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COMMONWEALTH PENNSYLVANIA v. DAVID J. BAKER AND JOHN F. BURKE (04/26/84)

decided: April 26, 1984.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER
v.
DAVID J. BAKER AND JOHN F. BURKE, RESPONDENTS



Appeal from the Order of the State Civil Service Commission in the case of John F. Burke v. Board of Probation and Parole, Appeal No. 3199, and in the case of David J. Baker v. Board of Probation and Parole, Appeal No. 3200.

COUNSEL

Robert B. Hoffman, Deputy Attorney General, with him Francis R. Filipi, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for petitioner.

Drew Salaman, Salaman & Salaman, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail. Dissenting Opinion by Judge Craig. Judge Barry joins this dissent.

Author: Macphail

[ 82 Pa. Commw. Page 87]

This is an appeal by the Pennsylvania Board of Probation and Parole (Board) to this Court from that portion of orders of the State Civil Service Commission (Commission) which directed the Board to pay reasonable attorney's fees not to exceed $2500 to two individuals*fn1 who successfully appealed to the Commission regarding promotion procedures of the Board.*fn2

In its adjudication, the Commission justified the award of counsel fees by stating that the Board had (a) demonstrated lack of good faith in complying with a Commission order, (b) excessively erred in failing to comply with a second Commission order relating to the same subject matter as addressed in the first order and (c) unnecessarily delayed a final determination of the issues. The Commission concluded that since it was in no position to award back pay to the successful appellants before it, "the only real remedy is the award of attorney's fees".

Section 951(b) of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.951(b)*fn3 was the sole statutory authority cited by the Commission in its adjudication in support of its award of counsel fees. In its brief and argument to this Court, the Commission also relies upon Section 2503 of the Judicial Code (Code), 42 Pa. C.S. § 2503 which provides in pertinent part that litigants guilty

[ 82 Pa. Commw. Page 88]

    of dilatory, obdurate, vexatious, arbitrary or bad faith conduct during the pendency of litigation are entitled to reasonable counsel fees as part of taxable costs awarded to the successful litigant.

It is the Board's position that the Commission lacked authority to award counsel fees and that, in any event, the circumstances of the appeals before the Commission were insufficient to justify an award of counsel fees.

It has been well settled for some time that, absent statutory authority, counsel fees may not be taxed as costs.*fn4 Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965); Whitney v. Jersey Shore Borough, 266 Pa. 537, 109 A. 767 (1920); Winton's Appeal, 87 Pa. 77 (1878).

As we have noted, the Commission claims to find such authority in Section 951(b) of the Act. We must respectfully disagree. A careful reading of the statutory language cited to us by the Commission indicates that the Commission's authority to make an "appropriate order" is clearly restricted to assuring that the aggrieved person receives the rights accorded to him by the statute. Nowhere in the statute is a right to counsel fees given to successful litigants.

In City of Pittsburgh Commission on Human Relations v. MacBeth, 37 Pa. Commonwealth Ct. 636, 391 A.2d 1109 (1978), this Court was called upon to decide whether an ordinance adopted by the City of Pittsburgh which authorized the Pittsburgh Commission on Human Relations to issue "such order as the facts warrant to effectuate the purposes of this ordinance", was sufficiently broad to permit that agency to award

[ 82 Pa. Commw. Page 89]

    attorney's fees. The Court held that absent clear authorization in the ordinance, the agency lacked the power to award counsel fees. We think that the same reasoning applies to the case sub judice.

We conclude that Section 951(b) of the Act does not empower the Commission to award counsel fees.

It is true, as the Commission argues, that Section 2503 of the Code does authorize courts to award reasonable counsel fees where a litigant has been guilty of specific misconduct. The question remains, however, whether the Code generally and, more specifically, Section 2503 gives any similar authority to administrative agencies. Certainly the definition of a "tribunal" set forth in Section 102 of the Code, 42 Pa. C.S. § 102 would include the Commission.*fn5 We believe, however, that due regard must be given to the purpose of the Code as set forth in Section 103(a), 42 Pa. C.S. § 103(a). It is there stated that the provisions of the Code shall be construed so as to give to the "unified judicial system" the power necessary to perform its assigned tasks. The components of the unified judicial system are set forth in Section 301 of the Code, 42 Pa. C.S. § 301. Tribunals are not included therein. We conclude that where the term "tribunal" is used in specific sections of the Code, the provisions of those sections would apply to such governmental units as the Commission; but unless the term "tribunal" is used in the language of a specific section of the Code, the language of that section would only apply to the various components of the unified judicial system. It follows, since "tribunals" are not mentioned in Section 2503, that we must conclude that the language of

[ 82 Pa. Commw. Page 90]

Section 2503 of the Code does not vest the Commission with authority to ...


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