dissenting
42 Pa.C.S.A. § 2503(9) provides that:
The following parties shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(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.
Although the majority notes that there are strict definitional guidelines which limit the types of behavior that may be characterized as arbitrary, I cannot agree with the majority that here there was sufficient evidence to support a finding that Appellee’s naming of Appellant as a defendant in this suit was “arbitrary”, ie., based upon random or convenient selection or choice rather than on reason or nature.
The majority opinion errs in its conclusion that the evidence is sufficient to support the award of counsel fees. Sufficient evidence has been described as evidence which serves to “convince a reasonable mind to a fair degree of certainty ...., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pa. Labor Rel. Bd. v. Kaufmann Dept. Stores, 345 Pa. 398, 400, 29 A.2d 90, 92 (1942). The only evidence of record to which the majority points as supporting the award of attorney’s fees is: 1) the deemed admissions of Thunberg, and 2) the alleged failure of Thunberg’s attorney to conduct a thorough pre-complaint investigation. However, I believe neither of these could convince a reasonable mind or support a finding that Thunberg or her attorney acted arbitrarily within the meaning of the statute.
The majority’s reasoning with regards to the deemed admissions is simply erroneous. The majority correctly notes that in order for Thunberg to bring her “negligence action in good faith, Thunberg would have had to possess sufficient facts at the time of her filing of the complaint which a reasonable person would believe demonstrated” the elements of a cause of action. Majority op. at 616-617 (emphasis added). The ma*623jority then goes on to reason that because at some point after the initiation of this suit, Thunberg was deemed to admit certain facts by her failure to timely answer Requests for Admissions, she'therefore could not have reasonably believed in the non-existence of these subsequently deemed “facts” at the time she initiated this suit. This simply defies logic and reason. A determination that Thunberg initiated this suit arbitrarily must be judged by the information which was reasonably available at the time of the initiation of the suit and not by retroactively applying “facts” subsequently deemed to be found by operation of law. The majority’s use of these deemed “facts” does a disservice to the law in that it exalts form over substance.
Moreover, the logical extension of the Majority’s reasoning is to conclude that whenever a factfinder finds all or nearly all the facts adverse to the plaintiff, then an award of counsel fees would be warranted. This clearly is contrary to the intent of 42 Pa.C.S.A. § 2503(9). The majority acknowledges that the statute “serves not to punish all those who initiate legal actions which are not ultimately successful....” Majority op. at 615. Despite the majority’s acknowledgement, its reasoning serves only to punish those whose suits are ultimately unsuccessful.
Because the deemed “facts” cannot logically be used to support a finding that in initiating this suit, Thunberg acted arbitrarily, the majority is left with only the alleged inadequate pre-complaint investigation of Thunberg’s attorney to support the award of counsel fees.
First, the majority fails to state why the attorney’s interview with Thunberg and his obtaining of the police report and reliance thereon (see Transcript of hearing on the Petition for counsel fees, 8/25/92, p. 21) amounts to an inadequate precomplaint investigation. What more would the majority have an attorney do pre-complaint? Even assuming that the attorney failed to conduct an adequate pre-complaint investigation, the majority fails to analyze why such an alleged failure amounts to “arbitrary” conduct within the meaning of the statute.
*624I do not believe that the conduct of Thunberg’s attorney in the pre-complaint investigation and/or in including Gazey in the suit was “arbitrary.” Arbitrary conduct in this context means conduct which is based on random or convenient selection or choice rather than on reason or nature. Majority op. at 614-617. The attorney’s reliance upon the police report and Thunberg’s statements in initiating the suit does not appear to be based upon random selection or choice. That the attorney might have employed an accident reconstruction expert or interviewed witnesses other than Thunberg, etc., surely does not render his reliance upon the police report and his interview -with Thunberg “random”. Additionally, in light of the allegation contained in the Thunberg complaint that Gazey could have avoided the accident, and the fact that it was the collision between Gazey’s car and Thunberg’s car which caused Thunberg’s injuries, it does not appear that naming Gazey was based upon random or convenient selection rather than on reason. Thus, an award of counsel fees cannot be justified upon the ground that the attorney’s behavior was “arbitrary.”
Given the Majority’s utter failure to point to any evidence of record which supports the conclusion that either Thunberg or her attorney acted arbitrarily in initiating this suit, I am constrained to agree with the Superior Court’s opinion in this case:
[i]t is clear from the pleadings, letters between respective counsel, and between Thunberg’s counsel and Gazey’s insurance carrier, answers to request for admissions, and testimony adduced at the August 25, 1992 hearing, that Thunberg reasonably believed that her claim against Gazey was valid. The fact that her claim may have been weak, and was subsequently dismissed by an action for summary judgement, does not necessarily equate Thunberg’s conduct of instituting the action with conduct which is arbitrary, vexatious, or in bad faith. The trial court awarded counsel fees and costs on the basis of Thunberg not having a viable claim against the estate of Gazey. Because this is not the correct standard to be implemented in an action for attor*625ney’s fees, and because the trial court’s findings are not supported by the record, we find that the trial court erred in holding the counsel fees and costs were warranted....
431 Pa.Super. 655, 631 A.2d 1382.
As Appellee Thunberg’s filing of the suit against Gazey’s estate was not done arbitrarily, Thunberg’s appeal from the trial court’s imposition of counsel fees to the Superior Court was not brought frivolously, unreasonably, and without foundation. The fact that the Superior Court vacated the trial court’s award of counsel fees bolsters this conclusion. Therefore, I would not permit imposition of counsel fees earned in defending against the appeal.
Accordingly, I dissent.