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08/20/97 MARIO LUDMER v. MAURICE A. NERNBERG

August 20, 1997

MARIO LUDMER
v.
MAURICE A. NERNBERG, JR., APPELLANT



Appeal from the Order entered August 27, 1996, Court of Common Pleas, Allegheny County, Civil Division at No. GD84-11881. Before BIGLEY, J.

Before: Cirillo, Johnson and Ford Elliott, JJ. Opinion BY Johnson, J.

The opinion of the court was delivered by: Johnson

OPINION BY JOHNSON, J.:

Filed August 20, 1997

Maurice A. Nernberg, Jr., appeals from the order that directed him to pay counsel fees. Because we conclude that the trial court did not have the jurisdiction to award counsel fees relating to the time spent in responding to a petition for a writ of certiorari that had been presented to the United States Supreme Court, we reverse.

This case has a lengthy history that does not need to be repeated in full here. Essentially, Nernberg, an attorney, and Mario Ludmer, a physician, have engaged in various litigation following the settlement of a third party's claim for personal injuries sustained in an automobile accident. Ludmer and Nernberg have at various times requested sanctions, one against the other, for interfering with the orderly settlement of this claim. The present appeal has its beginnings in an order issued by the Supreme Court of Pennsylvania on December 4, 1995. That order stated, in pertinent part:

AND NOW, this 4th day of December, 1995, the Emergency Application for Special Relief [filed by Nernberg] is DENIED. [Ludmer's] request for reasonable counsel fees in response to said Application is granted. The matter is remanded to the Trial Court for determination of the amount of counsel fees to be awarded [Ludmer].

Supreme Court Order, December 4, 1995. Ludmer sought counsel fees pursuant to 42 Pa.C.S. § 2503 as sanctions for Nernberg's dilatory, obdurate or vexatious conduct during the pendency of the action and for Nernberg's arbitrary or vexatious filing of the Application for Special Relief. After remand, the trial court determined the amount of counsel fees that were reasonable in relation to Ludmer's counsel's activities concerning the emergency application for special relief; Nernberg then paid this sum to Ludmer's counsel. However, Nernberg also filed a petition for a writ of certiorari in the United States Supreme Court on January 22, 1996, seeking review of the denial of the emergency application. The United States Supreme Court denied Nernberg's petition on May 28, 1996.

Following the U.S. Supreme Court's denial of certiorari, Ludmer filed a request with the Court of Common Pleas of Allegheny County, the Honorable Gerard M. Bigley, for counsel fees in relation to answering Nernberg's petition for certiorari. Ludmer asserted that these fees could be awarded pursuant to the Supreme Court of Pennsylvania order of December 4, 1995. After a hearing, Judge Bigley ruled that the petition for certiorari was part of the litigation that resulted in the order of December 4, 1995, and he therefore granted Ludmer's request and ordered Nernberg to pay $3,674.76 to Ludmer's counsel. Order, August 27, 1996. This appeal followed.

On appeal, Nernberg asserts that the trial court did not have subject matter jurisdiction to entertain the request for counsel fees relating to Nernberg's petition for certiorari. In addition, Nernberg maintains that the trial court erred by not following the procedure outlined in Rule 206 of the Pennsylvania Rules of Civil Procedure. Lastly, Nernberg contends that the trial Judge should have recused himself when presented with Ludmer's request for counsel fees because his prior dealings with the parties caused the Judge to be prejudiced against him.

Nernberg first contends that the trial court did not have subject matter jurisdiction over Ludmer's request for counsel fees in connection with answering Nernberg's petition for a writ of certiorari to the United States Supreme Court. Nernberg maintains that such a request for counsel fees could only be granted by the United States Supreme Court pursuant to the Supreme Court Rules. In pertinent part, Supreme Court Rule 42 states:

When a petition for a writ of certiorari, an appeal, or an application for other relief is frivolous, the Court may award the respondent or appellee just damages, and single or double costs under Rule 43. . . .

Sup.Ct.R. 42(2). After reviewing the plain language of this rule, it appears that the Supreme Court of the United States may award damages, including attorney fees, when a petitioner files a frivolous petition or appeal. Nernberg asserts that only the Supreme Court may impose such a sanction in connection with a petition filed in the United States Supreme Court. We agree.

One of the most fundamental rules used when determining the meaning of a statute or rule is that the court must begin with the plain meaning of the language used in that statute or rule. See, e.g., United States v. John Doe, Inc. I, 481 U.S. 102, 95 L. Ed. 2d 94, 107 S. Ct. 1656 (1987) (discussing the plain meaning of the word "disclose" in connection with a prohibition on disclosing the content of proceedings before a federal grand jury); Marek v. Chesny, 473 U.S. 1, 9, 87 L. Ed. 2d 1, 105 S. Ct. 3012 (1985) ("This 'plain meaning' interpretation of the interplay between Rule 68 and § 1988 is the only construction that gives meaning to each word in both Rule 68 and § 1988."); Chemehuevi Tribe of Indians v. Federal Power Comm'n, 420 U.S. 395, 400, 43 L. Ed. 2d 279, 95 S. Ct. 1066 (1975) ("Consideration of the Commission's statutory licensing authority under Part I of the Federal Power Act must, of course, begin with the language of the Act itself."); see also Pa.R.C.P. 127(b) ("Every rule shall be construed, if possible, to give effect to ...


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