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DIANA MITCHELL v. JOHN MCKINNIS (02/20/81)

filed: February 20, 1981.

DIANA MITCHELL, APPELLANT,
v.
JOHN MCKINNIS



No. 689 and 717 April Term, 1979, Appeal from Orders of the Court of Common Pleas of Lawrence County, Pennsylvania at No. 262 of 1979, C.A. - In Replevin.

COUNSEL

M. DeBord, New Castle, for appellant.

Robert H. Isbell, New Castle, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Per Curiam

[ 284 Pa. Super. Page 470]

The appellant, owner of record of a 1972 Dodge Coronet Sedan, deposited her car for repair at appellee's place of residence. When the repair bill remained unpaid, appellee refused to surrender possession of said vehicle. Appellant filed an action in Replevin and a motion for a writ of seizure to recover her vehicle. She also filed, at that time, a replevin bond for one thousand dollars ($1,000). The sheriff seized the vehicle, and thereafter a hearing was held pursuant to Pa.R.C.P. 1075.2(c)*fn1 to determine which party had superior possessory rights.

At the hearing before the Honorable John Henderson, on March 27, 1979, the appellee asserted an artisan's lien as a defense and counterclaim. On the basis of this lien, the lower court found that appellee had been entitled to possession when the Sheriff seized the vehicle. Therefore, the appellant could not recover damages for loss of use, bond premium, or attorney's fees. However, she was entitled to immediate possession of her vehicle, subject to her duty to pay the lien. The lower court entered a conditional verdict

[ 284 Pa. Super. Page 471]

    for appellee, as required by Pa.R.C.P. 1082(b),*fn2 referring the case to a panel of Arbitrators to establish the amount of the lien. The trial judge further ordered that the amount of the lien as determined by the arbitrators be paid to the appellee from the bond posted by appellant.

On June 19, 1979, appellee, without notifying appellant, presented a motion for attorney's fees to the Honorable John A. Cherry, Senior Judge, then assigned to Lawrence County. The court awarded attorney's fees in the amount of three hundred dollars ($300.00). Subsequently, appellant filed a motion requesting that the Order of Court granting attorney's fees be vacated. Her motion was denied on July 3, 1979. It is from such denial that this appeal ensues.

The instant appeal thus raises the single issue of the propriety of allowance of counsel fees in a replevin action where possession was awarded to the plaintiff, subject to a conditional judgment for the defendant in the amount of his lien.

It is firmly settled in this Commonwealth that expenses of litigation, including attorney's fees, are not recoverable as damages or costs from an opponent, unless expressly authorized by statute or by agreement. See Westinghouse Electric Corp. v. Int'l Union of Elec. Radio and Mach. Workers, AFL-CIO-CLC, 262 Pa. Super. 315, 396 A.2d 772 (1978), Commonwealth v. Opara, 240 Pa. Super. 511, 362 A.2d 305 (1976), Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975).

Recognizing this fact, the appellee relies upon statutory authorization, specifically Pa.R.C.P. ...


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