County of Fulton Confined: Appellate Courts Cannot Use County of Fulton to Impose Trial-Level Fee Liability on Counsel Absent Trial-Court Findings

1. Introduction

In Lukasik, G. v. Scotchlas, S.; Appeal of: Campbell, R. (Pa. July 21, 2026), the Supreme Court of Pennsylvania reviewed whether the Superior Court properly relied on County of Fulton v. Secretary of Commonwealth, 292 A.3d 974 (Pa. 2023), to reverse a trial court’s decision that awarded counsel fees against a custody litigant (Mother) but not against her attorney (Ryan P. Campbell, Esq.) and his firm (Rothenberg & Campbell).

The underlying dispute arose from contentious custody litigation between Gregory Lukasik (Father) and Sarah A. Scotchlas (Mother). A guardian ad litem, Brenda M. Kobal, Esq. (GAL), was appointed by agreement. After Mother’s first petition to remove the GAL was denied following an evidentiary hearing, Campbell later filed a second, extremely lengthy removal petition. The trial court denied the second petition as repetitive/vexatious and awarded counsel fees to Father and the GAL under 23 Pa.C.S. § 5339—against Mother only. Separately, the court held Campbell in contempt for violating a psychological-evaluation confidentiality order.

On appeal, the Superior Court concluded that Campbell’s conduct warranted fee-shifting and—invoking County of Fulton—reversed and remanded for “joint and several” allocation of the trial-level counsel fees among Mother, Campbell, and the firm. The Supreme Court granted review on whether that use of County of Fulton was erroneous.

2. Summary of the Opinion

Justice Donohue, writing for a unanimous Court, held that County of Fulton does not support an intermediate appellate court’s decision—under abuse-of-discretion review—to reverse a trial court’s refusal to impose counsel fees on an attorney for conduct occurring in the trial court. The Court emphasized:

  • County of Fulton involved this Court acting in the first instance as factfinder with a Special Master during sanction proceedings arising from violation of this Court’s order.
  • Appellate courts cannot award trial-level fees in the first instance for trial-court conduct; they may only review the trial court’s decision for abuse of discretion.
  • The trial-court record contained no findings about Campbell’s sanctionable conduct sufficient to justify reversal of the trial court’s decision not to impose fees on him.

Accordingly, the Supreme Court reversed the Superior Court’s order as to the GAL’s fee award against Campbell. The Court left undisturbed the Superior Court’s separate ruling regarding Father’s counsel fees because Campbell did not seek allocatur review as to that portion.

3. Analysis

3.1. Precedents Cited

County of Fulton v. Secretary of Commonwealth, 292 A.3d 974 (Pa. 2023)

The Superior Court treated County of Fulton as authorizing fee liability on counsel where counsel engaged in “dilatory, obdurate, vexatious, and bad-faith conduct,” reasoning it would be unjust to leave the client bearing all costs. The Supreme Court rejected that analogy for two core reasons:

  • Different procedural posture and factfinding authority: In County of Fulton, the Supreme Court addressed contempt/sanctions for violating the Supreme Court’s own order, created an evidentiary record through a Special Master, and made sanction determinations without the constraints of appellate deference.
  • Different scope and evidentiary foundation: County of Fulton included extensive findings detailing counsel’s repeated misconduct. Here, the Superior Court relied mainly on the filing of the second removal petition, despite the absence of trial-court findings establishing counsel’s culpability for the fee award.

The Court’s key doctrinal move is to confine County of Fulton to its institutional context: sanctions imposed by an appellate court for misconduct occurring in proceedings before that appellate court (and its Special Master), not as a template to override trial-court discretion about trial-level fee shifting.

Thunberg v. Strause, 682 A.2d 295 (Pa. 1996) and In re Doyle, 304 A.3d 1091 (Pa. 2023)

These cases anchor the standard of review: counsel-fee awards are reviewed for whether the trial court “palpably abused its discretion.” By foregrounding Thunberg and reaffirming it through In re Doyle, the Court underscores that the Superior Court’s task was not to decide fees anew, but to determine whether the trial court’s choice (to place § 5339 fees on Mother alone) was clearly untenable based on the record.

Trizechahn Gateway LLC v. Titus, 976 A.2d 474 (Pa. 2009) and the American Rule

Trizechahn supplies the baseline: Pennsylvania follows the American Rule, and fee shifting is exceptional, requiring statutory authorization, agreement, or an established exception. The Court uses this framework to caution against fee awards that function merely as penalties for losing or litigating aggressively.

Twp. of S. Strabane v. Piecknick, 686 A.2d 1297 (Pa. 1996)

Piecknick is cited for two propositions:

  • Specific finding requirement: sanction-based fees under the Judicial Code require specific findings of sanctionable conduct; distasteful behavior alone is insufficient.
  • Limits on appellate authority: appellate courts lack authority to award fees for conduct occurring in the lower court (reinforced alongside Gossman).

Gossman v. Lower Chanceford Twp. Bd. of Supervisors, 469 A.2d 996 (Pa. 1983)

Gossman is invoked for a sharp jurisdictional boundary: an appellate court has “no power under any statute or rule to award counsel fees” for conduct occurring before a lower court. The Supreme Court uses this to explain why appellate sanctions must be tethered to appellate proceedings (e.g., Pa.R.A.P. 2744), not trial-court behavior.

O'Connell v. O'Connell, 597 A.2d 643 (Pa. Super. 1991)

Cited by Campbell for the “stringent requirement” for sanction-based fees and to distinguish fee shifting from simply losing a dispute. The Supreme Court’s opinion does not rest on O’Connell, but it is consistent with the Court’s insistence on a record containing findings adequate to justify sanctions.

In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624 (Pa. 2015) (Baer, J., concurring), Carter v. Chapman, 270 A.3d 444 (Pa. 2022), and League of Women Voters of Pennsylvania v. Commonwealth, 178 A.3d 737 (Pa. 2018)

These decisions are used to explain the institutional role of Special Masters and the de novo posture when the Supreme Court acts as the original decision-maker. They help the Court draw the central contrast:

  • Special Master contexts (like County of Fulton and Carter) allow the Supreme Court to build and evaluate a record de novo.
  • Ordinary appellate review requires deference to the trial court and demands trial-court findings to support sanctions.

Washington v. PA Dep't of Corr., 306 A.3d 263 (Pa. 2023) and due process

Although not the formal holding, the Court notes that the Superior Court’s approach implicated due process: deprivation of property requires notice and a meaningful opportunity to be heard. The Court highlights that no hearing was conducted to determine whether Campbell’s conduct—independent of Mother—was sanctionable for fee purposes.

Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005)

Cited as persuasive authority for a parallel rule: appellate courts lack authority to impose sanctions for trial-court conduct. It supports the Court’s jurisdictional boundary rationale.

3.2. Legal Reasoning

(a) The dispositive doctrinal point: County of Fulton is not an abuse-of-discretion template

The Superior Court’s reasoning treated County of Fulton as a transferable principle: if counsel’s conduct makes it “unjust” for the client to bear all costs, an appellate court can require joint/several fee liability. The Supreme Court rejects that transfer:

  • County of Fulton was not appellate review of a trial court’s discretion; it was the Supreme Court exercising sanction authority in the first instance, based on a developed evidentiary record before a Special Master regarding misconduct in proceedings before the Supreme Court.
  • Here, the Superior Court’s role was constrained: it could not “try” the sanctions question anew, and it needed a trial-court record supporting a conclusion that the trial court’s choice was a palpable abuse.

(b) The record problem: no trial-court findings about counsel’s fee culpability

The Court emphasizes that the April 18, 2023 proceeding was an oral argument on dismissal/res judicata issues, not an evidentiary hearing on fee-shifting to counsel. The trial court’s written memorandum grounded § 5339 fees in Mother’s “vexatious and repetitive” pursuit of a meritless second removal petition, and it said nothing about Campbell as a basis for the fee award.

Crucially, the trial court did sanction Campbell—but through contempt, tied to violating the Psychological Evaluation Order—signaling that the court distinguished between (1) party-based vexatious custody litigation warranting § 5339 fees and (2) counsel’s separate misconduct warranting contempt remedies. The Superior Court, however, treated the filing of the second removal petition as sufficient to reallocate fee liability to counsel, without trial-court findings establishing dilatory/obdurate/vexatious/bad-faith conduct by counsel and without a developed record.

(c) The jurisdictional boundary: appellate sanctions are limited to appellate conduct

By invoking Gossman and Piecknick, the Court reiterates an important structural rule:

  • Pa.R.A.P. 2744 allows appellate fees as sanctions, but only for appellate proceedings (frivolous appeals, delay, or dilatory/obdurate/vexatious appellate conduct).
  • Trial-level conduct must be sanctioned (or not) by the trial court, and appellate courts may only review that decision for abuse of discretion.

This reinforces why County of Fulton—a Supreme Court sanction proceeding—cannot be used to justify intermediate appellate “factfinding by analogy” to impose trial-level fee liability on counsel.

3.3. Impact

1) Limits on using high-profile sanction cases as shortcuts

The Opinion narrows the practical reach of County of Fulton. The case cannot be invoked as a general equitable authorization for intermediate appellate courts to shift trial-level fee liability onto counsel, especially where the trial court did not do so and did not create findings supporting such a sanction.

2) Reinforcement of record-building requirements for attorney fee-shifting at the trial level

The decision encourages litigants and courts to treat “fees against counsel” as a distinct sanction requiring:

  • clear notice that counsel is targeted (not just the party),
  • a record that supports the statutory predicates (e.g., vexatious/bad faith), and
  • trial-court findings sufficient for deferential appellate review.

Even where a petition appears facially meritless, this Opinion warns appellate courts away from converting that facial assessment into fee liability for counsel without a trial-court-developed factual basis.

3) Doctrinal clarity in custody-fee practice under 23 Pa.C.S. § 5339

While the Supreme Court did not revisit the propriety of fees against Mother (that appeal was dismissed), the Opinion clarifies that § 5339 fee awards remain fundamentally trial-court decisions reviewed for abuse of discretion. If an opponent seeks to extend § 5339 consequences from a party to counsel, the litigation must be framed, noticed, and adjudicated in a manner that produces findings supporting that extension.

4) Due process as a shadow constraint

The Court’s due process discussion—though not the formal basis—signals that fee-shifting to counsel without a meaningful opportunity to be heard will be vulnerable, particularly when the fee demand against counsel is raised late (e.g., first asserted in a brief supporting a fee petition) and no hearing is held.

4. Complex Concepts Simplified

  • Guardian ad litem (GAL): an attorney appointed to represent the child’s best interests in custody litigation.
  • Res judicata / collateral estoppel: doctrines preventing re-litigation of claims (res judicata) or issues (collateral estoppel) already decided. The trial court treated Mother’s second removal petition as rehashing the first.
  • American Rule: each side normally pays its own lawyers; fee shifting is exceptional and must be authorized by statute/rule/contract or a recognized exception.
  • 23 Pa.C.S. § 5339: permits counsel fees in custody matters if a party’s conduct was “obdurate, vexatious, repetitive or in bad faith.”
  • 42 Pa.C.S. § 2503: a broader, cross-case statute allowing fees as sanctions against a “participant” for certain kinds of improper conduct.
  • Abuse of discretion: a highly deferential appellate standard; the appellate court does not decide what it would do, but whether the trial court’s decision was palpably unreasonable or legally erroneous based on the record.
  • De novo review: no deference; the reviewing court decides the issue fresh. The Supreme Court emphasized that County of Fulton functioned de novo because the Court itself was the sanction tribunal.
  • Special Master: a court-appointed factfinder who develops an evidentiary record and recommends findings; used by the Supreme Court when it must engage in factfinding.
  • Joint and several liability: each liable person can be responsible for the full amount, leaving them to sort out contributions among themselves.
  • Civil contempt: a sanction for disobeying a court order (here, the psychological evaluation confidentiality order); distinct from statutory fee-shifting for vexatious litigation.

5. Conclusion

This Opinion establishes a clear limitation on the use of County of Fulton v. Secretary of Commonwealth: it is not precedent for intermediate appellate courts to override trial-court discretion and impose trial-level counsel-fee liability on attorneys based on appellate fact-assessment, especially absent trial-court findings and a developed record.

The decision reinforces three broader themes in Pennsylvania sanctions jurisprudence: (1) respect for the American Rule and statutory predicates for fee shifting; (2) strict boundaries between de novo sanction authority (when an appellate court sanctions conduct before it) and deferential review (when reviewing trial-court sanctions); and (3) the necessity of record-based findings—both to satisfy due process and to permit meaningful abuse-of-discretion review.