Mantell v. Mantell, 384 Pa. Super. 475, 488, 559 A.2d 535, 542 (1989). The trial court found authority for its award of counsel fees and costs in 42 Pa.C.S.A. § 2503, as interpreted in the case of Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983). The relevant provisions of § 2503 provide:

Under 42 Pa.C.S.A. § 2503, attorneys' fees may be awarded by the court if "conduct in commencing the action was 'arbitrary, vexatious, or in bad faith.'" Santilo v. Robinson, 383 Pa.Super. 604, 607, 557 A.2d 416, 417 (1989)(citing 42 Pa.C.S.A. § 2503(9); See Brenckle v. Arblaster, 320 Pa.Super. 87, 94, 466 A.2d 1075, 1078 (1983)). Additionally, "the court may require an award of counsel fees if the party's conduct during the pendency of the matter is dilatory, obdurate or vexatious."

42 Pa.C.S.A. § 2503(7). See Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983). But even absent statutory authority, a Pennsylvania insured who is forced to bring a declaratory judgment action to establish the insurer's duty to defend a third-party action may recover attorneys' fees for defending the action and for prosecuting the declaratory judgment action if the insurer has refused to defend the insured in bad faith.

Instead, in a number of cases, the courts have discussed subsections (7) and (9) without drawing any distinction between the subsections, other than observing that one (1) subsection governs the initiation of the lawsuit and the other involves conduct during the pendency of the lawsuit. See, e.g.,Wood v. City of Philadelphia, 2014 WL 1004119, at *4 (Pa.Cmwlth.Ct. Mar. 13, 2014) ; In re Barnes Foundation, 74 A.3d 129, 135 (Pa.Super.2013) ;Elfman, 2001 WL 1807940, at *11–12 ; Liscio, 638 A.2d at 1021 ; Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075, 1078 (1983).To decide the matter before me, I need not delve further into these questions.

Generally, if the record supports a court's finding of fact that a party's conduct was dilatory, obdurate or vexatious, an award of counsel fees will not be disturbed in absence of an abuse of discretion. State Farm Mutual Automobile Ins. Co. v. Allen, 375 Pa. Super. 319, 544 A.2d 491 (1988); Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983); In Re Roos' Estate, 305 Pa. Super. 86, 451 A.2d 255 (1982). In Ciaffoni-1, Robert Ciaffoni appealed an order from the trial court directing him to pay $5,366.

In addition, when reviewing a grant of attorney's fees, we will not disturb the decision below absent a clear abuse of discretion. See, e.g., Brenckle v. Arblaster, 466 A.2d 1075, 1078 (Pa. Super. 1983); Shearer v. Moore, 419 A.2d 665, 669 (Pa. Super. 1980). Because an award of counsel fees "is intended to reimburse an innocent litigant for expenses made necessary by the conduct of an opponent," American Mut. Liability Ins. Co. v. Zion & Klein, P.A., 489 A.2d 259, 262 (Pa. Super. 1985), it is "coercive and compensatory, and not punitive."

It is well-settled that a court "may require a party to pay another participant's counsel fees if the party's conduct during the pendency of the matter was 'dilatory, obdurate, or vexatious [.]'" Brenckle v. Arblaster, 466 A.2d 1075, 1078 (Pa. Super. 1983). It is equally well-established that, whenever there is an unsuccessful attempt by a beneficiary to surcharge a fiduciary, the latter is entitled to an allowance out of the estate to pay for counsel fees and necessary expenditures in defending himself against the attack.

The trial court may, upon motion, require a party to pay another participant's counsel fees if the party's conduct in commencing the action was arbitrary, vexatious or in bad faith. Santillo v. Robinson, 383 Pa. Super. 604, 557 A.2d 416 (1989); Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983); 42 Pa.C.S.A. § 2503. However, the intent of the rule permitting the recovery of counsel fees is not to punish all of those who initiate actions which ultimately fail, as such a course of action would have a chilling effect upon the right to raise a claim.

Id. ¶ 24 In Brenckle v. Arblaster, 466 A.2d 1075 (Pa.Super. 1983), this Court affirmed the entry of an award of attorney fees, as well as punitive damages, in a case where the trial court found that the appellants, legatees under a contested will, had engaged in "blatant, obviant, arbitrary, and vexatious conduct . . . designed to frustrate . . . a series of court orders." Id. at 1077.

Compare Gertz v. Temple University, 661 A.2d 13 (Pa.Super. 1995) (record supported trial court's conclusion that counsel's lack of due diligence in filing untimely post trial motions unnecessarily delayed the proceedings and caused additional legal work; award of counsel fees under § 2503 (7) was proper); Estate of Liscio, 638 A.2d 1019 (Pa.Super. 1994) (where claim had no reasonable possibility of success, and continued litigation cost estate attorneys' fees, award under § 2503 was proper). Nor was there a finding of bad faith to support an award of counsel fees. Compare Brenckle v. Arblaster, 466 A.2d 1075, 1078 (Pa.Super. 1983) (if the record supports a finding of fact that there was bad faith conduct, the award of counsel fees will not be disturbed absent an abuse of discretion). Even if the witness Dr. Chernus's conduct was sanctionable, appellant should not be held liable for his witness's misconduct.