        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis L. Ness,                           :
                      Appellant           :
                                          :
                v.                        : No. 1458 C.D. 2014
                                          : Submitted: March 27, 2015
York Township Board of                    :
Commissioners and York County             :
Commissioners                             :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE MARY HANNAH LEAVITT, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                  FILED: September 17, 2015

                This matter is an appeal from an order of the Court of Common Pleas
of York County (trial court) awarding counsel fees to the York Township Board of
Commissioners (Township) under 42 Pa. C.S. § 2503. Because the Township filed
its Petition for Sanctions seeking counsel fees more than 30 days after the trial
court’s final order in this case, we vacate the award of counsel fees for lack of
jurisdiction.
                On November 13, 2013, Dennis L. Ness (Ness), pro se, filed a
Petition for Review against the Township and York County Commissioners
(County), challenging the validity of tax exemption ordinances enacted by the
County and the Township in 2006, 2008 and 2011.              (Petition for Review,
Reproduced Record (R.R.) at 1a-43a.)         The Township moved to dismiss the
Petition for Review.       (Motion to Dismiss Petition for Review and, in the
Alternative Preliminary Objections, R.R. at 81a-87a.) On December 17, 2013, the
trial court entered an order dismissing the Petition for Review with prejudice on
the grounds that Ness lacked standing, that the Petition for Review did not state a
legally cognizable claim, that necessary parties had not been joined, and that the
challenge to the ordinances was not timely. (12/17/13 Trial Court Order and
Opinion, R.R. at 107a-119a.)
             On January 2, 2014, Ness filed a Notice of Appeal appealing this
dismissal, which was docketed in this Court as No. 8 C.D. 2014 (the January 2014
Appeal). Neither the Township nor the County filed any petition for sanctions,
request for counsel fees or motion for any other additional relief within 30 days of
the entry of the trial court’s December 17, 2013 order, either before or after Ness
filed that appeal. In the January 2014 Appeal, Ness failed to file his brief when
due and also failed to file any brief in response to the Court’s April 15, 2014 order
that he file his brief with 14 days or suffer dismissal of the appeal. On May 9,
2014, this Court, accordingly, dismissed the January 2014 Appeal.
             On May 22, 2014, after the dismissal of the January 2014 Appeal and
more than five months after the trial court’s December 17, 2013 final order
dismissing the Petition for Review with prejudice, the Township filed a Petition for
Sanctions, seeking an award of counsel fees against Ness under 42 Pa. C.S. §
2503(9), which permits the award of counsel fees against parties whose conduct in
commencing or litigating a case is “arbitrary, vexatious or in bad faith.” (Petition
for Sanctions, R.R. at 127a-133a.) In the Petition for Sanctions, the Township
asserted that Ness filed the Petition for Review without any basis in law or fact and
solely to harass, and alleged that it had incurred $3,892.70 in counsel fees in
defending against the Petition for Review. (Petition for Sanctions ¶¶13-19, R.R. at


                                         2
129a-130a.) The trial court issued a Rule to Show Cause scheduling argument on
the Petition for Sanctions, but did not set any date by which Ness was required to
file an answer to the Petition for Sanctions. (Order Issuing Rule to Show Cause,
R.R. at 134a.) At the argument of the Township’s Petition for Sanctions, the
Township did not submit any bills from counsel or other evidence of the amount of
counsel fees it had incurred. Rather, the Township addressed only the issue of
whether Ness’s conduct was arbitrary, vexatious or in bad faith. (Transcript of
Sanctions Proceeding (H.T.) at 2-9, R.R. at 137a-144a.) At the close of that
proceeding, the trial court granted the Township’s Petition for Sanctions and
ordered Ness to pay the Township $3,892.70 in counsel fees. (H.T. at 14-16, R.R.
at 149a-151a; 7/22/14 Trial Court Order, R.R. at 153a-155a.)                         This appeal
followed.1
               Ness argues that the trial court was without jurisdiction to award the
Township counsel fees because the Township’s Petition for Sanctions was not filed
within 30 days of the December 17, 2013 order dismissing the Petition for Review.
We agree.2




1
  Generally, an award of counsel fees will not be disturbed absent of an abuse of discretion, if the
trial court’s findings of fact are supported by the record. Township of South Strabane v.
Piecknick, 686 A.2d 1297, 1300 n.6 (Pa. 1996). Whether the trial court had jurisdiction to act on
the Township’s Petition for Sanctions, however, is a question of law as to which the standard of
review is de novo and the scope of review is plenary. Mazur v. Trinity Area School District, 961
A.2d 96, 101 (Pa. 2008).
2
  Ness did not raise this issue before the trial court and did not fully and accurately articulate it
until his reply brief in this appeal. Subject matter jurisdiction, however, is not waivable and may
be raised at any stage of a proceeding by a party or sua sponte by the Court. Blackwell v. State
Ethics Commission, 567 A.2d 630, 636 (Pa. 1989).


                                                 3
               Under Section 5505 of the Judicial Code,3 a trial court lacks authority
to award additional relief sought more than 30 days after its final order in a case.
Strohl v. South Annville Township, (Pa. Cmwlth. Nos. 2162 C.D. 2009 & 2324
C.D. 2009, filed April 13, 2011), slip op. at 11-12, 2011 WL 10858400 at *4; In re
Estate of Bechtel, 92 A.3d 833, 843 (Pa. Super. 2014); Freidenbloom v. Weyant,
814 A.2d 1253, 1255 (Pa. Super. 2003), overruled in part on other issue by Miller
Electric Co. v. DeWeese, 907 A.2d 1051 (Pa. 2006). “A trial court’s jurisdiction
generally extends for thirty days after the entry of a final order …. After the 30
day time period, the trial court is divested of jurisdiction.” Freidenbloom, 814
A.2d at 1255. Accordingly, where a request for counsel fees under 42 Pa. C.S. §
2503 is filed more than 30 days after final judgment, the trial court has no
jurisdiction to act on that request, and its award of counsel fees must be vacated for
lack of jurisdiction.      Strohl, slip op. at 11-14, 2011 WL 10858400 at *4-*5
(vacating award of counsel fees for lack of jurisdiction where motions for
sanctions were filed 38 days or more after trial court orders dismissing complaint
with prejudice); Freidenbloom, 814 A.2d at 1255-56 (vacating award of counsel
fees for lack of jurisdiction where petition for counsel fees was filed 36 days after
discontinuance of action).
               The trial court’s final order in this matter was its dismissal of the
Petition for Review, which was entered December 17, 2013. The Township was
therefore required to file any application for counsel fees within 30 days of that
order, by January 16, 2014. Because the Township took no action to request

3
  Section 5505 of the Judicial Code provides that “[e]xcept as otherwise provided or prescribed
by law, a court upon notice to the parties may modify or rescind any order within 30 days after
its entry, notwithstanding the prior termination of any term of court, if no appeal from such order
has been taken or allowed.” 42 Pa. C.S. § 5505.


                                                4
counsel fees until May 22, 2014, the trial court did not have jurisdiction to act on
that request and its award of counsel fees cannot stand. Strohl, slip op. at 11-14,
2011 WL 10858400 at *4-*5; Freidenbloom, 814 A.2d at 1255-56.
               The fact that Ness filed an appeal that was pending in this Court until
May 9, 2014 does not change this. A motion for counsel fees under 42 Pa. C.S. §
2503 is an ancillary matter separate from the appeal of the trial court’s judgment in
the case. Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 48 (Pa. 2011);
Old Forge School District v. Highmark Inc., 924 A.2d 1205, 1211 (Pa. 2007). The
filing of an appeal therefore does not divest the trial court of jurisdiction over such
a motion for counsel fees. Samuel-Bassett, 34 A.3d at 48; Old Forge School
District, 924 A.2d at 1211.        Because the trial court retained jurisdiction over the
separate issue of counsel fees, Ness’s filing of the January 2014 Appeal did not
prevent the Township from timely filing its request for counsel fees on or before
January 16, 2014.4
               Moreover, this Court’s order in the January 2014 Appeal did not give
the trial court any renewed jurisdiction over this matter. Had this Court reversed
the trial court’s December 17, 2013 order and remanded the case for further
proceedings, the trial court would again have had jurisdiction to act in this case and
a request for counsel fees could be filed before it entered a new final order or


4
   Indeed, any argument that the trial court’s jurisdiction was suspended while the matter was in
this Court is contradicted by both the Township’s and the trial court’s actions. Examination of
the docket in the January 2014 Appeal shows that the record was not remitted to the trial court
until August 20, 2014, more than two and one-half months after the Township filed its Petition
for Sanctions and almost a month after the trial court’s July 22, 2014 order awarding counsel
fees. (8 C.D. 2014 Docket Entries.) Thus, if the trial court lacked jurisdiction to act on counsel
fees while the case was in this Court, the sanctions order would still be void for lack of
jurisdiction.


                                                5
within 30 days of such a new order. Strohl, slip op. at 13, 2011 WL 10858400 at
*5. This Court, however, did not reverse or remand the case to the trial court for
further proceedings. Rather, it dismissed the appeal, leaving the matter as if no
appeal had ever been filed.
             The Township argues that a party must be allowed to delay filing a
motion for counsel fees until appeals are complete because our Supreme Court
noted in Miller Electric Co. that “where one or both parties appeal from the
judgment, the final determination as to whether a [party] ‘wins’ an action … will
depend on the outcome of the appeal.” 907 A.2d at 1056. We do not agree.
             Contrary to the Township’s assertion, Miller Electric Co. does not
hold that an appeal extends the 30-day period after the trial court’s final order in
which a party must file a motion for counsel fees. In Miller Electric Co, the
motion for counsel fees was filed before the final judgment, and the issue was
whether the final judgment on other issues prevented a later ruling on the counsel
fee motion and a timely appeal from the denial of counsel fees, 907 A.2d at 1053-
57, not whether a counsel fee motion can be filed in a trial court where nothing in
the case is pending, long after final judgment, simply because it is within 30 days
after completion of an appeal. Indeed, the Supreme Court in Miller Electric Co.
noted the Superior Court’s holding in Freidenbloom that a motion for counsel fees
must be filed within 30 days of final judgment with apparent approval and only
disagreed with that decision to the extent that it restricted when the trial court must
act on a timely filed motion, stating:

             Freidenbloom stands for the proposition that a praecipe to
             discontinue constitutes a final judgment, and that a trial court
             may only act on a motion for fees that is filed within 30 days
             from final judgment. Here, however, the motion for fees was
             filed prior to the entry of judgment; Freidenbloom does not
                                          6
             address whether the entry of judgment is dispositive of a
             motion for fees filed prior to judgment.
                           *            *            *
             Freidenbloom held a trial court may consider a petition for
             fees filed within 30 days of the entry of final judgment.
             Appellant’s motion for attorney’s fees was filed months prior
             to the entry of judgment, and we disagree that Freidenbloom
             restricts the period of time a trial court may act on a motion
             for fees filed pursuant to § 2503(3).
907 A.2d at 1055-56 (citations omitted) (emphasis in original).
             Any implication in Miller Electric Co that a motion for counsel fees is
not ripe and cannot be filed and granted before the completion of appeals is also
negated by our Supreme Court's later decisions. In Old Forge School District, the
Supreme Court held that this Court as trial court properly addressed a motion for
counsel fees under 42 Pa. C.S. § 2503(9), even though an appeal from the
underlying final order was pending that could have changed the movant’s status as
a prevailing party. 924 A.2d at 1211. See also Samuel-Bassett, 34 A.3d at 48-49
(trial court had authority to award of counsel fees to plaintiffs as prevailing parties
on statutory claim that provided for counsel fees while appeal of the merits was
pending).
             Moreover, consideration of sound judicial policy requires rejection of
the Township’s argument. Delay in filing a motion for counsel fees while an
underlying appeal is pending denies the trial court the opportunity to consider the
fee request at a time when the court is familiar with the case and issues. While the
period that the January 2014 Appeal was pending was relatively brief, that will not
always be the case. The rule advocated by the Township would permit the filing of
a motion for counsel fees years after the events and conduct for which fees are
sought. Therefore, even if it were in our power to extend the period over which a
trial court retains jurisdiction, we would decline to do so.
                                           7
            Because the Township did not file its Petition for Sanctions within 30
days of the trial court’s final order and this Court did not remand the case for any
further proceedings, the trial court no longer had jurisdiction over this case after
January 16, 2014 and was without jurisdiction to act on the Township’s May 22,
2014 Petition for Sanctions.     Accordingly, we vacate the trial court’s order
awarding counsel fees.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                         8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis L. Ness,                      :
                  Appellant          :
                                     :
            v.                       : No. 1458 C.D. 2014
                                     :
York Township Board of               :
Commissioners and York County        :
Commissioners                        :




                                 ORDER


            AND NOW, this 17th day of September, 2015, the order of the Court
of Common Pleas of York County, dated July 22, 2014, is hereby VACATED.




                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Dennis L. Ness,                            :
                           Appellant       :
                                           :
             v.                            :   No. 1458 C.D. 2014
                                           :
York Township Board of                     :   Submitted: March 27, 2015
Commissioners and York                     :
County Commissioners                       :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge



DISSENTING OPINION
BY JUDGE COHN JUBELIRER                                FILED: September 17, 2015

      This case presents an issue of first impression that raises complex procedural
matters and the Majority opinion provides thoughtful analysis in establishing a
plausible new rule. However, when a trial court order is appealed, which party will
ultimately prevail and be entitled to counsel fees is not certain until final resolution
of the appeal. Therefore, where there is an appeal, I would not find that a party
waives its ability to file a motion for counsel fees if the motion is not filed within
thirty days of the trial court’s order. Instead, a party should be permitted to file the
motion for counsel fees within 30 days of an appellate court’s order disposing of
an appeal. There are benefits to permitting a party to wait to file a motion for
counsel fees until after an appeal has been decided, such as promoting judicial
economy and preventing vexatious litigation. Therefore, I respectfully dissent.
      The Majority is correct that our Courts have generally held that: 1) the trial
court does not lose jurisdiction to decide a motion for counsel fees when the
motion is filed within 30 days of the trial court’s final order; and 2) when there is
no appeal from the trial court’s order, the trial court does lose jurisdiction to
consider a motion for counsel fees filed more than 30 days after the trial court’s
final order.   In re Estate of Bechtel, 92 A.3d 833, 843 (Pa. Super. 2014);
Freidenbloom v. Weyant, 814 A.2d 1253, 1255-56 (Pa. Super. 2003), overruled in
part on other grounds by Miller Electric Company v. DeWeese, 907 A.2d 1051
(Pa. 2006). The trial court also does not lose jurisdiction to decide a motion for
counsel fees as a result of the filing of an appeal of a trial court’s order on the
merits. Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 48 (Pa. 2011);
Old Forge School District v. Highmark Inc., 924 A.2d 1205, 1209, 1211 (Pa.
2007). The Majority, therefore, concludes that motions for counsel fees must be
filed with the trial court within 30 days of the trial court’s final order regardless of
whether an appeal has been filed with an appellate court. This is a question our
Courts have not specifically answered.


      The reason an appeal bears on the awarding of counsel fees is that,
generally, counsel fees are awarded to a prevailing party, see Section 1726(a) of
the Judicial Code, 42 Pa. C.S. §1726(a); thus, where there is an appeal of the trial
court’s order, which party ultimately prevails cannot be determined with absolute
certainty until the final disposition, after appeal. Our Supreme Court recognized
this idea in Miller Electric Company, noting that the final disposition did not occur
until “appellant’s status as the prevailing party” was perfected in that case, i.e.,
when the time for appeal expired and no appeal had been filed. Miller Electric


                                        RCJ-2
Company, 907 A.2d at 1056. However, the Supreme Court also noted that, when
an appeal is taken, the final determination regarding who is the prevailing party
entitled to counsel fees “will depend on the outcome of the appeal.” Id.


      In Miller Electric Company, the appellant filed a motion for counsel fees
several months before obtaining a final judgment in its favor on June 27, 2002.
Miller Electric Company, 907 A.2d at 1053. The trial court denied the appellant’s
motion for counsel fees on July 10, 2002 and, on August 8, 2002, the appellant
appealed the denial of the motion for counsel fees to the Superior Court. Id. The
appellee moved to quash the appeal as untimely, which the Superior Court granted.
Id. On appeal to our Supreme Court, the Supreme Court analyzed the relevant law,
stating:

      Freidenbloom held a trial court may consider a petition for fees filed
      within 30 days of the entry of final judgment. Freidenbloom, [814
      A.2d] at 1255. Appellant’s motion for attorney’s fees was filed
      months prior to the entry of judgment, and we disagree that
      Freidenbloom restricts the period of time a trial court may act on a
      motion for fees filed pursuant to [Section] 2503(3) [of the Judicial
      Code]. Section 2503(3) [of the Judicial Code] dictates that a
      garnishee found to have in his possession no indebtedness due “shall
      be entitled to a reasonable counsel fee as part of the taxable costs of
      the matter....” 42 Pa.C.S. § 2503(3). Taxable costs are generally
      payable incident to a final judgment, i.e., after termination of the
      action by discontinuance or final disposition. Novy v. Novy, . . . 188
      A. 328, 331 ([Pa.] 1936). Here, the prothonotary entered judgment
      June 27, 2002; however, appellant’s status as the prevailing party was
      not perfected until 30 days later when the time for appeal expired. In
      cases where one or both parties appeal from the judgment, the final
      determination as to whether a garnishee “wins” an action, in the
      sense that he is found to have no indebtedness due, will depend on the
      outcome of the appeal.

Id. at 1056 (third emphasis added).
                                      RCJ-3
       Because a matter is not finally disposed of until the outcome of the appeal is
known, I believe that Miller Electric Company provides support for permitting a
prevailing party to file a motion for sanctions with the trial court within 30 days of
an appellate court’s final decision.1 In the matter sub judice, the York Township
Board of Commissioners (Township) was not assured of its status as the prevailing
party in the matter until Dennis L. Ness’s (Ness) appeal on the merits was
dismissed by this Court on May 9, 2014 for his failure to file a brief. Since the
Township’s motion for counsel fees2 was filed within 30 days of when the matter
was disposed of on appeal by this Court, I believe that its motion was timely.
Because it is not necessary to find waiver for not filing the motion for counsel fees
sooner, I would not do so.


       There are other benefits in permitting such an appeal. I believe that it would
promote judicial economy, promote the goal of preventing vexatious litigation, and
provide a rule that is parallel to the current appellate procedural rules.


       When an appeal has been filed, it is more efficient to allow parties to wait to
file motions for counsel fees with the trial court until after the appeal has been
decided.     For example, where the trial court is reversed on appeal, the rule

       1
         Of course, as acknowledged by the Majority, in instances when a matter is remanded by
the appellate court to the trial court for further proceedings, a party may file a motion for counsel
fees at any time before the trial court enters a new final order, or within 30 days of the trial
court’s new order.

       2
         Here, the Township filed its motion for counsel fees pursuant to Section 2503(9) of the
Judicial Code, 42 Pa. C.S. § 2503(9). Section 2503(9) entitles a participant to reasonable counsel
fees when “the conduct of another party in commencing [litigation] or otherwise was arbitrary,
vexatious, or in bad faith.” Id.

                                              RCJ-4
proposed by the Majority would require extra work for counsel and for the trial
court, and create an administrative burden for the trial court to monitor the motion
on its active docket, with absolutely no benefit from the costs. Currently, when
motions for counsel fees are filed within 30 days of a trial court’s order and an
appeal is filed, the trial court will often stay the motion for counsel fees pending
the outcome of the appeal. Those motions for counsel fees will not be decided by
the trial court until after the outcome of the appeal is certain; therefore, requiring
the motions to have been filed within 30 days is not necessary.


      Section 2503(9) of the Judicial Code provides the statutory authority for the
Township’s motion for counsel fees in this case. Under this section, participants
are entitled to reasonable counsel fees where “the conduct of another party in
commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42
Pa. C.S. § 2503(9). Because it is possible that evidence of a party’s bad faith or
vexatious conduct in commencing a matter may become more apparent during the
pendency of the appeal, it is advantageous to allow parties to wait to file motions
for counsel fees until after an appeal is decided. In such situations, a rule resulting
in the waiver of a party’s ability to request counsel fees in instances where a party
does not file a motion for counsel fees within 30 days of a trial court’s final order,
even when an appeal has been filed, undermines the goal of Section 2503 of
discouraging vexatious and improper litigation.


      The Pennsylvania Rules of Appellate Procedure permit litigants to wait to
file a motion for counsel fees until after the outcome of an appeal is determined.
Pa. R.A.P. 2744, 2751. Rule 2744 provides, in relevant part, as follows:


                                        RCJ-5
       an appellate court may award as further costs damages as may be just,
       including (1) a reasonable counsel fee . . . if it determines that an
       appeal is frivolous or taken solely for delay or that the conduct of the
       participant against whom costs are to be imposed is dilatory, obdurate
       or vexatious.[3]

Pa. R.A.P. 2744. Regarding when a participant must request counsel fees from the
appellate court, Rule 2751 states that, “[a]n application for further costs and
damages must be made before the record is remanded, unless the appellate court,
for cause shown, shall otherwise direct.” Pa. R.A.P. 2751. With respect to the
timing of the remand of the record, Rule 2572 of the Pennsylvania Rules of
Appellate Procedure provides, in relevant part, that:

       (a) General rule. Unless otherwise ordered:

           (1) [t]he record shall be remanded to the court or other tribunal
           from which it was certified at the expiration of 30 days after the
           entry of the judgment or other final order of the appellate court
           possessed of the record.

           (2) [t]he pendency of an application for reargument, or of any other
           application affecting the order, or the pendency of a petition for
           allowance of appeal from the order, shall stay the remand of the
           record until the disposition thereof, and until after 30 days after
           the entry of a final order in the new appellate court possessed of
           the record.



       3
         Rule 2744 effectuates Section 2503 of the Judicial Code at the appellate level. Under
Pennsylvania law, “attorneys’ fees are recoverable from an adverse party to a cause only when
provided for by statute, or when clearly agreed to by the parties.” Commonwealth, Department
of Transportation v. Manor Mines, Inc., 565 A.2d 428, 433 (Pa. 1989) (quoting Fidelity-
Philadelphia Trust Company v. Philadelphia Transportation Company, 173 A.2d 109, 113 (Pa.
1961)). Section 2503 of the Judicial Code provides the legislative authorization for Rule 2744.
G. Darlington, K. McKeon, D. Schuckers & K. Brown, Pennsylvania Appellate Practice §
2744.2 (West 2014).

                                           RCJ-6
       (b) Supreme Court orders. The time for the remand of the record
       pursuant to subdivision (a) following orders of the Supreme Court
       shall be
          ...

           (2) 14 days in all other cases.

Pa. R.A.P. 2572 (emphasis added). Because Rule 2572 stays the remand of the
record pending the outcome of an appeal from an appellate court, pursuant to Rule
2744 parties are permitted to wait to file applications for counsel fees with the
appellate court until the matter is disposed of on appeal.                  I would utilize an
approach similar to Rule 2744 at the trial court level, which permits parties to file
motions for counsel fees with the trial court within 30 days of when the matter is
resolved after appeal.


       These procedural matters are complex; I, therefore, believe a simple
approach would be best here, which reduces waiver of the ability to file motions
for counsel fees. Because there is no prohibition against permitting a motion for
counsel fees to be filed with the trial court within 30 days of when a matter is
resolved after appeal, and because there are reasons of efficiency and policy to
permit such filings, I would find that the motion for counsel fees was timely.4



                                                 ________________________________
                                                 RENÉE COHN JUBELIRER, Judge




       4
          It may be that a clarification in the procedural rules, both civil and appellate, would be
helpful in setting forth a consistent approach to counsel fees.

                                              RCJ-7
