Opinion
No. 268 C.D. 2012
09-17-2012
Judy Brown, Appellant v. Civil Service Commission of the City of Philadelphia
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Judy Brown (Brown) asks whether the Court of Common Pleas of Philadelphia County (trial court) erred in affirming an order of the Civil Service Commission of the City of Philadelphia (Commission) that dismissed her appeal as untimely. Brown contends the trial court erred in dismissing her appeal because the record lacks evidence of the date the City of Philadelphia (City) terminated her employment, and, in turn, the dates her appeal period began and ended. Upon review, we affirm.
Background
For several years, Brown worked for City as a trash collector. Allegedly, while working on August 20, 2010, Brown had an altercation with a citizen that culminated in Brown punching the citizen in the face. Later that day, after a meeting with Brown's unit supervisor and a union shop steward, City suspended Brown without pay pending her dismissal.
Thereafter, on September 3, 2010, City served Brown with a Notice of Intention to Dismiss. The notice informed Brown that City intended to terminate her employment in 10 days on September 13, 2010. As grounds for her termination, City stated:
On August 20, 2010, you coworker (sic) allegedly got into verbal altercation with a private citizen concerning a desk that was in the trash truck. Eventually, the citizen began walking away. But then you and your coworker began shouting obscenities at him and the citizen started to walk back. At this point a neighbor started recording the incident on his cell phone camera. The recording shows your coworker telling him to go back down the street, using obscenities toward him and threatening him. Then your coworker approached him, and you stepped in between both of them. You punched the citizen in the face and then pushed him twice. The driver of the truck broke up the fight.Reproduced Record (R.R.) at 7a. The notice further informed Brown she had 10 days to respond in writing with any objection to the decision. Brown did not respond to the notice.
On September 13, 2010, Brown's dismissal was scheduled to become effective. However, the record does not contain a final Notice of Dismissal, or testimony regarding whether City issued a final notice. Nonetheless, City's human resources records indicate it dismissed Brown as scheduled. R.R. at 3a.
Thereafter, Brown filed an appeal to the Commission dated November 10, 2010, which the Commission received on December 6, 2010. In her appeal, Brown indicated she desired a hearing to challenge "[w]hether [she] was discharged for just cause[.]" R.R. at 5a.
The Commission, without a hearing, dismissed Brown's appeal as untimely. In so doing, the Commission stated its records indicated City dismissed Brown September 13, 2010, and that she failed to appeal her dismissal within 30 days pursuant to Philadelphia Civil Service Regulation (Regulation) 17.061.
Before the trial court, Brown argued that the Commission's determinations that City terminated her employment on September 13, 2010, and that she filed an untimely appeal were not supported by substantial evidence. The basis of her argument was that her dismissal was procedurally defective, and thus, void under Regulation 17.01. Essentially, Brown claimed that without record evidence of a Notice of Dismissal, Commission could not establish the date City dismissed her, or when her appeal period started and ended.
Regulation 17.01 states in pertinent part, with emphasis added:
Any dismissal ... after the completion of the required probationary period of service ... of any employee in the Civil Service shall be for just cause only.
At least [10] days before the effective date of dismissal ..., [City] must notify the employee, in writing, of [its] intention to dismiss .... [and] state the specific reasons for the dismissal ... and summarize the facts in support thereof with sufficient particularity to allow the employee to prepare a defense to the charges. ... Within [10] days following service of the notice, the employee may reply thereto in writing. ...
At any time within [20] days after the end of the [10] day period [City] may notify the employee in writing of the effective date of the dismissal ... and the specific reasons for the dismissal ... . If such a notice of dismissal ... is not sent within the [20] day period, the original notice of intention shall lapse and be of no effect.
In response, the Commission asserted, "assuming for the sake of argument that the Notice of Dismissal or dismissal process was somehow procedurally defective," Brown still only had 30 days to appeal her termination. Supplemental Reproduced Record (S.R.R.) at 22b. In short, the Commission argued that Brown should have raised these alleged procedural flaws in a timely appeal following the termination of her employment, of which she was clearly aware, and her claims do not serve as grounds for tolling the appeal period.
Furthermore, the Commission requested to present a copy of the Notice of Dismissal purportedly served on Brown. The Commission represented that the notice was not initially included in the record because the Commission believed the issue on appeal related to the merits of Brown's dismissal, which are fully discussed in the Notice of Intention to Dismiss, and not its procedural validity. Brown objected to the introduction of the extra-record evidence and to its authenticity.
The offered Notice of Dismissal appears to indicate the City issued it on September 13, 2010. S.R.R. at 26b. Furthermore, City offered a U.S. Postal Service return receipt that shows that Brown signed for a Notice of Dismissal on September 16, 2010. S.R.R. at 29b.
Thereafter, the trial court affirmed the Commission's decision. Brown filed a notice of appeal, and the trial court directed her to file a concise statement of matters complained of on appeal. In her Rule 1925(b) statement, Brown reiterated her arguments and further asserted the trial court erred to the extent it considered extra-record evidence in affirming the Commission.
In its opinion, the trial court first reasoned Brown's Rule 1925(b) statement was legally insufficient as it consisted of a "plethora of purported issues" presented in a "superfluous and unclear" manner rather than a "detailed and itemized Statement of Errors." Trial Ct. Slip Op., 4/11/12, at 4. As such, the trial court concluded Brown waived all of her claims on appeal.
However, the trial court went on to address what issues it could discern. First, as to the documents attached to the Commission's brief, the trial court reasoned that it properly considered such evidence to determine whether the Commission produced a complete record for appeal. In so doing, the trial court determined the record was complete without the inclusion of a Notice of Dismissal, for the purpose of considering whether Brown's appeal was timely.
Second, the trial court addressed whether the record supported a determination that Brown's appeal was untimely. Based on the Notice of Intention to Dismiss, which states Brown's dismissal would be effective 10 days from September 3, 2010, and City's records, which list September 13, 2010 as the date City terminated Brown's employment, the trial court determined the record supported the Commission's determination that City dismissed Brown September 13, 2010. Furthermore, Brown's statement on her appeal form to the Commission (although it is difficult to decipher whether she wrote September 3 or 13 as her dismissal date) supports the Commission's finding that Brown's dismissal was no later than September 13, 2010. Thus, the trial court concluded her appeal was untimely. Brown's appeal is now before this Court.
"[A]ppellate review of an adjudication of a municipal civil service commission is limited to determining whether constitutional rights have been violated, an error of law has been committed[,] or findings of fact necessary to support the adjudication are not supported by substantial evidence." Day v. Civil Serv. Comm'n of Boro. of Carlisle, 593 Pa. 448, 455, 931 A.2d 646, 650 (2007) (citing Lewis v. Civil Serv. Comm'n of Phila., 518 Pa. 170, 174, 542 A.2d 519, 522 (1988)).
Issues
On appeal, Brown contends the trial court erred in determining the Commission's order is supported by substantial evidence. Specifically, she asserts that because the record lacks a Notice of Dismissal, substantial evidence cannot support the finding that City dismissed her September 13, 2010. For the same reason, Brown also asserts the record lacks evidence her appeal period ever commenced, or that she appealed after its expiration. Moreover, Brown concludes the trial court must have considered extra-record evidence to reach its otherwise unsupported decision.
Additionally, Brown claims the termination of her employment was further procedurally defective because the Notice of Intention to Dismiss advised her that City suspended her indefinitely, which is not a permitted means of discipline. Moreover, according to Brown, the Commission was not permitted to dismiss her appeal without hearing.
At the outset of its brief, the Commission asserts the trial court should be affirmed because Brown waived all of her arguments by failing to preserve them at various points during the proceedings. Here, Brown's only question on appeal regards the timeliness of her appeal. Issues concerning the timeliness of an appeal are jurisdictional in nature, and thus, that cannot be waived. Riverlife Task Force v. Planning Comm'n of the City of Pitts., 600 Pa. 378, 966 A.2d 551 (2009). Therefore, we consider the issue Brown raises on appeal.
Discussion
Pursuant to Regulation 17.01, City may only dismiss a non-probationary status employee for just cause. When doing so, City must provide proper notice. Reg. 17.02. Proper notice requires City to inform the employee, in writing, of its intent to dismiss at least 10 days before the termination is effective. Reg. 17.01. This Notice of Intention to Dismiss "must state the specific reasons for dismissal ... and summarize the facts in support thereof with sufficient particularity to allow the employee to prepare a defense to the charges." Id.
After the 10 day period, City has 20 days to notify the employee in writing of the dismissal and the specific reasons for the dismissal. Id. If City fails to issue such a Notice of Dismissal within 20 days, the underlying Notice of Intention to Dismiss lapses and has no effect. Id.
If a dismissed employee desires to appeal her dismissal, she may file an appeal to the Commission within 30 calendar days of termination. Reg. 17.061. Every appeal to the Commission shall be heard promptly, and both the employee and City are entitled to present evidence at a public hearing. Id.
Here, City's human resources records support the Commission's finding that City terminated Brown's employment on September 13, 2010. R.R. at 3. Furthermore, City informed Brown her employment's termination would be effective on that date in its Notice of Intention to Dismiss, and Brown conceded City terminated her employment on or before September 13, 2010 in her appeal to the Commission. R.R. at 5-6. As such, Brown had 30 days, by October 12, 2010, to file an appeal. Brown did not appeal until November 10, 2010. R.R. at 5. Thus, the record supports the Commission's determination that Brown's appeal was filed more than 30 days after her dismissal. Moreover, we discern no error in the Commission's application of its Regulations and conclusion that Brown's appeal was untimely. Reg. 17.061 (30-day appeal period); see Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 498 (2003) (timeliness of an appeal is a question of law).
With regard to Brown's assertion that the trial court improperly considered extra-record evidence in determining the date of her dismissal, this assertion is unsupported by the trial court's reasoning. Specifically, the trial court opined, "there is substantial evidence [Brown] had notice of her formal dismissal despite the omission of the Notice of Dismissal from the Certified record." Trial Ct. Slip Op. at 9. Furthermore, the trial court explained it examined the Commission's extra-record evidence for the limited purpose of determining whether there was a complete agency record. See Pitts. Water & Sewer Auth. v. Gladstone, 999 A.2d 1248 (Pa. Cmwlth. 2010). Therefore, in sum, there is no indication the trial court relied on excluded extra-record evidence. See Lock Haven Univ. of Pa. v. Unemployment Comp. Bd. of Review, 559 A.2d 1015 (Pa. Cmwlth. 1989) (presumption extra-record evidence was not considered).
Therefore, because Brown's appeal to the Commission was untimely, thereby depriving the Commission of jurisdiction, we are unable to consider the merits of her contention that her underlying dismissal was procedurally flawed. See Robinson v. Pa. Bd. of Prob. & Parole, 525 Pa. 505, 512, 582 A.2d 857, 860 (1990) (the attractiveness of an argument on the merits is of no moment where a procedural defect precludes review). For the same reason, we will not consider whether the indefinite suspension described in the Notice of Intention to Dismiss violated the Regulations. Furthermore, Brown's assertion that the Regulations require the Commission to conduct a hearing despite the untimeliness of her appeal is meritless, as the Commission may not proceed where it lacks jurisdiction. See J.C. v. Dep't of Pub. Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998) (the government does not offend due process when it creates reasonable procedural requirements for triggering the right to an adjudication). Thus, the trial court did not err in affirming the Commission's dismissal of Brown's appeal as untimely.
As Brown's claim is limited to whether the facts support the Commission's findings that her appeal was untimely under Regulation 17.061, and she does not assert grounds to proceed nunc pro tunc, or "now for then," such claim is waived. See Pa. R.A.P. 2110(a); Julia Ribaudo Senior Servs. v. Dep't of Pub. Welfare, 600 Pa. 641, 969 A.2d 1184 (2009) (request to appeal nunc pro tunc on the grounds the appellant did not receive an underlying notice is waived where the appellant fails to raise the issue on appeal, or develop a record to support such relief). --------
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of September, 2012, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge