Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Richland Education Association by Robert Morgan, Trustee Ad Litem v. Richland School District, Edmund L. Rowland, Dr. Jack Barto, Jane S. Hagins, Daniel McIntyre, Barbara McGinnis, Beverly Helsel, Robert G. Helsel, Nancy McCombie and Dr. David Hershberger, No. 1987-1595.
Richard T. Williams, Sr., for appellants.
William K. Eckel, for appellee.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
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Richland School District and nine members of its school board appeal an order of the Court of Common Pleas of Cambria County which dismissed Richland Education Association's petition for contempt against the district, but awarded the association $300 in counsel fees for disobedience of a previously issued decree. Additionally, the association seeks counsel fees and other damages associated with this appeal on the ground that the district's appeal is frivolous.
The facts of the case are not in dispute. Section 1166 of the Public School Code*fn1 states that a public school system employee who meets enumerated eligibility requirements is entitled to a sabbatical leave for travel to "be taken in one full school term, unless authorized by the board of school directors to be taken for a half school term or for two half school terms during a period of two (2) years." (Emphasis added.) However, on October 21, 1986, the district's board of directors passed a resolution requiring that a sabbatical leave for travel could be taken only in one full school term, thus generally declaring that the board would reject the power conferred upon it by the Code to grant leave in optional modes.
Because of that resolve by the board to eliminate the Code's alternatives, Cambria County Court of Common Pleas Judge Leahey issued a decree nisi (pursuant to the association's complaint in equity) which enjoined the district and its board from implementing that policy. No post-trial motions were filed to the decree. Thereafter, the district granted split sabbatical leaves for travel to three individuals, but refused to grant similar leaves to teachers Carol McCloud and Charles Puckey. Although there was some question about the eligibility of teacher
[ 124 Pa. Commw. Page 461]
McCloud, the board's inaction on teacher Puckey's request was without explanation.
On February 17, 1988, the association filed a petition for contempt against the district. Five days later, Judge Swope issued a rule to show cause why the district should not be found in contempt for refusing to follow Judge Leahey's decree and why it should not be liable to pay reasonable legal fees and costs incurred by the association. The hearing was scheduled for March 24, 1988, but because of a series of continuances, it was not completed until April 22. On April 19, the board granted teacher Puckey his requested split sabbatical for travel. Upon completion of the April 22 hearing, Judge Swope held that, because the district had disobeyed the decree, it owed the association $300 in counsel fees for the time and preparation spent in the matter.
The district now appeals the trial court's order, and contends that it cannot be held liable for attorney fees when there is no finding of contempt. As a result of the district's appeal, the association seeks additional counsel fees on the ground that the appeal is frivolous.
The first issue is whether a party must be found to be in contempt before it can be held liable for attorney fees. Section 2503(7) of the Judicial Code, 42 Pa. C.S. § 2503(7), authorizes reasonable counsel fees to "[a]ny participant who is awarded counsel fees as a sanction against another participant ...