J-A03038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VALERIE HUYETT                                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

DOUG'S FAMILY PHARMACY

                            Appellee                     No. 776 MDA 2014


               Appeal from the Judgment Entered June 16, 2014
                In the Court of Common Pleas of Berks County
                         Civil Division at No: 08-4706


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                     FILED JUNE 18, 2015

        I respectfully dissent from the learned Majority’s decision.

        Under the American Rule, applicable in Pennsylvania, 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.     Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 482-483

(Pa. 2009) (citation omitted).         The Pennsylvania Legislature has provided

that after a trial in an action brought under the Pennsylvania Human

Relations Act (“Act”),1 a trial court may in its discretion award attorney’s

fees. Section 12(c.2) of the Act provides:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.

1
    Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 953, et seq.
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      If, after a trial held pursuant to subsection (c), the court of
      common pleas finds that a defendant engaged in or is
      engaging in any unlawful discriminatory practice as defined in
      this act, the court may award attorney fees and costs to the
      prevailing plaintiff.

43 P.S. § 962(c.2) (emphasis added).           For the present purposes, two

predominant features of this statute require deference to the trial court.

First, the clear language of this statute provides that it is the trial court that

is independently to find whether any unlawful practice was engaged in or is

being engaged in before considering whether to award counsel fees to a

prevailing plaintiff.   Second, even if an unlawful practice was found or is

found to exist, an award of fees by the trial court is still nonetheless,

discretionary.   Use of the term “may” signals the legislature’s intention to

rest the award of counsel fees and costs within the discretion of the trial

court. Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). This interpretation

is in accord with the statutory construction act which mandates that when

the terms of a statute are clear and free from ambiguity, the court shall not

disregard the letter of the statute to pursue its spirit. Id. (citing 1 Pa.C.S.A.

§ 1921(b)).      Because it is within the prerogative of the legislature to

prescribe when and under what circumstances counsel fees may be

awarded, it follows the legislature also may provide that a trial court may,

independent of any jury, make its own determination for fee purposes. It

has precisely done so here.




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      In its separate independent review of the evidence, the trial court did

not find the testimony of Stephanie Mitchell to be credible. It was upon this

basis that the trial court, as it was entitled, denied an award of counsel fees

to the plaintiff.   Contrary to the Majority, I do not find the jury verdict in

plaintiff’s favor to be controlling on the issue of counsel fees. Pursuant to

statute, the trial court was free to engage in its own analysis of the

evidence.    As in Hoy, the trial court weighed the verdict against the

evidence and determined, in its discretion, that an award of counsel fees

was not appropriate.      I do not read Hoy as narrowly as the Majority by

limiting the effect of that decision to the particular weighing of the evidence

in that case.   The Supreme Court’s holding in Hoy initially and principally

decided that the legislature was clear that it was within a trial court’s

discretion to award counsel fees. I find no support anywhere in Hoy that a

trial court must defer to a jury’s weighing of the evidence when performing

its independent review for fee purposes under the Act.

      Nor do I find the majority’s reliance upon Martin v. Evans, 711 A.2d

458 (Pa. 1998), to be apposite.       In Martin, our Supreme Court granted

review to examine whether the trial court abused its discretion in granting a

new trial based on its determination that the verdict was against the weight

of the evidence. Martin was a personal injury suit. The parties presented

conflicting testimony relating directly to the issue of negligence, and the jury

concluded that the defendant was not negligent. Because the verdict rested


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on a credibility determination, the Court held that the trial court usurped the

jury’s responsibility by disregarding its finding that the defendant was not

negligent.    Determining whether a jury’s verdict is supported by the weight

of the evidence is wholly different from the present situation. Here the trial

court’s authority to award fees is not dependent upon a review of the jury’s

decision.    Instead, the legislature has vested in the trial court the fact-

finding function to determine if it believes any unlawful practice was or is

being committed, and then whether in its discretion counsel fees should be

awarded.     We are not dealing with a trial court’s review of a jury verdict

here, and therefore I do not find Martin to be applicable.

      Because I believe the trial court acted within its sole authority under

Section 12(c.2) of the Act, and it articulated a rational basis for its decision,

I find no abuse of discretion by the trial court in denying an award of

attorney’s fees in this case. I therefore respectfully dissent.




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