IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
July 9, 2009
ZAVALA, INC., PETITIONER
FIVE-R EXCAVATING, INC. AND WESTERN SURETY COMPANY RESPONDENTS
Petition for Allowance of Appeal from the Order of the Superior Court entered August 14, 2008, at No. 779 WDA 2007, affirming the Order of the Court of Common Pleas of Allegheny County, entered April 24, 2007 at No. GD 05- 004723. 959 A.2d 983 (Table)(Pa. Super 2008).
AND NOW, this 9th day of July, 2009, the Petition for Allowance of Appeal is GRANTED, and the Order of the Superior Court denying the motion for attorney fees and delay damages is VACATED, and the matter is REMANDED for the Superior Court to reconsider its decision in light of the text of 62 Pa.C.S. § 3935(b), which permits "the prevailing party in any proceeding to recover any payment under this subchapter [to] be awarded a reasonable attorney fee . if it is determined that the government agency, contractor or subcontractor acted in bad faith. An amount shall be deemed to have been withheld in bad faith to the extent that the withholding was arbitrary or vexatious." See also Pietrini Corp. v. Agate Const. Co., Inc., 901 A.2d 1050, 1055 (Pa.Super. 2006) (remanding after appeal for calculation of attorneys' fees and expenses under 62 Pa.C.S. § 3935(b)). If after remand the Superior Court again determines that counsel fees and expenses may not be awarded on this appeal, it shall explain its rationale.
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