DISSENT
Buchanan, C.J.I object to assessing a penalty of ten per cent under Appellate Rule 15(G).
It has been thirty-five years since the Indiana Supreme Court assessed a penalty on appeal. See Kroeger Laundry & Dry Cleaners, Inc. v. *9Williams (1943), 221 Ind. 299, 47 N.E.2d 612; Bradford Homes, Inc. v. Long (1943), 221 Ind. 309, 47 N.E.2d 609.
On Petition for Rehearing In Annee v. State (1971), 256 Ind. 686, 274 N.E.2d 260, the Supreme Court in a condemnation case in which the State appealed, refused to assess ten percent damages (under then Appellate Rule 15(F)) saying:
[Such] damages... are discretionary with this Court and we feel they should not be issued without a strong showing of bad faith on the part of the [appellant]. . . (emphasis supplied)
This court has only awarded damages against an appellant in one case in recent years, to-wit: Krick v. Farmers and Merchants Bank of Boswell (1972), 151 Ind.App. 7, 279 N.E.2d 254, in which it was found that:
This appeal is devoid of merit. The record is replete with delay, bad faith, and harassment.
This court, like the Supreme Court, has been reluctant to asses damages in appeals unless there is a “strong showing of bad faith on the part of the appellant.” See House v. Lesow (1975), 167 Ind.App. 449, 339 N.E.2d 86; American Savings & Loan Ass’n of Hammond v. Hoosier State Bank (1975), 167 Ind.App. 43, 337 N.E.2d 486; Hobby Shops, Inc. v. Drudy (1974), 161 Ind.App. 699, 317 N.E.2d 473; King v. Pollard (1974), 160 Ind.App. 209, 311 N.E.2d 454; Kourlias v. Hawkins (1972), 153 Ind.App. 411, 287 N.E.2d 764.
While it is true that cases adverse to the appellant-State’s position in this appeal were handed down during the time the appeal was being perfected, those cases, State v. Simley Corporation (1976), 169 Ind.App. 650, 351 N.E.2d 41, and State v. Reuter (1976), 170 Ind.App. 353, 352 N.E.2d 806, were decisions of the Third District of this court. Hoping for a different decision in the Second District of this court is not the kind of bad faith, harassment or vexatious conduct which Appellate Rule 15(G) (formerly 15(F)) has been construed to contemplate.1
*10The State’s conduct in pursuing this appeal in the face of adverse decisions from another District of this court is a far cry from the conduct of the appellant in Krick, in which damages were assessed, and in my opinion even falls short of the conduct of the appellant in King v. Pollard, supra, in which assessment of damages was denied.
It would be less than realistic to assume that parties to any litigation are not going to seek the most favorable forum, or a forum which at least has not shown itself to be contrary to the litigant’s position. In my opinion, seeking a favorable forum, if such it be, does not as such amount to an exhibition of bad faith justifying the assessment of damages under Appellate Rule 15(G).
NOTE — Reported at 377 N.E.2d 893.
. It could be argued that this Court does not have the authority to assess such a penalty against the State. Under common law principles, such an award would have been questionable. See City of Gary v. Falcone (1976), 169 Ind.App. 295, 348 N.E.2d 41.
However, the common law in this area has been superseded by Ind. Code 34-4-16.5-4, *10which states in pertinent part: “A governmental entity is not liable for punitive damages.” Although the provision is part of the Indiana Tort Claims Act, nothing in the Act attempts to limit its application solely to tort claims against the State.
The assessment under AP. 15(G) would appear to be a penalty — an award of punitive damages to punish the State. As such, it would fall within the prohibition of Ind. Code 34-4-16.5-4. Perhaps the public policy is based on Pogo’s famous commentary that I have met the enemy and he is us.