634 A.2d 673 | Pa. Commw. Ct. | 1993
OPINION AND ORDER
John C. Norris has filed a special application for counsel fees and costs expended in his successful challenge of two decisions of the Board of Finance and Revenue (Board).
As a preliminary matter we observe that this Court may not award counsel fees unless statutorily authorized to do so. Department of Transportation, Bureau of Driver Licens
Norris contends that he is entitled to counsel fees pursuant to Section 2503 of the Judicial Code.
This Court has defined “matter” in Section 2503(7) to mean a matter before a court of the unified judicial system of the Commonwealth. Smith, 145 Pa.Commonwealth Ct. at
Section 2503(9) of the Judicial Code which provides for an award of fees “because the conduct of another party in
Norris also bases his argument for an award of fees on the provisions of the Pennsylvania Cost Act (Act).
This Court may, however, order the Department to pay Norris the costs associated with his appeal, Matter of Estate of Neiss, 126 Pa.Commonwealth Ct. 572, 560 A.2d 842 (1989), which in this matter total $470.85. We hold, therefore, that Norris may recover his filing costs in this Court and reproduction costs for copies of his briefs. Pa. R.A.P. 2741(4) and 42 Pa.C.S. § 1726.
Accordingly, we enter the following:
NOW, October 8, 1993, Norris’ petition for attorney fees is transferred to the Department of Revenue for consideration pursuant to its power under the Cost Act, 71 P.S. §§ 2031-2035. Norris’ application shall be considered timely, 42 Pa. C.S. § 5103(a), and he shall be granted leave to amend his application to conform to the appropriate forms and regulations.
We further order the Department of Revenue to pay Norris his filing and reproduction costs for his appeal to this Court in the amount of $470.85.
. For a complete recitation of the facts of the underlying action see Norris v. Commonwealth, 155 Pa.Commonwealth Ct. 423, 625 A.2d 179 (1993).
. Parties themselves, however, may agree contractually for the award of counsel fees. Smith.
. The Judicial Code, 42 Pa.C.S. § 2503 provides, in relevant part, that: [T]he following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
. Norris also contends that the commencement of a second action against him while the first proceeding was pending was barred by statute of limitations and therefore constitutes improper conduct justifying the award of fees under the Judicial Code. However, we never found it necessary to address the issue of the statute of limitations in the underlying proceeding, and we decline to address it here. Norris, 155 Pa.Commonwealth Ct. at 428 n. 6, 625 A.2d at 181 n. 6.
. Norris argues that we should decline to follow the reasoning of Smith and instead adopt the analysis of President Judge Craig in his dissenting opinion in Board of Probation and Parole v. Baker, 82 Pa.Commonwealth Ct. 86, 474 A.2d 415 (1984). Even if I were inclined to do so, a single judge of this Court has no authority to overrule a panel decision of this Court, and Judge Craig’s dissent in Baker, is just that, a dissent from the majority.
. At oral argument Norris argued that he was also entitled to counsel fees pursuant to Pa. R.A.P. 2744. However, in his subsequent memorandum of law in support of his application for fees he has abandoned this argument and we therefore will not address it.
. Act of December 13, 1982, P.L. 1127, as amended, 71 P.S. §§ 2031-2035.
. 28 U.S.C.A. § 2412 (West Supp.1993) and 5 U.S.C.A. § 504 (West Supp.1993).
. “Prevailing party” is defined by Section 2032 of the Act as:
A party in whose favor an adjudication is rendered on the merits of the case or who prevails due to withdrawal or termination of charges by the Commonwealth Agency or who obtains a favorable settlement approved by the Commonwealth Agency initiating the case.
71 P.S. § 2032.
. "Substantially justified” is defined by Section 2032 of the Act as:
[W]hen such position has a reasonable basis in law and fact. The failure of an agency to prevail in a proceeding, or the agreement of an agency to settle a controversy, shall not raise a presumption that the position of the agency was not substantially justified.
71 P.S. § 2032.
. "Adjudication officer” is defined by Section 2032 of the Act as:
[Tihe deciding official, without regard to whether the official is designated as an administrative law judge, a hearing officer, examiner, referee or otherwise, who presided at the adversary adjudication.
71 P.S. § 2032.
The term is further refined by 4 Pa.Code § 2.12 as:
[t]he final deciding official of an agency, whether designated an administrative law judge, hearing officer, examiner, referee, or otherwise, who is presiding over a proceeding at the time of final disposition. The term may include more than one official, such as a hearing board.
. On appeal from an agency adjudication federal courts are explicitly authorized to award fees to the same extent as an agency. 28 U.S.C.A. § 2412(d)(3) (West Supp.1993). The language of the Pennsylvania law is less than clear concerning our authority to do so. See 71 P.S. § 2033(f). We believe the agency is more expert concerning the reasonable basis of its position and the reasonableness of fees generated in proceedings before it. Moreover, federal courts may decline to exercise their authority under § 2412(d)(3) of the Equal Access to Justice Act and remand fee petitions to the appropriate agency whose expertise in determining justification of an adjudication exceeds that of the court. See, e.g., Miller v. United States, 753 F.2d 270 (3d Cir.1985).