Cook v. City of Phila. Civil Serv. Comm'n

• Decision Date: 07 January 2019
• Docket Number: No. 638 C.D. 2017,638 C.D. 2017
• Citation: 201 A.3d 922
• Parties: Michael COOK, Appellant v. CITY OF PHILADELPHIA CIVIL SERVICE COMMISSION
• Court: Pennsylvania Commonwealth Court

201 A.3d 922

Michael COOK, Appellant

v.CITY OF PHILADELPHIA CIVIL SERVICE COMMISSION

No. 638 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued March 9, 2018

Decided January 7, 2019

David S. Dessen, Willow Grove, for appellant.

Jennifer MacNaughton, Philadelphia, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE DAN PELLEGRINI, Senior Judge¹

OPINION BY PRESIDENT JUDGE LEAVITT

Michael Cook appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his local agency appeal sua sponte because he failed to file a brief by the date set forth in the trial court's scheduling order.² Cook argues that the trial court lacked authority to dismiss the case sua sponte , and the City of Philadelphia Civil Service Commission (City) was not prejudiced by his failure to file a brief. We reverse and remand.

Background

In 2012, Cook applied for the position of Philadelphia Police Officer and was placed on a list of eligible candidates by the City's Office of Human Resources. All eligible candidates must undergo a psychological evaluation, which Cook did. He received a score of 7.5; the passing score was 8.0. On May 6, 2013, the Philadelphia Police Department advised Cook by letter that because he did not receive a passing score on his psychological evaluation, he would "not be given any further consideration for appointment to [the] position." Reproduced Record at 127a (R.R. __). Cook's name was removed from the list of eligible candidates.

Cook appealed to the City's Office of Human Resources, challenging the validity of his psychological evaluation and his removal from the list of eligible candidates. On June 13, 2013, Cara Leheny, the Divisional Deputy City Solicitor, advised Cook, via letter, that she was in charge of investigating his claim of irregularities regarding his psychological evaluation. On September 8, 2016, Cook received a letter from Glenn Harper, an Executive Assistant at the Office of Human Resources, denying his request for reinstatement to the list of eligible candidates.

Cook appealed to the trial court, identifying the decision under appeal as one made by the "Director of the Civil Service Commission." Notice of Appeal at 1; R.R. 10a. Cook asserted that the Civil Service Commission was part of the City's Office of Human Resources and charged with the creation and management of lists of eligible police officer recruits. Cook further asserted that he was improperly removed from the eligibility list because his psychological evaluation was not completed in accordance with the City's "Personnel Department Examiner's Manual" (Personnel Manual). R.R. 20a-50a. Cook challenged the credentials of the interviewer and the method used to calculate his score. He also claimed the City's Personnel Manual guaranteed him a right to request a second evaluation, but he was not informed of this right.

On September 30, 2016, the trial court issued a case management order, directing Cook to obtain a transcript of the Civil Service Commission hearing and to file it electronically with the court. The City responded that Cook was appealing a decision of the Office of Human Resources, not the Civil Service Commission. Because the Civil Service Commission had neither held a hearing nor rendered any decision, it had "no associated record that can be filed." R.R. 67a.

On November 17, 2016, the trial court issued a scheduling order directing Cook to file any motion for extraordinary relief and a supporting brief by February 6, 2017. The City's brief was due by March 6, 2017.

On January 25, 2017, Cook filed a motion for extraordinary relief seeking 120 days to conduct discovery and create a record regarding the procedures set forth in the Personnel Manual in order to establish that his removal from the eligibility list was improper. The City responded that a decision to remove an applicant from a list of eligible candidates for failing a psychological evaluation is not appealable because an applicant has no property interest in prospective employment. On February 8, 2017, the trial court denied Cook's motion.

Cook did not file a brief by February 6, 2017. On March 6, 2017, the City filed a brief.³ On April 17, 2017, the trial court dismissed Cook's appeal. The order provided no explanation for the dismissal.⁴

After Cook's appeal to this Court, the trial court filed an opinion in support of its order pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).⁵ The trial court explained that Cook's appeal was dismissed as a sanction for noncompliance with its scheduling order. Specifically, Cook's brief was due by February 6, 2017. At the time the trial court dismissed the case, i.e. , April 17, 2017, the brief was 70 days overdue.

The trial court asserted that it had authority to dismiss Cook's appeal under Pennsylvania Rule of Appellate Procedure 2188, which states as follows:

If an appellant fails to file his designation of reproduced record, brief or any required reproduced record within the time prescribed by these rules, or within the time as extended, an appellee may move for dismissal of the matter . If an appellee fails to file his brief within the time prescribed by these rules, or within the time as extended, he will not be heard at oral argument except by permission of the court.

PA. R.A.P. 2188 (emphasis added). The trial court acknowledged that the First Judicial District of Pennsylvania, i.e. , Philadelphia County, has not adopted Rule 2188. Rather, the Philadelphia County Rules of Civil Procedure govern local agency appeals, and they do not authorize sanctions for not filing a brief. The trial court relied, instead, upon King v. City of Philadelphia , 102 A.3d 1073 (Pa. Cmwlth. 2014), for the proposition that "a trial court, acting as an appellate court, may look to the Pennsylvania Rules of Appellate Procedure for guidance and ‘such points of procedure are best left to the sound discretion of the trial court.’ " Id. at 1077 (quoting City of Pittsburgh v. Kisner , 746 A.2d 661, 664 (Pa. Cmwlth. 2000) ).

Issues

On appeal to this Court,⁶ Cook raises two issues. First, he argues that the trial court abused its discretion in dismissing the case because Rule 2188 does not authorize a trial court to dismiss an appeal sua sponte when a party does not file a brief. Second, he argues the trial court erred and abused its discretion in dismissing his case because the City was not prejudiced by his failure to file a brief. In response, the City argues Cook's appeal should be dismissed as moot.

Pennsylvania Rule of Appellate Procedure 2188

Cook acknowledges that he did not file a brief. He argues that because he never had a hearing of any sort, there was no record or brief that could be filed as contemplated by Rule 2188. He contends that the trial court arbitrarily dismissed his appeal "for not filing an empty brief[.]" Cook Brief at 19. Further, the trial court had no authority to act sua sponte .

The City responds that a court may dismiss a case for failure of a party to follow any procedural rule, including a failure to file a brief. In support, the City directs the Court to seven cases where appeals were dismissed for failure to file a brief, none of which involve Rule 2188.⁷

We begin with a review of King , 102 A.3d 1073, on which the trial court based its dismissal of Cook's appeal. In that case, Mr. King challenged 17 parking ticket fines, asserting that the hearing examiner had incorrectly interpreted the law. He requested an appeal hearing from the City of Philadelphia, Bureau of Administrative Adjudication (Bureau). He submitted documentary evidence in support of his position but did not appear at the hearing. The Bureau issued a final determination upholding all 17 parking tickets.

King then appealed to the trial court, claiming the Bureau failed to give him adequate notice of the hearing date. The trial court directed King to file a brief by March 4, 2013. On March 20, 2013, the Bureau filed a motion to quash the appeal because King had not filed a brief.⁸ King then obtained counsel, who unsuccessfully sought reconsideration.

The trial court granted the Bureau's motion to quash the appeal. King appealed to this Court, asserting that he missed the deadline for filing a brief because he did not know how to prepare one. This Court affirmed the trial court's dismissal of his appeal.

This Court explained that because a full record was made before the local agency, the trial court reviewed the appeal as an appellate court. King , 102 A.3d at 1076. We explained that the Pennsylvania Rules of Appellate Procedure do not apply to a trial court acting in an appellate capacity on a local agency appeal unless the county where that trial court sits has specifically adopted the Pennsylvania Rules of Appellate Procedure. Nevertheless, we reasoned that a "trial court, acting as an appellate court, may look to the Pennsylvania Rules of Appellate Procedure for guidance and ‘such points of procedure are best left to the sound discretion of the trial court.’ " Id. at 1077 (quoting Kisner , 746 A.2d at 664 ). We noted that Rule 2188 permits an appellee to "move for dismissal" where the appellant does not file a brief within the time prescribed. King , 102 A.3d at 1077 (quoting Civil Service Commission of the City of Philadelphia v. Farrell , 99 Pa.Cmwlth. 631, 513 A.2d 1123, 1125 (1986) ). We concluded that the trial court did not err or abuse its discretion in quashing King's appeal.

Cook argues that King is distinguishable. First, it involved a case where there had been a complete evidentiary record made before the local agency. By contrast, here, there has not been an evidentiary hearing. Second, in King , the trial court acted upon a motion to quash.

Rule 2188 specifies that "an appellee may move for dismissal of the matter[ ]" where an appellant fails to file a brief. PA. R.A.P. 2188. Rule 2188 does not give a trial court authority to act sua sponte , as ...