93 Pa. Commw. 300 | Pa. Commw. Ct. | 1985
Opinion by
Anthony Peace
The pertinent facts are as follows. Peace was terminated by the Southeastern Pennsylvania Transpor
On January 24, 1984, Peace applied to the CLS for legal representation in his civil suit against SEPTA. After reviewing his case and based upon the information which CLS gleaned from the prior proceedings, it notified him on April 16, 1984 that it would not represent him in that it concluded that his case lacked legal merit and was fee-generating. CLS is prohibited from taking fee-generating cases by 42 U.S.C. §1397. Peace appealed the CLS denial and a fair hearing was held before a Hearing Examiner on August 9, 1984. Five witnesses whom Peace desired to call and testify were not present at that time but he elected to proceed without them. On October 19, 1984, the Hearing Examiner entered an order in which Peace’s appeal was denied and the CLS decision was upheld. He appealed that order to the Office of Hear- . ings and Appeals of DPW which affirmed the Hearing Examiner in an adjudication dated October 22, 1984. Peace’s request for reconsideration was denied by a final order dated January 28, 1985. It is from that final order of January 28, 1985 that Peace now petitions for review.
In this appeal, Peace contends that (1) DPW erred when it upheld the CLS conclusion that his case was without legal merit and (2) that he is entitled to
The first prong of DPW’s motion to dismiss is that Peace failed to file his petition for review with the prothonotary of this Court within thirty days from the entry of DPW’s final order as required by Pa. E.A.P. 1512(a)(1). Since the timeliness of an appeal is jurisdictional in nature, if Peace’s appeal is untimely, we are without jurisdiction to hear the merits of his ease. St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 493 A.2d 146 (1985). Here, Peace’s appeal was received by our prothonotary on February 28, 1985. Computing time as directed by Section 1908 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1908, to exclude the first day but to include the last day of such period, Peace’s appeal was filed thirty-one days after the entry of DPW’s final order. We had previously held that where a petitioner is even only one day late in filing his appeal we are without jurisdiction to entertain the appeal. Kulovitis Trucking v. Workmen’s Compensation Appeal Board (Miller), 16 Pa. Commonwealth Ct. 417, 332 A.2d 892 (1975). Nor
In this case, however, DPW concedes that Peace mailed his request which our Court accepted as a petition for review within the thirty day appeal period. However, he directed his appeal to DPW who received-it on February 26, 1985. DPW then forwarded his correspondence to this Court where it was received on February 28, the thirty-first day after DPW’s final order. On these facts, we are persuaded that Peace substantially complied with Pa. R.A.P. 1514 (a) so as tó be entitled to utilize the date of mailing to- constitute the date review of DPW’s order was sought. Our conclusion is mandated by our Supreme Court’s decision in Miller v. Unemployment Compensation Board of Review, 505 Pa. 8, 476 A.2d 364 (1984). In Miller, our Supreme Court held that the appellant had substantially complied with Pa. R.A.P. 1514(a) even though he had failed to attach Postal Service Form 3817 to prove timely mailing. Although this Court did not receive Miller’s petition for review until three days after the expiration of the appeal period, the Supreme Court held that the record was ql’ear that the petition was timely mailed, and thus tiinfely filed. Id. at 10-11, 476 A.2d at 365. Here, Peace’s correspondence was actually received by DPW on February 26, on the day prior to the expiration of the appeal period. Since it was received by our prothonotary on February 28, DPW must have forwarded it to this Court no later than February 27, the ■ last day of the appeal period. Therefore, the record is sufficiently clear that Peace’s petition for reviéw was mailed timely and under Miller his appeal mil be considered as timely.
DPW next argues that Peace’s appeal should.be dismissed due to his failure to comply with the' Rules
Peace’s first contention is that DPW erred when it upheld the CLS determination that it could not provide him with legal services in that it concluded that his case was without legal merit and, in the alternative, fee-generating. 'CDS based its determination on ithe legal merits of Peace’s case against SEPTA
We have previously held, in the context of a CLS denial of legal services, that lawyers are not only justified in refusing to represent a client in a matter the lawyer knows to be without legal merit but that the lawyer is mandated not to do so. Albright v. Department of Public Welfare, 71 Pa. Commonwealth Ct, 114, 454 A.2d 1149 (1983). The United States Supreme Court has also held that it is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals. Polk County v. Dodson, 454 U.S. 312, 323 (1981).
In addition, the Rules of Professional Responsibility adopted by our Supreme Court to govern the conduct. of lawyers make it unethical for a lawyer to knowingly represent a client by bringing an action or motion which the lawyer knows to be totally without merit. Ethical Consideration EC 7-4 states that a lawyer is not justified in asserting a position in litigation that is frivolous. Disciplinary Rule DR 7-102(A)(2) provides that a lawyer shall not advance a claim or defense that the lawyer knows is unwar
CLS was further precluded from representing Peace in that he was seeking both back pay and damages. Those claims make the case a fee-generating case which CLS is precluded from accepting under 42 TJ.S.C. §1397. A case is “fee-generating” where it creates a fund out of which a lawyer’s fee can be paid. Cf. Ford Aerospace v. Workmen’s Compensation Appeal Board (Davis), 83 Pa. Commonwealth Ct. 584, 478 A.2d 507 (1984) (counsel fee award under Pennsylvania Workmen’s Compensation Act based upon entire amount awarded since counsel created a workmen’s compensation fund on behalf of his client). Were Peace to prevail on his claim for back pay and damages, there would certainly be a fund created by counsel’s efforts out of which fees could be paid. Accordingly, CLS was correct in its characterization of the case as fee-generating which it was prohibited by 42 TJ.S.C. §1397 from taking.
We shall now turn to Peace’s final contention which is that he was denied due process when DPW failed to afford him a rehearing on his appeal of the CLS denial of legal services so that five witnesses who were absent from his August 9, 1984 hearing could appear and testify. Peace admits that at the time of his initial hearing, he elected to proceed with the hearing despite the absence of those five witnesses. It was only after the hearing officer’s adjudication was issued in October, 1984, which dismissed his appeal, did he request a rehearing and the presence of those five witnesses. We have previously recognized that there is no right to a rehearing before an administrative agency, rather, the decision
Having found DPW’s findings to be supported by substantial evidence and no errors of law committed nor violations of constitutional rights, we shall affirm DPW’s adjudication.
Order
Now, December 5, 1985, the motion to dismiss of the Department of Public Welfare is denied and the order of the Department of Public Welfare dated January 28, 1985, is hereby affirmed.
DPW’s records show tbe name of Howard Anthony Peace and it is in that name that HPW’s adjudication is issued. Peace apparently uses bis middle name as bis proper name and it is in tbat name tbat be filed bis appeal with this Court.
Our scope of review of a DPW adjudication is limited to determining whether necessary findings are supported by substantial evidence, an error of law committed, or whether any constitutional rights of the petitioner were violated. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Kratzer v. Department of Public Welfare, 85 Pa. Commonwealth Ct. 318, 481 A.2d 1320 (1984).
Pa. B.A.P. 1513 requires that a petition for review contain a statement of the basis for the jurisdiction of the court, the names of the parties seeking review, the name of the government unit .which made the order sought to be reviewed, reference to the order sought to be reviewed, a general statement of the objections to the order, and a statement of the relief sought.
There were two documents filed by Peace which we treat as a petition for review under Pa. B.A.P. 1513. The first is his initial request for relief which was sent to DPW which forwarded it to our Prothonotary’s office. The second document is a form petition for review which Peace completed in longhand and returned to our Prothonotary’s office. Those two documents contain all of the information required, albeit in a rough and disjointed form, that Pa. B.A.P. 1513 requires except a statement of the basis of this Court’s jurisdiction,