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JOSEPH CASEL AND BETTY CASEL v. CLINTON SCOTT (08/03/84)

filed: August 3, 1984.

JOSEPH CASEL AND BETTY CASEL, INDIVIDUAL CITIZENS, APPELLANTS,
v.
CLINTON SCOTT, CONEWANGO TOWNSHIP SUPERVISOR, ROBERT FOLLETT, CONEWANGO TOWNSHIP SUPERVISOR, RUSSELL H. JACKSON, CONEWANGO TOWNSHIP SUPERVISOR, WILLIAM A. BEVEVINO, ESQ., CONEWANGO TOWNSHIP SOLICITOR, RICHARD E. HEGERTY, CONEWANGO TOWNSHIP POLICE CHIEF, RICHARD A. HERNAN, DISTRICT ATTORNEY OF WARREN COUNTY, AND THE TOWNSHIP OF CONEWANGO



No. 779 PITTSBURGH, 1982, Appeal from an Order in the Court of Common Pleas, Civil Division, of Warren County, No. 52 of 1982.

COUNSEL

Marsha A. Meadows, Warren, for appellants.

Charles J. Duke, Bradford, for appellees.

Cavanaugh, Popovich and Hester, JJ.

Author: Hester

[ 330 Pa. Super. Page 414]

This is an appeal from the Order of June 2, 1982, entered by the Court of Common Pleas of Warren County, granting counsel fees, costs and expenses to selective appellees.

Appellants instituted an action in Mandamus against the Conewango Township Supervisors, the Chief of Police, the Township Solicitor, and the District Attorney. The Writ was based on violations of a township ordinance which prohibited the drilling and operation of oil and gas wells within 200 feet of a residence or a place of public assembly without first obtaining a permit. A well had been drilled within 100 feet of appellants' building and was in continuous operation. Appellants commenced the Writ of Mandamus to compel the officials to take action to prevent continued violation of the ordinance.

The court dismissed appellants' action as to the three Supervisors, the Solicitor, and the Chief of Police, holding that the ordinance did not create a specific legal right in appellants nor a corresponding duty in the aforementioned officials to cause complete cessation of an oil and/or gas well operation. The District Attorney was held not to be under a duty pursuant to the ordinance and was entitled to use reasonable discretion in taking any action. On March 16, 1982, the court dismissed the Writ of Mandamus. No appeal was perfected from that decision.

Appellees herein then filed a petition for counsel fees, costs and expenses pursuant to 42 Pa.C.S.A. § 2503(7), (9), averring that appellants acted arbitrarily and/or vexatiously in commencing the action. Appellants filed a similar action against one of the appellees, the District Attorney, for issuing a subpoena in bad faith against their counsel.

The court denied relief to appellants and supervisor-appellees. However, the court did award counsel fees, costs and expenses selectively to the appellee District Attorney, appellee Solicitor, and appellee Chief of Police, finding appellants' action in Mandamus to be arbitrary or vexatious. It is from that order that appellants appeal.

[ 330 Pa. Super. Page 415]

Appellants first assignment of error is that the lower court abused its discretion in awarding counsel fees selectively to appellees. We agree.

For such an award of counsel fees to lie, the course pursued by such party must be said to be "arbitrary . . . obdurate or vexatious." 42 Pa.C.S.A. § 2503(7), (9). The lower court found that appellants acted out of "frustration" at being denied redress, and it ...


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