D.L. Ness v. York Twp. Board of Commissioners and York County Commissioners

in ployment principally his not years preceding was localized prise Thus, Pennsylvania. in no decedent]’s residence we see constitu- [The death.... constitutionally ... tional of problem parties’ not with the choice Wisconsin law to Ala- compensation Wisconsin the workers’ laws of application mandate Second, govern dispute. law.... bama to the exclusion forum present and Allstate was at all times reasons, For these we conclude Section By doing in Minnesotа. virtue business 305.2(d)(5) of the Act does contravene presence, hardly Allstate can of its of the the Full Faith and Credit Clause with the laws of the unfamiliarity claim purpose U.S. Constitution and that surprise host Act. might apply courts forum law state in- litigation company in which the is Conclusion IV. volved_ Third, per- decedent’s [the sum, representative] sonal became Minne- Claimant was not entitled Pennsylvania of this in prior sota resident institution benefits extraterri- torial litigation. injury employment because his was n Pennsylvаnia. principally localized 813-18,101 Upon finding Id. at S.Ct. 633. Agreement, Pursuant to the WC Claim- aggregation of contacts was constitu- employment principally ant’s localized sufficient, tionally the Court affirmed the Agreement fully Alabama. The WC law. Id. application Minnesota 305.2(d)(5) conformed with Section of the Here, “majori- maintains Claimant Act, public policy. violate aggregation of contacts” is in ty Penn- 302.5(d)(5) Finally, is not Section unconsti- sylvania of law of choice Thus, tutionally applied to Clаimant here. is not in fact Alabama founded properly gave Agree- the WCJ the WC fundamentally unfair. Pet’r’s Br. at 32. determining ment full force and effect in Specifically, Claimant maintains: he is Pennsylvania lacks over Claim- Pennsylvania, spent domiciled most of ant’s claim. his in Pennsylvania, kept time and miles Pennsylvania, his truck in occasional- affirm. Accordingly, we ly dispatched Pennsyl- from his home in vania, Pennsyl- received all treatment ORDER vania, only and went to Alabama four purposes. times for work Id. at 31-32. NOW, AND day September, this 15th Although recognize we con- Claimant’s Compensa- the order Workers’ represent significant tacts aggregation Board, tion is AFFIRMED. contacts, employer’s place business a significant Hague;

also contact. also see 411.2(d)(4)(i). merely

77 P.S.' re- Hague

quires contact,” “a significant majori- not a

ty of contacts. Id. at 101 S.Ct. 633. Employer’s corporate

As headquarters and Alabama,

principal place of business are

such contact sufficiently significant application of Alabama law is un- neither NESS, Appellant L. Dennis unexpected. fair nor Hague. See More- over, above, as discussed Claimant’s em- BOARD OF

YORK TOWNSHIP York

COMMISSIONERS

County Commissioners. Pennsylvania. Court of

Commonwealth on Briefs March 2015.

Submitted Sept.

Decided Martin, Square, for

Aaron Kennett D. appellant. Hovis, York, County nor appellees. M.

Steven sanctions, request for counsel

petition for RENÉE COHN BEFORE: additional fees or motion other JUBELIRER, Judge, and MARY of the relief LEAVITT, ‍​‌‌‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌​​​‌​​‌‌​​​​​​​‌‌‌‌‌‌‌​​‍Judge, and JAMES HANNAH trial court’s December ei- COLINS, Judge. Senior GARDNER ther before or after Ness filed January Appeal, 2014 Ness failed to the Judge BY Senior JAMES OPINION to file his brief when due and also failed COLINS. GARDNER any response in to the Court’s brief from an order This matter is that April 2014 order he file his brief Pleas of York Court of Common the with 14 or suffer dismissal court) (trial awarding County counsel fees 9, 2014, this ac- May On Township to York Board Commis- the January Ap- 2014 cordingly, dismissed the (Township) 42 under Pa.C.S. sionеrs peal. Township § the filed its 2503. Because 22, 2014, May On after the dis seeking for Petition Sanctions January missal of the 2014 and days after trial court’s than 30 more more than five months after the trial case, final order in this we vacate the court’s December 2013 order dis jurisdic- of counsel fees for lack of award missing preju for with the Petition Review tion. dice, Township filed a Petition for 13, 2013, November Dennis L. Ness On Sanctions, seeking award of counsel se, (Ness), pro a Petition for Review against fees 42 Pa.C.S. Ness under County York against Township and 2503(9), permits which the award (County), challenging the Commissioners against parties whose conduct validity exemption of tax enact- ordinances commencing or litigating a case is “arbi County Township ed and the (Petition trary, vexatious or in bad faith.” (Petition Review, 2006, 2008 2011. for Sanctions, 127a-133a.) for R.R. at In the (R.R.) la-43a.) Reproduced Record at Sanctions, Township Petition for as Township moved to dismiss the Peti- serted that Ness filed the Petition for Re (Motion tion for to Review. Dismiss Pеti- any without fact and view basis law or and, tion for in the Alternative Review harass, solely alleged that had 81a-87a.) Preliminary Objections, R.R. at $3,892.70 incurred in counsel de fees 17, 2013, On trial December court en- fending against the Petition for Review. dismissing tered an the Petition for order ¶¶ (Petition 13-19, for at Sanctions R.R. grounds with prejudice Review 129a-130a.) The trial court Rule issued a standing, Ness lacked that the for Petition scheduling argument to Show Cause legally cognizable Review did state Sanctions, the Petition for but did not set claim, necessary parties had been required date which Ness was

joined, challenge and that the ordi- file an answer to the for Sanc Petition (12/17/13 timely. was not Trial nances (Order Issuing tions. Rule Show Opinion, Court Order and R.R. at a- Cause, 134a.) At argument R.R. at 119a.). Sanctions, Township’s Petition January Township bills from On Ness filed a Notice submit dismissal, Appeal appealing or other of the amount of counsel evidence Rather, in this Court as No. it had docketed 8 C.D. incurred. (the only the issue of Appeal). Township addressed Neither od, arbitrary, jurisdic- the trial court divested of conduct whether Ness’s Freidenbloom, (Transcript of tion.” at faith. A.2d bad vexatious (H.T.) 2-9, Accordingly, at R.R. Proceeding at Sanctions

137a-144a.) proceed- close of that At the fees under 2503 is filed more granted Township’s ing, than 30 after final Ness to and ordered Petition Sanctions court has no to act on that $3,892.70in counsel fees. pay request, and its award of counsel fees must 149a-151a; (H.T. 14-16, at Strohl, R.R. jurisdiction. vacated lack of 7/22/14 be 153a-155a.) Order, R.R. 11-14, Trial Court slip op. at *4- WL 10858400at This followed.1 (vacating *5 award of counsel fees for lack of jurisdiction where motions for sanctions trial court argues that the Ness were filed 38 more after trial court award was without dismissing complaint preju- orders Town Township counsel fees because ‍​‌‌‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌​​​‌​​‌‌​​​​​​​‌‌‌‌‌‌‌​​‍the dice); Freidenbloom, 814 A.2d at 1255-56 not filed ship’s Petition Sanctions (vacating of counsel fees for lack of award 17, days of the December 2013 within 30 jurisdiction petition for for Review. dismissing the Petition order days after was filed 36 discontinuance agree.2 We action). 5505 of the Judi Under Section The trial court’s final order this mat- Code,3 authority to cial a trial court lacks was its dismissal the Petition for ter than sought relief more award additional Review, 17, which was entered December days after its final order a case. 30 Township The was therefore re- 2013. (Pa. Township, Annville v. South Strohl any application for counsel quired Nos. 2162 C.D. 2009 & 2324 C.D. Cmwlth. by of that Janu- 2009, 13, 2011), 11-12, April slip op. at 16, ary Township 2014. Because the took *4; at In rе Estate 2011 WL 10858400 May request no action to counsel fees until Bechtel, 833, (Pa.Super.2014); 92 A.3d 843 juris- the triál court did not have 1253, Weyant, Freidenbloom v. 814 A.2d to act on that and its award diction (Pa.Super.2003), part overruled in on 1255 Strohl, slip cannot stand. of counsel fees by v. other issue Miller Co. DeW *4-*5; 11-14, 2011 at op. at WL 10858400 (2006). eese, 167, Pa. 907 A.2d 1051 589 Freidenbloom, A.2d at 1255-56. 814 jurisdiction generally “A trial court’s ex of a The fact that Ness filed an thirty after the tends 9, day peri- May time until final order-After the 30 Court reply Generally, will late it until his brief in this 1. an award of cоunsel fees not however, discretion, Subject jurisdiction, is not of an abuse of matter be disturbed absent any stage findings at of a sup- waivable and be raised if the trial court’s fact by by sponte Township proceeding a or sua ported the record. South Commission, 551, Piecknick, v. State Ethics v. 546 Pa. 686 A.2d Court. Blackwell Strabane 630, (1989). 1297, (1996). 347, 523 Pa. 567 A.2d 636 1300 n. 6 Whether jurisdiction had act on the Town- provides 3.Section 5505 of the Judicial Code however, Sanctions, ship's a Petition for pre- "[ejxcept provided or as othеrwise question of law as to which the standard law, upon notice to the scribed a court scope of review is review is de novo and parties may modify or order with- rescind plenary. Trinity Area Dis- School Mazur entry, notwithstanding its in 30 trict, 232, 96, (2008). 599 Pa. 961 A.2d 101 court, if no prior termination of term of such has been taken this issue from order 2. Ness did not raise before 42 ‍​‌‌‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌​​​‌​​‌‌​​​​​​​‌‌‌‌‌‌‌​​‍5505. fully accurately allowed.” Pa.C.S. court and did not and articu- our noted in Mil- change not this. A motion because 2014 does is an ler Electric Co. that “where оne or both under ' judgment, separate parties appeal from from the ancillary matter [party] as to the case. determination whether of the trial' America, depend action ... v. Kia Motors ‘wins’ an will Samuel-Bassett (2011); Inc., appeal.” Pa. Old outcome 907 A.2d 34 A.3d Inc., (cid:127). agree. do not Highmark District v. We Forge School (2007). 924 A.2d 592 Pa. assertion, Contrary Township’s of an therefore Miller Electric Co. does not hold that an trial court of over divest 30-day period extends the after the a mоtion for fees. Samuel- trial court’s final order which a Bassett, 48; Forge 34 A.3d Old School a motion must file for counsel fees. District, at 1211. Because Co., Miller Electric the motion- trial ’court retained over the the final fees was filed before fees, fifing issue of counsel Ness’s separate judg- the issue was whether the pre prevented ment other issues later timely fifing vent the from its ruling on the counsel fee request for counsel fees on before Janu timely appeal from the denial of counsel ary 2014.4 fees, 1053-57, 907 A.2d at whether Moreover, this Court’s order the Jan- counsel fee motion can be in a trial filed uary give did not nothing pending, court where in the case is jurisdiction court renewed over this long judgment, simply after final because matter. Had this Court reversed the trial days completion it is within 30 after of an 17, court’s December order and re- Indeed, Supreme Court case for proceedings, manded the further Superior Miller Co. noted the again juris- trial court would have had holding in Court’s Freidenbloom that a request.for to act in this case and a diction motion for counsel fees must be with- filed fees could be before it en- filed days judgment apparent in 30 of final days a new order or tered final only approval disagreed with that de- Strohl, op. of such a order. slip new it cision extent that restricted Court, at *5. This how- WL 10858400 timely the trial court must act on a filed ever, not reverse remand the case to did motion, stating: trial court 'for proceedings. further proposition Freidenbloom stands for the Rather, appeal, leaving dismissed the praecipe to that a discontinue consti- appeal- n the matter as if no been had ever tutes a final and that a trial filed. may only court act on a motion for fees Township argues a must that is'filed within from final that Here, however, fifing judgment. be allowed to a motion for motion delay complete prior entry until appeals are fees was filed Indeed, any argument Township that the trial court’s filed its Petition for Sanctions and jurisdiction suspended July a while the matter almost month the trial court’s after (8 awarding was in this Court is 2014 order counsel fees. C.D. contradicted both Thus, Entries.) Township’s and the trial court’s Ex- 2014 Docket if the trial court actions. January amination of the lacked to act on counsel fees docket in Appeal shows that the the case was in record was not remit- while this sanctions 20, 2014, August jurisdic- ted to the trial court until order would still be void for lack of more one-half tion. than two and mоnths a permit of motion for ad- would Freidenbloom judgment; entry years after the events and whether the dress filed sought. for fees There- dispositive of a conduct for which fees fore, if it prior judgment. power were our to extend even a trial period over court retains jurisdiction, we decline do so. would held Freidenbloom within petition consider not file its filed Because judgment.' of final SO Petition for Sanctions attorney’s fees motion for Appellant’s trial court’s order and this Court did entry оf prior to the was filed months pro- not remand the case for further disagree judgment, and we Freid- ceedings, longer the trial court no had of time a period enbloom restricts the jurisdiction over case after on motion for fees may act trial court 2014 and was without act 2503(3). §to pursuant Township’s May 2014 Petition omitted) (citations 1055-56 Accordingly, we vacate the Sanctions. original). (emphasis awarding trial court’s order counsel fees. Electric Co. Any implication Miller not ripe a motion for counsel fees ORDER grantéd before the

and cannot be filed NOW, day September, AND this 17th negated by appeals is also completion the' of Common the order of Court decisions.' Supreme our Court’s later County, July Pleas of York dated District, Forge Old School hereby VACATED. as trial court held that this Court motion for counsel properly addressed Judge BY DISSENTING OPINION 2503(9), even fees under JUBELIRER. COHN underlying though from could have pending order was im- of first presents This an issue case prevail- changed movant’s as a status complex procedural pression that raises also party. 924 at 1211. See ing A.2d Majority opinion provides and the matters (trial Samueh-Bassett, 34 A.3d 48-49 establishing plausi- a thoughtful analysis authority to award counsel court had However, a trial court when ble new rule. on plaintiffs parties prevailing fees as party will ulti- appealed, order is for counsel statutory provided claim that to counsel mately prevail and be entitled pend- appeal of the merits fees while until final resolution not certain fees is ing). Therefore, an there is appeal. party I not find that a appeal, would

Moreover, judi- of sound consideration ability to a motion for coun- waives its requires rejection of the Town- policy cial within if is not filed sel fees the'motion Delay filing a motion ship’s argument. In- trial court’s order. thirty days underlying appeal for counsel while an stead, to file permitted a be oppor- should pending the trial court the denies for counsel feеs within 30 request at a time the motion ‍​‌‌‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌​​​‌​​‌‌​​​​​​​‌‌‌‌‌‌‌​​‍tunity to consider the fee disposing court’s order appellate is familiar with the case of an when the court permit- are benefits to There period and issues. While the "motion for ting to wait file a was rel- 2014 brief, appeal has been always fees until after'an atively that will not , decided, econo- judicial as promoting The case. rule advocated 1172 case, i.e., perfected in that litigation. vexatious the time

my preventing Therefore, appeal respectfully appeal expired I dissent. and no had been Company, Miller Electric 907 A.2d filed. that our Majority is correct Courts The However, Supreme at 1056. Court 1) that: the trial court generally have held that, taken, also noted when an mo jurisdiction to decide a does not lose regarding the final determination who is when the motion is tion for counsel fees prevailing party entitled trial court’s final days of the filed within 30 depend fees “will on the outcome order; 2) is no appeal when there appeal.” Id. order, the trial court from the trial court’s a motion jurisdiction to consider does lose Company, appel- In Miller Electric than 30 for counsel fees filed more lant filed motion for counsel fees several trial court’s final order. In re after the obtaining months before (Pa.Su Bechtel, 833, Estate 92 A.3d 27, on its favor June 2002. Miller Elec- Weyant, v. per.2014); Freidenbloom tric Company, 907 A.2d at 1053. The trial 1253, (Pa.Super.2003), over A.2d 1255-56 appellant’s court- deniеd the motion for part grounds by ruled in Miller other 10, and, July on Au- DeWeese, Company v. 589 Pa. gust appellant appealed (2006). 167, The trial court 907 A.2d of the motion for denial counsel fees to the also not lose to decide a Superior appellee Court. Id. The moved motion for counsel fees as a result of the quash untimely, as which the of am of a trial court’s order Superior granted. Court Id. On v. Kia on the merits. Samuel-Bassett Supreme our America, Inc., Motors 613 Pa. 34 A.3d law, analyzed thе stating: relevant (2011); Forge Old School District Freidenbloom held a trial eourt may Inc., Highmark 592 Pa. petition consider a for fees (2007). Majority, entry judgment. of final therefore, that motions for coun concludes Freidenbloom, Ap- at 1255. [814 A.2d] must court sel fees be filed with the trial pellant’s attorney’s fees was days of the trial prior judg- filed months has regardless order of whether an ment, disagree and we that Freiden- This is appellate been filed with court. period bloom restricts the a trial time question specifically our Courts have not act on a motion fees filed answered. 2503(3) pursuant to [Section] [of the Ju- 2503(3) appeal The reason an on the dicial Code]. [of bears Section the Ju- that, awarding generally, garnishee of fees is dicial that a Code] counsel dictates prevailing counsel to possession fees are awarded found to in in- have his no 1726(a) party, see of the Judicial Section debtedness due “shall be entitled to a Code, 1726(a); thus, § part as Pa.C.S. where reasonable counsel fee of the ” is an trial appeal there of the court’s taxable costs of the matter.... 42 Pa. 2503(3). party ultimately prevails cannot gen- C.S. Taxable costs are certainty erally payable determined with absolute until to a judg- incident final ment, i.e., the final disposition, appeal. after Our after termination of action the recognized by disposition. this idea in discontinuance or final 362], noting Novy Miller Pa. Company, Novy the 188 A. [324 (1936). Here, final disposition “appel- prothonotary did not occur until the en- 27, 2002; however, prevailing party” lant’s status the as was tered June filed, appeal an it prevailing party the When has been is status as appellant’s to parties efficient days later more allow wait perfected until 30 was for file motions fees with trial counsel the In appeal expired. the time for when appeal court until has been decid- parties appeal one or both cases where example, ed. For the trial court where is determina- from appeal, proposed on by reversed the rule garnishee “wins” as whether tion Majority require would extra for work action, in the sense he is an found court, and for the trial and create due, no will de- to have indebtedness an for administrative burden appeal. on the outcome pend of court to monitor motion on its active added). (third emphasis Id. at 1056 docket, absolutely no benefit from the Currently, motions costs. for coun- disposed not finally a matter is Because sel are filed a trial fees of is of the of until outcome filed, court’s order an is known, I believe that Miller Electric Com- stay trial court will often the motion for permitting provides support pany of the counsel fees the outcome a motion sanc- party to file prevailing appeal. Those motions court within tions with trial will by not be decided court until In the appellate decision.1 certain; outcome is after the York judice, sub matter therefore, requiring the motions to have (Township) was Board of Commissioners necessary. been filed within 30 is not prevailing as the not assured its status 2503(9) pro- Section the Judicial Code until L. Ness’s party in the matter Dennis statutory authority vides the the Town- (Ness) appeal on the merits was dismissed ship’s motion for fees this case. 2014 for his failure May this Court section, this enti- participants Under are mo- Township’s a brief. to file Since tled to reasonable counsel fees “the where tion for counsel fees2 commencing conduct another disposed matter was days when the arbitrary, the matter otherwise I that its believe vexatious in bad faith.” it not nec- timely. motion was Because 2503(9). possible it that evi- Because essary to find waiver for party’s of a faith or dence bad vexatious sooner, motion for I would commencing a matter be- conduct so. do apparent during pendency come more in permitting appeal, advantageous There other benefits to аllow parties I believe that it would wait to motions for counsel such judicial economy, promote the promote after an is decided. fees until situations, preventing litigation, resulting a rule goal vexatious coun- parallel party’s ability cur- of a provide a rule that is waiver sel appellate procedural rules. instances rent course, Here, its for acknowledged by Majority, the motion as the 1. Of 2503(9) pursuant Section of to by in instances when a matter remanded 2503(9). Codе, 42 Pa.C.S. the Judicial appellate the trial for fur- court to court 2503(9) participant to rea- entitles a Section may proceedings, ther file a “the of counsel fees when conduct sonable trial for counsel ‍​‌‌‌​​‌​‌​​​​‌‌‌‌‌​​​​‌‌​​​‌​​‌‌​​​​​​​‌‌‌‌‌‌‌​​‍fees time before the commencing [litigation] party in another order, enters a new final or within court vexatious, arbitrary, or in bad otherwise was days new of order. faith.” Id. (2) a motion for counsel fees' within 30 pendency an application [t]he of order, triаl reargument, of a court’s final even or of any appli- other filed, order, affecting cation pen-

when an has been or the undermines dency of petition of allowance of goal discouraging Section 2503 of from the stay shall improper litigation. vexatious and remand the record until the dispo- of Pennsylvania Rules of Appellate thereof, sition and until after permit litigants to Procedure wait to file a order in the of motion for counsel fees until after the out- nеw appellate possessed court come of an is determined. Pa. record. provides, R.A.P. 2751. Rule 2744 (b) Supreme Court orders. The time part, relevant as follows: for the pursuant remand the record an appellate court award as further (a) following subdivision orders damages may just, costs as including be Supreme Court shall be (1) a reasonable ... if counsel fee determines an is frivolous or (2) in all other cases. solely delay taken that the con added). Pa. (emphasis R.A.P. 2572 Be- рarticipant against duct of the whom stays cause Rule 2572 the remand of the - costs are to imposed dilatory, be ob 3] record outcome vexatious.[ durate or court, from appellate pursuant to Rule Pa. R.A.P. 2744. Regarding par- when a 2744 parties permitted to wait to file ticipant must counsel fees from applications for ap- counsel fees with the court, 'appellate that, Rule 2751 states pellate court until disposed the matter is n application fоr “[a]n further costs and on appeal. I would approach utilize an damages must be made before the record similar to level, Rule 2744 at the trial court remanded, court, appellate unless the permits parties to file motions for shown, for cause shall otherwise direct.” court within 30 Pa. R.A.P. 2751. respect With tim- days of when the matter is resolved after ing record, of the remand of the Rule 2572 appeal. Pennsylvania Appellate Rules of procedural These comрlex; matters are provides, part, Procedure relevant that: I, therefore, believe a simple approach (a) General rule. Unless otherwise or- here, would be best which reduces waiver dered: ability to file motions for counsel

(1) shall [t]he record remanded fees. Because there is prohibition no the court or other tribunal from which against permitting a motion for counsel it was certified the expiration of 30 fees to be filed with the trial court within days after the entry 30 days of when a matter is resolved after or other final appellate order of the appeal, and because there are reasons of possessed of the record. efficiency policy permit filings, 3. Rule 2744 effectuates Section (quoting 2503 of the Fidelity-Philadelphia Company Trust Code appellate at the Philadelphia Judicial level. Under Transportation Company, 404 law, Pennsylvania "attorneys’ (1961)). fees are recov- Pa. 173 A.2d Section erable from an only adverse to a cause 2503 of legisla Code provides Judicial statute, provided clearly or when tive Darling authorization for Rule 2744. G. agreed parties." Commonwealth, ton, McKeon, Brown, K. D. Schuckers & K. Department Mines, Transportation v. Pennsylvania Appellate Manor Practice 2744.2 Inc., (1989) (West 2014). Pa. for counsel I would find timely.4 approach helpful setting forth a consistent proce- in the that a clarification It fees. rules, would be to counsel appellate, civil and both dural

Case Details

Case Name: D.L. Ness v. York Twp. Board of Commissioners and York County Commissioners

Court Name: Commonwealth Court of Pennsylvania

Date Published: Sep 17, 2015

Citation: 123 A.3d 1166

Docket Number: 1458 C.D. 2014

Court Abbreviation: Pa. Commw. Ct.