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                                                      PRINTER'S NO. 1590

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

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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