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December 29, 1993


The opinion of the court was delivered by: BY THE COURT; HERBERT J. HUTTON


 Presently before the Court is the plaintiff's Motion to Dismiss Defendant's Counterclaim Pursuant to Fed. R. Civ. P. 12(b)(6) and the defendant's response.


 In 1986 or 1987, the plaintiff was issued a traffic citation which ultimately resulted in his having to appear at a hearing. At issue at the hearing was whether the plaintiff paid the defendant or his partner any monies due in connection with the citation. The plaintiff testified affirmatively. The defendant, a constable, testified that he never received any money from the plaintiff. However, his partner had received a payment from the defendant, although according to the defendant, the payment was not for the 1986-87 citation but rather for a citation issued to the plaintiff in 1984.

 As a result of the plaintiff's testimony at the 1987 hearing, he was charged with the crime of perjury. At his trial on the perjury charge, the plaintiff produced a canceled check, which was payable to the defendant and which had been deposited into the defendant's bank account. On August 11, 1993, the perjury charge against the plaintiff was dismissed with prejudice.

 On September 8, 1993, the plaintiff filed a two-count complaint. In Count I, he alleges a violation of his civil rights under 42 U.S.C. § 1981, 1983 *fn1" and 1985(3). In Count II, he asserts a pendent state law claim for malicious prosecution. On October 8, 1993, the defendant filed his answer and counterclaim. In his counterclaim, the defendant alleges that the plaintiff's suit is "vexatious" and "in bad faith". Accordingly, he seeks attorney's fees pursuant to 42 Pa. Cons. Stat. Ann. § 2503(9). He also purports to assert a counterclaim based upon the tort of "malicious use of process".


 A. Standard

 The plaintiff has moved to dismiss the defendant's counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6). When considering a motion to dismiss, this Court shall take all allegations contained in the complaint, or in this case the counterclaim, as true and construe them in the light most favorable to the nonmoving party. H.J. Inc. v. Northwest Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985). The counterclaim shall only be dismissed if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam).

 B. Attorney's Fees Under § 2503(9)

 The question before the Court is whether § 2503(9) is applicable in federal court where the court's original subject-matter jurisdiction is grounded upon a federal question. At the outset, the Court recognizes that several other courts within this circuit have applied § 2503(9) in cases brought pursuant to the courts' diversity jurisdiction. See, e.g., McCaw v. Motorists Mut. Ins. Co., 1990 U.S. Dist. LEXIS 5772, C.A. No. 89-8868, 1990 W.L. 63608., at *3 (E.D. Pa. May 7, 1990); Fuller v. Prudential Ins. Co., C.A. No. 89-2016, 1989 U.S. Dist. LEXIS 12637, 1989 W.L. 127499, at 3 (E.D. Pa. Oct. 24, 1989); P. Liedtka Trucking, Inc. v. James H. Hartman & Son, Inc., 537 F. Supp. 381, 382 (E.D. Pa. 1982). However, neither the plaintiff's submissions nor this Court's independent research disclosed any case within this circuit addressing the applicability of § 2503(9) in a suit predicated on federal question jurisdiction.

 The Court's inquiry must begin, of course, with the language of the statute at issue. Under § 2503(9), a litigant "shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter" if "the conduct of the other party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith." 42 Pa. Cons. Stat. Ann. § 2503(9) (Purdon 1981). In interpreting § 2503(9), "due regard must be given to the purpose of the Code as set forth in section 103(a) . . . ." Commonwealth v. Baker, 82 Pa. Commw. 86, 474 A.2d 415, 416 (Pa. Commw. Ct. 1984). Section 103(a) provides that the Judicial Code shall be construed "so as to give the 'unified judicial system ' the power necessary to perform its assigned tasks." Id. (quoting 42 Pa. Cons. Stat. Ann. § 103(a) (Purdon 1981) (emphasis added)). Federal courts are not within the "unified judicial system". See 42 Pa. Cons. Stat. Ann. §§ 102, 301 (Purdon 1981).

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