Original jurisdiction in the case of Inmates of B-Block, et al. v. Glen R. Jeffes, et al.
Richard G. Fishman, with him, James P. Johnson and Ellen K. Barry, for petitioners.
Gregory R. Neuhauser, Deputy Attorney General, with him, Allen C. Warshaw and Sheree Sturgis, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondents.
Heard by Senior Judge Blatt. Memorandum Opinion by Judge Blatt.
The Inmates of B-Block (petitioners) filed a praecipe for taxation of costs against Ronald Marks, Commissioner, Pennsylvania Department of Corrections (respondents) pursuant to Rule 2762(b) of the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P.), Rules 1523 and 1527 of the Pennsylvania
[ 87 Pa. Commw. Page 100]
Rules of Civil Procedure (Pa. R.C.P.) and Section 1726(2) of the Judicial Code, 42 Pa. C.S. § 1726(2). Subsequently, the respondents filed an application to strike the petitioners' praecipe for taxation of costs.*fn1
We will initially address the respondents' application to strike the praecipe for taxation of costs. They offer three arguments in support of their application. Initially, they argue that costs may not be assessed against the Commonwealth because 42 Pa. C.S. § 1726, entitled Establishment of taxable cost, does not expressly mention the Commonwealth and because sovereign immunity applies where, as here, the officer was acting in his official capacity. Second, they contend that, even if costs are taxable against Commonwealth officers, the underlying suit here involved a public question and an award is consequently precluded under 42 Pa. C.S. § 1726(2)(ii). Finally, they submit that the items listed by petitioners in their praecipe are non-taxable costs.
Section 1726 of the Judicial Code provides that:
The governing authority 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:
[ 87 Pa. Commw. Page 101]
(1) Attorney's fees are not an item of taxable costs except to the extent authorized by Section 2503 (relating to right of participants to receive counsel fees).
(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 ...