a). During trial, the WPCL plai ntiff bears the burden of proving unpaid wages and liquidat ed damages and must also request attorney fees at a timely juncture in the trial process. This case does not call upon us to decide the point in de novo trial proceedings when the plaintiff must request WPCL attorney fees.J-A15035- 14

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We note that in two decisions, one of which post-dates Connor , our Supreme Court has construed a statute’s use of “court” as syn onymous with “judge”. See Mishoe v. Erie Ins. Co. , 824 A.2d 1153 (Pa.2003); Wertz v. Chapman Township , 741 A.2d 1272 (Pa.1999). In Mishoe , for example, the Cou rt held that there was no right to a jury trial in a b ad faith insurance action under 42 Pa.C.S.A. § 8371. Section 8371 provides that “[i]n an action arising under an insurance policy, if the court f inds that the insurer has acted in bad faith toward the insured, the court may” award interest, punitive damages, and court costs and fees. 42 Pa.C.S.A. § 8371 (emphasis added). Mi

shoe reasoned that there was no right to a jury trial beca use the legislature chose the term “court” instead of “jury.” Id ., 824 A.2d at 1156. The Mishoe court gathered multiple authorities for the propositio n that “court” and “judge” “are essentially synonymous for purposes of section 8371,” and that “‘court’ is a concept that is meant to be limited to judges.” Id . at 1157-58 & n. 5, 7. But while Mishoe deems “court” and “judge” synonymous, it does not address whether “court” and “arbitration board” are also synonymous, the issue resolved in Connor . Therefore, Connor continues to remain good law notwithstanding the decision in Mishoe

. Poulides also argues that the Motions Court could have a warded attorney fees following his appeal from the Prothonot a ry’s decision to reject the demand for attorney fees in his bill of costs. We agree with the MotionsJ-A15035- 14

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Court that under Connor , an appeal from the prothonotary is not the proper procedure for obtaining attorney fees in a WPCL action that begins as an arbitration action. In such circumstances, Connor requires the WPCL plaintiff to seek attorney fees either before the arb itration panel or in a de

novo appeal from the arbitration board to the trial divi sion. Since Poulides failed to take either step, he waived his right to a ttorney fees. Order denying attorney fees affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/12/2014