As appellate attorneys, one question we often are asked is whether the prevailing party on appeal can recover attorneys’ fees and costs. The question certainly is an understandable one; by the time a party prevails on appeal, he or she usually has spent a substantial amount on the proceedings, may have lost the benefit of any amount in controversy, and is looking to recoup some of these costs.
While the general rule requiring parties to pay their own attorneys’ fees and costs applies equally to attorneys’ fees on appeal, there is an important exception to this rule. A party’s appellate attorneys’ fees may be recovered in Pennsylvania if certain criteria are met.
What Rule Authorizes Recovery of Attorneys’ Fees on Appeal?
Pennsylvania Rule of Appellate Procedure 2744 specifically allows an appellate court to award costs––including attorneys’ fees––if the appellate court determines that the appellant’s appeal, or the conduct of any “participant,” which would include an appellee, is frivolous or was taken solely for purposes of delay.
The Rule specifically provides as follows:
Further Costs. Counsel Fees. Damages for Delay
In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including: (1) a reasonable counsel fee and (2) damages for delay at the rate of 6% per annum in addition to legal interest, 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. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule. Pa.R.A.P. 2744.
In circumstances where an appellate court concludes that the requirements of Rule 2744 are met (i.e., that the appeal is frivolous or other criteria are satisfied), the appellate court will remand the case to the trial court to determine the amount of fees to be awarded. Significantly, in such circumstances, the award also may include “6% per annum in addition to legal interest.”
It is important to note, however, that an appellate court does not have the power under any statute or rule to award counsel fees for proceedings in the trial court; it can only award fees for conduct that occurs in the context of an appeal. Gossman v. Lower Chanceford Tp. Bd of Sup’rs, 503 Pa. 392, 469 A.2d 996 (1983). A different statute––42 Pa.C.S. § 2503––empowers a trial court to require a party to pay the other participant’s counsel fees if that party’s conduct during the pendency of the action is vexatious, obdurate or dilatory.
When and where must I File my Request for Attorneys’ Fees on Appeal?
In order to recover appellate court attorneys’ fees under Pa.R.A.P. 2744, the moving party (who may be the prevailing appellant or appellee) must file an application in the appellate court pursuant to Pa.R.A.P. 2751 before the record is remanded. The application must set forth the reasons why it should be granted and attach the trial court’s opinion and the briefs used therein. Pa.R.A.P. 2751. Absent application to the appellate court and a direction to the trial court, the trial court has no jurisdiction to award appellate legal fees on remand.
Does Party have the Right to Collect Attorneys’ Fees Incurred in its attempt to Collect Attorneys’ Fees?
The answer appears to be yes. In Appeal of Ciaffoni, 136 Pa. Cmwlth. 645, 652 (1990), the Commonwealth Court held “Rule 2744 envisions that a party be reimbursed for the time spent recovering court awarded counsel fees. . . .” to penalize a party for frivolous conduct in an appeal and to compensate the adversary for costs and delay in defending the frivolous appeal. Accordingly, the Court held that “any counsel fees required to be expended as a result of that conduct should be paid by the party necessitating it, and the party awarded fees should not be required to expend any funds for counsel fees to recover court imposed fees.” Id.
Are there any other Costs a Successful Appellant or Appellee can Recover?
Yes. The appellate rules allow a prevailing party to recover other costs without having to show that the Rule 2744 factors are met. For example, a prevailing appellant can recover the premium for the supersedeas bond, which, in large cases, may be in the hundreds of thousands of dollars, if the order from which the appeal is taken is reversed or vacated. See Pa. R.A.P. 2271 (“…the premiums paid for cost of supersedeas bonds…to preserve rights pending appeal…shall be taxed in the lower court as costs of appeal in favor of the party entitled to costs under this chapter.”).
Other taxable costs include: “costs incurred in the preparation and transmission of the record, the costs of the notes of testimony or other transcript, if necessary to a determination of the appeal… and the fee for filing the notice of appeal…” See Pa.R.A.P. 2771. These costs, too, are recoverable without a showing of bad faith or frivolous or vexatious conduct and should be requested in a bill of costs filed with the trial court.
Thus, while it’s not often that the appellate courts will award fees and costs, the Rules of Appellate Procedure do allow a successful appellee (and, on occasion, an appellant) to recover them where certain criteria are met. This can be some welcome good news for clients looking for compensation after a long road of litigation.
At Lamb McErlane PC Maureen M. McBride concentrates her practice on commercial litigation and appellate law. She is a partner and co-chair of Lamb McErlane’s Appellate Department, a member of the Litigation Department and the Firm’s Executive Committee. mmcbride@lambmcerlane.com.
