dissenting.
I respectfully dissent. The majority states that this Court’s en banc decision in Arbuckle v. Unemployment Compensation Board of Review, 84 Pa.Cmwlth. 145, 478 A.2d 545 (1984), should be distinguished and its reasoning not applied in this case because Ar-buckle involved a request for costs of litigation under Pa. R.A.P. 2741 rather than a request for attorney’s fees pursuant to Pa. R.A.P. 2744. Rule 2741 costs are awarded as a matter of course to the party that prevails in an appeal, and Rule 2744 requires proof that the participant against whom such fees are awarded engaged in conduct that was dilatory, obdurate or vexatious. However, Arbuckle did not rest on so narrow a foundation, and I believe that its rationale is applicable to the present case as well.
*252In Arbuekle the Unemployment Compensation Board of Review (Board) reversed a referee’s decision and denied benefits to a claimant who was terminated for not reporting to work on the day before his wedding, where the employer previously approved his absence then revoked the approval at the last minute. This Court reversed the Board on the merits, but the Court denied the claimant’s request for an award of costs, noting the following:
In deciding this case, we have considered several significant facts:
1. The Board is a quasi-judicial body with no rule or policy-making function.
2. The Board was required to enter this litigation as a respondent as part of Claimant’s appeal from the Board’s decision.
3. The Employer, who in essence initiated this litigation and acted as Claimant’s adversary party before the referee and the Board, is no longer a party. Thus, the Employer is not available for the court to impose costs against it.
4. No statute or rule explicitly authorizes the imposition of costs on an adjudicatory board of a Commonwealth agency which has not initiated the action.
5. In 1983, the Board was named as respondent in over 700 cases appealed to this court.
6. The Board represents the public interest in appeals from its decisions.
Arbuckle, 84 Pa.Cmwlth. at 140-149, 478 A.2d at 547 (footnotes omitted).
The Court distinguished Baehr Brothers v. Commonwealth, 493 Pa. 417, 426 A.2d 1086 (1981) (affirming by an equally divided court), upon which the claimant relied, noting that the approval of costs in that case was against the Department of Revenue, which had imposed an unlawful tax, not against the Board of Finance and Revenue, which was the adjudicatory body analogous to the Board. The Court concluded that granting the claimant’s request would be, in effect, taxing costs against a judicial body for rendering a decision that was later held to be incorrect.
Generally, a litigant cannot recover attorney’s fees unless there is express statutory authorization, a clear agreement of the parties or some other established exception. Snyder v. Snyder, 533 Pa. 203, 620 A.2d 1133 (1993). In a footnote the Court in Arbuekle provided an example of a statute explicitly authorizing attorney’s fees and expenses against a Commonwealth agency. Section 3 of the Act of December 13, 1982, P.L. 1127, as amended, 71 P.S. §2033, relating to awards of fees and expenses in certain agency actions, provides:
(a) Except as otherwise provided or prohibited by law, a Commonwealth agency that initiates an adversary adjudication shall award to a prevailing party, other than the Commonwealth, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer finds that the position of the agency, as a party to the proceeding, was substantially justified or that special circumstances make an award unjust. (Emphasis added.)
In my view Arbuekle implicitly, and correctly, concluded that where the legislature has specifically provided for imposition of costs and fees against an agency in particular circumstances, it did not intend for adjudicative agencies to be subject to such costs and fees through the imposition of general rules.
The majority relies upon cases from other jurisdictions for the rationale that an agency such as the Board, once it is present before this Court on an appeal from its order, no longer acts as a quasi-judicial body but rather functions as an advocate. As the majority acknowledges, however, the holdings in those cases that the agencies could be subject to an award of attorney’s fees were based upon the existence of statutes expressly providing for awards of costs and fees in such circumstances. The Supreme Court of Oregon in Brown v. Adult and Family Services, 293 Or. 6, 643 P.2d 1266 (1982), framed the issue as the scope of the discretion of the intermediary appellate court to award attorney’s fees under Or.Rev.Stat. § 183.495: “ ‘Upon judicial review of a final order of an agency when the reviewing court reverses or remands the order it may, in its discretion, award costs, *253including reasonable attorney’s fees, to the petitioner to be paid from the funds appropriated to the agency.’ ” Brown, 293 Or. at 8, 643 P.2d at 1267.
The court affirmed denials of requests for fees in three of four consolidated cases and remanded one of them. It rejected the petitioners’ assertion, based upon an interpretation'of an inapplicable section and upon a policy argument of assuring broad access to review, that attorney’s fees should be awarded largely as a matter of right. Instead, the court concluded that the terms of the statute assigned broad discretion to the court of appeals. Regarding the one case as to which fees had been denied based upon the quasi-judicial role of the body similar to the Board, the court did conclude that its role was not as truly disinterested as was, for example, that of the state labor relations board acting as arbiter in a dispute between a municipality and a union. The court remanded for development and application of a standard under the statute.
The Supreme Court of Arizona, in Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 714 P.2d 807 (1986), considered whether Ariz. Rev.Stat. §12-348(A)(3) authorizes an award of attorney’s fees against a state agency that is charged with administration of a legislative enactment, including a quasi-judicial function, and that is party to an appeal of such a case pursuant to statute. Section 12-348(A)(3) provides that in addition to any costs awarded as prescribed by statute, “a court shall award fees and other expenses to any party other than this state or a city, town or county which prevails by an adjudication on the merits” of proceedings including “[a] court proceeding to review a state agency decision ....” The court concluded that where the Department of Water Resources participated in an appeal beyond the administrative adjudication level by doing more than certifying the record for review, it was functioning as an advocate and was liable for an award of attorney’s fees under the statute, which were mandatory unless an enumerated exception applied.
The decisions in Brown and Cortaro Water Users’ Ass’n support the majority’s characterization of an agency’s advocacy on appeal as a role distinct from its quasi-judicial function. Nevertheless, the results in these cases depend entirely upon the existence of statutes expressly providing for awards of attorney’s fees against agencies. In the present case, no similar Pennsylvania statute has been invoked.
Finally, I note that the decision of the majority creates the potential for unnecessary confusion and disruption in this Court’s appellate jurisdiction. The majority’s approach may well lead to applications for attorney’s fees against agencies in many cases where the agency is named as the respondent under Pa. R.A.P. 1513(b). This Rule provides in general:
The government unit which made the determination sought to be reviewed, and no other party, shall be named as respondent, except where the petition seeks review of an order of a government unit which is in fact disinterested in the subject matter of the order, in which ease all real parties in interest before such government unit shall be named as respondents and the government unit shall not be named as a respondent.
This potential applies to appeals from decisions of local agencies such as zoning hearing boards and civil service commission’s as well as to those of Commonwealth agencies. The majority characterizes the Board’s advancing an argument on appeal that was not contained in its opinion as “conduct” subject to an award of fees under Pa. R.A.P. 2744 and states that fees are not being awarded here based simply on a contention that the Board’s decision was in error. I disagree that litigants are likely to respect this fine distinction and refrain from making applications for fees whenever they regard an agency decision or argument on appeal as being particularly erroneous.
This Court should take particular note of one final point indicated in Arbuckle: in 1983, the Board was named as a respondent in over 700 appeals. For 1997 that number was 552, but for 1995 it was 1,105, and the Board is only one of many agencies that are brought before this Court as respondents in appeals from their adjudications. These figures convey the magnitude and the potential *254ramifications of the majority’s decision in this case.
Judge DOYLE joins in this dissenting opinion.