Opinion
No. 1791 C.D. 2012
08-27-2013
Michael Behrens, Appellant v. City of Washington
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
This case was reassigned to the authoring judge on July 11, 2013.
Michael Behrens appeals from the August 23, 2012, order of the Court of Common Pleas of Washington County (trial court) sustaining the preliminary objections filed by the City of Washington (City) and dismissing Behrens' complaint because it lacked subject matter jurisdiction. We affirm.
Behrens served three terms, over a span of 14 years, as the Chief Code Enforcement Officer for the City. On August 26, 2010, Behrens received a letter from the City notifying him that numerous complaints had been lodged about his job performance. The letter also summoned Behrens to attend a meeting. (Compl. ¶¶ 5, 7.)
The complaints suggested that Behrens had been discourteous to members of the public. (Compl. ¶ 10.)
On August 30, 2010, Behrens and his attorney attended the meeting. The Mayor and the City Solicitor represented the City. The City repeated its concerns about Behrens' job performance and informed Behrens that he was suspended without pay. Behrens objected to the suspension and requested a "formal" hearing. The City instructed Behrens that the matter would be discussed further at a September 9, 2010, meeting. (Id. ¶¶ 9-13.)
The City representatives acknowledged at the August 30, 2010, meeting that most of the complaints had gone undocumented. (Compl. ¶ 10.) However, two particular residents of the City had reported personal issues with Behrens and the manner in which he had handled their code violations. (Id. ¶ 11.)
Behrens did not attend the September 9, 2010, meeting due to a family emergency; however, his attorney appeared on his behalf. The parties discussed the ongoing suspension. Behrens' attorney again requested a "formal" hearing. The City reiterated that Behrens had no entitlement to a "formal" hearing. The City asked Behrens' attorney to report to an executive meeting on September 13, 2010, at which a final decision would be made regarding Behrens' employment with the City. (Id. ¶¶ 14-17.)
At the executive meeting on September 13, 2010, attended by Behrens, Behrens' attorney, and all members of the City Council, the City officially removed Behrens from his position. On September 14, 2010, the City sent Behrens a letter confirming the decision. (Id. ¶ 18.)
The letter stated that the City "had no choice but to plot a course for the Code Enforcement Office that no longer included Mr. Behrens." (R.R., Ex. 6, Attachment A.)
A year later, on September 8, 2011, Behrens filed a complaint alleging that the City denied him procedural due process. The City filed preliminary objections, arguing that the appeal was untimely.
The complaint alleges that the City violated the Local Agency Law, 2 Pa. C.S. §§552-555, by failing to provide Behrens an opportunity to offer evidence, conduct cross-examination, and record the proceedings. (Compl. ¶ 25.)
The trial court agreed with the City and, on August 23, 2012, dismissed Behrens' claim for lack of subject matter jurisdiction because the September 14, 2010, letter constituted a final adjudication that Behrens untimely appealed. Behrens appealed to this court.
"Our scope of review where a trial court sustains a preliminary objection and dismisses a complaint is limited to determining whether the trial court committed an error of law or abused its discretion." Smith and McMaster, P.C. v. Newtown Borough, 613 A.2d 129, 130 n.4 (Pa. Cmwlth. 1992).
Behrens argues that no final adjudication occurred and, therefore, his complaint only needed to comply with the statutory requirements of section 5522(a)(1) of the Judicial Code, 42 Pa. C.S. §5522(a)(1), as opposed to the 30-day period prescribed by section 5571(b) of the Judicial Code, 42 Pa. C.S. §5571(b). We disagree.
Section 5571(b) of the Judicial Code provides that "an appeal from a tribunal or other government unit to a court . . . must be commenced within 30 days after the entry of the order from which the appeal is taken." 42 Pa. C.S. §5571(b). Section 5522(a)(1) of the Judicial Code only requires that notice of the commencement of a civil suit be provided to the government unit "[w]ithin six months from the date that any injury was sustained." 42 Pa. C.S. §5522(a)(1). Behrens maintains that he provided timely notice of his impending suit.
This court discussed section 5571(b) of the Judicial Code in Cunningham v. Southeastern Pennsylvania Transportation Authority, 914 A.2d 966 (Pa. Cmwlth. 2007). In Cunningham, the Southeastern Pennsylvania Transportation Authority (SEPTA) informed a disabled retiree via letter that his disability benefits would be offset by the amount of workers' compensation benefits that he received. Id. at 967. This court found SEPTA's denial letter to be a valid adjudication because "the record reveals that [the retiree] was notified of the administrative action and was granted the opportunity to be heard, both in writing, and at the conference . . . ." Id. at 972. This court noted that the retiree had a statutory right to appeal the decision to the common pleas court. Id. at 969. However, rather than appealing within the 30-day time limit prescribed by 42 Pa. C.S. §5571(b), the retiree filed a civil action seven months after receiving the letter. Id. This court agreed with the trial court that it lacked jurisdiction. Id. at 970.
Here, Behrens contends that no final adjudication occurred because the City engaged in an invalid adjudication by failing to comply with the requirements of section 553 of the Local Agency Law, 2 Pa. C.S. §553. See Callahan v. Pennsylvania State Police, 494 Pa. 461, 465, 431 A.2d 946, 948 (1981) (noting that an adjudication is invalid where an agency does not give reasonable notice of a hearing and an opportunity to be heard.) Specifically, Behrens contends that he did not receive "reasonable notice of a hearing and an opportunity to be heard." 2 Pa. C.S. §553. We disagree.
Section 553 of the Local Agency Law specifies that "[n]o adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." 2 Pa. C.S. §553 (emphasis added). "Adjudication" is defined as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa. C.S. §101.
The City sent a letter to Behrens notifying him about the complaints and a second letter confirming his termination. Behrens also received the opportunity to discuss his employment future with the City in three separate meetings. While Behrens did not have an opportunity to cross-examine or record the proceedings, not all final adjudications require such comprehensive process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (requiring a pre-termination hearing at which the "employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story").
The letter terminating Behrens from his position was a final adjudication because it immediately and effectively ended his employment entitlement. Because Behrens failed to file a timely statutory appeal from the City's adjudication, the trial court properly sustained the City's preliminary objections and dismissed Behrens' complaint. "A party to a local agency proceeding may not institute an independent action that challenges the agency's action when the party failed to file a timely appeal from the decision of the local agency." Cunningham, 914 A.2d at 972 n.12.
It is noteworthy that, in his complaint, Behrens characterized the letter as an adjudication. (See Compl. ¶ 25.)
Behrens also argues that the City's preliminary objections should be dismissed because they were filed untimely. However, no court may conduct proceedings without subject matter jurisdiction, regardless of whether the issue was raised by the parties or sua sponte. See Pa. R.C.P. No. 1032(b) ("Whenever . . . the court lacks jurisdiction of the subject matter . . . the court shall order that the action be transferred to a court of the Commonwealth which has jurisdiction . . . , but if that is not possible, then it shall dismiss the action."). Therefore, the timeliness of the City's preliminary objections is irrelevant. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of August, 2013, we hereby affirm the August 23, 2012, order of the Court of Common Pleas of Washington County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge