Friday, January 28, 2011

admin. law - standard of proof - appellate review

LT Beauty School v. State Board of Cosmetology - Cmwlth. Court- January 28, 2011

As the factfinder, the Board is responsible for making determinations of credibility and may accept or reject the testimony of any witness in whole or in part. See Peak v. UCBR, 509 Pa. 267, 501 A.2d 1383 (1985). However, as the burdened party, the Board must meet both: (1) its burden of production, i.e., present sufficient evidence; and (2) its burden of persuasion, i.e., present credible evidence. Kirkwood v. UCBR, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The question of whether the Board’s evidence is sufficient is wholly a question of law. Id. [emphasis in original]

“The degree of proof required to establish a case before an administrative tribunal is the same degree of proof used in most civil proceedings, i.e., a preponderance of the evidence.” Samuel J. Lansberry Inc. v. PUC, 578 A.2d 600, 602 (Pa. Cmwlth 1990).