Durkin v. Commonwealth11/29/2004
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from an order of the Court of Common Pleas of Delaware County that directed J. Michael Farrell, Esquire, to pay the Department the sum of one thousand four hundred eighty-six dollars and twenty-five cents ($1,486.25) in reasonable counsel fees and costs, pursuant to a remand order issued by this court.
On April 15, 2002, Charles A. Durkin, who was represented by Attorney Farrell, appealed the Department's one-year suspension of his operating privilege, which was imposed pursuant to the Driver's License Compact, 75 Pa. C.S. § 1581, due to Durkin's New Jersey conviction for driving while intoxicated. Common pleas dismissed Durkin's statutory appeal, and, on further appeal to this court, we affirmed common pleas' decision. Moreover, because we determined that the appeal was "frivolous and that counsel's lack of candor to the court amounts to obdurate and vexatious conduct[,]" Durkin v. Department of Transportation, Bureau of Driver Licensing (Durkin I) (Pa. Cmwlth. No. 2416 C.D. 2002, filed May 7, 2003), slip op. at 5, we granted the Department's request for counsel fees pursuant to Pennsylvania Rule of Appellate Procedure 2744*fn1 and remanded the case to common pleas "for the calculation and award of reasonable attorney's fees and costs, to be assessed against counsel for appellant." Durkin I Order (dated May 7, 2003). Pursuant to our order in Durkin I, the Department filed its bill of costs with common pleas on May 21, 2003.
On remand, common pleas held hearings on both July 8, 2003 and July 29, 2003. At the July 29 hearing, Attorney Farrell stipulated to the reasonableness of the Department's bill of costs totaling $1,486.25, although he believed that he should not be responsible for those costs because Durkin's appeal to this court was not frivolous. The Department also sought payment for the supplemental fees and costs that it incurred by, inter alia, attending the July hearings in an attempt to get paid. On December 16, 2003, common pleas ordered Farrell to pay the Department $1,486.25 as counsel fees and costs within thirty days of notice of the order. Farrell did indeed submit a check to the Department in that amount.
On December 22, 2003, Attorney Farrell appealed to this court from common pleas's order, which appeal was docketed at 2793 C.D. 2003.*fn2 On December 29, 2003, the Department filed its cross-appeal, which was docketed at 2835 C.D. 2003. The matters were consolidated, but this court dismissed the appeal docketed at 2793 C.D. 2003 due to the designated appellant's failure to file a brief. Currently, then, the only matter for our consideration is the Department's cross-appeal from common pleas' order awarding counsel fees and costs in an amount that merely reflects the sum requested in the bill of costs, which did not include the fees and costs sought as a result of counsel's attendance at the two hearings.
In Appeal of Ciaffoni, 584 A.2d 410, 413 (Pa. Cmwlth. 1990), this court stated:
Rule 2744 authorizes counsel fees as costs, including counsel fees "as may be just", to penalize a party for a frivolous appeal and to compensate his adversary for costs and delay in defending the frivolous appeal. Rule 2744 should be applied in such a way that the party awarded a fee as a result of a frivolous appeal should be "made whole" for all consequences of his adversary's frivolous conduct. 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.
We further explained that "[c]counsel fees not reasona
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