attorney’s fees; - rieders travis law firm · v 53. 42 pa.c.s.a. § 1726 – judiciary and...

Attorney’s Fees;

Statutes and Law

In Pennsylvania

Updated March 1, 2017

A Guide to Fee-Shifting

Rules and Statutes

by Clifford A. Rieders, Esquire

Rieders, Travis, Humphrey,

Waters & Dohrmann

161 W. Third St.

Williamsport, PA 17701

P: 570-323-8711

F: 570-567-1025

[email protected]

www.riederstravis.com

Copyright 2016 Clifford A. Rieders

mailto:[email protected]

http://www.riederstravis.com/

i

Table of Contents Page

Introduction …………………………………………………………………….... 2

Chapter 1: General Concepts Concerning Attorney’s Fees ………………….. 3 1. The “American Rule” ………………………………………………………………............. 3

2. Waiver of Attorney’s Fee; Litigating Under English Rule; Contractual Fee-Shifting

Agreements………………………………………………………………………………….. 4

3. Two Broad Categories: (1) Attorney’s Fees Available to One Party Versus Both Parties

& (2) “May” Versus “Shall” Provisions ……………………………………………………. 6

4. Prevailing Party ……………………………………………………………………………... 7

5. Equity Power of the Court & Standard of Review ………………………………………….. 8

6. Determining a Reasonable Fee ……………………………………………………………… 9

7. Who May Award Attorney’s Fees ………………………………………………………….. 10

8. Petitioning the Court ………………………………………………………………………... 10

9. Appealability of Attorney’s Fees……………………………………………………………. 11

10. Hearing on Attorney’s Fees; Due Process Requirements ……………………………………11

11. Appellate Review of an Award of Attorney’s Fees ………………………………………… 12

12. Multiple Claims…………………………………………………………………………... …13

13. Sovereign Immunity ………………………………………………………………………... 13

14. Miscellaneous Information …………………………………………………………………. 13

Chapter 2: Pennsylvania Rules of Civil Procedure …………………………...15 1. Pa. R.C.P. No. 229.1 – Settlement Funds. Failure to Deliver. Sanctions ……………………15

2. Pa. R.C.P. No. 234.5 – Failure to Comply with Subpoena. Notice to Attend or Notice to

Produce ……………………………........................................................................................18

3. Pa. R.C.P. No. 1023.1 – Scope. Signing of Documents. Representation to the Court.

Violation …………………………………………………………..........................................19

4. Pa. R.C.P. No. 1023.2 – Motion for Sanctions ……………………………………………... 22

5. Pa. R.C.P. No. 1023.4 – Sanctions …………………………………………………………..23

6. Pa. R.C.P. No. 1075.2 – Ex Parte Issuance of Writ of Seizure ……………………………... 24

7. Pa. R.C.P. No. 1574 – Costs and Counsel Fees …………………………………………….. 27

8. Pa. R.C.P. No. 1716 – Counsel Fees ………………………………………………………...28

9. Pa. R.C.P. No. 1920.13 – Pleading More Than One Cause of Action. Alternative

Pleading ……………………………………………………………………………………...30

10. Pa. R.C.P. No. 1920.31 – Joinder of Related Claims. Child and Spousal Support. Alimony.

Alimony Pendente Lite. Counsel Fees. Expenses …………………………………………... 32

11. Pa. R.C.P. No. 1920.33 – Joinder of Related Claims. Distribution of Property.

Enforcement ………………………………………………………………………………… 34

12. Pa. R.C.P. No. 1940.8 – Sanctions …………………………………………………………..37

13. Pa. R.C.P. No. 2039 – Compromise, Settlement, Discontinuance and Distribution ………...38

14. Pa. R.C.P. No. 2064 – Compromise, Settlement, Discontinuance and Distribution ………...41

15. Pa. R.C.P. No. 2206 – Settlement, Compromise, Discontinuance and Judgment …………...44

ii

16. Pa. R.C.P. No. 2957 – Praecipe for Writ of Execution. Amount. Items Claimed.

Certification ………………………………………………………………………………… 48

17. Pa. R.C.P. No. 3146 – Judgment against Garnishee upon Default or Admission in Answer

to Interrogatories ……………………………………………………………………………. 50

18. Pa. R.C.P. No. 3213 – Judgment …………………………………………………………….53

19. Pa. R.C.P. No. 4008 – Oral Examination. Limitation ………………………………………. 54

20. Pa. R.C.P. No. 4019 – Sanctions …………………………………………………………….55

Chapter 3: Pennsylvania Rules of Appellate Procedure …………………….. 61

1. Pa. R.A.P. No. 2744 – Further Costs. Counsel Fees. Damages for Delay ………………….. 61

2. Pa. R.A.P. No. 3305 – Administrative Motions ……………………………………………..65

Chapter 4: Pennsylvania Statutes ……………………………………………...67 1. 5 Pa.C.S.A. § 3314 – Athletics and Sports. Athlete Agents. Registration of Athlete Agents.

Registration. Civil Remedies …………………………………………………………………… 67

2. 12 Pa.C.S.A. § 5305 – Commerce and Trade. Miscellaneous Provisions. Trade Secrets.

Attorney Fees …………………………………………………………………………………… 68

3. 13 Pa.C.S.A. § 2A108 – Commercial Code. Leases. General Provisions.

Unconscionability …………………………………………………………………………... 69

4. 13 Pa.C.S.A. § 4A211 – Commercial Code. Fund Transfers. Issue and Acceptance of

Payment Order. Cancellation and Amendment of Payment Order …………………………. 71

5. 13 Pa.C.S.A. § 4A305 – Commercial Code. Funds Transfers. Execution of Sender’s

Payment Order by Receiving Bank. Liability for Late or Improper Execution or Failure to

Execute Payment Order ……………………………………………………………………...74

6. 13 Pa.C.S.A. § 4A404 – Commercial Code. Funds Transfers. Payment. Obligation of

Beneficiary’s Bank to Pay and Give Notice to Beneficiary …………………………………76

7. 13 Pa.C.S.A. § 5111 – Commercial Code. Letters of Credit. Letters of Credit. Remedies … 78

8. 13 Pa.C.S.A. § 7601 – Commercial Code. Warehouse Receipts, Bills of Lading and Other

Documents of Title. Warehouse Receipts and Bills of Lading: Miscellaneous Provisions.

Lost and Missing Documents ………………………………………………………………..80

9. 13 Pa.C.S.A. § 9607 – Commercial Code. Secured Transactions. Default. Default and

Enforcement of Security Interest. Collection and Enforcement by Secured Party …………. 81

10. 15 Pa.C.S.A. § 523 – Corporations and Unincorporated Associations. Corporations.

Corporations Generally. Corporations. Provisions Applicable to Particular Types of

Corporations. Actions by Shareholders or Members to Enforce a Secondary Right ………...83

11. 15 Pa.C.S.A. § 1580 – Corporation and Unincorporated Associations. Corporations.

Business Corporations. Domestic Business Corporations Generally. Corporate Powers,

Duties and Safeguards. Dissenters Rights. Costs and Expenses of Valuation Proceedings …85


Business Corporations. Domestic Business Corporations Generally. Officers, Directors

and Shareholders. Indemnification. Mandatory Identification ……………………………... 87


Business Corporations. Domestic Business Corporations Generally. Officers, Directors

and Shareholders. Derivative Actions. Actions Against Directors and Officers …………… 88

iii


Business Corporations. Domestic Business Corporation Ancillaries. Statutory Close

Corporations. Share. Sale Option of Estate of Shareholder ………………………………… 90


Business Corporations. Domestic Business Corporation Ancillaries. Registered

Corporations. Disgorgement by Certain Controlling Shareholders Following Attempts

to Acquire Control. Enforcement Actions ………………………………………………….. 94


Nonprofit Corporations. Domestic Nonprofit Corporations Generally. Officers, Directors

and Members. Indemnification. Mandatory Indemnification ………………………………. 96


Nonprofit Corporations. Domestic Nonprofit Corporations Generally. Officer, Directors

and Members. Derivative Actions. Actions Against Directors, Members of an Other

Body and Officers ………………………………………………………………………….. 97


Cooperative Corporations. Domestic Cooperative Corporations Ancillaries.

Cooperative Agricultural Associations. Powers, Duties and Safeguards. Marketing

Arrangements ………………………………………………………………………………. 99

19. 15 Pa.C.S.A. 7718 – Corporations and Unincorporated Associations. Corporations.

Cooperative Corporations. Domestic Cooperative Corporation Ancillaries. Workers’

Cooperative Corporations. Indemnity ……………………………………………………….101

20. 15 Pa.C.S.A. § 8594 – Corporations and Unincorporated Associations. Partnerships and

Limited Liability Companies. Limited Partnerships. Derivative Actions. Expenses ……... 103

21. 17 Pa.C.S.A. § 509 – Credit Unions. Corporate Powers, Duties and Safeguards. Fees and

Charges ……………………………………………………………………………………..105

22. 17 Pa.C.S.A. § 715 – Credit Unions. Members, Directors and Officers. Actions by

Members to Enforce a Secondary Right …………………………………………………... 106

23. 18 Pa.C.S.A. § 910 – Crimes and Offenses. Preliminary Provisions. Inchoate Crimes.

Manufacture, Distribution, Use or Possession of Devices for Theft of

Telecommunications Services …………………………………………………………….. 108

24. 18 Pa.C.S.A. § 3209 – Crimes and Offenses. Definition of Specific Offenses. Offenses

Involving Danger to the Person. Abortion. Spousal Notice ………………………………. 113


Involving Danger to the Person. Abortion. Civil Penalties ……………………………….. 115


Against Property. Theft and Related Offenses. Definition of Offenses. Theft of Services .. 116


Against Public Administration. Falsification and Intimidation. Victim and Witness

Intimidation. Protection of Employment of Crime Victims, Family Members of Victims

and Witnesses ………………………………………………………………………………120


Against Public Order and Decency. Wiretapping and Electronic Surveillance. Stored

Wire and Electronic Communications and Transactional Records Access. Civil Action … 122

29. 18 Pa.C.S.A. § 6111 – Crimes and Offenses. Definition of Specific Offenses.

Miscellaneous Offenses. Firearms and Other Dangerous Articles. Uniform Firearms

Act. Sale or Transfer of Firearms …………………………………………………………. 124

iv

30. 18 Pa.C.S.A. § 6111.1 – Crimes and Offenses. Definition of Specific Offenses.

Miscellaneous Offenses. Firearms and Other Dangerous Articles. Uniform Firearms

Act. Pennsylvania State Police ……………………………………………………………..132

31. 18 Pa.C.S.A. § 9183 – Crimes and Offenses. Miscellaneous Provisions. Criminal

History Record Information. Sanctions. Civil Actions ……………………………………. 137

32. 20 Pa.C.S.A. § 305 – Decedents, Estates and Fiduciaries. Ownership of Property; Legal

Title and Equitable Estate. Right to Dispose of a Decedent’s Remains ………………….. 138

33. 23 Pa.C.S.A. § 2533 – Domestic Relations. Adoption

34. 23 Pa.C.S.A. § 3502 – Domestic Relations. Divorce. Property Rights. Equitable

Division of Marital Property ………………………………………………………………. 142

35. 23 Pa.C.S.A. § 3702 – Domestic Relations. Divorce. Alimony and Support. Alimony

Pendente Lite, Counsel Fees and Expenses ……………………………………………….. 145

36. 23 Pa.C.S.A. § 4351 – Domestic Relations. Property and Contracts. Support Matters

Generally. Proceedings Generally. Costs and Fees ……………………………………….. 147

37. 23 Pa.C.S.A. § 5428 – Domestic Relations. Children and Minors. Uniform Child

Custody Jurisdiction and Enforcement. Jurisdiction. Jurisdiction Declined by Reason of

Conduct ……………………………………………………………………………………. 149

38. 23 Pa.C.S.A. § 5452 – Domestic Relations. Children and Minors. Uniform Child

Custody Jurisdiction and Enforcement. Enforcement. Cost, Fees and Expenses …………. 151

39. 23 Pa.C.S.A. § 6108 – Domestic Relations. Abuse of Family. Protection from Abuse.

Relief ………………………………………………………………………………………. 152

40. 23 Pa.C.S.A. § 6108.3 – Domestic Relations. Abuse of Family. Protection from Abuse.

Relinquishment to Third Party for Safekeeping …………………………………………... 160

41. 23 Pa.C.S.A. § 6117 – Domestic Relations. Abuse of Family. Protection from Abuse.

Procedure and Other Remedies …………………………………………………………… 166

42. 23 Pa.C.S.A. § 7305 – Domestic Relations. Uniform Interstate Family Support. Civil

Provisions of General Application. Duties and Powers of Responding Tribunal ………… 167

43. 23 Pa.C.S.A. § 7313 – Domestic Relations. Uniform Interstate Family Support. Civil

Provisions of General Application. Costs and Fees ……………………………………….. 169

44. 25 Pa.C.S.A. § 2937 – Elections & Electoral Districts. Objections to Nomination

Petitions and Papers………………………………… …………………………………..…170

45. 23 Pa.C.S.A. § 8304 – Domestic Relations. Intrastate Family Support. Civil Provisions

of General Application. Duties and Powers of Responding Tribunal …………………….. 172

46. 23 Pa.C.S.A. § 8313 – Domestic Relations. Intrastate Family Support. Civil Provisions

of General Application. Costs and Fees …………………………………………………… 174

47. 27 Pa.C.S.A. § 7707 – Environmental Resources. Sanctions and Remedies. General

Provisions. Costs and Fees. Participation in Environmental Law or Regulation …………. 175

48. 27 Pa.C.S.A. § 7708 – Environmental Resources. Sanctions and Remedies. General

Provisions. Costs and Fees. Costs for Mining Proceedings ……………………………….. 176

49. 35 P.S. § 691.307 – Health and Safety. Water and Sewage. Protection of Public Water

Supply. Industrial Wastes. Industrial Waste Discharges……………………………………180

50. 35 P.S. § 6021.1305 – Health and Safety. Storage Tank and Spill Prevention Act.

Enforcement. Suits to Abate Nuisances and Restrain Violations………………………….. 182

51. 40 P.S. § 1303.509 – Insurance. Medical Care Availability and Reduction of Error (Mcare)

Act. Medical Professional Liability. Payment of Damages………………………………... 185

52. 41 Pa.C.S.A. § 503 – Loan Interest and Protection ………………………………………..188

v

53. 42 Pa.C.S.A. § 1726 – Judiciary and Judicial Procedure. Organization. Other Structural

Provisions. Governance of the System. Specific Powers of the Governing Authority of

the System. Establishment of Taxable Costs ……………………………………………… 189


Provisions. Representation of Litigants. General Provisions. Right of Participants to

Receive Counsel Fees …………………………………………………………………….. 191


Provisions. Representation of Litigants. Attorneys and Counselors. Penalty for

Unauthorized Practice of Law …………………………………………………………….. 196

56. 42 Pa.C.S.A. § 2737.1 – Judiciary and Judicial Procedure. Organization. Other

Structural Provisions. Office of the Clerk of the Court of Common Pleas.

Prothonotaries. Incorrect Debtor Identified ……………………………………………….. 198

57. 42 Pa. C.S.A. §4563 – Judiciary and Judicial Procedure. Administration of Justice

Generally. Juries and Jurors. Miscellaneous Provisions. Protection of Employment of

Petit and Grand Jurors …………………………………………………………………….. 199

58. 42 Pa.C.S.A. § 5748 – Judiciary and Judicial Procedure. Actions, Proceedings, and

Other Matters Generally. Bonds and Recognizances. Professional Bondsmen.

Maximum Premiums ………………………………………………………………………. 200

59. 42 Pa.C.S.A. § 8128 – Judiciary and Judicial Procedure. Civil Actions and Proceedings.

Judgments and Other Liens. Exemptions from Execution. Transfer of Claim to Avoid

Policy of Commonwealth …………………………………………………………………. 201

60. 42 Pa.C.S.A. § 8307 – Judiciary and Judicial Procedure. Actions and Proceedings.

Particular Rights and Immunities. Rights of Action. Action by Parent, Guardian or

Other Custodian for Damages in the Sale or Transfer of Controlled Substances to a

Child ……………………………………………………………………………………….. 202


Particular Rights and Immunities. Rights of Action. Damages in Actions on Retail

Theft ……………………………………………………………………………………….. 203

62. 42 Pa. C.S. § 8309 – Judiciary and Judicial Procedure. Civil Actions and Proceedings.

Particular Rights and Immunities. Rights of Action. Civil Rights Violations …………….. 205


Particular Rights and Immunities. Rights of Action. Damages in Actions on Thefts of

Leased Property …………………………………………………………………………….207

64. 42 Pa. C.S.A. § 8371 – Actions on Insurance Policies. Special Damages………………....209


Particular Rights and Immunities. Rights of Action. Agricultural Crop Destruction …….. 210


Particular Rights and Immunities. Rights of Action. Assault with Biological Agent on

Animal, Fowl or Honey Bees ………………………………………………………………211


Particular Rights and Immunities. Rights of Action. Damages in Actions for Identity

Theft ………………………………………………………………………………………...212


Particular Rights and Immunities. Wrongful Use of Civil Proceedings. Damages ………...213

vi


Particular Rights and Immunities. Wrongful Use of Civil Proceedings. Certification of

Pleadings, Motions and Other Papers ……………………………………………………... 215


Particular Rights and Immunities. Drug Nuisances. Judgment and Remedies ……………. 216


Matters Affecting Government Units. Actions Against Local Parties. Official Immunity.

Legal Assistance ………………………………………………………………………….. 219

72. 42 Pa.C.S.A. § 8725 – Judiciary and Judicial Procedure. Criminal Proceedings. General

Provisions. Availability of Otherwise Confidential Information. Penalties for Improper

Disclosure …………………………………………………………………………………..222

73. 42 Pa.C.S.A. § 9720.1 – Judiciary and Judicial Procedure. Criminal Proceedings.

Sentencing. Sentencing Authority. Restitution for Identity Theft ………………………… 223

74. 43 P.S. § 260q – Labor. Trade Unions and Labor Disputes. Labor Injunctions. Costs and

Attorney’s Fees on Denial of Injunction…………………………………………………… 224

75. 43 P.S. § 260.9a – Labor. Wages. Wage Payment and Collection Law. Civil Remedies and

Penalties……………………………………………………………………………………. 225

76. 43 P.S. § 1101 – Public Employee Relations Act (PERA)

77. 44 Pa.C.S.A. § 2333 – Law and Justice. Pennsylvania State Police. DNA Data and

Testing. Enforcement and Other Provisions. Civil Actions ……………………………….. 228

78. 53 Pa.C.S.A. § 7701 – Municipalities Generally. Municipal Claims and Tax

Liens……………………………………………………………...…………………………229

79. 53 Pa.C.S.A. § 8113 – Municipalities Generally. Taxation and Fiscal Affairs.

Indebtedness and Borrowing. Incurring Debt and Issuing Bonds and Notes. General

Provisions. Lost, Stolen, Destroyed or Mutilated Bonds or Notes ………………………...232

80. 53 Pa.C.S.A. § 8265 – Municipalities Generally. Taxation and Fiscal Affairs.

Indebtedness and Borrowing. Miscellaneous Provisions. Remedies. Costs of Suits or

Proceedings ……………………………………………………………………………….. 233

81. 54 Pa.C.S.A. § 1125 – Names. Trademarks. Remedies …………………………………… 234

82. 62 Pa.C.S.A. § 3935 – Procurement. General Procurement Provisions. Contracts for

Public Works. Prompt Payment Schedules. Penalty and Attorney Fees ………………….. 235

83. 62 Pa.C.S.A. § 4504 – Procurement. General Procurement Provisions. Antibid-rigging.

Civil Action and Damages ………………………………………………………………… 237

84. 65 Pa.C.S.A. § 57.1304 – Pennsylvania Right to Know Law. Court Costs and

Attorney Fees……………………………………………………………………………….238

85. 65 Pa.C.S.A. § 714.1 – Public Officers. Accountability. Open Meetings. Attorney Fees …239

86. 65 Pa.C.S.A. § 1110 – Public Officers. Accountability. Ethics Standards and Financial

Disclosure. Wrongful Use of Chapter …………………………………………………….. 240

87. 66 Pa.C.S.A. § 1312 – Public Utilities. Public Utility Code. Regulation of Public

Utilities Generally. Rates and Rate Making. Refunds …………………………………….. 242


Utilities Generally. Service and Facilities. Discontinuance of Service to Leased

Premises. Retaliation by Landlord Prohibited …………………………………………….. 244


Utilities Generally. Service and Facilities. Discontinuance of Service to Leased

vii

Premises. Penalties ………………………………………………………………………… 245

90. 66 Pa.C.S.A. § 3316 – Public Utilities. Public Utility Code. Miscellaneous Provisions.

Violations and Penalties. Protection of Public Utility Employees …………………………247

91. 68 Pa.C.S.A. § 3311 – Real and Personal Property. Real Property. Condominiums.

Management of the Condominium. Tort and Contract Liability ………………………….. 250

92. 68 Pa.C.S.A. § 3315 – Real and Personal Property. Real Property. Condominiums.

Management of the Condominium. Lien for Assessments ……………………………….. 252

93. 68 Pa.C.S.A. § 4311 – Real and Personal Property. Real Property. Cooperatives.

Management of Cooperatives. Tort and Contract Liability ……………………………….. 255


Management of Cooperatives. Lien for Assessments …………………………………….. 257


Protection of Cooperative Interest Purchasers. Effect of Violations on Rights of Action …260

96. 68 Pa.C.S.A. § 5311 – Real and Personal Property. Real Property. Planned

Communities. Management of Planned Community. Tort and Contract Liability ……….. 261

97. 68 Pa.C.S.A. § 5315 – Real and Personal Property. Real Property. Planned

Communities. Management of Planned Community. Lien for Assessments ……………... 263

98. 71 P.S. § 2033 – State Government. Miscellaneous. Award of Fees and Expenses for

Administrative Agency Actions. Award of Fees and Expenses in Certain Agency

Actions……………………………………………………………………………………...266

99. 73 Pa.C.S.A. § 505- Trade and Commerce. Contractor and Subcontractor Payment.

Owner’s Payment Obligations. Penalty and Attorney Fee . . . . ……………………….….270

100.75 Pa.C.S.A. § 1619 – Vehicles. Title, Registration and Licensing. Commercial

Drivers. Prohibition Against Discharging, Disciplining or Discriminating Against

Employees …………………………………………………………………………………. 272

101. 75 Pa.C.S.A. § 1716 – Vehicles. Title, Registration and Licensing. Financial

Responsibility. Motor Vehicle Liability Insurance First Party Benefits. Payment of

Benefits ……………………………………………………………………………………. 275


Responsibility. Miscellaneous Provisions. Customary Charges for Treatment …………… 277


Responsibility. Miscellaneous Provisions. Attorney Fees and Costs …………………….. 280

104. 75 Pa.C.S.A. § 7138 – Vehicles. Miscellaneous Provisions. Vehicle Theft and Related

Provisions. Tampering with Odometers. Civil Liability ………………………………….. 282

105. 77 Pa.C.S.A. § 671 – Worker’s Compensation. Subrogation of employer to rights

of employee against third persons; subrogation of employer or insurer to amount paid

prior to award …………………………………………….………………………………..283

106. 77 Pa.C.S.A. § 996 – Worker’s Compensation. Contested cases regarding liability;

attorney's fees and other costs; limitation and calculation..……………………………...…285

107. 77 Pa.C.S.A. § 998 – Worker’s Compensation. Attorney’s Fees. Services Performed

Before Referee or Board. Approval. Amount…..………………………………………..…287

8

Attorney’s Fees in Pennsylvania

9

Introduction

Attorney’s fees statutes are commonly referred to as fee-shifting statutes. The number of

statutes that include fee-shifting provisions continues to grow. This attorney’s fees book is by no

means intended as a complete treatise on any and all law that might include fee-shifting

provisions. The intent of this book is to provide a general overview on how fee-shifting

provisions are handled by courts and to cover the Pennsylvania Rules of Civil Procedure,

Pennsylvania Rules of Appellate Procedure, and Pennsylvania statutes that include fee-shifting

provisions. This book also touches on how fee-shifting provisions are handled in federal courts

and in other state courts.

Chapter 1 discusses general information and concepts concerning fee-shifting provisions.

This discussion is necessary and will hopefully be useful to anyone using this book, since many

of the rules and statutes that include fee-shifting provisions provide little assistance on how they

are to be handled. Chapter 1 is intended to assist the reader in understanding the differences in

fee-shifting provisions and how they are generally handled by the courts. Be aware that not all

of the areas discussed in Chapter 1 are handled uniformly throughout Pennsylvania courts, as is

true with many areas of law.

Chapter 2 (Pennsylvania Rules of Civil Procedure), Chapter 3 (Pennsylvania Rules of

Appellate Procedure), and Chapter 4 (Pennsylvania statutes) provide the text of the rules and

statutes. Following the text of each statute is a summary of the rule or statute, with a focus on

the fee-shifting provision. The summary identifies what kind of fee-shifting provision the rule or

statute includes and discusses any differences from how fee-shifting provisions are generally

handled (see Chapter 1 for how fee-shifting provisions are generally handled). Additional

references are included under most rules or statutes. The references include secondary sources

that may be helpful and common law cases that discuss and/or cite to the specific rule or statute.

The references are not all-inclusive, but are sources that the author has found to be useful and

may assist anyone using this book in finding further helpful sources of information.

10

Chapter 1 – General Concepts Concerning Attorney’s Fees

1. The “American Rule”

Attorney’s fees statutes are commonly referred to as fee-shifting statutes. A vast

majority of Pennsylvania statutes do not include fee-shifting provisions, but the number

continues to grow. The reason a majority of statutes do not include fee-shifting provisions is

because courts throughout the United States follow the “American Rule.”

The “American Rule” provides that each party must pay their own attorney’s fees. Fox v.

Vice, 131 S. Ct. 2205 (2011); Krassnoski v. Rosey, 454 Pa. Super. 78, 83, 684 A.2d 635, 637

(1996). The American Rule is followed throughout the United States. The Pennsylvania version

of the American Rule is expressed in 42 Pa.C.S.A. § 1726(a)(1), which states, “Attorney’s fees

are not an item of taxable costs except to the extent authorized by section 2503 (relating to right

of participants to receive counsel fees).” Krassnoski, at 84, 684 A.2d at 638; see 42 Pa.C.S.A. §

2503. Therefore, a statutory provision must explicitly allow for the recovery of attorney’s fees

because the words “costs”, “expenses”, and “damages” do not generally include attorney’s fees.

Merlino v. Delaware County, 556 Pa. 422, 426, 728 A.2d 949, 951 n. 2 (1999); Twp. of Marple

v. Weidman, 149 Pa. Commw. 286, 289, 613 A.2d 94, 95 (1992); Corace v. Balint, 418 Pa. 262,

271, 210 A.2d 882, 887 (1965). Attorney’s fees “may not be taxed to [a] party absent express

statutory authorization, a clear agreement of the parties, or some other established exception.”

De Lage Landen Fin. Serv., Inc., v. Rozentsvit, 939 A.2d 915, 923 (Pa. Super. 2007); Cleveland

Asphalt v. Coalition, 886 A.2d 271, 282 n. 6 (Pa. Super. 2005) (quoting Lavelle v. Loch, 532 Pa.

631, 617 A.2d 319 (1992)); Astrue v. Ratliff, 130 S.Ct. 2521 (2010) (statutes such as the Equal

Access to Justice Act that award attorney fees to the prevailing party are exceptions to the

“American Rule” that each litigant bear his own attorney’s fees); Trizechahn Gateway, LLC v.

Titus, 976 A.2d 474, 482-83 (Pa. Super 2009); Gall v. Crawford, 982 A.2d 541, 549 (Pa. Super

2009); Petow v. Warehime, 996 A.2d 1083, 1087-88 (Pa. Super 2010) (a litigant cannot recover

counsel fees from an adverse party unless there is express statutory authorization, a clear

agreement of the parties, or some other established exception); In re Nomination Petition of

Lawrence M. Farnese, 17 A.3d 357, 360 (Sup. Ct. Pa. 2011) (election code regulations with

respect to attorney fees are consistent with the general policy of the American Rule, where

shifting of costs is exceptional); Cresci Construction Servs. v. Martin, 64 A.3d 254 (Pa. Super

2013) (appellant failed to establish any authority or exception to support an award of attorney

fees, and the court found no abuse of discretion by the trial court).

The American Rule is in direct contrast to the English Rule, which requires the losing

party to pay the prevailing party’s attorney’s fees. One argument in favor of the English Rule is

that it makes the successful party whole because all costs and counsel fees are paid by the losing

party. Rodulfa v. United States, 295 F. Supp. 28, 29 (D.D.C. 1969). Several arguments in

support of the American Rule include,

since litigation is at best uncertain one should not be penalized for merely

defending or prosecuting a lawsuit, and that the poor might be unjustly

discouraged from instituting actions to vindicate their rights if the penalty for

losing included the fees of their opponents’ counsel. Also, the time, expense, and

11

difficulties of proof inherent in litigating the question of what constitutes

reasonable attorney’s fees would pose substantial burdens for judicial

administration.

Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (citations

omitted). Statutes permitting attorney’s fees are said to be in derogation of common law,

Cleveland Asphalt, 886 A.2d at 282, and are usually intended to serve a particular public policy

purpose. Allowing the recovery of attorney’s fees in civil rights cases “serves as a ‘private

attorney general,’ helping to ensure compliance with civil rights laws and benefiting the public

by ‘vindicating a policy that Congress considered of the highest priority.’” Martin v. Frankin

Capital Corp., 126 S. Ct. 704, 709 (2005) (quoting Newman v. Piggie Park Enter., Inc., 390 U.S.

400, 402 (1968)); Fox v. Vice, 131 S. Ct. 2205 (2011). Allowing the recovery of attorney’s fees

under remedial statutes “signals the General Assembly’s intent ‘to encourage potential plaintiffs

to seek vindication of important rights and to deter defendants from conduct violating those

rights.’” Krebs v. United Refining Co., 893 A.2d 776, 788 (Pa. Super. 2006) (quoting

Krassnoski, 454 Pa. Super. 78, 684 A.2d at 637-38). Courts throughout the United States have

recognized the importance of allowing fee-shifting statutes in certain situations. See, e.g.,

Graziano v. Harrison, 950 F.2d 107, 113 (3rd Cir. (N.J.) 1991) (to encourage private litigants to

enforce specific statutes or rights, acting as private attorney generals); Shadis v. Beal, 685 F.2d

824, 832 (3rd Cir. (Pa.) 1982) (to encourage compliance with the law); Thurber v. Bill Martin

Chevrolet, Inc., 487 A.2d 631, 635 (Me. 1985) (to encourage those who might have a valid claim

to pursue it where it might otherwise be impractical, and to assist parties in finding effective

legal representation); Kessler v. Associates Fin. Serv. of Hawaii, Inc., 639 F.2d 498, 499 (9th

Cir. (Ha.) 1981) (to make litigants whole); Associated Indem. Corp. v. Warner, 694 P.2d 1181,

1183 (Ariz. 1985) (to mitigate the burden of the expense of litigation); Lincoln Street Realty Co.

v. Green, 373 N.E.2d 1172, 1174 (Mass. 1978) (to deter illegal conduct and punish those who

violate certain laws); and Twp. of South Whitehall v. Karoly, 891 A.2d 780, 783 (Pa. Commw.

2006) (to promote the early resolution of cases). “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.” Lucchino v. DEP, 809 A.2d

264, 268 (Pa. 2002). Pennsylvania courts have held that foreign judgments awarding attorney’s

fees pursuant to the English rule may be enforceable, and not repugnant to Pennsylvania public

policy. Olympus Corp. v. Canady, 962 A.2d 671, 677-78 (Pa. Super 2008).

2. Waiver of Attorney’s Fee; Litigating Under English Rule; Contractual Fee-Shifting

Agreements

The parties may agree to waive attorney’s fees or to litigate under the English Rule. If

the parties agree to waive attorney’s fees as a part of a settlement agreement, the court will

usually enforce the agreement. Evans v. Jeff D., 475 U.S. 717, 106 S. Ct. 1531 (1986).

“[W]here one party expressly contracts to pay the other’s fees, such an obligation will be

enforced.” Putt v. Yates-American Mach. Co., 722 A.2d 217, 226 (Pa. Super. 1998). When a

contract includes a provision providing for the “costs of collection” or “reasonable collection and

legal costs,” it will usually “include reasonable attorney’s fees in the event that it is necessary to

institute legal action to collect.” Rozentsvit, 939 A.2d at 923; Wrenfield Homeowners Ass’n,

Inc. v. DeYoung, 410 Pa. Super. 621, 629, 600 A.2d 960, 964 (1991).

12

Where a contract agreement provides that the breaching party must pay the other party’s

attorney’s fees, the court will only permit the non-breaching party to recover reasonable

attorney’s fees, not actual attorney’s fees. See McMullen v. Kutz, 925 A.2d 832, 835 (Pa. Super.

2007) (concluding “when a contract provides for the award of counsel fees, bud does not specify

that they must be reasonable, the trial court must nonetheless examine the fees for

reasonableness”); McMullen v. Kutz, 985 A.2d 769, 776-77 (Pa. Super. 2009). In other words,

even when the contract providing for attorney’s fees does not specify that they must be

reasonable, a reasonableness requirement is implicit in the agreement. Id. at 834. Courts will

construe contractual fee shifting provisions in accordance with their plain and ordinary meaning.

Boro Construction, Inc. v. Ridley School District, 992 A.2d 208, 220 (Pa. Super. 2010).

However, even where a contract authorizes fee shifting in a particular amount, that amount must

be reasonable under the circumstances. Graystone Bank v. Grove Estates, LP, 58 A.3d 1277 (Pa.

Super 2012) (fee shifting provision in warrant of attorney confessing judgment contained in

promissory note signed by developer and providing that bank was entitled to 10% of the

outstanding loan balance, was subject to a reasonableness standard). In addition, a provision in a

contract requiring payment of attorney fees must not be ambiguous. Trizechahn Gateway, LLC

v. Titus, 976 A.2d 474, 482-83 (Pa. Super 2009) (lease provision that required tenant to pay

attorney’s fees if legal action was required was not ambiguous).

Attorney’s fees can be awarded for breach of various agreements where the agreement

provides for attorney’s fees under certain circumstances. In re Estate of Johnson, 970 A.2d 433,

440 (Pa. Super 2009) (holding that ex-wife was not entitled to attorney fees and legal costs

incurred in prosecuting alleged breach of marital dissolution agreement (MDA) by estate of

father, since executor's conduct in not paying a few hundred dollars in medical expenses was not

dilatory, obdurate, or vexatious).

As a matter of first impression, the Superior Court held when an insurance policy does

not grant the insurer the right to recover defense costs, insurer will not be permitted to recover

defense costs expended when defending under a reservation of rights. American and Foreign

Ins. v. Jerry’s Sport, 948 A.2d 834 (Pa. Super. 2008). This holding opposes a majority of

jurisdictions, “which have found a right of reimbursement based on the existence of an implied

contract between the insurer and its insured created through a reservation of rights letter, in

addition to unjust enrichment of the insured from the insurer’s coverage of defense costs for

claims that were determined to not be within the coverage provided by the policy.” Id. at 844

(citing Buss v. Superior Court, 939 P.2d 766 (Cal. 1997)). In Jerry’s Sport, the Court explained

that the insurer has a duty to defend whenever allegations contained in the underlying complaint

are either actually or potentially within the scope of the insurance agreement, there is no unjust

enrichment because an insurer benefits by preserving its right to control the defense and its

ability to take actions to mitigate any future indemnification responsibilities, and undertaking the

defense pursuant to a reservation of a right to reimbursement not included in the insurance policy

is an attempt by the insurer to unilaterally modify the written insurance contract. Id. at 845-852.

The Court reasoned:

A reservation of rights letter does not create a contract allowing an insurer to

recoup defense costs from its insured, but rather, is a means to assert defenses and

exclusions which are already set forth in the policy. Certainly, if an insurer

13

wishes to retain its right to seek reimbursement of defense costs in the event it

later is determined that the underlying claim is not covered by the policy, the

insurer is free to include such a term in its insurance contract. Absent such a

provision in the policy, an insurer should not be permitted to unilaterally amend

the policy by including the right to reimbursement in its reservation of rights

letter.

Id. at 849 (quoting LA Weight Loss Ctrs., Inc. v. Lexington Ins. Co., 2006 WL 689109 (Pa. C.P.

2006)).

3. Two Broad Categories: (1) Attorney’s Fees Available to One Party Versus Both Parties

& (2) “May” Versus “Shall” Provisions

Attorney’s fee provisions fit into several broad categories. First, whether the statute

allowing for attorney’s fees makes the fees available to one party or both parties. The former

category authorizes only one side to recover attorney’s fees (e.g., plaintiff or defendant), while

the latter category authorizes attorney’s fees to whichever party prevails. Sometimes statutes

that make attorney’s fees available to both parties have different standards depending on whether

the party requesting attorney’s fees is a plaintiff or defendant.

Second, whether the statute states attorney’s fees “shall” or “may” be awarded. Be aware

that the language of the statute and the legislative intent may not render all “shall” statutes as

mandatory and all “may” statutes as discretionary. When an award of attorney’s fees is

discretionary, the trial court should consider “whether an award of fees would, in the

circumstances of the particular case under consideration, promote the purposes of the specific

statute involved.” Krassnoski, 454 Pa. Super. at 85, 684 A.2d at 639. After all, the general

intent of a rule permitting the recovery of attorney’s fees is not to penalize all parties who do not

prevail in an action. Twp. of South Strabane v. Piecknick, 546 Pa. 551, 559-60, 686 A.2d 1297,

1301 (Pa. 1996). For example, in a divorce action, attorney’s fees are to be construed narrowly;

“counsel fees are awarded only upon a showing of need.” McCoy v. McCoy, 888 A.2d 906, 910

(Pa. Super. 2005). Compared to cases brought under the Civil Rights Act, which require

attorney’s fees to be construed broadly; “prevailing party should ordinarily recover an attorney’s

fee unless special circumstances would render such an award unjust.” Krebs, 893 A.2d at 789.

The same is true in federal court. Federal Rule 54(d)(1) gives federal district courts

discretion to award costs to the prevailing party unless a federal statute says otherwise. Marx v.

General Revenue Corp., 133 S. Ct. 1166 (2013) (the attorney fee provision of the FDCPA does

not provide otherwise, and thus, a district court may award attorney fees and costs to a prevailing

party in a case brought pursuant to FDCPA without finding that the plaintiff brought the case in

bad faith and for the purpose of harassment).

4. Prevailing Party

When a statute or contract provision permits or requires attorney’s fees to be paid to the

prevailing party, it is necessary to define “prevailing party.” In Profit Wize Marketing v. Wiest,

2002 Pa. Super. 380, 812 A.2d 1270 (2002), the Superior Court had to address the issue of what

14

prevailing party means in a contract, for purposes of whether a party was entitled to attorney’s

fees after the parties reached a settlement. The Court stated:

“prevailing party,” is commonly defined as ‘a party in whose favor a judgment is

rendered, regardless of the amount of damages awarded.’ While this definition

encompasses those situations where a party receives less relief than was sought or

even nominal relief, its application is still limited to those circumstances where

the fact finder declares a winner and the court enters judgment in that party’s

favor. Such a pronouncement does not accompany a compromise or settlement.

Id. at 380, 812 A.2d 1275-75 (citations omitted) (emphasis added). The Court noted, Black’s

Law Dictionary, 7th ed. at 1206, defined prevail as, “to obtain the relief sought in an action; to

win a lawsuit.” Id. at 380, 812 A.2d at 1275. Most settlement agreements are the result of

compromise and neither party usually emerges as the clear winner. Id. The parties are still free

to define who the prevailing party is in a settlement, what criteria might constitute a prevailing

party in the case of a settlement, or to incorporate the allocation of attorney’s fees and costs into

the settlement agreement. Id. at 380, 812 A.2d at 1276. The Court was aware that its definition

of “prevailing party,” with respect to settlement agreements, was in conflict with many federal

cases. See, e.g., Barrios v. California Interscholastic Fed’n, 277 F.3d 1128 (9th Cir. 2002)

(plaintiff constitutes a “prevailing party” entitled to attorney fees and costs under the Americans

With Disabilities Act, 42 U.S.C.A. § 12205, where settlement is reached between the parties);

Disabled in Action of Pennsylvania v. Pierce, 789 F.2d 1016 (3rd Cir. 1986) (plaintiff is a

“prevailing party” that is entitled to an award of expenses under the Civil Rights Attorney’s Fee

Award Act, 42 U.S.C.A. § 1988, where it obtained a significant amount of relief through a

settlement); ); Lefemine v. Wideman, 133 S. Ct. 9 (2012) (abortion protestor was the “prevailing

party” entitled to attorney fees under the Civil Rights Attorney Award Act because when an

injunction awarded him actual relief on the merits of his claim that materially altered the legal

relationship between the parties by modifying defendant’s behavior in a way that directly

benefits plaintiff); D.F. v. Collingswood Borough Board of Ed., 694 F.3d 488 (3d Cir. 2012)

(determination that student in a case brought for violation of the Individuals with Disabilities in

Education Act (IDEA) was the prevailing party and was entitled to attorney fees was not an

abuse of discretion); Lima v. Newark Police Dept., 658 F.3d 324, 332 (3d Cir. 2011) (under §

1988, a “prevailing party” is one who has been awarded some relief by the court); Farrar v.

Hobby, 506 U.S. 103, 113 S. Ct. 566 (1992) (an individual who obtains significant relief in a

settlement under the Civil Rights Attorney’s Fee Awards Act may constitute a “prevailing

party”). The Court noted the General Assembly is free to define “prevailing party” however it

likes, Profit Wize Marketing, 2002 Pa. Super. 380, 812 A.2d at 1277 n. 4, but in the absence of

clear language in a statute or contract, a party to a settlement will not be entitled to attorney’s

fees. Note that some Pennsylvania statutes do confer prevailing party status on a party in a

settlement agreement. See 71 P.S. § 2032 (defining “prevailing party” for purposes of awarding

attorney fees as “a party in whose favor an adjudication is rendered on the merits of the case …

or who obtains a favorable settlement approved by the Commonwealth Agency initiating the

case”); Interfaith Community Organization v. Honeywell Int’l, Inc., 726 F.3d 403 (3d Cir. 2013)

(Where a plaintiff has prevailed in its underlying claim, a defendant in a fee shifting case cannot

recover attorney’s fees under the offer of judgment rule, because under those circumstances, it

cannot be said that the plaintiff’s action was frivolous, unreasonable, or without foundation).

15

To determine whether a party is the prevailing party under a state or federal statute, a two

part test is applied: 1) whether the plaintiffs achieved relief; and 2) whether there is a causal

connection between the litigation and the relief from the defendant. D.F. v. Collingswood

Borough Board of Ed., 694 F.3d 488 (3d Cir. 2012).

5. Equity Power of the Court & Standard of Review

“The imposition of costs and counsel fees is an exercise of the equity powers of the

court.” Larry Pitt & Assoc. v. Long, 716 A.2d 695, 702 (Pa. Commw. 1998). “Courts possess

great latitude and discretion in awarding attorney’s fees when authorized by statute.” James

Corp. v. North Allegheny Sch. Dist., 938 A.2d 474, 489 (Pa. Commw. 2007). The court of first

instance determines whether to allow counsel fees and the appropriate fee award, and its

judgment will not be disturbed on appeal except for palpable abuse of discretion (“Abuse of

Discretion Standard”). Twp. of South Whitehall v. Karoly, 891 A.2d 780, 785 (Pa. Commw.

2006). The Court in Karoly, 891 A.2d at 784-85 (quoting In re Trust Estate of LaRocca, 431 Pa.

542, 548-49, 246 A.2d 337, 340 (1968)), explained the reason for this deferential standard:

The amount of fees to be allowed to counsel, always a subject of delicacy if not

difficulty, is one peculiarly within the discretion of the court of first instance. Its

opportunities of judging the exact amount of labor, skill and responsibility

involved, as well as its knowledge of the rate of professional compensation usual

at the time and place, are necessarily greater than ours, and its judgment should

not be interfered with except for plain error.

6. Determining a Reasonable Fee

Once a court has determined that an award of attorney’s fees is appropriate, the court

must then determine what a reasonable attorney’s fee is. “Traditionally, the determination of the

amount of attorney’s fees and interest awarded is left to the trial judge” and not the jury, unless

explicitly stated otherwise. Birth Center v. St. Paul Co., Inc., 727 A.2d 1144, 1160 (Pa. Super.

1999). “As a general rule, the method of determining a fee for legal services provided on an

hourly basis is to multiply the total number of hours reasonably expended by the reasonable

hourly rate”; this is known as the “lodestar” method. Signora v. Liberty Travel, Inc., 886 A.2d

284, 293 (Pa. Super. 2005); Krebs, 893 A.2d at 792-93. The lodestar fee is assumed to give an

estimate of a reasonable fee, which “a court has the discretion to adjust ... in light of the degree

of success, the potential public benefit achieved, and the potential inadequacy of the private fee

arrangement. Signora, 886 A.2d at 293; see also McKenna v. City of Philadelphia, 582 F.3d

447, 455-56 (3d Cir. 2009) (lodestar estimation detailed); Roethlein v. Portnoff Law Assoc.,

Ltd., 25 A.3d 1274, 1282 (Pa. Super. 2011) (lodestar method is the starting point for calculating

an award of attorney’s fees); Lohman v. Borough, 374 F.3d 163, 167 (3d Cir. 2009)

(consideration of settlement negotiations, for example, may contribute to departing from the

lodestar fee). Of these adjustment factors, “the prevailing party’s degree of success is the critical

consideration in determining an appropriate fee award.” Signora, 886 A.2d at 293.

16

In Perdue v. Kenny, the Supreme Court of the United States held that the calculation of

an attorney’s fee based on the lodestar may be increased due to superior attorney performances,

but only in extraordinary circumstances. 130 S. Ct. 1662, 1671-75 (2010). The “strong

presumption” that the lodestar is reasonable may be overcome “in those rare circumstances in

which the lodestar does not adequately account for a factor that may be properly considered in

determining a reasonable fee.” Id. McKenna, 582 F.3d at 445-56 (district court has discretion to

adjust lodestar upward or downward based on the results obtained in a case).

However, the court may not lower an attorney’s fee to achieve proportionality with the

size of the verdict because “an approach that emphasizes financial recovery could serve as a

disincentive for attorneys to pursue actions under remedial statutes where the financial recovery

may be low, or where successful litigation under the statute may result in a declaratory judgment

or injunction.” Krebs, 893 A.2d at 790. For such reasons, attorney’s fees may still be awarded

under the Declaratory Judgment Act. In addition, the attorney’s fees awarded may exceed

recovered damages. Id. at 491; see Mountain View Condominium Assoc. v. Bomersbach, 734

A.2d 468 (Pa. Commw. 1999) (court awarded more than $46,000 in attorney’s fees where

damages were less than $3,500). Courts are to exclude from the determination of the lodestar,

any hours not reasonably expended. McKenna, 582 F.3d at 445-56.

The forum rate rule says that the relevant rate for calculating attorney’s fees if the

relevant rate in the forum. There are two exceptions to that rule. First, the need for special

expertise of counsel from a distant district must be shown, or second, it must be shown that local

counsel is unwilling to handle the case. Interfaith Community Organization v. Honeywell Int’l,

Inc., 726 F.3d 403 (3d Cir. 2013) (plaintiffs adequately demonstrated that its local counsel in

New Jersey was unwilling to handle the case, sufficient for an exception to the forum-rate to

apply).

An attorney fee can be divided between multiple attorneys or law firms where specified

by prior agreement. Ruby v. Abington Mem. Hosp., 50 A.3d 128 (Pa. Super 2012).(law firm

initially retained by client was entitled to 75% of attorney fees where lawyer handling matter left

the firm and took client with him, based on a provision in an employment agreement with

original firm).

7. Who May Award Attorney’s Fees

Only components of the unified judicial system have authority to award attorney’s fees, unless

specific authority is granted by statute. Independence Blue Cross v. W.C.A.B. (Frankford

Hosp.), 820 A.2d 868, 874 (Pa. Commw. 2003); see 42 Pa.C.S.A. § 2503. Although the court

has the authority to sua sponte raise the issue of attorney’s fees as costs under some statutes,

Ramich v. W.C.A.B. (Schatz Electric, Inc., 564 Pa. 656, 770 A.2d 318 (2001); Kulp v. Hrivnak,

765 A.2d 796, 799 (Pa. Super. 2000), a party should always petition the court for attorney’s fees.

A court should grant leave to amend a claim to include a request for fees and costs when no

prejudice can be shown. Solebury Twp. v. Dep’t of Environmental Protection, 863 A.2d 607,

610 (Pa. Commw. 2004). If the petition is not made timely, the court lacks jurisdiction to award

such fees. Grove v. Scott, 17 Pa. D. & C. 4th 212, 217 (1992); see 42 Pa.C.S.A. § 5505; );but

see Sebelius v. Cloer, 133 S. Ct 1886 (2013) (Supreme Court held that an untimely, but

17

unsuccessful petition brought under the National Childhood Vaccine Injury Act (NCVIA) in

good faith and a reasonable basis that it is filed with the clerk of the Court of Federal Claims is

eligible for an award of attorney fees). Pre-litigation conduct also cannot be a basis for an award

of attorneys fees under 42 Pa. C.S. Section 2503(9). Bucks County Servs., Inc. v. Philadelphia

Parking Authority, 71 A.3d 379 (Pa. Cmwlth. 2013).

8. Petitioning the Court

The court in Shevchik v. Zwergel, 8 Pa. D. & C. 4th 66, 67 (1990), explained that under

42 Pa.C.S.A. § 2503, a request for attorney’s fees:

should be raised at the conclusion of the underlying action, utilizing the record

and history in the underlying action as a basis to support the claim. To hold

otherwise would raise an ancillary matter in every litigation that would serve only

to complicate the issues and perhaps even keep a jury from embarking on a

rightful path. These are matters that are best decided by the court upon a petition

at the conclusion of the case. In this manner the issues would be reserved for the

court and not be entwined with the issues being tried by a jury. Accordingly, the

right to bring such a claim is preserved but separated and heard when all the facts

in the underlying case are known.

See also 25A Standard Pennsylvania Practice 2d § 127:53. This reflects the approach that is

preferred by many Pennsylvania courts; however, some judges have argued that a petition for

attorney’s fees should be made prior to the entry of final judgment. See Miller Electric Co., 907

A.2d 1051 (Baer, J., dissenting). A party must make a motion to the court for attorney’s fees

within ten days of final judgment. See Pa. R.C.P. 227.1 (pertaining to post-trial relief). A

“petition to assess collection and legal costs” is intended to serve the same function as a post-trial

motion for attorney’s fees, and therefore, should not be treated differently. DLL Financial Serv.,

Inc. v. Rozentsvit, 939 A.2d 915, 923 (Pa. Super. 2007).

When a party appeals the trial court’s order, thus triggering Pa. R.A.P. 1701(a) (providing

that, “the trial court … may no longer proceed further in the matter” once an appeal has been

taken), the trial court may still rule on a timely motion for attorney’s fees since the motion is a

separate, but connected, matter. Old Forge Sch. Dist. v. Highmark, Inc., 924 A.2d 1205, 1211

(Pa. 2007).

9. Appealability of Attorney’s Fees

“It is settled law that counsel fees cannot be sued for separately from the principal claim,”

because the matter is connected but ancillary to the underlying action, and the allowance of such

would “constitute an impermissible splitting of but one cause of action.” Miller Electric Co. v.

DeWeese, 589 Pa. 167, 907 A.2d 1051, 1055, 1057 (2006). Although attorney’s fees may not be

sued for separately, they may be appealed separately from the underlying action only when the

appellant does not challenge the merits of the underlying action.” Kulp, 765 A.2d at 798-99.

Generally, a party cannot appeal an order denying attorney’s fees unless it is a final order

18

reduced to judgment. Hall v. Lee, 285 Pa. Super. 542, 545-48, 428 A.2d 178, 179-81 (1981).

Finality is required so that all appeals may be brought together in order to prevent piecemeal

litigation. Miller Electric Co., 589 Pa. 167, 907 A.2d 1060 (Baer, J., dissenting) (quoting

Vaccone v. Syken, 899 A.2d 1103, 1107 (Pa. 2006)). The court possesses the inherent power to

stay further proceedings on the same cause of action (no matter what the form of action is) until

the costs have been paid. National Retailers Mut. Ins. Co. v. Sley Sys. Garages, Inc., 44 Pa. D.

& C. 598, 599-600 (1942).

10. Hearing on Attorney’s Fees; Due Process Requirements

Due process requirements, such as fair notice and an opportunity for a hearing on the

record (or to present a defense in some manner), apply to attorney’s fees. Sometimes the

language of the statute providing for attorney’s fees is enough to put a party on notice that they

will be responsible for the opposing party’s attorney’s fees. Ramich, 564 Pa. at 668, 770 A.2d at

325. Additionally, an opportunity to defend may sometimes be satisfied by having an

opportunity to create a record that demonstrates attorney’s fees are not warranted. Id. The party

seeking attorney’s fees bears the burden of proving entitlement to such fees. Commw., Dep’t of

Transp., Bureau of Driver Licensing v. Smith, 145 Pa. Commw. 164, 168, 602 A.2d 499, 501

(1992) (citing Jones v. Muir, 511 Pa. 535, 542, 515 A.2d 855, 859 (1986)).

Generally, the party requesting attorney’s fees will file a fee petition, describing the work

done and the amount requested. The party opposing the award of attorney’s fees will then have

an opportunity to file an answer to challenge the work done and fee requested. Failure to object

to the fee petition or particular items therein may constitute a waiver. Karoly, 891 A.2d at 785.

In the absence of an objection, the court will usually grant the items and fee requested. If

necessary, the court will then hold a fee hearing to determine whether attorney’s fees are

warranted and what would constitute a reasonable fee in the particular case. If the record clearly

supports an award of attorney’s fees, a hearing is not required. Kulp, 765 A.2d at 800.

11. Appellate Review of an Award of Attorney’s Fees

If the trial court does not explain the basis and standard for an award of attorney’s fees,

the appellate court will remand the matter. Old Forge Sch. Dist. v. Highmark, Inc., 924 A.2d

1205, 1213 (Pa. 2007); Sec. Mut. Life Ins. Co. of New York v. Contemporary Real Estate

Assoc., 979 F.2d 329, 332 (3rd Cir. 1992) (federal court applying Pennsylvania law). In Sec.

Mut. Life Ins. Co. of New York, the Circuit Court reversed and remanded the district court’s

decision awarding attorney’s fees because, “it conducted no hearing and made no findings of fact

as to the reasonableness of the fees requested and gave no statement as to the standard governing

its award,” and therefore, the Circuit Court could not “adequately review the reasonableness of

the action of the district court in awarding counsel fees under the circumstances.” Id. An

appellate court will also reverse a trial court’s grant of attorney’s fees “where the decision is

based on factual findings with no support in the evidentiary record or legal factors other than

those that are relevant to such an award.” Holz v. Holz, 850 A.2d 751, 760 (Pa. Super. 2004).

When reviewing the grant of attorney’s fees, an appellate court must consider,

19

the amount of work performed; the character of the services rendered; the

difficulty of the problems involved; the importance of the litigation; ... the degree

of responsibility incurred; whether the fund involved was “created” by the

attorney; the professional skill and standing of the attorney in his profession; the

results he was able to obtain; the ability of the client to pay a reasonable fee for

the services rendered; and, very importantly, the amount of money or the value of

the property in question.

Id. at 761 (citing LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968). “An appellate court has no

power under any statute or rule to award counsel fees for proceedings below and can only award

fees for vexatious or obdurate conduct through a frivolous appeal.” Piecknick, 546 Pa. at 558 n.

4, 686 A.2d at 1300; see Pa. R.A.P. 2744. The appellate court may remand the case to the trial

court to determine reasonable attorney’s fees for a frivolous appeal. Id. at 557, 686 A.2d at

1300; see Pa. R.A.P. 2744.

12. Multiple Claims

If multiple claims are raised – some of which permit the recovery of attorney’s fees and

others that do not – only time spent on the claims permitting attorney’s fees can be recovered.

Karoly, 891 A.2d at 785 n. 7 (citing Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa. Super.

2005)). If multiple claims are raised – some of which the plaintiff is successful on and others

that the plaintiff is unsuccessful on – only time spent on successful claims can be recovered.

Karoly, 891 A.2d at 786. “Once the prevailing party has established the relatedness of the claims

it is the opposing party’s ‘burden to establish a basis for segregating the hours spent on the

successful and unsuccessful claims.’” Id. (quoting Okot v. Conicelli, 180 F. Supp. 2d 238

(2002)). So long as the client retains a “material interest” in the fee litigation, attorney’s fees

may include the reasonable time spent preparing and litigating the fee petition. Birth Center, 727

A.2d at 1161. The Superior Court defines “material interest” as, “whether a client has anything

to lose if the counsel fees are denied. If counsel must prevail on the fee petition to get paid at all,

then the client has nothing to lose if counsel fees are denied because the client is not liable for

the fees.” Id. at 1161 n. 13. It should go without saying that an award for attorney’s fees may

only include what could properly be billed to the client; if it is not billable to the client, it is not

billable to the opposing party as a part of costs. In Vitac Corp. v. W.C.A.B. (Rozanc), 578 Pa.

574, 582-83, 854 A.2d 481, 486 (2004), the Pennsylvania Supreme Court permitted the services

of paralegals, law clerks, and recent law school graduates to be itemized as attorney’s fees under

section 440(a) of the Workers’ Compensation Act. The Court noted, “allowing the recovery of

paraprofessional fees as a component of statutory attorney’s fees is likely to promote the public’s

interest in efficient lawyering by helping to ensure that some tasks will be assigned to lower-cost

personnel.” Id. at 582, 854 A.2d at 485-86.

13. Sovereign Immunity

Costs, including attorney’s fees, cannot be imposed upon the Commonwealth unless a

statute clearly imposes liability, Richmond v. Pennsylvania Higher Ed. Assistance Agency, 6 Pa.

Commw. 612, 615, 297 A.2d 544, 546-47 (1972), or the Commonwealth waives its sovereign

immunity from suit. Inmates of B-Block v. Jeffes, 87 Pa. Commw. 98, 102-03, 483 A.2d 569,

20

571-72 (1984). However, sovereign immunity will not shield the Commonwealth or an entity

thereof when it makes a frivolous appeal. Pennsylvania, Dep’t of Transp. v. W.C.A.B. (Tanner),

654 A.2d 3, 6 (Pa. Commw. 1994). General immunity from liability for costs, including

attorney’s fees, usually extends to state officers, boards, or other agencies, counties,

municipalities and federal agencies. Richmond, 6 Pa. Commw. 612, 297 A.2d 544, 547; In re

Handel, 570 F.3d 140, 144 (3d Cir. 2009)..

14. Miscellaneous Information

Several comments about what may be included as reasonable attorney’s fees. In Krebs,

893 A.2d at 792 (citations omitted), the Court noted:

[T]he form of fee arrangement between the prevailing party and counsel will

generally have little or nothing to do with whether the purposes of the statute are

served in the decision to award fees and costs. An award of attorneys’ fees and

costs may be appropriate even when the attorney has agreed to bring an action

under the statute free of charge. Further, a contingency fee agreement may not

serve as an artificial ceiling, but it is only one of potentially many factors which

should be used to determine the reasonableness of attorneys’ fees already

awarded.

A trial court may apply a multiplier based upon the contingencies and quality of work performed.

Signora, 886 A.2d at 293 (court applied a contingency multiplier of 1.5 to attorney’s fee in class

action suit); see Pa. R.C.P. 1716(5). Such contingency fee arrangements, however, can be

limited by statute. Seitzinger v. Commonwealth of Pennsylvania, 25 A.3d 1299 (Pa. 2011)

(upholding statute that placed a 20% ceiling on contingency fees attorney’s could claim in a

successful worker’s compensation case); Attorney’s fees are permitted in pro bono cases because

it encourages competent attorneys to accept such cases. Krassnoski, 454 Pa. Super. at 84, 684

A.2d at 638. “[W]here a counsel fees award is made in which counsel has acted pro bono, the

award should be made directly to counsel in order to avoid a windfall to the plaintiff.” Id. at 84

n. 3, 684 A.2d at 638. A pro se equivalent of attorney’s fees may not be awarded to a pro se

litigant. Westmoreland County Indus. Dev. Auth. v. Allegheny County Bd. of Prop. Assessment,

Appeals and Review, 723 A.2d 1084, 1087 (Pa. Commw. 1999). Travel time and other out-of-

pocket expenses may sometimes be included in a fee petition. Cleveland Asphalt, 886 A.2d at

283. Generally, the client is liable for attorney’s fees when the attorney harms a third person by

the execution of matters within his authority. American Mut. Liability Ins. Co. v. Zion & Klein,

P.A., 339 Pa. Super. 475, 480, 489 A2d 259, 262 (1985). Awarding of attorneys fees in a statute

that does not specifically specify for attorney’s fees is within the discretion of the court. For

example, under 29 U.S.C.S. § 1132(g)(1), the Third Circuit stated that the decision to award

attorney's fees and costs to a party achieving some degree of success on the merits is entirely

within the discretion of a district court. Thus, after concluding that a party has achieved success

on the merits, a court may consider whether an award of attorney's fees is appropriate using five

factors. They are: (1) the offending parties' culpability or bad faith; (2) the ability of the

offending parties to satisfy an award of attorneys' fees; (3) the deterrent effect of an award of

attorneys' fees against the offending parties; (4) the benefit conferred on members of the plan as

21

a whole; and (5) the relative merits of the parties' position. Templin v. Independence Blue Cross,

2011 U.S. Dist. LEXIS 98482, *1 (E.D. Pa. Aug. 19, 2011).

https://advance.lexis.com/api/document/collection/cases/id/8337-83S1-652J-J2P2-00000-00?page=32&reporter=1293&context=1000516

https://advance.lexis.com/api/document/collection/cases/id/8337-83S1-652J-J2P2-00000-00?page=32&reporter=1293&context=1000516