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decided: December 6, 1972.


Original jurisdiction in case of Kenneth W. Richmond v. Pennsylvania Higher Education Assistance Agency.


Lawrence Silver, for petitioner.

John D. Killian, with him Killian & Gephart, for respondent.

Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 6 Pa. Commw. Page 613]

On May 22, 1969, petitioner Kenneth W. Richmond (Richmond) filed an application with respondent Pennsylvania Higher Education Assistance Agency (PHEAA) for scholarship aid. PHEAA denied such aid to Richmond, and he appealed such denial according to PHEAA regulations. After a hearing concerning the matter on July 30, 1971, the PHEAA Hearing Examiner recommended that Richmond be granted full

[ 6 Pa. Commw. Page 614]

    scholarship aid retroactive to May 22, 1969. PHEAA subsequently accepted this recommendation.

Counsel for Richmond then demanded of PHEAA costs of $275.00 for the hearing transcript and $50.00 for the transporting of Richmond, his counsel, and witnesses to Harrisburg, for the hearing. Counsel for PHEAA replied to this request that "the Board of Directors took formal action to deny the request." Richmond then filed a Petition for Assignment of Costs with this Court. PHEAA timely filed preliminary objections to this petition challenging the jurisdiction of this Court, the sufficiency of the claim for relief, the form of the verification of the petition, and the specificity of the allegations of damages.

This action is properly within our original jurisdiction pursuant to Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. , No. 223, § 401, 17 P.S. § 211.401(a)(1), which states, in pertinent part, "The Commonwealth Court shall have original jurisdiction of: (1) All civil actions or proceedings against the Commonwealth . . . ." Section 102(a)(2) of the same Act, 17 P.S. § 211.102(a)(2), defines "Commonwealth" as including "departments, departmental administrative boards and commissions, officers, independent boards or commissions, authorities and other agencies of this Commonwealth. . . ." (Emphasis added.) PHEAA is such an agency.

We conclude that the petition must be dismissed. The right to impose or recover costs in a proceeding based on a statute must be found in the statute; otherwise it does not exist. Morganroth's Election Contest Case, 346 Pa. 327, 29 A.2d 502 (1943); Scott Township Appeal, 186 Pa. Superior Ct. 167, 142 A.2d 357 (1958); see also 2 F. Pollock & F. Maitland, The History of English Law 597 (2d ed. 1898). No such authorization in this type of proceeding is contained in

[ 6 Pa. Commw. Page 615]

    the Act of August 7, 1963, P.L. 549, 24 P.S. § 5101 et seq., which created the Pennsylvania Higher Education Assistance Agency. Nor have we found or been referred to any other relevant legislation on the subject.

We are urged to accept the Statute of Gloucester, 6 Edw. 1, c. 1 (1275), which is still in force in Pennsylvania (but ceased to have effect in England after 1875), as requisite statutory authorization. It is true that this statute and several other ancient English acts initiated the principle that a prevailing party is entitled to his costs, and, as a general rule of law, this principle still obtains in the Commonwealth. See Taged, Inv. v. Zoning Board of Adjustment and Shields, 6 Pa. Commonwealth Ct. 331, 295 A.2d 339 (1972). But the Statute of Gloucester extends only to cases where damages are recovered in a common law forum, and then only if the damages were recoverable at common law. Black's Appeal, 106 Pa. 344, 15 W.N.C. 308 (1884); Cameron v. Paul, 11 Pa. 277 (1849); see also Annot., 12 A.L.R. 721, 723 (1921). As Sir Edward Coke said, "[I]t extendeth to all the legall cost of the suit, but not to the costs and expences of his travell and losse of time . . . ." E. Coke, Second Institutes 288 (1642) (emphasis added). Therefore, although liberal construction is to be given statutes providing for costs, Steele v. Lineberger, 72 Pa. 239 (1872), the Statute of Gloucester is clearly inapplicable to the administrative proceedings which generated the costs at issue and to the very costs claimed.

Moreover, by reason of the general immunity of the sovereign, costs cannot be placed upon the Commonwealth even under a statutory provision unless the legislative intention to do so is clearly manifest, either by express terms or necessary implication. Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521 (1943). This immunity from liability for costs is generally extended

[ 6 Pa. Commw. Page 616]

    to state officers, boards, or other agencies. See Annot., 72 A.L.R. 2d 1379, 1385, 1406 (1960).

Nor was Richmond effectively denied access to the judicial system for reasons predicated upon his wealth in contravention of Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113 (1971) (indigent persons may not be prevented from bringing divorce actions except on payment of court fees and service-of-process costs which they are unable to pay), and Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891 (1956) (indigent defendants may obtain a free transcript to obtain appellate review of constitutional questions). It is apparent that Richmond's appeal was readily and efficiently handled within PHEAA. Disregarding possible counsel fees, the appeal was concluded with a minimum of expense.*fn1 We therefore reject Richmond's contention*fn2 that a dismissal of his petition will effectively terminate future challenges to adverse PHEAA rulings.

In view of our disposition of this matter, we need not consider the other questions raised by PHEAA.


Now, December 6, 1972, the preliminary objections of the Pennsylvania Higher Education Assistance

[ 6 Pa. Commw. Page 617]

Agency are hereby sustained, and the Petition for Assignment of Costs of Kenneth W. Richmond is dismissed.


Objections sustained. Petition dismissed.

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