Opinion
No. 2801 C.D. 2010
06-30-2011
Sharon Degelman, Appellant v. Housing Authority of the City of Pittsburgh
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Sharon Degelman appeals pro se from the March 14, 2011, order of the Court of Common Pleas of Allegheny County (trial court), which upheld the decision of a hearing officer for the Housing Authority of the City of Pittsburgh (Housing Authority) to terminate Degelman's housing assistance benefits. Because the hearing officer exceeded the scope of our September 2, 2009, remand order, we once again vacate and remand.
On April 6, 2008, police officer David Sisak executed a search warrant on Degelman's apartment at 1412 North Murtland Avenue in Pittsburgh. The officer found drug paraphernalia, and, as a result, Degelman was charged with possession of drug paraphernalia. Housing Authority of the City of Pittsburgh v. Degelman (Pa. Cmwlth., No. 228 C.D. 2009, filed September 2, 2009) (Degelman I), slip op. at 1-2.
Because of the criminal charge, the Housing Authority terminated Degelman's housing benefits. Degelman requested a grievance hearing, which was held on July 14, 2008. At the hearing, Officer Sisak testified that he found 2,000 used needles in Degelman's apartment. The officer's testimony was inconsistent with his sworn affidavit that he found several dozen needles. Id., slip op. at 2-4. Officer Sisak also testified that he found certain evidence of drug use, but his inventory of items seized from Degelman's apartment did not identify that evidence. Id., slip op. at 4.
Degelman testified that: (1) other people used the cellar of her apartment building to engage in drug use; (2) the back door of her apartment would not lock, and she asked the landlord to fix it on more than one occasion; (3) other people entered her apartment when she was not home and left beer cans and joints; (4) she had been beaten and robbed in areas near her apartment; and (5) she heard people say that "they set her up." Degelman I, slip op. at 2-3.
Richard Elser, who performs maintenance for Degelman's landlord in the building, testified that: (1) he has heard voices inside Degelman's apartment, but that no one was inside when he entered; and (2) he regularly entered Degelman's apartment to correct problems, and her apartment was always very clean. Id.
The hearing officer concluded that Degelman was involved with drug-related criminal activity. Thus, the hearing officer denied Degelman's grievance. Degelman filed an appeal with the trial court, arguing that the hearing officer failed to address the inconsistencies in the officer's testimony and evidence and failed to address the testimony of Degelman and Elser. The trial court rejected the argument but stated that, in the interest of justice, there is substantial evidence that other tenants were the source of the evidence against Degelman. Id., slip op. at 3-4.
Degelman appealed to this court, which vacated and remanded for further findings. This court explained:
In this case, Degelman offered evidence that would tend to suggest that, although Officer Sisak found drug paraphernalia in her apartment, she was not the person who left the materials in her apartment, she did not possess this paraphernalia and, consequently, she was not involved in drug-related activity. . . .Id., slip op. at 7-8 (footnote omitted) (citation omitted) (emphasis added). This court remanded to the trial court for remand to the Housing Authority "for further findings consistent with this opinion." Id., Order.
Consequently, we believe that the hearing officer was required to evaluate the testimony of Degelman and Mr. Elser, in order to determine Degelman's culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer's decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony. . . .
Upon remand, another hearing was held on April 9, 2010. Addressing the parties, the hearing officer stated that the case had been remanded "for a new Grievance Hearing" because this court "wanted a better record for what happened." (N.T., 4/9/10, at 2.) Elser did not appear at the hearing. Moreover, during the hearing, the hearing officer did not allow Degelman to refer to the prior testimony of Elser, (id. at 17). Officer Sisak appeared and testified, but the hearing officer did not allow Degelman to ask him any questions based on his prior testimony, (id. at 16-17). The hearing officer stated, "I can't take anything into consideration that wasn't presented today" and "I can't read a prior Transcript." (Id. at 18) (emphasis in original). Based solely on the evidence presented at the April 9, 2010, hearing, the hearing officer concluded that Degelman engaged in drug activity.
Degelman appealed to the trial court, which concluded that the record made at the April 9, 2010, hearing contained sufficient evidence to support the hearing officer's decision. Degelman now appeals to this court. However, because the Housing Authority and trial court exceeded the scope of this court's remand, we do not reach the merits of Degelman's appeal.
Pennsylvania Rule of Appellate Procedure 2591(a) states that, on remand from an appellate court, "the court or other government unit below shall proceed in accordance with the . . . order of the appellate court. . . ." Rule 2591(b) states that, "[a]t any time, upon its own motion or upon application, an appellate court may issue an appropriate order requiring obedience to or otherwise enforcing its . . . order."
Here, this court ordered a remand to the Housing Authority "for further findings consistent with [the] opinion." Degelman I, Order. The opinion explained that the Housing Authority's decision lacked findings relating to the testimony of Degelman and the testimony of Elser at the July 14, 2008, hearing. The opinion also discussed the inconsistencies between the testimony of Officer Sisak, his sworn affidavit and the inventory of items seized from Degelman's apartment. Instead of making the findings as ordered, a hearing officer held a new hearing on April 9, 2010, and made findings based only on the evidence presented at the new hearing.
Accordingly, we once again vacate the trial court's decision and remand to the trial court for a remand to the hearing officer for findings of fact relating to: (1) the testimony of Degelman at the July 14, 2008, hearing; (2) the testimony of Elser at the July 14, 2008, hearing; and (3) the inconsistencies between the testimony of Officer Sisak, his sworn affidavit and the inventory of items seized. In making such findings, the hearing officer shall disregard all evidence presented at the April 9, 2010, hearing.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge President Judge Leadbetter dissents.
ORDER
AND NOW, this 30th day of June, 2011, the order of the Court of Common Pleas of Allegheny County (trial court), dated March 14, 2011, is hereby vacated, and this case is remanded to the trial court for remand to the hearing officer for findings of fact relating to: (1) the testimony of Sharon Degelman at the July 14, 2008, hearing; (2) the testimony of Richard Elser at the July 14, 2008, hearing; and (3) the inconsistencies between the police officer's testimony, his sworn affidavit and the inventory of items seized. In making such findings, the hearing officer shall disregard all evidence presented at the hearing held on April 9, 2010.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge