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In re Nomination Petition of Doyle, 2023 Pa. LEXIS 1570, 2023 WL 8102119 (S. Ct. November 22, 2023) (Todd, C.J.)

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

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(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

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(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

42 Pa.C.S. § 2503 (7), (9).

As a general matter, as our Court has explained recently, conduct by a party is considered dilatory within the meaning of Section 2503(7) “where the record demonstrates that counsel displayed a lack of diligence that delayed proceedings unnecessarily and caused additional legal work.” County of Fulton v. Secretary of the Commonwealth, 292 A.3d 974, 1062 (Pa. 2023). Obdurate conduct under this statutory provision is when counsel stubbornly persists in a course of wrongdoing during the course of the litigation. Id.

Additionally, under Section 2503(9), a litigant is deemed to have acted vexatiously if he brought a legal action “without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance.” Thunberg, 682 A.2d at 299 (emphasis added). As our Court subsequently underscored, a court which finds that a suit was brought “vexatiously” under this statutory provision must have also made a specific finding that the suit was brought with the “sole purpose of causing annoyance,” and articulated its reasoning for this conclusion. Old Forge, 924 A.2d at 1213. Lastly, under Section 2503, a party will be found to have commenced a suit in bad faith if he filed it “for purposes of fraud, dishonesty, or corruption.” Thunberg, 682 A.2d at 299.

Our examination of the record simply does not support a conclusion that these allegations were “based on random or convenient selection or choice rather than on reason or nature,” and were “wholly unsubstantiated,” Thunberg, supra, given that the subsequent joint review of the petitions conducted by counsel for Objectors and Candidate, as well as the hearing before the court, determined that 205 of those signature lines were, in fact, invalid for the reasons Objectors cited. We cannot find that, merely because Objectors did not prevail on each and every one of the 717 initial challenges they made, their petition lacked a sufficient factual or legal basis.

The Commonwealth Court’s factual findings in support of its decision to award counsel fees under 42 Pa.C.S. §§ 2503(7), and (9) are lacking in record support, and, thus, its determination that Objectors’ conduct in commencing and pursuing this litigation was dilatory, obdurate, vexatious, and in bad faith was unfounded. We therefore conclude that the Commonwealth Court abused its discretion in making such an award and, accordingly, reverse the portion of the Commonwealth Court’s order of June 23, 2022 directing Objectors to pay such fees.