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COMMONWEALTH PENNSYLVANIA v. PBS COALS (12/06/88)

decided: December 6, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND ELWOOD D. YODER, SHERRY YODER, BRUCE L. YODER AND DOROTHY C. YODER
v.
PBS COALS, INC., AND FETTEROLF MINING, INC. PBS COALS, INC., APPELLANT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND ELWOOD D. YODER, SHERRY YODER, AND BRUCE YODER V. PBS COALS, INC., AND FETTEROLF MINING, INC. FETTEROLF MINING, INC., APPELLANT



Appeals from the Order of the Court of Common Pleas of Somerset County in the case of Commonwealth of Pennsylvania, Department of Environmental Resources and Elwood E. Yoder and Sherry Yoder, and Bruce L. Yoder and Dorothy C. Yoder v. PBS Coals, Inc. and Fetterolf Mining, Inc., No. 73 Civil 1984.

COUNSEL

John J. Dirienzo, Jr., Fike, Cascio & Boose, for appellant, PBS Coals, Inc.

Gilbert E. Caroff, for appellant, Fetterolf Mining, Inc.

Michael E. Arch, Assistant Counsel, with him, Ward T. Kelsey, Assistant Counsel, for appellee, Commonwealth of Pennsylvania, Department of Environmental Resources.

John E. Childe, Jr., Dice & Childe, for appellees, Elwood D. Yoder, et al.

Heard by Senior Judge Narick. Opinion and Order by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 122 Pa. Commw. Page 542]

The Appellees' (Yoders') petition for reconsideration of this Court's order of March 22, 1988 denying their petition for attorney fees presents the narrow, straight-forward issue of whether they are entitled to an award of costs and attorney fees from Appellants, PBS Coals, Inc. and Fetterolf Mining, Inc. based only on that portion of expenses incurred by them in their successful opposition to Appellants' appeal before this Court. The Appellees rely solely on the two statutes, upon which the equity action was brought by the Department of Environmental Resources (DER) against the Appellants, specifically the identical provisions which provide:

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing

[ 122 Pa. Commw. Page 543]

    of a bond or equivalent security in accord with the Rules of Civil Procedure.

Section 21(e) of the Surface Mining Conservation and Reclamation Act, (Mining Act), Act of May 31, 1945, P.L. 1198 as amended, 52 P.S. § 1396.21(e); Section 601(g) of the Clean Streams Law (Streams Law), Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.601(g). (Emphasis added).

Accordingly, we need not address herein the costs that go with the award pursuant to Pa. R.A.P. 2741, or pursuant to Pa. R.A.P. 2744 relating to frivolous appeals. Further, this Court, sitting as an appellate court, has no power under any statute or rule to award counsel fees for proceedings before the trial court. Gossman v. Lower Chanceford Township Board of Supervisors, 503 Pa. 392, 396, 469 A.2d 996, 998 (1983).

For the reasons set forth below, we deny the Appellees' petition for reconsideration of this Court's order of March 22, 1988, ...


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