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J. A05010/02
2002 PA Super 171
MELLON BANK, N.A.,
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellee
:
:
v.
:
:
ANDREW DRUZISKY and NANCY A.
:
DRUZISKY, a/k/a NANCY DRUZISKY ,
:
:
Appellants
:
No. 870 WDA 2001
Appeal from the Order entered April 20, 2001
in the Court of Common Pleas of Beaver County,
Civil Division, at No. 10132 of 1999
BEFORE: DEL SOLE, P.J., BENDER and TAMILIA, JJ.
OPINION BY DEL SOLE, P.J.:
Filed: May 31, 2002
¶1
This is an appeal from a trial court order granting Appellee's petition
for counsel fees and awarding such fees pursuant to 42 Pa.C.S.A. § 2503(7).
We remand for a recalculation of fees.
¶2
The underlying action was initiated by Appellee, Mellon Bank, N.A.
(Mellon) against Appellants, Andrew and Nancy Druzisky (the Druziskys) as
a quiet title action seeking to secure the reinstatement of a note and
mortgage. The promissory note was executed by the Druziskys for
$26,700.33 and was secured by a mortgage, which encumbered the
Druziskys' residential property. Due to a clerical error by Mellon, the note
was mistakenly stamped "PAID" and a satisfaction piece was recorded. After
Mellon later realized its error and an agreement could not be reached with
the Druziskys, Mellon filed the quiet title action. Mellon subsequently filed a
Motion for Summary Judgment, which was denied by the trial court. The

J. A05010/02
court ruled it could not grant the relief Mellon sought in a quiet title action;
however, it granted Mellon leave to filed an amended complaint in equity.
¶3
Mellon filed its amended complaint and the Druziskys filed an answer
and counterclaim. Both parties filed motions for summary judgment. The
trial court granted Mellon's motion and dismissed the Druziskys' motion. In
its order the trial court stated that it "will entertain a motion on behalf of the
plaintiff for counsel fees under 42 Pa.C.S.A. 2503(7)." Order of Court,
6/12/00. Appellants promptly filed an appeal and, a few days later, while
the appeal was pending, Appellee filed a petition for counsel fees with the
trial court. The trial court issued an order in response, which stated:
[S]aid motion is hereby entertained and directed to be filed.
After appellate review an appropriate order will be entered
issuing a rule under Pa.R.C.P.No. 206.5.
Order of Court, 7/7/00. The Superior Court ultimately affirmed the trial
court's ruling. Mellon v. Druzisky, No. 1085 WDA 2000 (filed 1/5/01)
(memorandum opinion). Thereafter the trial court entertained Mellon's
petition and ruled that the Druziskys' conduct was dilatory, obdurate and
vexatious, warranting an award of attorney fees. The court calculated the
amount of fees from the initiation of the action through the appeal and
entered an appropriate award. This appeal followed.
¶4
On appeal the Druziskys contend that the trial court abused its
discretion in awarding counsel fees where they had a reasonable basis in law
for their actions in defense of the case. They further assert that the trial
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J. A05010/02
court erred in awarding attorney fees for actions taken during the pendency
of the appeal before the Superior Court.
¶5
We find some merit to these claims. However, we initially note that
we find no fault or abuse of discretion in the trial court's finding that much of
the Druziskys' conduct constituted dilatory, obdurate or vexatious conduct
warranting an award of fees under 42 Pa.C.S.A. § 2503(7). The trial court
noted that the Druziskys delayed the proceedings and put forth a legal
argument based upon a literal application of statutory language to facts
which did not apply. The court characterized their actions as being
"stubbornly persistent" in light of the fact that the Druziskys knew that the
note and mortgage had been mistakenly marked paid and satisfied.
¶6
Our review of a trial court's order awarding attorney fees to a litigant
is limited solely to determining whether the trial court palpably abused its
discretion in making the fee award. Thunberg v. Strause, 682 A.2d 295,
299 (Pa. 1996). Where the record supports a trial court's factual finding
that a litigant violated the conduct provisions of the relevant statute
providing for the award of attorney fees, such award should not be disturbed
on appeal. Id.
¶7
We find ample evidence of record to support the trial court's factual
finding, with two exceptions. First, the Druziskys' response and opposition
to the initial complaint filed by Mellon as a quiet title action should be
excepted from the court's finding. Mellon had no right to proceed under the
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J. A05010/02
facts in a quiet title action. The trial court recognized this in denying
Mellon's summary judgment motion and in granting Mellon the right to
amend its complaint to set forth a claim in equity. Because the Druziskys
were justified in opposing the quiet title action, the costs association with
Mellon's prosecution of the action should not commence until the filing of the
equity action.
¶8
Second, we find the trial court erred in awarding counsel fees for the
costs incurred by Mellon during the pendency of the appeal. We make this
ruling not based upon the potential merit of the award, but rather because
Mellon failed to seek such fees with the Superior Court when the Druziskys
appealed the summary judgment ruling.
¶9
In the prior appeal, in addition to arguing against the merits of the
summary judgment award, the Druziskys argued that the trial court should
not have made reference to a future award of counsel fees in its summary
judgment ruling. Mellon argued that the trial court had the discretionary
authority to make a comment regarding a future claim for attorney fees, but
Mellon did not claim that it was seeking such fees for the costs of defending
the appeal. Mellon failed to seek counsel fees from the Superior Court
pursuant to Pa.R.A.P. 2744. Rule 2744 permits an appellate court to award
reasonable counsel fees "if it determines that an appeal is frivolous or taken
solely for delay or that the conduct of the participant against whom costs are
to be imposed is dilatory, obdurate or vexatious." If the appellate court
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J. A05010/02
finds such conduct occurred, it has the ability under Rule 2744 to remand
the case to the trial court to determine the amount of damages. Pa.R.A.P.
2744.
¶10 The trial court is not the proper authority to determine whether an
appeal from its ruling is frivolous, taken solely for delay or whether the
appellant's conduct is dilatory, obdurate or vexatious with respect to that
appeal. The appellate court is the appropriate body to make such a ruling
after an examination of the facts in light of the arguments and briefs of the
parties. It is only where the appellate court makes such a finding that the
case may be remanded to the trial court upon order of the appellate court
for a calculation of fees. No such order was entered by the Superior Court in
the prior appeal, perhaps because Mellon never sought such a ruling. Thus,
it was improper for the trial court to award Mellon the costs of its attorney
fees incurred in the prior appeal.
¶11 Accordingly, we remand this matter to the trial court for the
recalculation of fees, excluding those costs incurred prior to the filing of the
complaint in equity and incurred in defending the prior appeal.
¶12 Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
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