Summary
holding that the court of common pleas may not consider matters outside the transcript of the hearing below unless one of the conditions specified in R.C. 2506.03 applies
Summary of this case from Bay v. Gallia-Vinton Educational Ser. Ctr.Opinion
No. 75-879
Decided April 28, 1976.
Appeal — From administrative agency to court — R.C. Chapter 2506 — Scope of hearing — R.C. 2506.03 affidavit — Effect of filing — Motion for summary judgment.
1. Where an appeal is taken to the Court of Common Pleas under R.C. Chapter 2506, the hearing is confined to the transcript of the administrative body, unless one of the conditions specified in R.C. 2506.03 appears on the face of the transcript or by affidavit.
2. Where an affidavit is filed pursuant to R.C. 2506.03, in an R.C. Chapter 2506 appeal, the reviewing court must consider its content in its disposition of the case.
APPEAL from the Court of Appeals for Athens County.
Allan Dvorak, appellant, was appointed to the position of fireman in the Athens Fire Department by letter dated March 29, 1973, posted by the mayor of that city. The letter opened with the language:
"In accordance with certification from the Athens Civil Service Commssion * * * and Section 143.20 of the Ohio Revised Code * * *.
"The appointment to this position is effective April 1, 1973 for a probationary period of one year. * * *"
Mr. Dvorak accepted the appointment and worked as a fireman until he received a latter dated April 2, 1974, from the same mayor advising him that he had been denied permanent employment and confirming verbal notification of termination given him by the mayor the previous day. The letter further advised him of his right to appeal "as provided in the civil service laws of the state of Ohio." Defendant's counsel attempted to appeal the removal issued by the appointing authority to the civil service commission of the city of Athens. A motion to dismiss the appeal for the reason that appellant had no right to an appeal was granted by the commission, said order being received by appellant on May 9, 1974. On May 15, 1974, appellant's counsel filed a notice of appeal to the Court of Common Pleas of Athens County "[p]ursuant to Ohio Revised Code Section 124.34 and Ohio Revised Code Section 2506.01 et seq. * * * on questions of law and fact * * *."
An affidavit requesting a trial de novo pursuant to R.C. 2506.03 was filed by appellant's counsel on July 3, 1974. Counsel for the Municipal Civil Service Commission of the city of Athens filed a motion for summary judgment on July 8, 1974, "because there is no genuine issue as to any material fact." The motion was supported by an affidavit signed by the mayor. A memorandum contra the motion for summary judgment was filed on July 12, 1974.
However, on October 21, 1974, the Court of Common Pleas, by judgment entry, granted appellee's motion for summary judgment. A notice of appeal was duly filed in the Court of Appeals for Athens County, which affirmed the decision of the lower court. On November 17, 1975, the Court of Appeals was directed to certify its record to this court.
Messrs. George, Greek, King, McMahon McConnaughey, and Mr. William C. Moul, for appellant.
Mr. Lawrence Grey, city solicitor, for appellee.
The appellant contends that an appeal to the Court of Common Pleas under R.C. Chapter 2506 may not be disposed of by summary judgment under Civ. R. 56. Appellant initially attempted to appeal the denial of a permanent appointment as a fireman to the Athens civil service commission under R.C. 143.27 which had been repealed and recodified as R.C. 124.34. It was the appellant's contention that because the appointing authority had not removed him within the one-year probationary period, his appointment had become final. The Athens civil service commission dismissed his appeal without a hearing.
The applicable statute is R.C. 124.27, which states, in part, as follows:
"All original and promotional appointments * * * shall be for a probationary period, not less than sixty days nor more than one year * * * except original appointments to a police department as a policeman or policewoman, or to a fire department as a fireman which shall be probationary for a period of one year and no appointment or promotion is final until the appointee has satisfactorily served his probationary period. * * *"
Appellant then invoked the jurisdiction of the Court of Common Pleas of Athens County on the basis of R.C. 2506.01, which reads in part:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the Common Pleas Court of the county in which the principal office of the political subdivision is located * * *."
The appellee did not contest the jurisdiction of the Court of Common Pleas, but rather chose to file a motion for summary judgment on July 8, 1974, pursuant to Civ. R. 56, which motion contained the following language:
"Ohio Civil Rule 56 authorizes the filing of this motion in cases where the transcript of evidence clearly indicates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In the case at bar, the transcript of evidence from the Municipal Civil Service Commission clearly indicates * * *."
While not intending to decide the question raised by appellant's affidavit, filed July 3, 1974, pursuant to R.C. 2506.03, prior to the filing of the motion for summary judgment containing the aforesaid language, is most certainly would have been appropriate for the Court of Common Pleas to consider that request prior to granting said motion.
R.C. 2506.03 provides, in pertinent part, as follows:
"The hearing of such appeal shall proceed as in the trial of a civil action but the court shall be confined to the transcript as filed pursuant to Section 2506.02 of the Revised Code unless it appears on the face of said transcript or by affidavit filed by the appellant that:
"* * *
"(B) The appellant was not permitted to appear and be heard in person or by his attorney in opposition to the order appealed from:
"(1) To present his position, arguments and contentions;
"(2) To offer and examine witnesses and present evidence in support thereof;
"(3) To cross-examine witnesses purporting to refute his position, arguments and contentions;
"(4) To offer evidence to refute evidence and testimony offered in opposition to his position, arguments and contentions;
"* * *
"(C) The testimony adduced was not given under oath."
The Court of Appeals then affirmed the judgment, citing the case of State, ex rel. Hart, v. Bd. of Commrs. of Hocking County (1920), 101 Ohio St. 336. This case appears to differ significantly from the case at bar. Mr. Hart, the relator, was in fact not certified by the State Civil Service Commission, and, therefore, was merely a provisional employee, "subject to be terminated upon an eligible list being certified by the State Civil Service Commission." The court, in Hart, concluded at page 343:
"The appointment of the relator then having been made without reference to his qualification under a civil service examination, the State Civil Service Commission never obtained jurisdiction over the employment, and, therefore, had no jurisdiction over the termination of that employment."
That case hardly fits the facts in this case where the appellant was certified after examination by the Athens civil service commission and appointed from an eligible list.
Appellant argues that a motion for summary judgment does not properly lie in an R.C. Chapter 2506 appeal. He cites the scope of the Rules of Civil Procedure as set forth in Civ. R. 1, and more appropriate to this case, the exceptions contained within subdivision (C) thereof, which read, in pertinent part:
"These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure (1) upon appeal to review any judgment, order or ruling * * *."
Perhaps the key phrase in the above quote is the language "to the extent that they would by their nature be clearly inapplicable." The subdivision (C) exceptions are not to be considered in a vacuum but should be read together with subdivision (B).
Civ. R. 1(B) provides:
"These rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditions administration of justice.
Appellee cites the case of Houk v. Ross (1973), 34 Ohio St.2d 77, to support its contention that a motion for summary judgment may be rendered in this kind of an appeal. Unfortunately, that case holds that a court may enter summary judgment against the movant without prejudicing his "due process" rights "where all the evidence material to the issue being litigated is before the court, and the record shows that no genuine issue as to any material fact exists and that the nonmoving party is entitled to judgment as a matter of law." (Emphasis added.) It is sufficient to say that the holding in that case is not applicable here.
This case came to the Court of Common Pleas as an R.C. Chapter 2506 appeal. Under this situation the court performs an appellate function limited to determining whether the decision of the civil service commission is "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record." See R.C. 2506.04. Where in a case such as this a question is raised by affidavit pursuant to R.C. 2506.03, alleging deficiencies apparent upon the face of the record which are enumerated therein in accordance with the terms of that statute, we are constrained to disagree with the findings of the lower courts. Most certainly an affidavit alleging the absence of a hearing where the commission's order appealed from states that it had resolved certain facts in dispute would be sufficient to raise a query concerning an issue as to a material fact, which would bar the granting of a motion for summary judgment. A material issue of fact determination is an exercise of a quasi-judicial function. Such action minimally requires notice and hearing. No evidence of a hearing was contained in the record. Appellant's affidavit clearly raised this deficiency.
We conclude, therefore, that the decisions of the Court of Common Pleas and the Court of Appeals were in error for the reason that a motion for summary judgment could not lie on the basis of this record. The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.