Summary
In Clark, this Court held that a denial of continuance to allow new counsel to familiarize himself or herself with the case constituted an abuse of discretion where the record indicated that despite a good faith attempt to secure a continuance, the agency failed to timely respond to the request and acted in disregard of the petitioner's rights.
Summary of this case from Denver Nursing Home v. CommonwealthOpinion
Argued November 4, 1977
April 26, 1978.
Civil service — Discretion of Pennsylvania Civil Service Commission — Continuance — Unavailability of counsel.
1. Although the granting or refusing of requested continuances of hearings pending before it is within the discretion of the Pennsylvania Civil Service Commission, such discretion is abused when counsel is not advised that his request for continuance necessitated by a schedule conflict has been denied until he discovered through his own efforts that such a ruling had been made when it was too late for new counsel to prepare for hearing properly. [90]
Argued November 4, 1977, before Judges CRUMLISH, JR. and BLATT, sitting as a panel of two.
Appeals, Nos. 2216, 2217 and 2218 C.D. 1976, from the Orders of the Pennsylvania Civil Service Commission in cases of Appeal of Howard T. Clark, No. 1804; Appeal of Jack F. Best, No. 1803; and Appeal of Joseph A. Palmer, No. 1806.
Furlough of employes by Department of Transportation appealed to Pennsylvania Civil Service Commission. Continuances requested. Requests denied. Appeals dismissed. Employes filed petitions for review with the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
William R. Strong, for petitioners.
Frank A. Fisher, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.
The refusal of the Pennsylvania Civil Service Commission (Commission) to grant a motion for continuance on behalf of Petitioners, Jack F. Best, Howard T. Clark and Joseph A. Palmer, is the subject of this appeal.
Each Petitioner's appeal was consolidated under Rule 513 of the Pennsylvania Rules of Appellate Procedure.
On February 2, 1976, the Department of Transportation (Respondent) notified each Petitioner of his impending furlough from the department. In response to that notice, Petitioners engaged the services of Ralph L. S. Montana, Esquire (Montana), on February 4, 1976, who, on behalf of each Petitioner, filed an appeal with the Commission. On February 23, 1976, the Commission notified Montana that a hearing on each appeal would be held on March 10, 1976. Knowing of his engagement in a criminal trial on that date, Montana sent a certified letter to the Commission, dated February 26, 1976, on behalf of Petitioners Best and Clark, requesting a continuance. The letter was delivered on March 1, 1976. No reply was made.
On March 4, 1976, Montana telephoned the Commission to determine the status of his request and was informed that the request was denied. No reason for the denial was given. Montana then referred the matter to William R. Strong, Esquire (Strong), who met with Petitioners on Friday, March 5, 1976. Strong immediately telephoned the Commission to request a continuance explaining that he needed time to interview witnesses and subpoena documents. The request was denied. Strong renewed his request at the hearing and it was again denied. Hearing Examiner, John A. M. McCarthy, made the following statement in denying the request:
We think all these people have had ample opportunity to engage counsel.
You can't just keep shifting attorneys at the eleventh hour and then some new lawyer comes in and asks for a continuance because he hasn't had enough time.
See Reproduced Record at p. 9(a).
At the hearing Petitioners refused to answer any questions going to the merits, explaining that they were not prepared. The Commission, however, took testimony from Respondent and concluded that Petitioners were properly furloughed under Section 802 of the Civil Service Act.
Act of August 27, 1963, P.L. 1257, as amended, 71 P. S. § 741, 802.
Petitioners now bring their appeal to us.
It is Petitioners' contention that the Commission abused its discretion in refusing to grant a continuance in the instant case. In relying on Nerkowski v. Yellow Cab Co. of Pittsburgh, 436 Pa. 306, 259 A.2d 171 (1969), they argue that the refusal of a continuance because of the absence of counsel is an abuse of discretion when counsel is actually engaged in another court.
Respondent answered by stating that refusal of the request was clearly within the Commission's discretion and founded upon sound reasoning.
Although we concede that the Commission has broad discretionary powers in granting or denying requests for continuances, we believe that the Commission here failed to exercise that discretion in a proper and just manner. We therefore reverse.
See Benford v. Real Estate Commission, 8 Pa. Commw. 89, 300 A.2d 922 (1973).
Due to a prior commitment to represent another client in a criminal proceeding, Montana was unable to appear before the Commission on the scheduled hearing date and made a good faith attempt to obtain a continuance. Either through ineptness or inadvertence the Commission failed to acknowledge the request. Only because of his diligence did he become aware of the Commission's denial. The failure of the Commission to respond within a reasonable time necessitated Montana's withdrawal and precluded his successor, Strong, from properly preparing Petitioners' case. The Commission's ineptness and Hearing Examiner McCarthy's reasoning evinces a disregard of Petitioner's rights and a dearth of understanding of the purpose of the administrative process.
Accordingly, we
ORDER
AND NOW, this 26th day of April, 1978, the decision of the Pennsylvania Civil Service Commission is reversed and the case is remanded to the Commission for a full hearing on the merits.