Judges： Nix, Larsen, McDermott, Hutchinson, Zappala, Papadakos, Flaherty
Filed Date： 11/27/1985
Status： Precedential
Modified Date： 10/19/2024
OPINION OF THE COURT
The sole issue in this appeal is whether appellant, the State Board of Examiners of Public Accountants, is barred by the equitable doctrine of estoppel by laches from instituting disciplinary proceedings against appellee Harold Weinberg for professional misconduct occurring in 1974. We hold that, under the circumstances of this case, laches does not operate to bar such disciplinary proceedings.
Appellee is a public accountant certified by the State Board of Examiners of Public Accountants (the Board) pursuant to the C.P.A. Law, Act of May 26, 1947, P.L. 318, §§ 1-16.2, as amended, 63 P.S. §§ 9.1-9.16(b) (Purdon’s 1968). In 1974, appellee handled the account of Southside AMC-Jeep, Inc. (Southside) as a partner in the accounting firm of Winderman, Stein and Weinberg.
The owners of Southside gave appellee an envelope containing $1,500. Appellee removed $500 from the envelope and appropriated this money for his personal use. On August 22, 1974, appellee delivered the remaining $1,000 to the IRS agent who then recommended a no-change audit as promised.
In early 1975, appellee, through an attorney, voluntarily contacted the IRS and confessed his misdeeds of the previous year. At the request of the IRS, he agreed to cooperate in the investigation and prosecution of the errant IRS agent and others. His cooperation included wearing a “body wire” to tape record several conversations. As a result of appellee’s cooperation, two IRS agents pleaded guilty to criminal charges in federal district court. Appellee also testified in federal court in 1976, under a grant of immunity, against his former business partner, Stanley Stein, who was convicted of federal charges. For obvious reasons, the partnership had dissolved and appellee began a sole proprietorship in 1975.
In 1980, the Board brought formal disciplinary action against Stanley Stein based upon his 1976 federal conviction. In prosecuting this disciplinary action, the Board reviewed appellee’s testimony from the 1976 federal jury trial and learned, for the first time, of appellee’s participation in the 1974 bribery involving Southside. On September 16, 1981, the Board issued a citation and notice of hearing to appellee, charging him with violations of section
At the hearing held on December 8, 1981, appellee’s testimony at the 1976 Stein trial constituted the Common
On March 22, 1982, the Board adjudicated appellee guilty of violating the C.P.A. Law and the rules of professional conduct promulgated by the Board, and ordered that appellee’s certificate and permit to practice accounting be suspended for one year. The Board rejected appellee’s defense of laches, holding that there was not undue delay in initiating the disciplinary proceeding and that appellee was not prejudiced in his defense by the delay because, despite the lack of complete recall on the part of appellee and the IRS agents, the Board fully accepted appellee's assertions as to his voluntary cooperation in the IRS investigation. The Board took into account the lapse of time since appellee’s criminal conduct, his subsequent clear record, and his voluntary cooperation in the IRS investigation in arriving at its “rather lenient sanction” of a one year suspension.
Appellee appealed the Board’s adjudication to the Commonwealth Court and petitioned for a stay, which was granted. A Commonwealth Court panel reversed the Board. 76 Pa.Cmwlth. 216, 463 A.2d 1210 (1983) (per Doyle, J., joined by Rogers, J.; Blatt, J. dissenting). The Commonwealth Court held that laches barred the Board from instituting disciplinary proceedings because it had not acted with due diligence and because appellee had been prejudiced by the delay. This Court granted the Board’s petition for allowance of appeal on March 28, 1984 and we now reverse.
The parameters of the equitable doctrine of laches are well defined. As a unanimous Court recently reiterated in
“The application of the equitable doctrine of laches does not depend upon the fact that a definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice.” Wilson v. King of Prussia Ent., Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966); accord, In Re Estate of Marushak, 488 Pa. 607, 413 A.2d 649 (1980); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977); Holiday Lounge, Inc. v. Shaler Ent., Inc., 441 Pa. 201, 272 A.2d 175 (1971); Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967); Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967). The prejudice required is established where, for example, witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim. Kay v. Kay, 460 Pa. 680, 685, 334 A.2d 585, 587 (1975); see also Alker v. Philadelphia National Bank, 372 Pa. 327, 93 A.2d 699 (1953).
Thus, it is clear that the application of the defense of laches requires not only an unjustified delay, but also that the opposing party’s position or rights be prejudiced as a result of that delay. Leedom v. Thomas, supra. See also 2 J. Pomeroy, Equity Jurisprudence § 419d, at 177 (5th ed. 1941). Moreover, “[t]he question of laches is factual and is determined by examining the circumstances of each case.” Leedom v. Thomas, supra, 473 Pa. at 200-201, 373 A.2d at 1332, and cases cited therein.
Furthermore, the defense of laches is an affirmative defense and the burden of proving laches is, therefore, on the defendant/respondent. See, e.g., Jackson v. State Real Estate Commission, 72 Pa.Cmwlth. 539, 456 A.2d 1169 (1983); Harrington v. Commonwealth Department of State, 58 Pa.Cmwlth. 137, 427 A.2d 719 (1981); Ullo v.
In applying these principles to the circumstances of this case, it is clear that the Commonwealth Court committed an error of law in holding that appellee has met his burden of proving laches.
Initially, we reject the Board’s argument that estoppel by laches should not be applied to bar the Commonwealth from initiating disciplinary proceedings by a licensing board. The Board argues that:
This Court has never considered whether laches applies to governmental actions taken by state licensing boards. In other contexts, this Court has held the doctrine of estoppel by laches may not be used against the Common*150 wealth in actions involving performance of a governmental function. For example, where the Commonwealth is exercising its taxing or police power, laches is not a bar to the Commonwealth’s action except in extraordinary circumstances. Since the statutory authority to revoke or suspend a license to practice a profession is the exercise of the government’s police power, the statutory purpose and scheme of state licensing laws does not support the expansion of the doctrine of laches to disciplinary proceedings.
Brief for Appellant at 8.
In Pennsylvania State Board of Medical Education & Licensure v. Shireson, 360 Pa. 129, 61 A.2d 343 (1948), this Court at least implicitly held that the equitable defense of laches can be asserted against the Commonwealth in a disciplinary action by a licensing board. We have also recognized the availability of the defense against the Commonwealth and other governmental units in numerous cases and in a variety of situations, although the courts will be generally reluctant to apply the doctrine against the government and will require a stronger showing by a defendant who attempts to apply the doctrine against the Commonwealth than by one who would apply it against an individual. See e.g., Commonwealth Department of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (1979) (Commonwealth estopped from asserting statute of limitations as defense in assumpsit action); Commonwealth ex rel. Margiotti v. Union Traction Co. of Philadelphia, 327 Pa. 497, 194 A. 661 (1937) (Commonwealth estopped by laches from forfeiting the franchise charters of corporations); Heidorn’s Appeal, 412 Pa. 570, 195 A.2d 349 (1963) (municipality estopped by laches from enforcing zoning restriction); Class of Two Hundred Administrative Faculty Members v. Scanlon, supra (Commonwealth estopped by laches from implementing classification system); Stahl v. First Pennsylvania Banking and Trust Co., 411 Pa. 121, 191 A.2d 386 (1963) (Commonwealth estopped by laches from acquiring certain monies held by bank in escheat
Having decided that the defense of laches is available to appellee in the instant case, we now hold that he has failed to sustain his burden of proving this affirmative
The Commonwealth Court held that “where, as here, the evidence of wrongdoing becomes a matter of public knowledge, the Board must be diligent to keep abreast of such matters and act promptly____ We find no excuse for the Board’s delay until mid-1980 to discover that C.P.A. Stein had been prosecuted in 1976, and that Weinberg had testified at Stein’s public trial.” 76 Pa.Cmwlth. 216, 463 A.2d at 1212. There is nothing in the record to indicate that the 1976 federal trial was so notorious or the publicity (if any) so pervasive that the Board should have been aware of the trial and of appellee’s testimony given during that trial. There are scores of trial courts in this Commonwealth including all of the courts of common pleas and the federal district courts. To charge the Commonwealth as a matter of law with knowledge of every criminal proceeding in every court, as the Commonwealth Court has done, is unwarranted. Due diligence is a factual determination to be decided under the circumstances of the case, and appellee has failed to meet his burden of demonstrating that the Board did not act with due diligence. Cf. Heidorn’s Appeal, supra (knowledge of open and conspicuous zoning ordinance violation would be imputed to municipality for purposes of determining whether municipality acted with due diligence in attempting to enforce ordinance) and Commonwealth ex rel. Margiotti v. Union Traction Co. of Philadelphia, supra. (“After the validity, or apparent validity, of corporate transactions so conducted in public
Neither has appellee met his burden of demonstrating that he has been prejudiced by the delay in this case. Appellee asserts that he has been prejudiced in three ways: (1) that his recollection and that of the IRS agents with whom he cooperated have diminished with time regarding his cooperation and participation in the investigation; (2) that the IRS files concerning the investigation (and his cooperation) cannot now be located; and (3) that he has gone to great expense and inconvenience in establishing his present sole accounting proprietorship and that the delay in instituting disciplinary proceedings have hurt his chances of pursuing alternative business or career opportunities.
As to his first two assertions, appellee has not been prejudiced. The Board fully accepted appellee’s testimony regarding his cooperation in the IRS investigation and considered it a mitigating factor, as is reflected in the rather lenient one year suspension imposed for appellee’s admitted serious misconduct. The faded recollections and unavailable IRS files are inconsequential since the Board completely credited appellee’s testimony in this regard. As to appellee’s third assertion, there is also no prejudice demonstrated. Appellee states that the “lengthy inaction of the Board induced his detrimental reliance” in establishing a sole proprietorship. Brief for Appellee at 22. The short answer to appellee’s assertion is that the Board’s delay could not so have “induced his detrimental reliance” since he established his sole proprietorship in 1975 before he had even testified against his business partner in federal court. As we stated in Leedom v. Thomas, 473 Pa. 193, 201, 373 A.2d 1329, 1333 (1977): “Laches is founded on some change
We certainly do not condone these delays between judicial findings or admissions of wrongdoing and the initiation of administrative disciplinary proceedings. We note our concern that this problem seems to be arising with increasing frequency. See, e.g., the Commonwealth Court cases cited in text, supra at 151, n. 6; see also Fumo v. State Real Estate Commission, 85 Pa.Cmwlth. 387, 481 A.2d 1257 (1984), petition for allowance of appeal granted July 10, 1985 (more than three year delay between criminal conviction and initiation of disciplinary proceedings based upon the conviction; however, defense of laches held to have been waived) and State Board of Nurse Examiners v. Kindle, 86 Pa.Cmwlth. 468, 485 A.2d 534 (1984), petition for allowance of appeal granted July 10, 1985 (The Commonwealth Court stated: “We hold that a four year delay [between criminal conviction and initiation of disciplinary proceedings] is excessive and prejudicial per se----”). As the Commonwealth Court in the instant case has pointed out, the Insurance Department has promulgated regulations requiring agents and brokers who have been convicted of, or have plead guilty or nolo contendere to charges of “the type of criminal conduct which reflects on the honesty and integrity of the agent or broker”, to report such fact to the Department within ten days. 31 Pa.Code § 33.19(b). Such reporting requirement should eliminate the problem with delay in instituting Insurance Department disciplinary proceedings. While we cannot order other Commonwealth
For the foregoing reasons, we dissolve the stay, reverse the order of the Commonwealth Court and reinstate the order of the State Board of Examiners of Public Accountants suspending appellee’s certificate and permit to practice for one year.
JUDGMENT
ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the stay is dissolved, the Order of the Commonwealth Court is reversed and the Order of the State Board of Examiners of Public Accountants suspending appellee’s certificate and permit to practice for one year is reinstated.
. This section provides, in relevant portion:
[T]he board ... may revoke or suspend any certificate of certified public accountant ... or may revoke or suspend or refuse to renew any license issued under this act ... for any one of the following causes:
(2) Dishonesty, fraud or gross negligence in the practice of public accounting.
(4) Violation of a rule of professional conduct promulgated by the board under the authority granted by this act.
(10) Conduct discreditable to the public accounting profession.
63 P.S. § 9.9a(2), (4) and (10).
. These regulations, set forth at 49 Pa.Code Chapter 11 provide:
§ 11.22. Integrity and objectivity.
A licensee shall not in the performance of professional services knowingly misrepresent facts nor subordinate his judgment to others; in tax practice, however, a licensee may resolve doubt in favor of his client as long as there is reasonable support for his position.
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§ 11.27. Auditing standards and other technical standards.
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(b) Other technical standards. A licensee shall comply with other technical standards promulgated by bodies of the American Institute of Certified Public Accountants or other recognized authorities designated to establish such standards, and departures therefrom shall be justified by the licensee who does not follow them.
. Where the time delay is grossly unreasonable, the defendant’s burden of proof may be proportionately eased and the "necessity for specifics regarding prejudice or injury becomes less crucial.” Gabster v. Mesaros, 422 Pa. 116, 220 A.2d 639, 641 (1966) (delay of thirty years in instituting action grossly unreasonable so as to lessen defendant’s burden of proving prejudice); Pennsylvania State Board of Medical Education & Licensure v. Shireson, 360 Pa. 129, 61 A.2d 343 (1948) (delay of thirty-four years in instituting decertification proceedings against licensed medical practitioner raised presumption of practitioner’s innocence of charges). In the instant case, however, the time delay between appellee’s misconduct and the Board’s initiation of disciplinary proceedings is not grossly unreasonable under the circumstances so as to alter appellee’s burden of proof.
. The procedure followed in the suspension or revocation of certificates, registrations or licenses under the C.P.A. Law is that prescribed by the Administrative Agency Law. 63 P.S. § 9.9. The Administrative Agency Law sets forth our standard of review as follows:
Disposition of appeal
The court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).
See also Norfolk & Western Railway Co. v. Pennsylvania Public Utility Commission, 489 Pa. 109, 413 A.2d 1037 (1980).
. There we stated:
Our holding today does not affect the validity of Commonwealth v. Western Maryland R.R. Co., 377 Pa. 312, 105 A.2d 336 (1954) and cases of similar ilk wherein a party seeks to apply the doctrine of estoppel by laches against the governmental unit to prevent it from exercising some governmental function. For example, in the Western Maryland case, the railroad company sought to prevent the Commonwealth from collecting a particular tax on the grounds that, since the Commonwealth failed to collect such a tax for the twenty years prior, they should be estopped from collecting it then. We held that failure to collect the tax in the past is no bar to present collection. Mistaken indulgence by, or errors of, the Commonwealth in the past do not insulate the taxpayer from tax liability for subsequent years. Our decision today does not alter that result.
. See e.g., Harrington v. State Real Estate Commission, supra; Ullo v. State Board of Nurse Examiners, supra; Fumo v. Commonwealth Insurance Department, 58 Pa.Cmwlth. 392, 427 A.2d 1259 (1981); Jackson v. State Real Estate Commission, 72 Pa.Cmwlth. 539, 456 A.2d 1169 (1983).