No. 80-1-108, Appeal from the Order entered February 4, 1980 by the Commonwealth Court of Pennsylvania, at No. 1750 C.D., 1976
Vincent J. Dopko, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellant.
John Michael Studeny, Guy L. Warman and Associates, P. C., Pittsburgh, for appellees.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Kauffman, J., filed an Opinion in Support of Affirmance in which Larsen and Flaherty, JJ., joined. Roberts, J., filed an Opinion in Support of Reversal in which O'Brien, C. J., and Nix, J., joined.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The sole question presented by this appeal is whether costs may be taxed against the Commonwealth under the Pennsylvania Rules of Appellate Procedure when it is the losing party on appeal.*fn1 I conclude that they may and, therefore, would affirm the Order of the Commonwealth Court imposing the cost of printing paperbooks upon the Commonwealth.
In Baehr Brothers et al. v. Commonwealth, 487 Pa. 233, 409 A.2d 326 (1979), this Court determined that the Commonwealth had improperly levied a realty transfer tax assessment on Baehr Brothers et al., appellees here.*fn2 Thereafter, appellees filed a Praecipe to Tax Costs of Paperbooks in the amount of $280.10 incurred in their successful appeal. On February 4, 1980, the Commonwealth Court entered an Order directing that costs be taxed against the Commonwealth in favor of appellees. The Commonwealth does not dispute the amount claimed, but challenges the power of the courts to tax costs against it, even in those cases where it is the losing party.
Pursuant to express statutory authorization, this Court has promulgated general rules relating to the imposition and taxation of costs. The Judicial Code, at 42 Pa.C.S.A. § 1726,*fn3 provides:
The [Supreme Court] shall prescribe by general rule the standards governing the imposition and taxation of costs, including the items which constitute taxable costs, the litigants who shall bear such costs, and the discretion vested in the courts to modify the amount and responsibility for costs in specific matters. All system and related personnel shall be bound by such general rules. In prescribing such general rules, the governing authority shall be guided by the following considerations, among others:
(2) The prevailing party should recover his costs from the unsuccessful litigant except where the:
(i) Costs relate to the existence, possession or disposition of a fund and the costs should be borne by the fund.
(ii) Question involved is a public question or where the applicable law is uncertain and the purpose of the litigants is primarily to clarify the law.
(iii) Application of the rule would work substantial injustice. (Emphasis supplied).
In exercise of the statutory authority thus granted, this Court adopted Pa.R.A.P. 2742:
The cost of printing or otherwise producing necessary copies of briefs and reproduced records, including copies of the original record reproduced under Rule 2151(a) (consideration of matters on the original record without the necessity of reproduction) shall be taxable, except as otherwise ordered pursuant to Rule 2155 (allocation of cost of reproduced record) at rates ...