Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Milan Kluko, Jack Backus and John Doyle v. Municipal Council of the Municipality of Monroeville, No. SA 1588 of 1981.
John D. Finnegan, for appellant.
Richard L. Rosenzweig, Rosenzweig & Burton, for appellees.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 102 Pa. Commw. Page 50]
Appellant, Municipal Council of the Municipality of Monroeville, appeals from an order of the Court of Common Pleas of Allegheny County directing Appellant to pay counsel fees and costs incurred by Appellees, who are members of the Monroeville Planning Commission (Commission), in litigation resulting from Appellant's attempt to remove Appellees from the Planning Commission. We will vacate the order from which the instant appeal is taken.
This litigation began in 1981 when the Commission recommended to Appellant that an application for a conditional use application be denied.*fn1 When Appellant granted the application, the Commission took an appeal to the Zoning Hearing Board (Board) and also requested that the Commission be authorized to retain special legal counsel to represent it before the Board. That Board held that the Commission was entitled to special counsel, the cost of which should be paid by Appellant.
At that point, Appellant adopted a resolution removing Appellees from the Commission. Appellant's action
[ 102 Pa. Commw. Page 51]
in that regard was appealed to the Court of Common Pleas which held that the removal was invalid. In its order dated January 11, 1982 (January order), the trial court also provided that:
Any legal fees and expenses incurred by Appellants [Appellees herein] in prosecuting this appeal, and the appeal before the Zoning Hearing Board in the name of the Planning Commission shall be borne by the Appellants [Appellees herein].
Neither party appealed from that order. No exceptions were filed nor was there any motion for reconsideration.
On February 22, 1982, Appellees filed a "Petition for Counsel Fees" setting forth an itemized statement of services performed by counsel and costs incurred and requesting the court to award attorney's fees pursuant to the provisions of ...