Original jurisdiction in the case of Charles J. Bufalino, Jr. and Malcolm Limongelli v. Department of Justice of Pennsylvania, Harvey Bartle, III, Acting Attorney General of Pennsylvania, Helen B. O'Bannon, Secretary of Public Welfare, and Robert E. Casey, State Treasurer.
R. J. Woodside, Shearer, Mette & Woodside, for petitioners.
Howard Ulan, Assistant Counsel, with him Vincent X. Yakowicz, Deputy Counsel, for respondents.
President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision in this case.
[ 66 Pa. Commw. Page 273]
Charles Bufalino and Malcolm Limongelli appeal from a decision by the Department of Justice refusing to reimburse them for the costs of defending a Commonwealth employee. We vacate and remand.
An employee of Farview State Hospital was indicted on numerous criminal counts, including aggravated assault and battery, simple assault, criminal conspiracy and perjury. The appellants were retained as defense counsel and received $10,000 prior to proceeding with their representation.
Appellants assert that the $10,000 was a retainer only and that they are entitled to an additional $30,000 in attorneys fees reimbursement.
4 Pa. Code § 39.1 states:
(a) The Commonwealth will not provide an attorney to defend a present or former official or employe in a criminal case arising from acts or omissions occurring while in the service of the Commonwealth. However, where it is determined by the Attorney General or his designee that there is no basis for the prosecution as a matter of law or fact, the Commonwealth will reimburse the employe for reasonable attorneys fees and to that end will make any required advance of such fees, limited, however, by the balance in the retirement account of the employe.
(b) In cases where the Attorney General or his designee does not determine that there is no basis for the prosecution in law or fact, he may nevertheless in his discretion authorize the reimbursement of reasonable ...