6 Pa. Commw. 331 | Pa. Commw. Ct. | 1972
Opinion by
This appeal stems from our decision in Taged, Inc. v. Zoning Board of Adjustment, of Monroeville, 2 Pa. Commonwealth Ct. 52, 276 A. 2d 845 (1971), wherein we sustained the appeal of the present appellants who had been unsuccessful in their attempts to gain a special exception from the Zoning Board of Adjustment of the Borough of Honroeville (Board) and, un appeal, from the Court of Common Pleas of Allegheny County. In reversing on May 6, 1971, we vacated the order of the Board and remanded the matter to the lower court for action consistent with our opinion. We made no disposition as to costs.
On August 2, 1971, the Supreme Court denied appellees’ Petition for Allowance of Appeal. Four days later, on August 6, 1.971, in compliance with our order,
Appellants rely on the Act of April 15, 1907, P. L. 83, §1,12 P.S. §1193, and on the Act of June 5,19.13, P. L. 422, §1, 12 P.S. §1195, both acts having been most recently amended by the Act of June 3,1971, P. L. , No. 6, §1, which, inter alia, amended Section 509 (“Repeals and Savings Provisions”) of the Appellate Court Juris
Intervening appellees, Mr. and Mrs. Shields, claim this same protéction citing Buie 2330(a) of the Pennsylvania Buies of Civil Procedure: “After the entry of an order allowing intervention, the intervenor shall have all the rights and liabilities of a party to the action.” The Buies Committee appended a note to Buie 2330: “The provision giving the intervener the rights and liabilities of a party will give him the same status as an original party as regards such matters as jury trial challenges, participation at trials and liability for costs.”
The Shields argue that if the Board has a right to protection, so do they, or conversely, if the Board has no liability for costs, they do not either. Buie 2330(a), however, reads “a party to the action”, and the appended note reads “cm original party” making it clear that an intervenor has the same rights and liabilities not only as the party he joins but as the opposing party as well. Here the Shields’ have the same status as the Board and the appellants. Except in unusual circumstances, the Board has statutory immunity from the imposition of costs which, of course, cannot extend to a private litigant. But the intervenors are as liable for costs as the appellants would have been had they lost. Certainly if the Shields’ had won an appeal, they would demand reimbursement for their costs from the appellants. Therefore we conclude that, in a case at law, an outsider to the record who intervenes as a party
It is evident that appellants, by initially appealing to the Supreme Court, complied with the then §§1193 and 1195. Therefore, since the final decision was rendered in favor of appellants, they should be entitled to the costs of printing their paperbooks, including the record, as well as to “the lawful costs in said case, taxed in the lower court.”
As to the latter costs, appellees argue that no bill of costs has ever been filed in the court below and that appellants’ filing of a bill of costs in this Court incident to this appeal was untimely. We cannot agree. As previously noted,
Although a bill of costs for appeal No. 988 Transfer Docket 1970 has been filed with this court incident to this appeal, we are not in a position to rule on the correctness of the docket costs and witness bill included in that bill of costs. We shall remand those two categories of the bill of costs to the lower court so that “the lawful costs in said case, taxed in the lower court” might be accurately scrutinized and approved.
Appellants’ costs of printing their brief and the record are properly before us. We conclude that appellants are entitled to reimbursement for the cost of having their brief printed. Appellees contend, however, and we must agree, that appellants caused to be printed in the record much extraneous matter. Approximately one-tliird of the printed record could easily have been omitted as unnecessary. Our Rule 86(6) specifically states that the record is to contain only “[s]o much of the evidence as is necessary to be considered by this Court in passing upon the questions raised on appeal.” Our Rule 88 states, in pertinent part, that “[e]vidence (including exhibits), which has no relation to or connection with the questions involved or errors assigned must not be printed, nor must deeds or long documents, the construction or validity of which are not in issue, but only such parts thereof as are necessary for a proper consideration of the case.” It makes no difference that the appeal was first taken to the Supreme Court because Supreme Court Rules 49(7) and 52 are équally applicable.
However, appellees did not raise this issue at any time earlier in these proceedings. They could have
At this late stage, the only exception to this rule is where, as here, the printed extraneous matter is so alien to the issues presented and so blatantly unnecessary that the court is not required to use hindsight to determine the matter’s usefulness. Thus, where the appellant unnecessarily increases the cost of the record by printing substantial amounts of evidence which are not relevant to the issues on appeal, the cost of printing the record may be imposed upon the appellant even though he is the successful party, but the other costs will be imposed upon the appellee. Zidek v. West Penn Power Co., 145 Pa. Superior Ct. 103, 20 A. 2d 810 (1941) ; Long’s Estate, 143 Pa. Superior Ct. 176, 17 A. 2d 686 (1940).
Therefore, mindful that “the courts of this Commonwealth for over a century and a half have applied a standard of reasonableness on the issue of costs,” Commonwealth v. Giaccio, 415 Pa. 139, 146, 202 A. 2d 55, 59 (1964), and that the purpose of allowing parties to intervene in a legal action, as the United States Supreme Court explained long ago in connection with a private two-party suit, is “to prevent a failure of justice,” Krippendorf v. Hyde, 110 U.S. 276, 285, 4 S. Ct. 27, 31, 28 L. Ed. 145, 149 (1884), we direct that as to appeal No. 988 Transfer Docket 1970, the intervening
The order of the Court of Common Pleas of Allegheny County is reversed and the record is remanded for action consistent with this opinion. Costs of this appeal, No. 209 Commonwealth Docket 1972, to be paid by the intervening appellees, except, for the reasons stated in note 2, supra, the filing fee in this • Court which shall be paid by the appellants.
Counsel, for appellants gave this explanation: “In the course of oral argument, the question was raised as to why we did not file a bill of costs in the Prothonotary’s Office of the Court of Common Pleas of Allegheny County. I stated that we had attempted to file such a bill and were refused since the local practice required either acceptance of service of the bill of costs, which we could not obtain, or an order of court, for any bill of costs in excess of $20.00. This' particular local rule was Rule 28 of the Allegheny County Court of Common Pleas Rules. Rule 28 has since been eliminated, but' it had been the practice of the clerks to continue to refuse, bill of costs in¡ excess of $20.00 until a very few months ago.”
Appellants filed with ■ this Court a Petition for Allowance of Record Costs which was docketed at 988 Transfer Docket 1970. Disposition of this petition would then have followed without the necessity of a separate appeal at 209 Commonwealth Docket 1972. The latter appeal, on May 2, 1972,' was consolidated with the petition filed at 988 Transfer Docket 1970 for purposes of argument because identical issues of fact and law were involved.
Except for the words within brackets, which have been deleted by the Act of .Tune 3, 1971, P. L. , No. 6, §1, Sections 1193 and 1195 now read as follows:
Section 1193. “Tn all cases, either in law or equity, wherein an appeal is taken from any judgment, decree, or order, [to the Supreme or the Superior Court,] the party in whose favor the final decision is rendered shall be entitled to charge, and collect from the losing party as part of the costs, such amount as shall have been expended for printing paperbooks upon said appeal. The cost of printing the paperbook of each party shall be taxed as costs, collectible by the attorney of record of such party in such appeal. Said amounts to be taxed and collected in the same manner as costs are now taxed and collected by law.”
Section 1195. “In all appeals, [to the supreme or superior court] when the judgment, order, sentence, or decree is reversed by said appellate court, without a venire or order and judgment as to the payment of costs, the lawful costs in said case, taxed in the lower court, shall be paid by the losing party in such appeal; and, on the filing of the remittitur in said lower court, the proper officer shall enter judgment against said losing party, upon which judgment due process may issue for the collection thereof: Provided, however, That process to collect the said costs may be stayed if the court below shall determine the case is not finally closed between the parties, and the said losing party, or legal representative, shall bring a new action for the same cause of action against the other party, or legal representative, within thirty days after said determination. When such second or other action is brought, the collection of said costs shall be postponed until the final closing of said action, when said costs shall follow the judgment in said second or other case relating to the same cause of action. In default of said second or other action, the judgment for costs shall be final.”
See note 1, supra.