Cook v. City of Phila. Civil Serv. Comm'n
| Decision Date | 05 February 2021 |
| Docket Number | No. 1684 C.D. 2019,1684 C.D. 2019 |
| Citation | 246 A.3d 347 |
| Parties | Michael COOK, Appellant v. CITY OF PHILADELPHIA CIVIL SERVICE COMMISSION |
| Court | Pennsylvania Commonwealth Court |
David S. Dessen, Willow Grove, for Appellant.
Kelly Diffily, Philadelphia, for Appellee.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,1 HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY PRESIDENT JUDGE LEAVITT
Michael Cook (Cook) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his challenge to the City of Philadelphia's failure to give him notice before removing his name from the 2012 list of eligible police officer candidates. The trial court held that the City's action was not an adjudication subject to judicial review because he did not have a property interest in prospective employment with the City. Accordingly, the City's failure to provide Cook an opportunity to contest the request to remove him from the eligibility list, as required by the City's regulation, was not actionable. Cook contends that the trial court erred because he has a property interest in fair access to public employment, and the deprivation of that interest is subject to judicial review under the Local Agency Law.2 We reverse the trial court and remand for a hearing.
In 2012, Cook applied for an officer position with the Philadelphia Police Department and, on the basis of his training and written examination, was placed on a list of eligible candidates by the City's Office of Human Resources. On May 6, 2013, however, the City advised Cook that because of his score on a psychological evaluation, he would "not be given any further consideration for appointment to [the] position." Reproduced Record at 51a (R.R. ––––).3 Cook promptly appealed to the City's Office of Human Resources.
R.R. 54a. Accordingly, the Office of Human Resources did not reinstate Cook to the list of eligible candidates.
Cook appealed to the trial court. Cook challenged the credentials of the psychologist who conducted the exam and the method used to calculate his score. Further, although the City's Personnel Manual gave him a right to request a second evaluation, he was not informed of this opportunity. Finally, Cook argued that the City failed to give him notice of the Police Department's request to remove him from the eligibility list, as required by City Civil Service Regulation 10.0943, and, therefore, deprived him of the opportunity to contest that request.
The trial court issued a scheduling order requiring the "[a]gency subject to this appeal" to file its record electronically. Trial Court Order, 11/17/2016. The City responded that Cook was appealing a decision of the City's Office of Human Resources, which had not held a hearing and, thus, had no administrative hearing record to file.
On January 25, 2017, Cook filed a motion for extraordinary relief seeking 120 days to conduct discovery. The trial court directed Cook to file a brief in support of this motion by February 6, 2017. On February 8, 2017, the trial court denied Cook's motion. Thereafter, sua sponte , the trial court dismissed Cook's appeal. In its Rule 1925(a)4 opinion, the trial court explained that it dismissed Cook's appeal as a sanction for not filing a timely brief in support of his motion for extraordinary relief. Cook appealed to this Court.
This Court reversed, holding that the trial court erred in dismissing Cook's appeal sua sponte . This Court rejected the City's position that Cook's appeal was moot:
Cook v. City of Philadelphia Civil Service Commission , 201 A.3d 922, 928-29 (Pa. Cmwlth. 2019) (citations omitted). Noting that the merits of Cook's appeal were not before the Court, we remanded for further proceedings.
On remand, Cook requested the trial court to conduct an evidentiary hearing or to remand to the City's Civil Service Commission for a hearing pursuant to Section 754(a) of the Local Agency Law, 2 Pa. C.S. § 754(a).5 The City opposed Cook's request and moved to quash Cook's appeal.
In support of its motion to quash, the City argued that a candidate's removal from the eligibility list is not an adjudication because no candidate has a property interest in prospective employment. It also argued that Cook's appeal was untimely because the City's failure to inform him of his opportunity for a second psychological exam occurred in 2013, and he should have appealed that omission within 30 days, not 3 years later. Finally, it argued that Cook's appeal was moot because the 2012 eligibility list had expired.
The trial court denied Cook's motion for an evidentiary hearing and granted the City's motion to quash. It reasoned as follows:
I find that the failure of the [C]ity to abide by its own regulations does not create a right that would be subject to an adjudication appeal, but, rather, that such a violation would be more appropriately remedied by what actually did happen here, which was the filing of a writ of mandamus to force the [C]ity – to comply with its own rules.... Second, I'll find that the appeal is moot because there's no available remedy....
Hearing Transcript (H.T.), 10/25/2019, at 14 (emphasis added). On November 12, 2019, Cook appealed to this Court.
In its Rule 1925(a) opinion, the trial court offered two reasons for its decision. First, the City's actions did not constitute an adjudication because "an applicant for public employment has no property right in the prospective employment." Trial Court 1925(a) op., 5/19/2020, at 4. Second, Cook's appeal was moot because even if Cook succeeded on the merits, "there can be no extension of an eligibility list either by agreement or by court order beyond the two-year statutory life span." Id . at 5.
On appeal, Cook asserts that the trial court erred in holding that the City's actions are not subject to judicial review. Cook acknowledges that he does not have a property interest in prospective employment with the City but contends that his appeal concerns "fair access to a public employment position." Cook Brief at 25. The City's Personnel Manual and City Civil Service Regulation 10.0943, which required the Police Department to notify Cook before his name could be removed from the eligibility list, guarantee candidates fair access to public employment. Cook explains as follows:
When [the City] chose not to follow its policies, the [C]ity made a decision, determination or ruling that affected Cook's personal or property rights and so is an appealable adjudication under the [Local Agency Law]. The trial court abused its discretion when it determined that Cook's appeal was from the City's decision not to hire him as a police officer and not from the City's refusal to provide the fair hiring process required by its policies.
Cook Brief at 27-28. Cook also contends his appeal is not moot, as held by the trial court. Because eligibility lists last from one to two years, there is insufficient time to complete litigation, including appellate review, before the expiration of any eligibility list. The City's conduct is capable of repetition and likely to escape review and, therefore, presents an exception to mootness.
The City offers four responses. First, the Personnel Manual and City Civil Service Regulation 10.0943 cannot be considered by this Court because they are not part of any agency or trial court record. The record of this case consists solely of the two decisions of the City that total...
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