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JUNIATA FOODS v. MIFFLIN COUNTY DEVELOPMENT AUTHORITY (01/21/85)

decided: January 21, 1985.

JUNIATA FOODS, INC., APPELLANT
v.
MIFFLIN COUNTY DEVELOPMENT AUTHORITY, APPELLEE. MIFFLIN COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, APPELLANT V. JUNIATA FOODS, INC., APPELLEE



Appeals in the cases of Juniata Foods, Inc. v. Mifflin County Industrial Development Authority, No. 839 of 1982.

COUNSEL

Randolph M. Baker, with him, G. Thomas Miller, McNees, Wallace & Nurick, for appellant/appellee, Juniata Foods, Inc.

Allen Joseph Levin, Brugler & Levin, for appellee/appellant, Mifflin County Industrial Development Authority.

Judges Rogers, Doyle and Colins, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 87 Pa. Commw. Page 129]

Juniata Foods, Inc. (Juniata) appeals an order of the Court of Common Pleas of Mifflin County which dismissed its claim to attorney's fees and certain expenses following a jury award of $19,920.00 in damages. Juniata had sought economic damages as a result of the Mifflin County Industrial Development Authority (MCIDA) having wrongfully obtained an ex parte preliminary injunction. MCIDA cross appeals the trial court's refusal to dismiss Juniata's complaint, its refusal to admit certain evidence and its failure to reduce the award of the jury. Both appeals have been consolidated before this Court.

MCIDA is the deeded owner, by gift, of Mifflin County Industrial Plaza. In 1976, a portion of the Plaza was sold to Lester Miller, President of Juniata. Miller now leases his portion of the premises to Juniata.

Juniata and Miller subsequently sued MCIDA claiming that MCIDA had improperly removed certain railroad tracks from the portion of the Plaza owned by Miller and leased to Juniata. While this case was pending, Juniata removed another set of railroad tracks from its premises in which MCIDA claimed an easement. The tracks were removed so that Juniata could complete construction of a loading dock. After Juniata removed the second set of tracks, MCIDA sought and was granted an ex parte order, without bond, restraining Juniata from completing and using the dock.

In December 1981, MCIDA's complaint was dismissed, the injunction dissolved and damages awarded. Juniata and Miller neither filed exceptions to this decree nor a bill of costs for special damages as required by Mifflin County R.C.P. § 308, pursuant to 42 Pa. C.S.A. § 1726. However, in June 1982,

[ 87 Pa. Commw. Page 130]

Juniata and Miller filed a Complaint in Assumpsit against MCIDA to recover attorney's fees and costs incurred in defense of the improper entry of the preliminary injunction. The jury trial was held in June 1983.

On appeal, Juniata contends that the lower court erred in refusing to allow the jury to include in its award recovery of attorney's fees, witness preparation and attendance costs and other court related expenses. It bases its argument on Pa. R.C.P. No. 1531(b)(1) which imposes liability for "all damages sustained by reason of granting the injunction and all legally taxable costs and fees. . . ." We disagree.

"It is a general rule in our judicial system . . . that costs inherent in a law suit are awarded to and should be recoverable by the prevailing party. These are the costs of proceeding in court, not those of preparation, consultation, and fees generally. DeFulvio v. Holst, 239 Pa. Superior Ct. 66, 69, 362 A.2d 1098, 1099 (1976). Moreover, Pennsylvania courts have consistently held that "a court is powerless to grant counsel fees in the absence of statutory authorization to the contrary. . . ." Paul v. Paul, 281 Pa. Superior Ct. 202, 206, 421 A.2d 1219, 1221 (1980) (quoting Drummond v. Drummond, 414 ...


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