Opinion
No. 437 C.D. 2014
12-04-2014
Sean Dukes, Appellant v. Bureau of Administrative Adjudication
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Sean Dukes (Dukes) appeals the order of the Court of Common Pleas of Philadelphia County (common pleas court) that denied and dismissed Dukes's appeal from a determination by the City of Philadelphia's Bureau of Administrative Adjudication (BAA).
Between July 2012, and April 2013, Dukes was issued thirteen parking citations for various violations of the Philadelphia Traffic Code involving a vehicle he owned with the Delaware license plate number 509538. At a hearing before a parking hearing examiner on May 22, 2013, Dukes contested the citations. Dukes argued that a citation issued July 23, 2012, for having his vehicle in a no stopping anytime zone should not have been issued because he was "in the vehicle at the time" and at most his vehicle "could have been on the border line." Notes of Testimony, May 22, 2013, (N.T.) at 2-3. He also challenged an August 31, 2012, citation for parking at an expired meter. Dukes argued that a "kiosk receipt was visible and I had my handicap placard visual [sic]." N.T. at 4. The hearing examiner noted that the police officer did not see a handicapped placard and had no proof of payment. N.T. at 4-5. Dukes contested a September 3, 2012, citation for parking in a handicapped spot without a handicap placard. He argued that he displayed the placard. N.T. at 5-6. Dukes contested a citation that was issued September 21, 2012, for again parking in a handicap space and argued that he displayed the placard. N.T. at 6. He raised the same defense to another ticket. N.T. at 9. For a citation for parking in a loading zone, he argued that he was not over the time limit. N.T. at 9-10. As the hearing examiner dismissed his arguments, Dukes exclaimed, "It's a waste of time talking about it sure, just print them [the citations] all out." N.T. at 11. Dukes denied he parked too close to a fire hydrant on February 26, 2013. N.T. at 13. He testified that he was forced to park in a bus only zone on April 1, 2013, because the car in front of him extended into the handicapped space where he parked and forced him to park over the line in the bus only zone. N.T. at 14. The hearing examiner dismissed all of his challenges. Dukes stated that he would appeal all but two of the citations. N.T. at 15.
On June 27, 2013, the BAA informed the common pleas court Prothonotary that Dukes "completed one hearing and failed to file an appeal within thirty days of the entry of final determination at the Bureau of Administrative Adjudication." Notice of City of Philadelphia, June 27, 2013, at 1.
On July 1, 2013, Dukes appealed the hearing examiner's ruling to the common pleas court. The appeal did not properly go to the common pleas court. Under Section 12-2808(2) of the Philadelphia Code, Phila. Code § 12-2808(2), an appeal from a determination of a parking hearing examiner after adjudication of a plea denying liability shall be submitted to a Parking Appeals Panel. The appeals panel has the authority to affirm or reverse the determination of the hearing examiner. On July 2, 2013, Dukes submitted an appeal to the Parking Appeals Panel.
On October 2, 2013, the common pleas court issued a scheduling order and instructed Dukes to file a brief by December 2, 2013. Dukes failed to file a brief. The common pleas court held a hearing on March 13, 2014. Dukes failed to attend the hearing. By order dated March 13, 2014, the common pleas court denied and dismissed Dukes's appeal based on Dukes's failure to appear, his failure to file a brief, and his failure to exhaust his administrative remedies.
Dukes contends that the BAA erred when it determined that there was insufficient evidence that he did not have a valid parking permit displayed and a legal right to park in handicapped spaces.
This Court's review is limited to a determination of whether constitutional rights were violated, an error of law was committed, that the procedure before the agency was contrary to the statute, or that necessary findings of fact were unsupported by substantial evidence. Colville v. Allegheny County Retirement Board, 926 A.2d 426 (Pa. 2007).
Dukes does not address the reasons for the common pleas court's dismissal of his appeal. In the Statement of Questions Involved, Dukes only addressed the merits of his appeal and suggests that the BAA erred when the hearing examiner determined that he did not have a valid handicapped parking permit on display in his vehicle. Dukes does not challenge the common pleas court's order.
In the argument section of his brief, Dukes does mention that he was denied the opportunity to present evidence before the common pleas court but does not explain how or why. Further, because he did not raise this issue in the Statement of Questions Involved, it is waived. An appellate court will not ordinarily consider an issue if it is not set forth or suggested in an appellate brief's statement of questions involved. Pa.R.A.P. 2116a; Cheng v. SEPTA, 981 A.2d 371, 374 n.4 (Pa. Cmwlth. 2009).
Further, this Court agrees with the common pleas court that Dukes failed to exhaust his administrative remedies. Section 12-2808(2-3) of the Philadelphia Code, Phila. Code §12-2808(2-3), provides:
(2) An appeal from a determination of any Parking Hearing Examiner after a hearing on a plea denying liability, or from a determination denying a motion to reopen any matter, shall be submitted to a Parking Appeals Panel which shall have power to review the facts and the law, and shall have power to affirm the determination or to reverse or modify any determination appealed from for error of fact or law, or to remand for additional proceedings, or, in appropriate cases, to hear the matter de novo.
(3) A party aggrieved by the final determination of a Parking Hearing Examiner may obtain a review thereof by serving upon the Parking Authority, within thirty (30) days of the entry of such final determination, a notice of appeal on a form provided by the Parking Authority, setting forth the reasons why the final determination should be reversed or modified. Service of the notice of appeal upon the Parking Authority shall be made by certified or registered mail, return receipt requested. Upon receipt of such notice of appeal, the Finance Director's Office shall furnish to the appellant, upon request and at the appellant's expense, a transcript of the original hearing. No appeal shall be conducted less than
ten (10) days after the mailing of the transcript to the appellant.
Here, Dukes failed to appeal to a Parking Appeals Panel within thirty days of the decision of a hearing examiner. Rather, he appealed directly to the common pleas court. Therefore, he did not exhaust his administrative remedies. "A party challenging administrative decision-making that has not exhausted its administrative remedies is precluded from obtaining judicial review by mandamus or otherwise." Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993).
When Dukes ultimately did appeal to the Parking Appeals Panel, the appeal was untimely. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of December, 2014, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge