Lucchino v. Com.

• Decision Date: 23 October 2002
• Citation: 809 A.2d 264,570 Pa. 277
• Parties: George M. LUCCHINO, Appellant, v. COMMONWEALTH of Pennsylvania, Department of Environmental Protection, Appellee.
• Court: Pennsylvania Supreme Court

809 A.2d 264

570 Pa. 277

George M. LUCCHINO, Appellant, v. COMMONWEALTH of Pennsylvania, Department of Environmental Protection, Appellee.

Supreme Court of Pennsylvania.

Argued December 6, 2000.

Decided October 23, 2002.

Thomas Alan Linzey, Shippensburg, for George M. Lucchino.

Diana Stares, Pittsburgh, for Department of Protection.

Before FLAHERTY, C.J., ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR, JJ.

OPINION

Justice NEWMAN.

George M. Lucchino (Lucchino) appeals from a Commonwealth Court decision affirming an Order of the Environmental Hearing Board (EHB) directing him to pay costs and counsel fees to a permittee, Luzerne Land Corporation (Luzerne), in the amount of $6,987.50, pursuant to Section 4(b) of the Surface Mining Conservation and Reclamation Act (SMCRA),¹ and Section 307(b) of The Clean Streams Law (CSL).² We affirm.

FACTS AND PROCEDURAL HISTORY

In May of 1996, the EHB, acting under the authorization of the SMCRA and the CSL, approved an application submitted by Luzerne for a permit to remove coal incidental to construction activities at a site located in Robinson Township, Westmoreland County. Lucchino, as a township supervisor for Robinson Township, voted to approve Luzerne's application. Then Lucchino, as a private citizen, filed a pro se appeal with the EHB challenging the issuance of the permit. Luzerne filed a Motion to Dismiss the appeal, asserting that Lucchino lacked standing to bring the appeal because he had admitted that he was not directly affected by the proposed coal removal. The EHB granted the Motion to Dismiss filed by Luzerne on January 31, 1997.³ Pursuant to Section 4(b) of the SMCRA and Section 307(b) of the CSL, Luzerne filed a Petition for Award of Costs and Attorney's Fees against Lucchino on March 14, 1997.

In 1990, the EHB established the following criteria for awarding costs and attorney's fees in Kwalwasser v. Department of Environmental Resources, 1988 WL 161059 (Pa.Env.Hrg.Bd.), aff'd,131 Pa. Cmwlth. 77, 569 A.2d 422, 424 (Pa.Cmwlth. 1990):(1) a final order must have been issued; (2) the applicant for the fees and expenses must be the prevailing party; (3) the applicant must have achieved some degree of success on the merits; and (4) the applicant must have made a substantial contribution to a full and final determination of the issues. The Commonwealth Court later reaffirmed the use of this test in Big B. Mining Co. v. Department of Environmental Resources, 155 Pa.Cmwlth. 16, 624 A.2d 713 (Pa.Cmwlth.),petition for allowance of appeal denied, 535 Pa. 649, 633 A.2d 153 (Pa.1993). Subsequent to the filing of the initial Petition by Luzerne, the EHB, in Alice Water Protection Ass'n v. Department of Environmental Protection, 1997 WL 610299 (Pa.Env.Hrg.Bd.), modified its eligibility requirements for the award of costs and counsel fees. In addition to meeting the four-pronged test set forth in Kwalwasser, the EHB required a permittee seeking to recover costs and counsel fees from a third-party appellant to demonstrate that the appeal was brought in bad faith. Recognizing that Luzerne filed its Petition prior to the publication of the Alice Water Protection decision, the EHB, in its May 27, 1998 Opinion in the case sub judice,⁴ permitted Luzerne to supplement its Petition specifically to address the bad faith issue. Luzerne filed a supplemental Petition and the EHB, by Order and Opinion dated October 16, 1998,⁵ granted it, thereby directing Lucchino to pay costs and counsel fees to Luzerne in the amount of $6,987.50. Lucchino appealed the decision of the EHB to the Commonwealth Court.

In affirming the decision of the EHB, the Commonwealth Court focused solely on the issue of bad faith, and specifically, what constitutes bad faith. After acknowledging that the EHB "properly turned to the legislative history underlying the relevant portions of these laws in determining whether Lucchino's appeal was brought in bad faith[,]" the Commonwealth Court indicated that an appeal is filed in bad faith when it is frivolous and lacking any basis in law or in fact. Lucchino v. Department of Environmental Protection, 744 A.2d 352, 354-55 (Pa.Cmwlth.), petition for allowance of appeal granted, 565 Pa. 656, 771 A.2d 1291 (Pa.2000). The court concluded that "based upon Lucchino's own admissions and documented conduct, his appeal was not filed to challenge the action stated on the face of the appeal, but rather as an attack upon Department officials and, as such, was filed in bad faith." Id.

We granted allocatur to review the award of costs and counsel fees employed by the EHB, as affirmed by the Commonwealth Court.

DISCUSSION

The general rule within this Commonwealth is that each side is responsible for the payment of its own costs and counsel fees absent bad faith or vexatious conduct. Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521, 523 (1943) (citing Steele v. Lineberger, 72 Pa. 239, 1872 WL 11528 (1872)). Accord, Department of Environmental Protection v. Bethenergy Mines, Inc., 563 Pa. 170, 758 A.2d 1168 (2000). This general rule has been modified by a variety of statutes that direct the award of costs and counsel fees to the prevailing party. Pennsylvania's Surface Mining Conservation and Reclamation Act and its Clean Streams Law are two such statutes. Each vests the EHB with discretion to award costs and counsel fees to the prevailing party in actions brought under certain specified sections of the acts.

For decades, the courts of this Commonwealth, including this Court, have upheld t he application of these statutes within numerous proceedings, particularly ones involving determinations of the existence or the absence of bad faith. One of the earliest such provisions, Section 1769 of the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3469, provides for an award of costs for a bad faith election contest. Although in the matter of In re Contest of Election of Morganroth, 346 Pa. 327, 29 A.2d 502 (1943), this Court affirmed the application of the statute, it declined to award costs because there was no specific finding of bad faith by the lower tribunal. See also Appeal of Means, 314 Pa. 425, 171 A. 896 (1934); In re Petition of Pippy, 711 A.2d 1048 (Pa. Cmwlth.1998). The Commonwealth Court affirmed an award of more than $46,000 in counsel fees for the collection of a $1,700 debt pursuant to Section 3315 of the Uniform Condominium Act, 68 Pa.C.S. § 3315, in Mountain View Condominium Ass'n v. Bomersbach, 734 A.2d 468 (Pa.Cmwlth. 1999), appeal dismissed as improvidently granted, 564 Pa. 433, 768 A.2d 1104 (Pa. 2001)

.

The General Assembly has authorized recovery of counsel fees and costs within the context of numerous remedial enactments. Among them are appeals to the EHB involving industrial waste discharge;⁶ suits to abate nuisances and restrain violations under the Air Pollution Control Act;⁷ citizen suits filed pursuant to the Low-Level Radioactive Waste Disposal Act;⁸ enforcement provisions of the Building Energy Conservation Act;⁹ citizen suits under the Coal Refuse Disposal Control Act;¹⁰ and costs and fees for litigation conducted pursuant to the Sewage Facilities Act¹¹ and the Pesticide Control Act.¹² Further, statutory awards of counsel fees and costs are seen in other types of litigation such as the Costs Act,¹³ which authorizes awards in administrative proceedings where the Commonwealth has instituted an action; the Sunshine Act,¹⁴ which authorizes an award for litigation instituted in bad faith; and, most notably, pursuant to the Workers' Compensation Act¹⁵ for actions deemed an unreasonable contest. The award of costs occurs in both civil actions and criminal prosecutions, primarily in summary proceedings, and in suits initiated by governmental entities. Taxable costs are awarded to the prevailing party in a lawsuit where authorized by statute and cost only awards appear in such obscure statues as Section 11 of the White Pine Blister Rust Act,¹⁶ which assesses costs in summary proceedings; to Section 924 of the Fish and Boat Code, 30 Pa.C.S. § 924 (assessing costs in violation proceedings); to the more frequently employed Section 109.1 of the Second Class County Code,¹⁷ which mandates the addition of costs to any judgment obtained in a tax collection or municipal claims suit; and article VI, § 611 of the Public School Code,¹⁸ which awards costs to a litigant who must petition a court for the enforcement of judgments against a school district. Not all fee-shifting statutes are the same and care is required in comparing such statutes, as the language or purpose of a particular fee-shifting provision will affect its construction and, hence, its application.

A number of statutes permit an award for enforcement of private rights granted in an enactment to promote public interests, particularly where there is a willful or intentional violation. See, e.g., the Gasoline, Petroleum Products and Motor Vehicle Accessories Act, 73 P.S. § 202-6; and the Feature Motion Picture Fair Business Practices Law, 73 P.S. § 203-10. Moreover, Section 2 of the Judicial Code, provides for an assessment of taxable costs pursuant to 42 Pa.C.S. § 1706, except where there is an award of counsel fees pursuant to 42 Pa.C.S. § 2503.

We note that appellate review of an order of a tribunal awarding counsel fees to a litigant is limited solely to determining whether the tribunal palpably abused its discretion in making the fee award. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996).

The Award of Costs and Counsel Fees

Prior to December 20, 2000,¹⁹ but at all times relevant to the matter before us, Section 4(b) of the SMCRA provided the EHB with the authority to award costs and counsel fees in conjunction with the permitting process, and stated in pertinent part:

The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines to have been reasonably incurred by such party in

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