concurring and dissenting.
I concur in the affirmance of the trial court’s denying continuance and dismissing the motion for a rehearing, but dissent as to the awarding of counsel fees because the appeal is frivolous.
For counsel fees to be awarded on appeal as to whether, as a matter of law or fact, Swoyer’s contentions have no likelihood of success and continuation of the contest is unreasonable. Wenger v. Commonwealth of Pennsylvania, 107 Pa. Commonwealth Ct. 20, 527 A.2d 1071 (1987).
Swoyer raises the issue that it was an abuse of discretion for the trial court not to grant a continuance for it contravenes the Supremacy Clause of Article VI, Section 2 of the United States Constitution. On that ground, Swoyer argues that if counsel is required to appear in federal and state courts simultaneously, counsel is bound to attend the federal court matter. While I believe that this contention is erroneous, so many federal judges believe this to be true, how can it be frivolous?
More to the point, I do not believe that Pa.R.A.P. 2744 authorizes the imposition of counsel fees against a party where the substance of the matter on appeal involves conduct of his counsel rather than that party’s interest. Pa. R.A.P. 2744 is not broad enough, and absent a provision in the Appellate Rules similar to that contained in Section 8355 of the Judicial Code, 47 Pa.C.S. § 8355, counsel fees cannot be awarded against the attorney.
For the foregoing reasons, I dissent.