BLOOMSBURG - Friday's decision by Columbia-Montour County President Judge Thomas James Jr. to deny a motion for delayed damages requested by the attorney for former Northumberland County deputy sheriffs Joseph Jones and Michael Boris III will save the county approximately $95,000.
James denied the motion by Attorney Douglas Engelman, of Williamsport, at the beginning of a 90-minute hearing involving an appeal filed by Sunbury attorney Michael Apfelbaum over a jury's decision June 12 to award Jones and Boris $550,000 in their civil lawsuit filed against Northumberland County Commissioner Vinny Clausi and former sheriff Chad Reiner.
Although James didn't give a reason during the hearing for denying Engelman's request for damages for his clients incurred prior to the jury's verdicts in the case, Apfelbaum said the motion was rejected because the $95,523.70 he was seeking could only be recovered if the case involved bodily injury, death or property damage. He noted none of the three elements existed in the lawsuit.
Apfelbaum cited James' denial of the motion as a "victory for the county."
Northumberland County, which also was a co-defendant in the case, was exonerated in both men's whistleblower's claims, and in Jones' own emotional distress claim. Boris and Jones are seeking to "preserve" the whistleblower claim.
Northumberland County must pay all awards and fees with tax dollars because it isn't insured for the case. The potential costs discussed Friday pertained to Clausi and Reiner, but also involve the county because of their roles as county officials.
In addition to seeking a new trial, a reversal of the jury's judgment or dismissal of the case, Apfelbaum challenged Engelman's request for approximately $463,000 in attorney fees by presenting litigation lawyer Robert Seiferth, of Williamsport as a witness.
Seiferth, who has been a litigation attorney for 35 years, said he never charged a client more than $200 per hour in his career. He said his fee is usually between $150 and $200. He believes his rate is reasonable for the Williamsport region.
Engelman told the court he never charged $400 per hour before in a civil rights case, but claimed the money was justified based on the hours he spent on the case. He said his law firm routinely charges approximately $200 per hour.
"My rate depends on the client and my interest in the case," he said.
He said 90 percent of his cases involve contingency fees in which he's paid only if his clients are successful in court. Engelman said he wouldn't have received any money from Jones or Boris if he wasn't successful in the case.
Engelman, who has been an attorney for 33 years and handled more than 100 litigation cases at trial, told Apfelbaum that the money he was seeking includes fees for representing Jones and Boris in their successful attempt to secure unemployment compensation.
Engelman said he spent a lot of hours on the case that he can't be compensated for under the law. Based on the income he generates for his law firm through contingency fees, Engelman said his hourly rate would be over $400 per hour.
Apfelbaum, who called Engelman's attorney fees unreasonable, said Engelman was only entitled to the claims he won in court. He told the judge, "You have to factor out the time he spent on the matters that were not successful."
Engelman claimed he was entitled to all the claims ruled on by the jury because they were "inner-related" and "inseparable."
He said Brett O. Feese, a former attorney who resigned last year from the state bar, and lawyer David Wilk assisted him at some points during the case. He said they charged $200 per hour, while paralegals Rebecca Buttorff and Stormie Mauck received $100 per hour for their services.
During court, Apfelbaum pointed out that Feese, a former state representative who resigned from the state bar association in October, was indicted for professional misconduct and spent time in prison before being released.
In February 2011, Feese was sentenced to four to 12 years in state prison and fined $25,000 for his involvement in the misuse of millions of public dollars by hiring out-of-state consultants with public money and using legislative employees to create customized computer software to elect more Republicans to the Legislature.
In addition to seeking attorney fees, Engelman claims James should not have dismissed an equal protection claim in finding that Boris and Jones were not at-will employees, that potential testimony by former chief clerk Kymberley Best regarding an allegation of Clausi discussing gambling debts should have been allowed, and that testimony by forensic experts should not have been eligible regarding shared user names and passwords because it didn't factor into their initial termination. His motion also disputes the use of video surveillance.
James took arguments on the motions by both attorneys under review and will render a ruling in one or two weeks.
The judge said, "I will look at the legal briefs and motions closer, but I don't think I'm going to change my mind. This was a fact-driven case."
He commended Engelman, Apfelbaum and assistant defense counsel Michael Kula for representing their respective clients as well as possible and described them as "excellent attorneys."
In their appeal, Apfelbaum and Kula argue that a First Amendment claim against Clausi wasn't properly established, saying he had "qualified immunity" as an elected official even if a violation occurred, and that the plaintiffs never clearly established that their constitutional rights were violated. The same argument was made on behalf of Reiner and the 14th Amendment claim against him, adding that James should not have excluded evidence from an arbitration hearing and the resulting ruling. An arbitrator ruled in 2012 that the county had just cause to fire Boris, Jones and a third deputy, Tom Drust, who were accused of viewing pornography on work computers.
An additional claim of emotional distress awarded to Boris against Clausi should be overturned because no evidence was presented, including medical documentation, proving he had been victim to "extreme or outrageous behavior," the defense claims.
The defamation and wrongful termination lawsuit was filed in January 2010. The lawsuit stems from an investigation into a porn-viewing scandal in the sheriff's office.
Boris and Jones, who are neighbors in Mount Carmel, were fired Jan. 13, 2010, by Reiner for violating the department's computer policy by failing to secure their passwords and failing to ensure inappropriate material was not retrieved using their passwords.