admin. law - standard of proof - appellate review

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


http://www.pacourts.us/OpPosting/Cwealth/out/926CD10_1-28-11.pdf


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]

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“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).

atty. fees - federal court - 28 USC 1927 - multiplication of proceedings through unreasonable and vexatious actions

Squires Golf Club v. Bank of America - January 13, 2011 - ED Pa.


http://www.paed.uscourts.gov/documents/opinions/11D0034P.pdf


The court granted the Bank costs, expenses and attorneys’ fees pursuant to 28 U.S.C. § 1927, which provides: “Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Although imposition of fees under § 1927 requires a showing of bad faith, this showing may be made by implication “‘[w]hen a claim is advocated despite the fact that it is patently frivolous or where a litigant continues to pursue a claim in the face of an irrebuttable defense[.]’” Cameron’s Hardware, Inc. v. Independence Blue Cross, No. 08-15, 2008 WL 2944697, at *5 (E.D. Pa. July 28, 2008), quoting Loftus v. Southeastern Pa. Transp. Auth., 8 F. Supp. 2d 458, 461 (E.D. Pa. 1998), aff’d 187 F. 3d 626 (3d Cir. 1999), cert. denied 528 U.S. 147 (1999).

Bad faith may also be shown “through ‘the intentional advancement of a baseless contention that is made for an ulterior purpose, e.g., harassment or delay.’” Id., quoting Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986).

Commonwealth Court - citing unreported cases

As of January 1, 2011, "Parties may. . . cite an unreported . . . panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent."

210 Pa. Code § 67.55 http://www.pabulletin.com/secure/data/vol40/40-45/2096.html

You can find summaries of many such unreported decision in the PLAN Legal Updates http://planupdate.blogspot.com/. There is no password required to access the Updates, which are searchable and go back about 5 years.

appeals - nunc pro tunc - pleading of and findings about reasons required

Williams v. Housing Authority - Cmwlth. Court - January 4, 2011 - unreported


http://www.pacourts.us/OpPosting/Cwealth/out/1040CD10_1-4-11.pdf


Commonwealth Court remanded the case to the trial court, which had granted the public housing applicant's petition to appeal nunc pro tunc, because the "record is devoid of any statement whatsoever as to why the underlying appeal was not timely filed. [Applicant's] application for leave to file an appeal nunc pro tunc did not offer a reason for her failure to file a timely appeal, and the trial court’s opinions did not address the issue. The only stated reason for the trial court’s grant of Williams’ request to appeal nunc pro tunc is that the Authority failed to oppose [applicant's] motion. Any failure to oppose a motion, however, is not sufficient to confer appellate jurisdiction where none exists.

Without a determination as to existence of fraud or a breakdown of adjudicatory operations, and without a finding as to some other extraordinary circumstance, the granting of the right to appeal nunc pro tunc was premature. The trial court’s order is, therefore, vacated, and the matter is remanded for a proper determination as to whether the trial court can grant the the right to appeal nunc pro tunc.

As a general rule, an appeal nunc pro tunc will be granted in civil cases only where the appeal was untimely filed due to fraud or a breakdown in the court’s operations. However, that standard has been relaxed where a litigant’s right to appeal has been lost due to ‘extraordinary circumstances.’ Each case, however, is limited to the unique and compelling factual circumstances of that particular case.

The courts of this Commonwealth have addressed the issue of whether extraordinary circumstances existed such that allowance of an appeal nunc pro tunc was appropriate on numerous occasions. See [Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760 (1996)] (appeal nunc pro tunc was appropriate in criminal context where litigant requested attorney to file appeal; however, attorney failed to file timely appeal); Cook v. UCBR, 543 Pa. 381, 671 A.2d 1130 (1996) (appeal nunc pro tunc was appropriate where hospitalization of litigant during the running of the appeals period resulted in the non-negligent late filing of appeal); Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) (appeal nunc pro tunc was appropriate to avoid a litigant’s loss of her day in court where the failure of a litigant’s attorney to file a timely appeal was non-negligent and the delay was minimal); [Walker v. UCBR, 461 A.2d 346 (Pa. Cmwlth. 1983)] (appeal nunc pro tunc was appropriate where post office failed to forward referee’s decision resulting in untimely filing of appeal). While the holdings in those cases expand the general rule for granting an appeal nunc pro tunc, implicit in each of those holdings is a finding that the litigant himself did not act in a negligent manner. Puckett v. PennDOT, 804 A.2d 140, 143 (Pa. Cmwlth. 2002).

What is clear, then, is that where a court is asked to make a determination as to whether to grant a litigant the right to file an untimely appeal nunc pro tunc, the finding that such untimeliness is the result of some fraud, a breakdown in adjudicatory operations or some other extraordinary circumstance is, in fact, a jurisdictional prerequisite to the granting of the right to appeal nunc pro tunc.

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N.B. As of January 1, 2011, "Parties may. . . cite an unreported . . . panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. http://www.pabulletin.com/secure/data/vol40/40-45/2096.html

You can find summaries of many such unreported decision in the PLAN Legal Updates http://planupdate.blogspot.com/. There is no password required to access the Updates, which are searchable.