Nelson v. Kerzner, Civ. No. 9362.

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: Ned Stein, Philadelphia, Pa., for defendant, Jack Kerzner
• Citation: Nelson v. Kerzner, 110 F.Supp. 949 (E.D. Pa. 1953)
• Decision Date: 18 March 1953
• Docket Number: Civ. No. 9362.
• Parties: NELSON et al. v. KERZNER et al.

110 F. Supp. 949

NELSON et al. v. KERZNER et al.

Civ. No. 9362.

United States District Court E. D. Pennsylvania.

March 18, 1953.

Gray, Anderson, Schaffer & Rome, Philadelphia, Pa., for plaintiffs.

Ned Stein, Philadelphia, Pa., for defendant, Jack Kerzner.

FOLLMER, District Judge.

The matters herein arise under the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C.A. § 499a et seq. J. E. Nelson, James W. Nelson and Donald G. Nelson, doing business as J. E. Nelson & Sons, filed their complaint with the Secretary of Agriculture against Jack Kerzner and Monte Cross. The Secretary issued a reparation award of $651.95, with interest thereon at five per cent. per annum from April 1, 1947, in favor of plaintiffs and against the defendant Kerzner. Being of the opinion that they were properly entitled to reparation in the amount of $1,847 with interest instead of the amount awarded, the plaintiffs took their appeal as aggrieved parties under 7 U.S.C.A. § 499g (c).

While the appeal to this Court was a trial de novo, the case was submitted on the basis of the record made in the proceeding before the Secretary of Agriculture. No further evidence was adduced before the Court. On July 28, 1952, the Court entered judgment in favor of the plaintiffs against Kerzner in the sum of $651.95 with interest thereon at five per cent. per annum from April 1, 1947, until paid.

The matter is presently before the Court on petition of the attorney for Kerzner for an award in the sum of $250 for attorney's fee under 7 U.S.C.A. § 499g(c).

The pertinent portion of the Act reads as follows: "Appellee shall not be liable for costs in said court if appellee prevails he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of his costs." As written, this sentence does not make complete sense, and has called for an editorial comment of "So in original" in the Annotated Code. Reading the entire paragraph (c) it is obvious that the word "and" is omitted between the words "prevails" and "he."

In this case plaintiffs were successful in their action before the Secretary of Agriculture but not as successful as they felt they should be, so they appealed. In the hearing before the Secretary it developed that defendant Kerzner stood ready to remit the full proceeds of the sale of the celery in question to plaintiffs without any deduction for services, but that none of the same had been remitted. The amount of the Secretary's award was $651.95, which was the exact amount received by Kerzner from the sale.

Plaintiffs argue that in order for an appellee to prevail in a trial de novo as intended under the Act, it is necessary for him to obtain a judgment in his favor, stating "We cannot conceive how an appellee can be said to prevail when a judgment has been entered against him by the District Court." In support of their position they cite California Fruit Exchange v. Henry, D.C.W.D.Pa., 94 F.Supp. 653. On an earlier phase of this case reported in 3 Cir., 184 F.2d 517, the court described the action in the District Court as follows:

"* * * The Secretary of Agriculture had made a reparation award of $2,119.40 with interest representing the plaintiff's damages resulting from the rejection by the defendants of two cars of grapes which they had purchased from the plaintiff. In the appeal proceeding in the district court the plaintiff sought a verdict for the amount of the reparation award, while the defendants sought a verdict for $1,125.50 with interest upon a counterclaim for loss of profits which

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