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decided: May 31, 1984.


Appeal from the Order of the Pennsylvania State Civil Service Commission in the case of Helen L. Lehotzky v. Eastern State School and Hospital, Department of Public Welfare, Appeal No. 4023.


Karen Kress Weisbord, Weisbord & Weisbord, for petitioner.

Robert B. Hoffman, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Doyle. Concurring and Dissenting Opinion by Judge Craig. Judge Williams, Jr. and Judge Barry join in this concurring and dissenting opinion.

Author: Doyle

[ 82 Pa. Commw. Page 613]

Before this Court is an appeal by Dr. Helen Lehotzky (Petitioner) from a decision and order of the State Civil Service Commission denying her request for a hearing on whether she should receive counsel fees and other relief ancillary to her challenge to a performance evaluation report. Said challenge was rendered moot when the appointing authority herein, Eastern State School and Hospital, a component of the Department of Public Welfare (DPW), withdrew the report and expunged it from Petitioner's record. We affirm in part and reverse in part.*fn1

Petitioner is Medical Director of Eastern State School and Hospital. In May, 1982, her supervisor issued a performance evaluation which, compared with prior evaluations, significantly downgraded Petitioner's performance in every category and reduced her overall evaluation from "excellent" to "fair." Attached to the evaluation form, and incorporated by reference in the "comments" section thereof, was a memorandum captioned "Reprimand for Neglect of Key Responsibilities." The memorandum was dated April 30, 1982, and was from Petitioner's supervisor to her.

On June 1, 1982, Petitioner appealed her performance evaluation to the Commission, alleging that it was discriminatory, issued in bad faith and for the purpose of retaliation. A hearing on the appeal was scheduled for September 8, 1982, but was rescheduled for October 29, 1982, following a continuance request

[ 82 Pa. Commw. Page 614]

    by DPW. Only on October 25, 1982, did DPW notify the Commission that the hospital had unilaterally agreed to withdraw the challenged evaluation, expunge it from Petitioner's personnel file and reinstate her previous evaluation. In response to this information, the Commission requested letter briefs from counsel on whether the proceeding should be dismissed as moot. Petitioner opposed such a dismissal on the grounds that there remained an outstanding issue as to whether she was entitled to counsel's fees. It was also alleged by Petitioner that the memorandum of reprimand which accompanied her evaluation had been circulated to other physicians on the hospital's staff, and that, hence, her reputation had been unjustly damaged, that there remained a potential for future detriment as a result of the reprimand and that relief would not be complete unless there was also a rescission of the memorandum. The Commission nonetheless dismissed Petitioner's appeal as moot on the basis that the performance evaluation report challenge was resolved by the hospital's action, that counsel fees could not be awarded, and that the issue of the hospital's action or inaction to rescind the reprimand did not constitute an appealable personnel action. The appeal to this Court followed, in which Petitioner reasserts her contentions that counsel fees are awardable in a matter such as this and that it was within the Commission's authority to order a rescission of the reprimand.

Initially, this Court must reject any claim of Petitioner for counsel fees. In Pennsylvania Board of Probation and Parole v. Baker, 82 Pa. Commonwealth Ct. 86, 474 A.2d 415 (1984) we held, with respect to matters such as that sub judice, which predate July 1, 1983, the effective date of the Act of December 13, 1982, P.L. 1127, 71 P.S. §§ 2031-2035, (Costs Act), authorizing Commonwealth agencies to award counsel

[ 82 Pa. Commw. Page 615]

    fees and costs in certain instances, that there was no authority which could permit the Commission to award such fees. This is true even where it conceivably may be established that the conduct of an agency which was a party to a proceeding was dilatory, obdurate or vexatious. Id. See generally Section 2503 of the Judicial Code, 42 Pa. C.S. § 2503. We reiterate that holding here, with the additional note that, by passing the Costs Act, the Legislature has indicated that it did not intend the Judicial Code, or statutes providing individual agencies with authority to award general relief,*fn2 to be construed as permitting an agency to award costs and attorneys' fees. For this Court to hold that such was the intent and to so interpret the statutes would be to render the Costs Act surplusage and our interpretation would, thus, be contrary to the edicts of Section 1922 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922. See Habecker v. Nationwide Insurance Co., 299 Pa. Superior Ct. 463, 445 A.2d 1222 (1982). In promulgating the Costs Act, ...

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