Dissenting Opinion by
Senior Judge Barbieri:I respectfully dissent from the majority’s assessment of costs and counsel fees against Petitioner and Public Defender.
All of the actions and omissions here that make this appeal frivolous occurred while uncounseled Petitioner was proceeding pro se.
I note that we have not customarily assessed costs and counsel fees where the frivolity was the basis for allowing counsel to withdraw. E.g., Hillanhrand.1 I would quash the appeal as the majority would, but would not assess counsel fees and costs against Petitioner, unlearned in the law, nor against the Public Defender who tried to provide representation to which Petitioner at that point was entitled. I would not penalize the Public Defender for not refusing the representation, which we would have ordered if requested to do so, nor for foiling to file a petition to withdraw, although we may feel that he should have done the latter.2
Assessing counsel fees and costs only when requested puts this procedure at the option of the appellee.
In Smith, 117 Pa. Commonwealth Ct. 220, 543 A.2d 221 (1988), relied upon by the majority, we stated in Footnote No. 3 of that case:
3. Of course, all doubts about the frivolity of a particular appeal should be resolved in favor of the appellant and against the imposition of costs. (Emphasis added.)