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Herron v. Commonwealth1/26/2004
olous, and therefore warrants the imposition of attorney's fees, when no justiciable question has been presented and the appeal is easily recognized as lacking any merit because there is little prospect of success. Mihadas v. Department of Transportation, 741 A.2d 249 (Pa. Cmwlth. 1999). We are also mindful that the imposition of counsel fees is a step not to be taken lightly. Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599 (Pa. Cmwlth. 2003).
Here, DOT makes much of the fact that Herron failed to object to the introduction of its evidence and only later argued that the evidence was not sufficient. DOT also points out that the trial court explained that Herron's position was without merit pursuant to McCafferty. The issue raised by Herron, however, was not the admissibility of DOT's evidence, but its sufficiency pursuant to Snyder, Tripson, and related cases. Further, DOT's documentary evidence was, arguably, in any event admissible pursuant to Section 6109(b) of the Judicial Code, 42 Pa. C.S. §6109(b) (relating to the admissibility of photographic copies of business and public records), and Section 1550(d)(1) of the Vehicle Code, as amended, 75 Pa. C.S. §1550(d)(1) (relating to the admissibility of out-of-state documentation received by DOT), and thus there was no basis to object to the admissibility of this evidence. Therefore, Herron's failure to object to the admissibility of DOT's evidence is simply not an issue.
Further, in Gallant v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 1 (Pa. Cmwlth. 2002), we explained that McCafferty had no application to the primary issue of whether the record of an out-of-state conviction was received from the licensing authority of the other jurisdiction. We would also add that Ferraguti and Bergen, indicating that the licensing authority of the State of New Jersey is the New Jersey Division of Motor Vehicles, did not address a challenge to that designation. The past several years have seen numerous and difficult cases, sometimes with pointed disagreement, that addressed the issue of whether the evidence submitted by DOT in Compact cases meets the requirement that the report of the out-of-state conviction came from the licensing authority of the other jurisdiction. In the context of this evolving law, Herron's appeal cannot be considered wholly frivolous, and his failed effort does not present a situation supporting the imposition of counsel fees.
Accordingly, the trial court's order is affirmed, and DOT's application for counsel fees is denied.
CHARLES P. MIRARCHI, JR., Senior Judge
ORDER
AND NOW, this 26th day of January, 2004, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is affirmed. The application of the Department of Transportation for assessment of reasonable counsel fees against Charles Keith Herron, pursuant to Pa. R.A.P. 2744, is denied.
CHARLES P. MIRARCHI, JR., Senior Judge
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