Taged, Inc. v. Zoning Bd. of Adjustment of Borough of Monroeville

• Decision Date: 21 September 1972
• Citation: 295 A.2d 339,6 Pa.Cmwlth. 331
• Parties: TAGED, INCORPORATED, a corporation, and Tom G. Zaimes, an individual, Appellants, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF MONROEVILLE, Appellee. TAGED, INCORPORATED, a corporation, and Tom G. Zaimes, an individual, Appellants, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF MONROEVILLE, Appellee, v. Edward SHIELDS and Rose Shields, his wife, Intervenors.
• Court: Pennsylvania Commonwealth Court

Page 339

295 A.2d 339

6 Pa.Cmwlth. 331

TAGED, INCORPORATED, a corporation, and Tom G. Zaimes, an individual, Appellants, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF MONROEVILLE, Appellee.

TAGED, INCORPORATED, a corporation, and Tom G. Zaimes, an individual, Appellants, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF MONROEVILLE, Appellee, v. Edward SHIELDS and Rose Shields, his wife, Intervenors.

Commonwealth Court of Pennsylvania.

Argued June 5, 1972.

Decided Sept. 21, 1972.

Leonard M. Mendelson, Pittsburgh, for appellants.

Richard L. Rosenzweig, Rosenzweig & Rosenzweig, Pittsburgh, for appellee.

Sheldon L. Keyser, Meyers & Keyser, Monroeville, for intervenors.

Before CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

MENCER, Judge.

This appeal stems from our decision in Taged Inc. v. Zoning Board of Adjustment of Borough of Monroeville, 2 Pa.Cmwlth. 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 Monroeville (Board) and, on 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, 1971, in compliance with our order, the lower court ordered that appellants be granted a special exception. Thereafter appellants sought to file a bill of costs with the Prothonotary of the Court of Common Pleas of Allegheny County and to have the record costs taxed against the Borough of Monroeville, appellee, and Edward D. Shields and Rose J. Shields, his wife, intervening appellees. Because the Prothonotary resisted these efforts, ¹ appellants, on August 23, 1971, presented a petition to the lower court for allowance of record costs as against the Board and the intervenors. On February 4, 1972, the lower court dismissed without prejudice appellants' petition. Appellants then filed on February 23, 1972, a separate appeal in this court at No. 209 Commonwealth Docket 1972. ²

Appellants rely on the Act of April 15, 1907, P.L. 83, § 1, 12 P.S. § 1193, and on the Act of June 5, 1913, 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 Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. § 211.509(a)(48) and (58). ³ A comparison of the wording of §§ 1193 and 1195, before and after amendment, will reveal that only the words referring to the Supreme Court and to the Superior Court were omitted in each instance so as to include by omission the Commonwealth Court and thereby to make each section universally applicable to all three state appellate courts.

Appellants argue that these changes apply to the costs of appeal in Taged Inc., supra, filed May 6, 1971, because the amending act of June 3, 1971, made the changes retroactive to the date on which the Appellate Court Jurisdiction Act of 1970 was approved, July 31, 1970. This is a somewhat faulty argument however, because § 3 of the Act of June 3, 1971, P.L. ---, No. 6, § 3, provided: 'This act shall take effect immediately and shall be retroactive to the Effective date of the Appellate Court Jurisdiction Act of 1970.' (Emphasis added). Although approved on July 31, 1970, the ACJA actually took 'effect ten days after final enactment or ten days after the Governor issues the proclamation specified in The Commonwealth Court Act, whichever is later.' Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. § 211.510. On September 1, 1970, the Governor issued a proclamation declaring that the Commonwealth Court was organized and ready for transaction of its judicial functions. As a result the ACJA took effect on September 11, 1970. That date occurred long before the date we decided Taged Inc., May 6, 1971, but the losing party is responsible for the costs which are taxable under the law at the time the appeal is filed or taken, City of Philadelphia v. Kelly, 82 Pa.Super. 112 (1923), not the law at the time the appeal is Decided. Furthermore, where the appeal is filed prior to the effective date of the ACJA, it is governed by prior law. John Wanamaker, Philadelphia v. School District of Philadelphia, 441 Pa. 567, 274 A.2d 524 (1971). The appellants filed their appeal to the Supreme Court on August 6, 1970, more than a month before the effective date of the ACJA (that appeal, 988 Transfer Docket 1970, was transferred to this court on September 14, 1970). Consequently, §§ 1193 and 1195 as they existed before amendment apply to the costs of appeal in Taged Inc., supra.

Initially we note that the Board is protected against the imposition of costs by § 1010 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. ---, No. 247, 53 P.S. § 11010: 'No costs shall be allowed against the board, unless it shall appear to the court that the board acted with gross negligence or in bad faith or with malice.' No misconduct by the Board has been alleged.

Intervening appellees, Mr. and Mrs. Shields, claim this same protection citing Rule 2330(a) of the Pennsylvania Rules of Civil Procedure: 'After the entry of an order allowing intervention, the intervener shall have all the rights and liabilities of a party to the action.' The Rules Committee appended a note to Rule 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. Rule 2330(a), however, reads 'a party to the action', and the appended note reads 'an 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 on 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 to the suit and who is unsuccessful is liable, either alone or jointly with other parties, for all costs in the action accruing after his intervention. Accord, Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958) (where the Supreme Court imposed costs on the intervening appellee after reversing the order of the lower court which had, as in this case, affirmed the Zoning Board of Adjustment).

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, ⁴ appellants attempted to file a bill of costs with the Prothonotary of the Court of Common Pleas of Allegheny County sometime between August 6 and 23, 1971, just over one year after the lower court denied their appeal. But we note the following from 1 Laub, Pennsylvania Keystone, Costs § 1 (1964):

'There is no statute of a general nature which imposes a limitation on the time within which a cost bill must be filed or the costs of a case taxed. Therefore, when a case has been appealed, the taxation of costs can be deferred until after the appeal has been disposed of and the case finally adjudicated. Fife v. (The) Great A. & P. Tea Co., 169 Pa.Superior Ct. 110, 82 A.2d 271 (1951). However, if there is an unconscionable delay and the losing party suffers harm thereby, there is some likelihood that late taxation might be refused.'

There was no unconscionable delay here, nor have the losing parties suffered harm. Appellants filed a bill of costs shortly after the lower court, in compliance with our order, granted appellants a special exception.

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-third 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 ...