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D.E.S. v. COMMONWEALTH PENNSYLVANIA (11/29/89)

decided: November 29, 1989.

D.E.S., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



PETITION FOR REVIEW (DEPARTMENT OF PUBLIC WELFARE).

COUNSEL

Richard G. Johnson, for petitioner.

Kathleen Harrington, Asst. Counsel, for respondent.

Colins and McGinley, JJ., and Narick, Senior Judge.

Author: Mcginley

[ 130 Pa. Commw. Page 38]

This is an appeal by D.E.S. (Petitioner) from an order of the Office of Hearings and Appeals (O.H.A.) which denied Petitioner's request for attorneys' fees and expenses pursuant to the Act of December 13, 1982 (Costs Act), P.L. 1127, 71 P.S. §§ 2031-2035 (Supp.1989).*fn1 We affirm.

There is no dispute as to the following facts. On May 8, 1986, Petitioner struck his eleven year-old daughter, L.S., after she became disruptive and threw a push-up (popcicle) in the garbage. To escape punishment, L.S. ran to her parents' bedroom and attempted to close the door. (Notes of Testimony, October 31, 1986 (N.T.), at 22.) Petitioner forced open the door and with his belt struck L.S. who crouched to the ground on all fours. On May 9, 1986, the Washington County Children and Youth Services (C.Y.S.) received a report of suspected child abuse based on a school nurse's observation of a five inch red mark from L.S.'s hairline to the corner of her left eye. (N.T. at 4.) After conducting an investigation, C.Y.S. filed a report of indicated child abuse based on the location of the mark, the "random swinging of the belt," and that such injury caused severe physical pain. (Child Protective Service Investigation Report, Reproduced Record (R.R.) at 1A). Petitioner

[ 130 Pa. Commw. Page 39]

    requested that the D.P.W. expunge his record of child abuse and a hearing was held. The hearing officer recommended that the request for expungement be denied and O.H.A. adopted the recommendation. On August 12, 1987, O.H.A. denied Petitioner's request for reconsideration.

On appeal to this court, we reversed the decision of the O.H.A. determining that L.S. did not suffer serious physical injuries causing severe pain and ordered D.P.W. to expunge the report of indicated child abuse concerning the Petitioner. (D.E.S. v. Commonwealth of Pennsylvania, Department of Public Welfare, No. 799 C.D.1987, filed August 17, 1988.)

On September 21, 1988, Petitioner filed a petition for award of attorneys' fees and expenses with the O.H.A. On October 31, 1988, the O.H.A. denied the petition and Petitioner appeals from that decision.

Our scope of review in fee determination cases is whether the adjudicating officer committed an abuse of discretion. Carlisle Electric Inc. v. Department of Labor and Industry, 101 Pa. Commw. 359, 516 A.2d 437 (1986).

On appeal Petitioner contends that pursuant to Section 3(a) of the Costs Act, 71 P.S. § 2033*fn2 he is entitled to attorneys' fees and expenses because: 1) the C.Y.S. is the agent of D.P.W. pursuant to Section 16 of the Child Protective Services Law (C.P.S.L.)*fn3 and the D.P.W. acting upon C.Y.S.'s indicated report of child abuse initiated an "adversary adjudication"; 2) the hearing as to the issue of expungement and O.H.A.'s final order denying ...


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