              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith Wagner, Capitol Police            :
Officer,                                :
                 Appellant              :
                                        :   No. 2247 C.D. 2014
            v.                          :
                                        :   Argued: December 7, 2015
Pennsylvania Capitol Police             :
Department, Department of               :
General Services, and Gregory A.        :
Green, Individually and in his          :
Official Capacity as Director of        :
the Bureau of Human Resources,          :
Richard Shaffer, in his Individual      :
Capacity and as acting as               :
Superintendent of the Capitol           :
Police, Robert J. Dillard, in his       :
Individual Capacity and as acting       :
as Deputy Superintendent of the         :
Capitol Police                          :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                        FILED: January 15, 2016


              Keith Wagner (Wagner) appeals from the November 17, 2014 order of
the Court of Common Pleas of Dauphin County (trial court) granting in part his
motion for attorney fees and costs and denying his motion for delay damages.
                                   Facts/Procedural History
               Wagner began his employment with the Pennsylvania Capitol Police
Department in 1998. In 2004, Wagner sustained physical injuries when a suspect
tried to run him over, and he subsequently developed a seizure disorder that
prevented him from carrying a weapon, driving, or directing traffic. Wagner was off
work during September and October 2005. When his doctor released him to return to
light duty work on October 17, 2005, the Capitol Police did not reinstate him, stating
that it did not have a position available within his restrictions. Wagner returned to
work in January 2006 when a positon within his restrictions became available and
was approved by his doctor.
               On July 5, 2007, Wagner filed a complaint in the Court of Common
Pleas of Lackawanna County under 42 U.S.C. §1983 and the Pennsylvania Human
Relations Act (PHRA)1 against the Capitol Police; the Department of General
Services; Gregory A. Green, individually and in his official capacity as Director of
the Bureau of Human Resources; Richard Shaffer, in his individual capacity and as
acting Superintendent of the Capitol Police; and Robert J. Dillard, in his individual
capacity and as acting Deputy Superintendent of the Capitol Police (collectively,
Appellees). Specifically, Wagner alleged that Appellees refused to allow him to
return to work when his physician released him on October 17, 2005, and denied him
a pre-deprivation and a post-deprivation hearing. Count I of the Complaint asserted a
violation of Wagner’s constitutional right to due process and requested all remedies
available under §1983; Count II asserted a violation of the PHRA against all
Appellees; Count III asserted a violation of the PHRA against Appellees Green,


      1
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.



                                                  2
Shaffer, and Dillard; and Count IV asserted negligent supervision claims against
Appellees Shaffer and Dillard.
              On July 23, 2007, Appellees removed the matter to the Federal District
Court for the Middle District of Pennsylvania. On February 23, 2009, the district
court granted Appellees’ motion for summary judgment with respect to the federal
constitutional claims and remanded the remaining state law claims to the Court of
Common Pleas of Lackawanna County.
              In 2008, Wagner filed a second complaint based on events that occurred
in 2007. In that complaint, Wagner alleged that, in retaliation for Wagner’s filing of
the first action, Appellees and Connie Tennis issued an ultimatum for him to return to
work in full-duty capacity or be discharged. However, the present appeal involves
only the first complaint, docketed at No. 2009-CV-13930-CV.
              At Appellees’ request, both actions were transferred to the Court of
Common Pleas of Dauphin County. Following the transfer, there was no docket
activity for at least two years, resulting in the issuance of a Notice of Proposed
Termination on June 1, 2012. Wagner simultaneously filed a Statement of Intent to
Pursue Action and a Certificate of Trial Readiness on July 23, 2012.2
              A jury trial was held on August 11-13, 2014. The jury found that
Appellees did not provide reasonable accommodations to Wagner when they refused
to allow him to return to work in a light duty position in the communications room in
October 2005. The jury awarded Wagner $14,000.00 in lost wages; however, it did
not award him any damages for mental anguish, embarrassment, or humiliation.



       2
         Wagner stated that he had filed a certificate of trial readiness in Lackawanna County
before the cases were transferred and did not realize that he had to file one in Dauphin County.



                                               3
                Wagner filed three post-trial motions, requesting: (1) $125,420.87 in
attorney fees and costs; (2) delay damages; and (3) reinstatement of his seniority.
The trial court granted Wagner’s motion to reinstate his seniority; granted his request
for attorney fees and costs in part, awarding $5,600.00 representing 40% of the jury’s
award; and denied his request for delay damages.3
                On December 11, 2014, Wagner filed a notice of appeal, which was
returned due to his failure to follow service requirements. He filed an amended
notice of appeal on January 30, 2015.
                In its opinion, the trial court first stated that Wagner did not provide any
case law or cite any rule of court to support his request for delay damages. The trial
court noted that Pa.R.C.P. No. 238 (Rule 238) provides that delay damages can be
added to compensatory damages “in a civil action seeking monetary relief for bodily
injury, death or property damage.” Rule 238(a)(1) (emphasis added). Additionally,
the trial court observed that delay damages cannot be awarded for any time period
within which the plaintiff caused the delay. Rule 238(b)(ii). The trial court explained
that this matter was an action for employment discrimination; there were no
allegations that Wagner suffered bodily injury, death, or property damage as a result
of the alleged employment discrimination; therefore, delay damages are not available
under Rule 238.
                The trial court also noted that there had been no docket activity from
October 2009, when the matter was transferred to Dauphin County, to July 20, 2012,
when the notice of proposed termination was filed and Wagner filed a certificate of
trial readiness, asserting that he had previously filed one in Lackawanna County prior
to the transfer.       However, the certificate of readiness was not included in the


      3
          The trial court also denied Appellees’ post-trial motion requesting a new bench trial.


                                                   4
documents that were transferred to Dauphin County. Appellees filed objections to
the certificate of readiness, asserting that the certificate was improperly filed in
Lackawanna County prior to any discovery on the state law claims and that it was
also improperly filed in Dauphin County because discovery had not yet been
completed, Wagner’s counsel failed to consult with Appellees’ counsel with respect
to trial dates, and there had not been any attempt at settlement. The trial court
granted Appellees’ objection and the trial was removed from the October 2012 trial
list. Based on those circumstances, the trial court concluded that any delay between
October 2009 and July 20, 2012, was caused by Wagner’s failure to follow the rules
of civil procedure and the local rules of court and, therefore, delay damages would be
inappropriate.
             The trial court next addressed Wagner’s request for $125,420.87 in
attorney fees and costs. The trial court noted that, under the PHRA, a court may
award attorney fees and costs to the prevailing plaintiff if the court finds that a
defendant engaged in or is engaging in any unlawful discriminatory practices as
defined in the act, and that an award of attorney fees and costs is within the discretion
of the trial court and will not be reversed absent an abuse of discretion. Hoy v.
Angelone, 720 A.2d 745, 748, 752 (Pa. 1998). The trial court explained that, in
contrast to the pervasive sexual harassment at issue in Hoy, no evidence was
presented that Appellees engaged in or continued to engage in pervasive
discriminatory behavior. In addition, the trial court stated that the fee agreement
between Wagner and his counsel was not submitted into evidence.               Finally, it
appeared to the trial court that the records that were submitted by Wagner’s counsel
reflected work relating to both actions Wagner filed, as well as claims on which he
did not prevail. Accordingly, the trial court concluded that no additional attorney
fees were warranted in this case.


                                           5
                                         Issues
             On appeal to this Court, Wagner asserts that the trial court erred by not
awarding costs as a matter of course to the prevailing party; by awarding less than the
full amount of attorney fees; and by denying delay damages where Appellees never
made a settlement offer.


                                       Discussion

                                          Costs

             Wagner first argues that the trial court erred by not awarding costs to the
prevailing party. In making this argument, Wagner quotes a passage from Zelenak v.
Mikula, 911 A.2d 542, 544-45 (Pa. Super. 2006): “[i]t is a general rule in court
judicial system . . . that costs inherent in a law suit are awarded to and should be
recoverable by the prevailing party. . . . At law the general rule is that costs follow as
a matter of course, and the court has no discretion to award or deny them.” Wagner
contends that the trial court did not have discretion to deny his request for costs
because they are given as a matter of course to the prevailing party.

             In this brief section of his argument, Wagner offers no summary of
Zelenak, cites no other authority, and fails to elaborate. In fact, Zelenak was a
negligence action; on appeal, the Superior Court held that the prevailing party was
entitled to record costs (costs of proceeding in court/filing fees) under 42 Pa.C.S.
§1726(a)(2). In this appeal, however, the issue of costs is governed by section
12(c.2) of the PHRA, added by the Act of December 20, 1991, P.L. 414, 43 P.S.
§962(c.2).




                                            6
             Appellees respond that Pennsylvania follows the American Rule, i.e.,
litigants are responsible for their own litigation costs and may not recover them from
an adverse party unless there is express statutory authorization, a clear agreement of
the parties, or some other established exception. In Re Farnese, 17 A.3d 357, 370
(Pa. 2011). The relevant section of the PHRA states that “if, after a trial held
pursuant to subsection (c), the [trial court] 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). The use
of the term may “signals the legislature’s intent to rest the award of counsel fees and
costs within the discretion of the trial court.” Hoy, 720 A.2d at 751. Thus, the award
of counsel fees and costs under the PHRA is within the sound discretion of the trial
court and will not be reversed unless the trial court commits an abuse of discretion.
Id. at 752. This standard requires a showing of “manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly
erroneous.” Id. In Hoy, our Supreme Court held that the trial court acted within its
discretion in denying attorney fees and costs to a prevailing party under the PHRA.
In so holding, the court rejected the argument that the PHRA mandates an award of
attorney fees and costs, explaining as follows:

             Appellant and amici argue that [43 P.S. §962(c.2)] should
             mandate the award of attorney’s fees and costs. We
             disagree. 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. 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. 1 Pa.C.S.A. [sic] §1921(b).




                                           7
Hoy, 720 A.2d at 751. The court in Hoy next rejected the argument that federal law
essentially compels an award of attorney fees under the PHRA:

             Appellant and amici argue that analogous federal law points
             to an award of attorney’s fees. Specifically, Appellant
             argues that an analogous provision of Title VII of the Civil
             Rights Act of 1964, 42 U.S.C.A. §2000e, et seq., in essence,
             mandates prevailing plaintiffs to be awarded counsel fees
             and costs unless special circumstances exist which justify
             no such award. Newman v. Piggie Park Enterprises, [390
             U.S. 400 (1968)]. Thus, it is asserted that there is a
             presumption that a prevailing plaintiff is entitled to an
             award of counsel fees and costs.

             First, we note that we are interpreting a Pennsylvania
             statute. While we may look to our federal brethren for
             guidance in interpreting like statutory provisions, we are
             certainly not bound by these enactments, or decisions
             relating thereto, in interpreting this Commonwealth’s
             statutes. Second, as noted above, we believe that the Act
             clearly and unambiguously states that an award of
             attorney’s fees rests within the sound discretion of the trial
             court. There is no presumption of attorney’s fees and costs
             under the statute. Likewise, the Act does not require the
             existence of special circumstances to withhold the award of
             fees and costs. The General Assembly could have easily
             created such a presumption if it had so desired. Thus, we
             conclude that the award of counsel fees and costs under the
             Act is within the sound discretion of the trial court and will
             not be reversed unless the trial court commits an abuse of
             that discretion.

Hoy, 720 A.2d at 751-52 (emphasis added). Thus having established that the trial
court’s decision will not be reversed absent an abuse of discretion, the Supreme Court
further elaborated:

             The standard for an abuse of discretion has recently been
             clarified in this court’s decision in Paden v. Baker Concrete
             Construction, Inc., 540 Pa. 409, 658 A.2d 341 (1995). In
             Paden, this court set forth the heavy burden that a party

                                           8
                complaining of the exercise of a court’s discretion must
                meet noting that “an abuse of discretion may not be found
                merely because the appellate court might have reached a
                different conclusion, but requires a showing of manifest
                unreasonableness, or partiality, prejudice, bias, or ill-will, or
                such lack of support as to be clearly erroneous.” Paden,
                540 Pa. at 412, 658 A.2d at 343.

Hoy, 720 A.2d at 751-52.

                Because the Supreme Court expressly held in Hoy that the PHRA does
not mandate an award of attorney fees and costs to a prevailing party, we reject
Wagner’s contention that he is entitled to costs as a matter of course.



                                       Amount of attorney fees
                Relying on Department of Environmental Resources v. PBS Coals, Inc.,
677 A.2d 868 (Pa. Cmwlth. 1996), Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776 (Pa. Super. 2006), and Logan v. Marks, 704 A.2d 671
(Pa. Super. 1997), Wagner argues that the trial court erred in awarding attorney fees
representing 40% of the jury award, rather than basing the award on the “lodestar
method.”4 Under that method, the initial estimate of a reasonable attorney fee is

      4
          The trial court’s order states:

                AND NOW, this 17th day of November, 2014, upon consideration of
                Plaintiff Keith Wagner’s (Plaintiff) Post-Trial Motion for Attorney
                Fees and Bill of Costs and Brief in Support Thereof, Plaintiff’s
                Supplemental Authority in Support of Motion, Defendants’ Capitol
                Police, et al. (Defendants) Answer to Plaintiff’s Motion and Brief in
                Opposition to Request for Attorney Fees, and Plaintiff’s Reply Brief
                in Support of Motion, IT IS HEREBY ORDERED that said motion is
                GRANTED IN PART. Defendants shall pay $5,600 unto Plaintiff’s
                counsel, Cynthia L. Pollick, Esquire, representing attorney fees in the
                amount of forty-percent (40%) of the jury’s award to Plaintiff.

(Footnote continued on next page…)

                                                  9
calculated by multiplying the number of hours reasonably expended on the litigation
by a reasonable hourly rate. Courts refer to the product of this equation as the
lodestar. PBS Coals, 677 A.2d at 874.

                  PBS Coals involved a civil enforcement action brought by the
Department of Environmental Resources (Department) under the Clean Streams Law5
and the Surface Mining Conservation and Reclamation Act6 to compel two coal
mining companies to replace the polluted water supplies of several households and a
dairy farm. The appellants were individuals who had intervened as plaintiffs to
secure replacement of their wells and money damages. Judgment was entered in
favor of the Department and the individual plaintiffs, and this Court affirmed. 7
Thereafter, the common pleas court awarded the prevailing individual plaintiffs
attorney fees in the amount of 40% of the original verdict, concluding that they were
limited to the amounts contemplated by the contingency fee agreement.

                  On appeal, this Court reversed the common pleas court’s holding that a
contingency fee agreement precluded an attorney from receiving statutory attorney
fees in excess of the amount provided under the fee agreement. In doing so, we noted



(continued…)

                However, while the trial court’s order awarded Wagner $5,600 in attorney fees, the
trial court’s 1925(a) opinion does not acknowledge that award but instead reflects the trial court’s
conclusion that Wagner was not entitled to any amount of attorney fees: “In the instant case, no fees
are warranted. . . . Appellant has presented no clear claim for attorney’s fees.” (Trial court op. at 8.)

         5
             Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.

         6
             Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §§1396.1-1396.19a.

         7
             Department of Environmental Resources v. PBS Coals, Inc., 534 A.2d 1130 (Pa. Cmwlth.
1987).


                                                    10
that the case upon which the trial court relied did not involve a statute authorizing an
award of attorney fees. We next noted that while the Clean Streams Law and the
Surface Mining Act provided for an award of attorney fees, neither provided
guidance as to how the amount of such an award should be determined. Recognizing
that Pennsylvania courts had not interpreted those statutes, we considered federal
courts’ interpretation of the Clean Water Act, 33 U.S.C. §§1251 – 1387, which has
similar aims and nearly identical provisions governing attorney fees.                   Based on
federal court decisions interpreting federal fee-shifting statutes, we held that the
existence of a contingency fee agreement was but one of many factors to consider in
calculating an award of reasonable attorney fees. PBS Coals, 677 A.2d at 874-75.
We also noted that federal courts use the lodestar approach to calculate attorney fee
awards under all federal fee-shifting statutes, and we remanded for a calculation of
attorney fees using that method.8

              Wagner contends that the trial court’s award of attorney fees in the
amount of 40% of the damages award conflicts with our analysis in PBS Coals.
However, as Appellees observe, in Hoy our Supreme Court subsequently rejected the
argument that a Pennsylvania court’s interpretation of section 12(c.2) of the PHRA is
controlled by federal law. As set forth above, that court explicitly stated that in
interpreting a Pennsylvania statute, “we may look to our federal brethren for guidance
in interpreting like statutory provisions, [but] we are certainly not bound by these
enactments, or decisions relating thereto, in interpreting this Commonwealth’s


       8
          “Our United States Supreme Court has noted that the lodestar approach is used for all
federal fee-shifting statutes.” PBS Coals, Inc., 677 A.2d at 874. “The ‘lodestar’ figure has, as its
name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a
‘strong presumption’ that the lodestar represents the ‘reasonable fee . . . .” Id. (quoting City of
Burlington v. Dague, 505 U.S. 557, 561-62 (1992)).


                                                11
statutes.” Hoy, 720 A.2d at 751-52. The court in Hoy emphasized that “the [PHRA]
clearly and unambiguously states that an award of attorney’s fees rests within the
sound discretion of the trial court.” Id.

             Whereas the decision in PBS Coals was reached in an absence of
controlling Pennsylvania case law, our analysis in this case in controlled by our
Supreme Court’s holding in Hoy. Accordingly, we review the trial court’s award of
attorney fees under an abuse of discretion standard. Id. at 751-52.

             “[A]n abuse of discretion may not be found merely because the appellate
court might have reached a different conclusion, but requires a showing of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as
to be clearly erroneous.” Paden, 658 A.2d at 343. In this case, the trial court
identified in its opinion the factors it considered in fashioning the award of attorney
fees, including the lack of evidence of pervasive discriminatory behavior and
Wagner’s failure to submit a fee agreement. The trial court also noted that Wagner’s
request for attorney fees included fees for work associated with the removal to federal
court and transfer to Dauphin County, as well as work related to a different complaint
and work related to claims that Wagner did not prevail on at trial. The trial court’s
reasoning does not reflect manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support as to be clearly erroneous. Accordingly, whether or
not we might have reached a different result, we cannot conclude that the trial court
abused its discretion in calculating the award of attorney fees in this matter.



                                      Public policy

             Wagner also relies on federal case law to argue that “public policy
supports providing full attorney fees to victims of discrimination since it is normal to

                                            12
do the same in Federal court.” In particular, Wagner relies on language in federal
decisions involving federal fee-shifting statutes, which are intended “to encourage
private enforcement of civil rights statutes, to the benefit of the public as a whole.”
Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2d Cir. 1999). For example, Wagner
cites Student Public Interest Research Group of New Jersey v. AT&T Bell
Laboratories, 842 F.2d 1436 (3d Cir. 1988). The specific fee shifting statute in that
case, section 505 of the Clean Water Act, authorizes courts to award reasonable
attorneys’ fees to parties in citizens’ suits “whenever the court determines such award
is appropriate.” 33 U.S.C. §1365(d). The court held that under the facts presented,
which involved a for-profit public interest law firm that had an artificially low billing
rate, the community billing rate charged by attorneys of equivalent skill and
experience performing work of similar complexity, rather than the firm’s billing rate,
was the appropriate hourly rate for computing reasonable attorney fees. Wagner
quotes a footnote from that opinion noting that fee shifting is an effective remedy:
“civil rights laws depend heavily upon private enforcement, and fee awards have
proved an essential remedy if private citizens are to have a meaningful opportunity to
vindicate the important Congressional policies which these laws contain.” Student
Public Interest Research Group of New Jersey, 842 F.2d at 1450 n.13. (Wagner’s
brief at 15.)

                As previously indicated, however, our Supreme Court expressly stated in
Hoy that federal law is not binding in a case under the PHRA: “While we may look to
our federal brethren for guidance in interpreting like statutory provisions, we are
certainly not bound by these enactments, or decisions relating thereto, in interpreting
this Commonwealth’s statutes.” Hoy, 720 A.2d at 752. Because the court held in
Hoy that there is no presumption of attorney fees and costs under the PHRA, we



                                            13
necessarily conclude that an award of full attorney fees is not mandatory under the
statute.

                                    Delay damages

             Wagner’s remaining argument is that the trial court erred by not
awarding delay damages pursuant to Pa.R.C.P. No. 238 (Damages for Delay in
Actions for Bodily Injury, Death or Property Damage), which provides in relevant
part that

             (a)(1) At the request of the plaintiff in a civil action seeking
             monetary relief for bodily injury, death or property damage,
             damages for delay shall be added to the amount of
             compensatory damages awarded against each defendant or
             additional defendant found to be liable to the plaintiff in the
             verdict of a jury, in the decision of the court in a nonjury
             trial or in the award of arbitrators appointed under section
             7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall
             become part of the verdict, decision or award.

Pa.R.C.P. No. 238(a)(1) (emphasis added).

             As the trial court correctly observed, by its plain language, this rule
applies to civil actions seeking damages for bodily injury, death, or property damage.
Contrary to Wagner’s assertion, Rule 238 neither compels nor authorizes an award of
delay damages in an employment discrimination case brought under the PHRA.

             Based on the foregoing, we affirm.


                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge



Judge Simpson did not participate in this decision.



                                           14
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keith Wagner, Capitol Police           :
Officer,                               :
                 Appellant             :
                                       :    No. 2247 C.D. 2014
            v.                         :
                                       :
Pennsylvania Capitol Police            :
Department, Department of              :
General Services, and Gregory A.       :
Green, Individually and in his         :
Official Capacity as Director of       :
the Bureau of Human Resources,         :
Richard Shaffer, in his Individual     :
Capacity and as acting as              :
Superintendent of the Capitol          :
Police, Robert J. Dillard, in his      :
Individual Capacity and as acting      :
as Deputy Superintendent of the        :
Capitol Police                         :


                                     ORDER


            AND NOW, this 15th day of January, 2016, the November 17, 2014
order of the Court of Common Pleas of Dauphin County is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
