# Hoffman v. Borough of Macungie

> Commonwealth Court of Pennsylvania · January 3, 2013 · 63 A.3d 461

URL: https://www.frixlaw.com/law-library/cases/4966933

## Case

- **Full name:** Rickie HOFFMAN, Mayor of the Borough of Macungie v. The BOROUGH OF MACUNGIE, Borough Council of the Borough of Macungie and Edward Harry, Jr. and James B. Martin, District Attorney of Lehigh County, Pennsylvania. Appeal of James B. Martin, District Attorney of Lehigh County, Pennsylvania. Rickie Hoffman, Mayor of the Borough of Macungie v. The Borough of Macungie, Borough Council of the Borough of Macungie, Edward Harry, Jr., and Macungie Borough Police Officers Association and James B. Martin, District Attorney of Lehigh County, Pennsylvania
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** January 3, 2013
- **Citations:** 63 A.3d 461
- **Precedential status:** Published
- **Opinion:** Concurring in part by Jubelirer
- **Judges:** Covey, Jubelirer, Leadbetter, McCullough, McGinley, Pellegrini, Simpson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4966933

## How later opinions describe it (automated extraction)

- observing that the “broad discretion vested in [a district attorney’s] office to investigate and prosecute crimes on behalf of the Commonwealth is indisputable”

## Opinion text

*479 CONCURRING & DISSENTING OPINION BY
Judge COHN JUBELIRER.
I respectfully concur, in part, and dissent, in part, to the well-written Majority opinion in this matter. I generally concur with the Majority’s disposition of the issues raised in these consolidated appeals; however, I dissent to the Majority’s disposition of Mayor Hoffman’s request for attorney’s fees pursuant to Section 2503 of the Judicial Code, 42 Pa.C.S. § 2503. Based upon the record and the arguments presented by Mayor Hoffman in support of this issue, I do not believe there is any reason for a remand.
Section 2503(7) is a tool for a participant to recover fees for vexatious, obdurate or dilatory conduct during the pendency of a proceeding, 42 Pa.C.S. § 2503(7), and as our Supreme Court has stated, “[w]e do not believe the intent of the rule permitting the recovery of counsel fees is to penalize all those who do not prevail in an action.” Township of South Strabane v. Piecknick, 546 Pa. 551, 559-60 , 686 A.2d 1297, 1301 (1996). “Conduct prior to or following the pendency of the action cannot form a basis for an award of counsel fees.” Westmoreland County Industrial Development Authority v. Allegheny County Board of Property Assessment, Appeals and Review, 723 A.2d 1084, 1086 (Pa.Cmwlth.1999).
The vexatious conduct Mayor Hoffman complains about occurred during a Borough Council budget meeting and the comments were made by one Borough Council member. Other than the statements cited by the Borough Council member during this meeting, Mayor Hoffman does not set forth any other alleged vexatious or obdurate conduct that occurred during the pen-dency of these proceedings and he does not argue that the delay tactics suggested by the Borough Council member during the budget meeting actually occurred. Mayor Hoffman does not cite to, and there do not appear to have been, any delays in the progression of the litigation based upon, for example, non-compliance with discovery requests or numerous requests for continuances.
I recognize that an “award of counsel fees pursuant to [Section 2503(7) ] must be supported by a trial court’s specific finding of dilatory, obdurate or vexatious conduct.” Township of South Strabane, 546 Pa. at 560 , 686 A.2d at 1301 . However, the record must support the trial court’s finding. Here, I believe that remanding this matter for such a finding is a waste of judicial resources where it is clear that Mayor Hoffman has failed to explain how the statements by the Borough Council member harmed his case or caused him to incur more expense. 1 Moreover, as pointed out by the Majority, “[gjiven the multiple, fragmented issues, the asymmetrical alignment of the parties, the intractable nature of the disputes, and the unconventional manner in which this aspect of the counsel fee controversy was raised,” Hoffman v. Borough of Macungie, 63 A.3d 461, 478 , 2013 WL 28387 (Pa.Cmwlth.2013) I would not protract this litigation any further based upon the scant record Mayor Hoffman relies upon to support his claim for attorney’s fees pursuant to Section 2503(7).
Therefore, for the foregoing reasons, I would affirm the trial court’s Order in its entirety.
. I note that "an award of counsel fees is intended to reimburse an innocent litigant for expenses made necessary by the conduct of his opponent." Westmoreland County Industrial Development Authority, 723 A.2d at 1086-87 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4966933. Public record. Not legal advice.