PRINTER'S NO. 1590
No. 1248 Session of 1998
INTRODUCED BY MADIGAN, MUSTO, JUBELIRER, HELFRICK, WAGNER,
WENGER, ROBBINS, SLOCUM, STOUT, DELP, HART, SALVATORE,
WOZNIAK, STAPLETON, KASUNIC, O'PAKE, CORMAN, BRIGHTBILL AND
WHITE, JANUARY 21, 1998
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 21, 1998
AN ACT
1 Amending the act of December 13, 1982 (P.L.1127, No.257),
2 entitled "An act requiring every Commonwealth agency to award
3 certain fees and expenses in certain agency actions and
4 providing for appeals from decisions of an adjudication
5 officer," further defining "adversary adjudication" and "fees
6 and expenses"; and further providing for award of fees and
7 expenses in certain agency actions.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. The definitions of "adversary adjudication" and
11 "fees and expenses" in section 2 of the act of December 13, 1982
12 (P.L.1127, No.257), referred to as the Commonwealth Agency
13 Adjudicatory Expenses Award Law, are amended to read:
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), including, but not
1 limited to, agency adjudications which have the effect of
2 unlawfully taking the real property of an individual in
3 violation of the Constitution of the United States or the
4 Constitution of Pennsylvania. The term does not include an
5 adjudication:
6 (1) establishing or fixing a rate;
7 (2) granting, reviewing, revoking or suspending a
8 license or registration;
9 (3) resolving disputes concerning the dismissal,
10 suspension, or discipline of any employee of this
11 Commonwealth; or
12 (4) involving any criminal charges or allegations of
13 official wrongdoing, corruption, malfeasance or misfeasance.
14 * * *
15 "Fees and expenses." The reasonable expenses of expert
16 witnesses, the reasonable cost of any study, analysis,
17 engineering report, test or project which is found by the
18 adjudicative officer or the court to be necessary for the
19 preparation of the party's case, reasonable attorney's fees and
20 any fee or charge required by law, rule or regulation to be paid
21 to the agency, court or officer of the agency or court. The
22 amount of fees awarded under this section shall be based upon
23 prevailing market rates for the kind and quality of the services
24 furnished, except that:
25 (1) no expert witness shall be compensated at a rate in
26 excess of the highest rate of compensation for expert
27 witnesses paid by the agency involved; [and]
28 (2) attorney fees shall not be awarded in excess of $75
29 per hour unless an increase in the cost of living or a
30 special factor, such as the limited availability of qualified
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1 attorneys for the proceeding, justifies a higher fee. [No]
2 Except as provided in subparagraph (3), no award of fees and
3 expenses shall be made where such fees and expenses are less
4 than $250, and no award shall be greater than $10,000[.]; and
5 (3) where the adversary adjudication involves the taking
6 of real property in violation of the Constitution of the
7 United States or the Constitution of Pennsylvania no award of
8 fees and expenses shall be greater than $50,000.
9 * * *
10 Section 2. Section 3(a) of the act is amended and the
11 section is amended by adding a subsection to read:
12 Section 3. Award of fees and expenses in certain agency
13 actions.
14 (a) Except as otherwise provided or prohibited by law, a
15 Commonwealth agency that initiates an adversary adjudication
16 shall award to a prevailing party, other than the Commonwealth,
17 fees and other expenses incurred by that party in connection
18 with that proceeding, unless the adjudicative officer finds that
19 the position of the agency, as a party to the proceeding, was
20 substantially justified or that special circumstances make an
21 award unjust. For the purposes of this section, agency
22 adjudications which have the effect of taking real property of
23 an individual in violation of the Constitution of the United
24 States or the Constitution of Pennsylvania shall not be deemed
25 to be substantially justified by the adjudication officer.
26 * * *
27 (h) Nothing contained in this section shall be deemed to
28 limit the right of prevailing party to recover legal expenses as
29 provided in other acts, including, but not limited to, the act
30 of June 22, 1964 (Sp.Sess., P.L.84, No.6), known as the Eminent
19980S1248B1590 - 3 -
1 Domain Code, incurred in obtaining just compensation as
2 guaranteed by the Constitution of the United States and the
3 Constitution of Pennsylvania.
4 Section 3. This act shall take effect in 60 days.
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