Tuesday, August 12, 2008

admin. law - appeal - frivolous appeal - attorney fees

Reinhart v. Bureau of Driver Licensing - Commonwealth Court - August 12, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/2351CD07_8-12-08.pdf

The court upheld the trial court's decision in favor of the driver, whose license DOT wanted to suspend for his alleged refusal to submit to chemical testing by failing provide adequate breath samples, after being arrested for DUI.

The court also awarded attorney fees under Pa. RAP 2744, because DOT's appeal was found to be frivolous. It was based entirely on its own version of the facts, which were contrary those found by the trial court - including an express determination that the licensee provided two sufficient breath samples, rejecting contradictory testimony from DOT. The lower court findings, including about credibility, were held to be well supported by substantial evidence.

On appeal, DOT argued that it was "undisputed" that the licensee did not provide sufficient breath for a proper test, in spite of the express lower court findings to the contrary. "The court must determine the issues under the facts properly found by the trial court and not under the testimony that DOT prefers."

Pa. RAP 2744 states that an appellate court may award as further costs and damages as may be just a reasonable counsel fee "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa. R.A.P. 2744.

A frivolous appeal is one in which “no justifiable question has been presented and ... [that] is readily recognizable as devoid of merit in that there is little prospect of success”....A frivolous appeal is one lacking any basis in law or fact. Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous.

An award of attorney’s fees against a government entity for pursuing a frivolous appeal is not without precedent and is not barred by any kind of immunity.

UC - voluntary quit - resentment of reprimand

Dunlap v. UCBR - Commonwealth Court - August 12, 2008 - unreported memorandum opinion

http://www.courts.state.pa.us/OpPosting/CWealth/out/320CD08_8-12-08.pdf

Mere disagreement with an employer’s management style or dissatisfaction and resentment of a reprimand does not constitute a necessitous and compelling reason to quit employment. Gioia v. UCBR, 661 A.2d 34 (Pa. Cmwlth. 1995).

UC - appeal - filing by fax - date of receipt

Mountain Home Beagle Media v. UCBR - Commonealth Court - August 12, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD08_8-12-08.pdf

Employer appeal to UCBR had to be filed on or before August 28th. It was properly held to be late where the employer faxed the appeal and UCBR records showed receipt of the appeal ten (10) days after appeal deadline, despite employer's claim that it had faxed the appeal within the time limits.

The party appealing bears the risk of loss in transmission because it chose facsimile as the method of filing. The regulation, 34 Pa. Code § 101.82 (b)(3)(i), says that "If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal." (emphasis added)

"The date and time stamp on the sender’s confirmation sheet is simply not reliable to establish the date of filing by fax with the Board of Review....There is no evidence of fraud, administrative breakdown or non-negligent conduct which would permit the appeal to be filed nunc pro tunc. Moreover, as the imprinted date of receipt on the Department’s fax machine indicates that the Department first received Employer’s appeal on September 6, 2007, and such document is legible, such date is deemed the filing date of the appeal. 34 Pa. Code § 101.82(b)(3)(i). Employer assumed the risks inherent in filing an appeal via fax transmission. The Board properly dismissed Employer’s appeal as untimely."

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