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REQUEST FOR REIMBURSEMENT ON BEHALF JAMES PLEVYAK. COMMONWEALTH PENNSYLVANIA (06/05/84)

decided: June 5, 1984.

IN RE: REQUEST FOR REIMBURSEMENT ON BEHALF OF JAMES PLEVYAK. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, PETITIONER


Appeal from the Order of the Office of Attorney General in the case of In Re: Request for Reimbursement on behalf of James Plevyak, No. OAG-81-EBR-0-1.

COUNSEL

Roger T. Margolis, Assistant Counsel, for petitioner.

Daniel L. Sullivan, Shearer, Mette & Woodside, for respondents.

Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 83 Pa. Commw. Page 81]

This petition for review results from an order of the Office of the Attorney General (OAG) which requires the Department of Public Welfare (DPW), petitioner herein, to pay $30,000.00 in attorneys' fees to respondents, Charles Bufalino, Jr., Esq., and Malcolm Limongelli, Esq., for services respondents provided

[ 83 Pa. Commw. Page 82]

    while representing James Plevyak, a DPW employee, in a number of criminal matters.

Plevyak was employed as a guard at Farview State Hospital in 1977 when he was indicted and charged with eighteen criminal offenses arising from his employment. Plevyak contacted Bufalino and sought legal representation. Bufalino engaged Limongelli to assist in the defense, Plevyak having consented to such an arrangement. Plevyak agreed that the pair would bill him somewhere in the range between seventy-five to one hundred dollars per hour. Because of the impossibility of accurately estimating the number of hours that would be involved, Bufalino and Limongelli demanded and received a $10,000.00 retainer from Plevyak, who was informed that the retainer would be credited against the first $10,000.00 billed at the hourly rate.

Bufalino and Limongelli subsequently represented Plevyak at all stages involving the eighteen indictments. Included in this representation were two separate jury trials, each lasting one week, where Plevyak was acquitted of some of the charges. Eventually, the prosecutors nol-prossed the remaining charges.

Subsequently, Plevyak sought reimbursement from the Commonwealth of the $10,000.00 retainer paid to his attorneys pursuant to 4 Pa. Code ยง 39.1(b), which provides:

(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 attorneys fees if the employe's defense is successful.

The initial request, which was made without the knowledge of Bufalino or Limongelli, was denied because Plevyak had ...


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