COMMONWEALTH AGENCY ADJUDICATORY EXPENSES AWARD LAW — 1982 Pa. Act 257 (historical enacted text)

Historical Act text

SENATE AMENDED
PRIOR PRINTER'S NOS. 1249, 1710 PRINTER'S NO. 3697
INTRODUCED BY DORR, L. E. SMITH, ZWIKL, FLECK, DOMBROWSKI,
SERAFINI, McVERRY, McCALL, LIVENGOOD, GRIECO, F. E. TAYLOR,
HEISER, MARMION, WAMBACH, DeVERTER, BURD, SIEMINSKI, GRUPPO,
FRAZIER, RASCO, POTT, RITTER, BROWN, HALUSKA, BITTLE,
KOWALYSHYN, RYBAK, CAPPABIANCA, BELFANTI, CORDISCO,
GRABOWSKI, PRATT, COCHRAN, B. SMITH, NOYE, HAYES, JOHNSON,
GEIST, PHILLIPS, CLYMER, COSLETT, EARLEY, RAPPAPORT AND
BLAUM, APRIL 1, 1981
SENATOR JUBELIRER, RULES AND EXECUTIVE NOMINATIONS, IN SENATE,
RE-REPORTED AS AMENDED, NOVEMBER 10, 1982
AN ACT
1 Requiring every Commonwealth agency to award certain fees and
2 expenses in certain agency actions and providing for appeals
3 from decisions of an adjudication officer.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Findings and purpose.
7 (a) The General Assembly finds that certain individuals,
8 partnerships, corporations and labor and other organizations may
9 be deterred from seeking review of, or defending against,
10 unreasonable action of administrative agencies because of the
11 expense involved in securing the vindication of their rights in
12 administrative and review proceedings.
13 (b) The General Assembly further finds that because of the
14 greater resources and expertise of the Commonwealth, the
1 standard for an award of fees against the Commonwealth agencies
2 should be different from the standard governing an award against
3 a private litigant in certain situations.
4 (c) It is therefore the intent of the General Assembly to:
5 (1) Diminish the deterrent effect of, seeking review of
6 or defending against, administrative agency action by
7 providing in specified situations an award of attorney's
8 fees, expert witness fees, and other costs against the
9 Commonwealth.
10 (2) Deter the administrative agencies of this
11 Commonwealth from initiating substantially unwarranted
12 actions against individuals, partnerships, corporations,
13 associations and other nonpublic entities.
14 Section 2. Definitions.
15 The following words and phrases when used in this act shall
16 have, unless the context clearly indicates otherwise, the
17 meanings given to them in this section:
18 "Adversary adjudication." An adjudication as defined in 2
19 Pa. C.S. § 101 (relating to definitions). The term does not
20 include an adjudication for the purpose of establishing or <--
21 fixing a rate or for the purpose of granting or reviewing a
22 license. INCLUDE AN ADJUDICATION: <--
23 (1) ESTABLISHING OR FIXING A RATE;
24 (2) GRANTING, REVIEWING, REVOKING OR SUSPENDING A
25 LICENSE OR REGISTRATION;
26 (3) RESOLVING DISPUTES CONCERNING THE DISMISSAL,
27 SUSPENSION, OR DISCIPLINE OF ANY EMPLOYEE OF THIS
28 COMMONWEALTH; OR
29 (4) INVOLVING ANY CRIMINAL CHARGES, OR ALLEGATIONS OF
30 OFFICIAL WRONGDOING, CORRUPTION, MALFEASANCE OR MISFEASANCE.
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1 "Adjudication officer." The deciding official, without
2 regard to whether the official is designated as an
3 administrative law judge, a hearing officer, examiner, referee,
4 or otherwise, who presided at the adversary adjudication.
5 "Commonwealth agency." Any of its principal departments of <--
6 the Executive Branch of State Government and all bureaus,
7 boards, divisions, commissions, councils, authorities or
8 agencies thereunder and any independent commission, board or
9 agency of State Government. EXECUTIVE OR INDEPENDENT AGENCY AS <--
10 DEFINED BY SECTION 102, ACT OF OCTOBER 15, 1980 (P.L.950,
11 NO.164), KNOWN AS THE "COMMONWEALTH ATTORNEYS ACT," AS WELL AS
12 THE AUDITOR GENERAL, STATE TREASURER AND PUBLIC UTILITY
13 COMMISSION.
14 "Fees and expenses." The reasonable expenses of expert
15 witnesses, the reasonable cost of any study, analysis,
16 engineering report, test or project which is found by the
17 adjudicative officer or the court to be necessary for the
18 preparation of the party's case, reasonable attorney's fees and
19 any fee or charge required by law, rule or regulation to be paid
20 to the agency, court or officer of the agency or court. The
21 amount of fees awarded under this section shall be based upon
22 prevailing market rates for the kind and quality of the services
23 furnished, except that:
24 (1) no expert witness shall be compensated at a rate in
25 excess of the highest rate of compensation for expert
26 witnesses paid by the agency involved; and
27 (2) attorney fees shall not be awarded in excess of $75
28 per hour unless an increase in the cost of living or a
29 special factor, such as the limited availability of qualified
30 attorneys for the proceeding, justifies a higher fee. No
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1 award of fees and expenses shall be made where such fees and
2 expenses are less than $250, and no award shall be greater
3 than $10,000.
4 "Party." A party, as defined in 2 Pa.C.S. § 101, which is an
5 individual, partnership, corporation, association or public or
6 private organization other than an agency. The term does not
7 include:
8 (1) any individual whose net worth exceeded $1,000,000 <--
9 $500,000 at the time the adversary adjudication was initiated
10 and any sole owner of an unincorporated business, or any
11 partnership, corporation, association, association or
12 organization whose net worth exceeded $5,000,000 $2,000,000 <--
13 at the time the adversary adjudication was initiated; and <--
14 (2) any sole owner of an unincorporated business, or any
15 partnership, corporation, association or organization having
16 more than 500 250 employees at the time the adversary <--
17 adjudication was initiated.
18 (3) ANY PARTY REPRESENTED BY COUNSEL PAID, DIRECTLY OR <--
19 INDIRECTLY, IN WHOLE OR IN PART, BY AN APPROPRIATION, GRANT,
20 SUBSIDY OR LOAN MADE BY THE STATE, LOCAL OR FEDERAL
21 GOVERNMENT.
22 "PREVAILING PARTY." A PARTY IN WHOSE FAVOR AN ADJUDICATION
23 IS RENDERED ON THE MERITS OF THE CASE OR WHO PREVAILS DUE TO
24 WITHDRAWAL OR TERMINATION OF CHARGES BY THE COMMONWEALTH AGENCY
25 OR WHO OBTAINS A FAVORABLE SETTLEMENT APPROVED BY THE
26 COMMONWEALTH AGENCY INITIATING THE CASE.
27 "SUBSTANTIALLY JUSTIFIED." THE POSITION OF AN AGENCY AS A
28 PARTY TO A PROCEEDING IS SUBSTANTIALLY JUSTIFIED WHEN SUCH
29 POSITION HAS A REASONABLE BASIS IN LAW AND FACT. THE FAILURE OF
30 AN AGENCY TO PREVAIL IN A PROCEEDING, OR THE AGREEMENT OF AN
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1 AGENCY TO SETTLE A CONTROVERSY, SHALL NOT RAISE A PRESUMPTION
2 THAT THE POSITION OF THE AGENCY WAS NOT SUBSTANTIALLY JUSTIFIED.
3 Section 3. Award of fees and expenses in certain agency actions.
4 (a) A EXCEPT AS OTHERWISE PROVIDED OR PROHIBITED BY LAW, A <--
5 Commonwealth agency that initiates an adversary adjudication
6 shall award to a prevailing party, other than the Commonwealth,
7 fees and other expenses incurred by that party in connection
8 with that proceeding, unless the adjudicative officer finds that
9 the position of the agency, as a party to the proceeding, was
10 substantially justified or that special circumstances make an
11 award unjust.
12 (b) A party seeking an award of fees and expenses shall
13 submit an application for such award to the adjudicative officer
14 and a copy to the Commonwealth agency within 30 days after the
15 entry of final order in FINAL DISPOSITION OF the adversary <--
16 adjudication. The application shall include:
17 (1) A showing that the applicant is a prevailing party
18 and is eligible to receive an award under this section.
19 (2) A clear statement of the total amount sought,
20 including:
21 (i) an itemized list of fees from any attorney,
22 agent or expert witness representing or appearing in
23 behalf of the party;
24 (ii) the actual time expended by such agent or
25 expert witness; and
26 (iii) the rate at which the fees and other expenses
27 were computed.
28 (3) An allegation that the position of the Commonwealth
29 agency was not substantially justified.
30 (c) The adjudicative officer shall make a finding of what
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1 fees and expenses to be awarded, if any, within 30 days of
2 receipt of the application and may reduce the amount to be
3 awarded, or deny an award, to the extent that the party during
4 the course of the proceedings engaged in conduct which unduly
5 and unreasonably protracted the final resolution of the matter
6 in controversy. The decision of the adjudicative officer under
7 this section shall be made a part of the record containing the
8 final decision in the adversary adjudication and shall include
9 written findings and conclusions and the reasons or basis
10 therefor.
11 (d) Any party to an adversary adjudication may submit a
12 brief to the adjudicative officer in support of its position as
13 to whether fees and expenses should be awarded.
14 (e) A party dissatisfied with the fee determination made
15 under subsection (a) may petition for leave to appeal such fee
16 determination to the court having jurisdiction to review final
17 orders of a Commonwealth agency under 42 Pa.C.S. (relating to
18 judiciary and judicial procedure). If the court denies the
19 petition for leave to appeal, no appeal may be taken from the
20 denial. If the court grants the petition, it may modify the fee
21 determination only if the court finds that the failure to make
22 an award or the calculation of the amount was an abuse of
23 discretion by the adjudicative officer.
24 (f) In the event a party appeals the underlying decision of
25 the adversary adjudication, the court having jurisdiction over
26 appeals from that Commonwealth agency shall forward fees and
27 expenses to a prevailing party, other than the Commonwealth,
28 unless the court finds that during such adversary adjudication
29 the position of the Commonwealth agency was substantially
30 justified, or that special circumstances make an award unjust.
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1 (g) A judgment of fees and expenses awarded to a prevailing
2 party under this section shall be payable by the Commonwealth
3 agency out of its annual General Fund appropriation for general <--
4 government. <--
5 Section 4. Effective date. <--
6 This act shall take effect July 1, 1982 and shall expire July
7 1, 1985 unless sooner reenacted or amended. GOVERNMENT, EXCEPT <--
8 WHERE NO GENERAL GOVERNMENT FUNDS ARE AVAILABLE, OUT OF ITS
9 GENERAL ADMINISTRATIVE FUNDS. IN THE EVENT SUFFICIENT FUNDS ARE
10 NOT AVAILABLE TO PAY ALL AWARDS, EACH AWARD SHALL BE PRORATED
11 ACCORDINGLY AND THE UNPAID BALANCE PROVIDED FROM ANY SUBSEQUENT
12 APPROPRIATIONS MADE TO THE AGENCY.
13 SECTION 4. RULES AND REGULATIONS.
14 (A) THE GOVERNOR'S OFFICE OF BUDGET AND ADMINISTRATION SHALL
15 PROMULGATE GUIDELINES OR UNIFORM PROCEDURES FOR THE SUBMISSION
16 AND CONSIDERATION OF APPLICATIONS FOR AN AWARD OF FEES AND OTHER
17 EXPENSES.
18 (B) AFTER CONSULTATION WITH THE SECRETARY OF BUDGET AND
19 ADMINISTRATION, EACH AGENCY SHALL BY RULE ESTABLISH SPECIFIC
20 PROCEDURES FOR THE SUBMISSION AND CONSIDERATION OF APPLICATIONS
21 FOR AN AWARD OF FEES AND OTHER EXPENSES FOR ADJUDICATIVE
22 PROCEEDINGS BEFORE THE AGENCY, OR MAY ADOPT THE UNIFORM
23 PROCEDURES RECOMMENDED BY THE SECRETARY.
24 (C) WHENEVER AN AWARD OF FEES OR OTHER EXPENSES IS MADE, THE
25 AGENCY SHALL PROVIDE A REPORT TO THE SECRETARY OF BUDGET AND
26 ADMINISTRATION EXPLAINING WHY THE AWARD WAS GRANTED, AND
27 IDENTIFYING WHATEVER REMEDIAL ACTIONS ARE NECESSARY TO AVOID
28 FUTURE ADVERSARY ADJUDICATIONS BEING UNDERTAKEN WITHOUT
29 SUBSTANTIAL JUSTIFICATION.
30 (D) THE SECRETARY OF BUDGET AND ADMINISTRATION SHALL, ON
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1 JULY 1 OF EACH YEAR, PROVIDE A REPORT TO THE GENERAL ASSEMBLY ON
2 AWARDS MADE PURSUANT TO THIS ACT.
3 SECTION 5. REPORT TO GENERAL ASSEMBLY.
4 NOT LATER THAN JANUARY 1, 1987 THE SECRETARY OF BUDGET AND
5 ADMINISTRATION SHALL TRANSMIT A REPORT TO THE GENERAL ASSEMBLY
6 REGARDING THE COST AND EFFECTIVENESS OF THIS ACT TOGETHER WITH A
7 RECOMMENDATION FOR ITS TERMINATION, CONTINUATION OR AMENDMENT.
8 SECTION 6. EFFECTIVE DATE.
9 (A) EXCEPT AS PROVIDED IN SUBSECTION (B), THIS ACT SHALL
10 TAKE EFFECT JULY 1, 1983.
11 (B) SECTION 4 SHALL TAKE EFFECT IMMEDIATELY.
12 (C) THIS ACT SHALL EXPIRE JULY 1, 1987 UNLESS SOONER
13 REENACTED OR AMENDED.
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