C. Pedro v. Bureau of Administrative Adjudication ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmencita Maria Pedro, :
:
Appellant :
:
v. : No. 530 C.D. 2017
: Submitted: June 15, 2018
Bureau of Administrative :
Adjudication
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 29, 2018
Carmencita Maria Pedro (Pedro) appeals, pro se, from an order of the
Court of Common Pleas of Philadelphia County (trial court) denying her appeal from
a decision of the Bureau of Administrative Adjudication (BAA) of the City of
Philadelphia (City) that upheld a notice of violation issued to her. Pedro asserts that
the trial court abused its discretion and acted unfairly towards her by denying her
appeal. Discerning no error of law or abuse of discretion, we affirm.
Pedro was ticketed on October 5, 2015, for failure to display a valid
certificate of inspection in violation of Section 12-916(2) of the Philadelphia Traffic
Code.1 Pedro appealed the ticket to the BAA and attended an administrative hearing
before a BAA hearing examiner.
1
See The Philadelphia Code and Charter, The Traffic Code, Section 12-916(2) (providing
“No person shall park a vehicle on any public highway if the person is not licensed as required by
At the hearing, Pedro was given an opportunity to present testimony
and evidence to refute the ticket. See Original Record (O.R.)2 at 34-39. The hearing
examiner found that Pedro failed to provide any evidence or testimony to
demonstrate that the vehicle was inspected. Thus, the hearing examiner determined
that Pedro was liable for the ticket.
Pedro appealed the hearing examiner’s decision and requested an
appeal hearing before the BAA Appeal Panel. The BAA scheduled a hearing for
July 8, 2016, and notified Pedro of the same, but Pedro did not appear. The BAA
Appeal Panel affirmed.
Pedro then filed an appeal with the trial court. On October 17, 2016,
the trial court issued a scheduling order requiring: the BAA to file the Certified
Record of the proceedings before the BAA by December 5, 2016; Pedro to file her
brief by January 3, 2017; and the BAA to file its brief by February 6, 2017. In accord
thereto, the BAA electronically filed the Certified Record. The trial court scheduled
oral argument on Pedro’s appeal for March 23, 2017.
On January 3, 2017 – the date her brief was due – Pedro filed a motion
for extraordinary relief requesting, inter alia, an extension of the briefing deadline
because the BAA failed to serve her with a copy of the Certified Record and the trial
[Section 1501 of the Vehicle Code,] 75 Pa. C.S. §1501, if the vehicle is not registered as required
by [Section 1301,] 75 Pa. C.S. §1301, if the vehicle does not display a registration plate as required
by [Section 1332,] 75 Pa. C.S. §1332, if the vehicle is not covered by financial responsibility as
required by [Section 1786,] 75 Pa. C.S. §1786, or if the vehicle does not display a currently valid
certificate of inspection as required by [Section 4703,] 75 Pa. C.S. §4703. For purposes of
enforcement of this subsection, absence of a current validation sticker cannot be the basis for a
presumption that a vehicle is not registered or does not display a registration plate.”).
2
Because the Original Record was filed electronically and was not paginated, the page
numbers referenced in this opinion reflect electronic pagination. The Original Record contains
within it the Certified Record created before the BAA. See O.R. at 28-44.
2
court gave Pedro only 29 days to file her brief while allowing the BAA 34 days to
file its brief. O.R. at 47. The trial court denied the motion.
The BAA timely filed its brief in which it averred that Pedro’s appeal
should be denied because she failed to file her brief in violation of the trial court’s
scheduling order and did not meet her burden of proof. Pedro filed a second motion
for extraordinary relief seeking the trial judge’s recusal, which was also denied.
On March 22, 2017, the trial court issued an order denying Pedro’s
appeal. Consequently, oral argument was not held. In the opinion filed in support,
pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure,
Pa. R.A.P. 1925(a), the trial court explained that it dismissed Pedro’s appeal because
she did not file an appellate brief by January 3, 2017, as required by the scheduling
order.
Pedro timely filed a notice of appeal in this Court.3 On appeal, Pedro
presents 24 issues for our review. In essence, Pedro asserts that the trial court abused
its discretion and acted unfairly and with malice, racial animus, prejudice and bias
towards her by denying access to the Certified Record, her motions for extraordinary
relief, oral argument, and, ultimately, her appeal.
The BAA counters that the order of the trial court should be affirmed
on the grounds that Pedro did not file a brief with the trial court thereby depriving
the trial court of an opportunity to conduct a meaningful review and that Pedro
This Court’s scope of review in a local agency appeal where a full and complete record
3
was made before the agency is limited to determining whether constitutional rights were violated,
the agency complied with the procedural provisions of the Local Agency Law, 2 Pa. C.S. §§551-
555, an error of law was committed, and the findings by the local agency are supported by
substantial evidence. Section 754(b) of Local Agency Law, 2 Pa. C.S. §754(b); Johnson v.
Lansdale Borough, 146 A.3d 696, 711 (Pa. 2016).
3
waived all of the 24 appellate issues by not adequately developing her arguments in
contravention of Rule of Appellate Procedure 2119(a).4
In appeals from local agency decisions to a court of common pleas
where that court reviews the agency’s decision in an appellate capacity, the court of
common pleas is not bound by the Rules of Appellate Procedure unless it has
specifically adopted those rules, and will instead apply its local rules to the appeal.
Smith v. City of Philadelphia, 147 A.3d 25, 30-31 (Pa. Cmwlth. 2016); King v. City
of Philadelphia, 102 A.3d 1073, 1076 (Pa. Cmwlth. 2014). The trial court has not
explicitly adopted the Rules of Appellate Procedure and thus Local Rule 320 of the
Philadelphia County Rules of Civil Procedure sets forth the framework for appeals
from local agencies. King, 102 A.3d at 1076. Relevant to this case, subsection (c)
of Local Rule 320 provides:
The Supervising Judge shall publish a standing case
management order for each agency whose determinations
are appealed on a regular basis (“agency-specific orders”).
For agencies whose determinations are seldom appealed,
the Supervising Judge shall publish a standing order of a
generic nature. The Office of Judicial Records shall
provide appellant(s) with an agency-specific (or generic)
standing order whenever a notice of appeal is filed. Every
appeal (and matter ancillary thereto) shall be governed by
the aforesaid standing order and any supplemental order,
which may be issued by the Supervising Judge.
Phila. Civ. R. 320(c).
4
Rule 2119(a) provides that “[t]he argument [portion of an appellant’s brief] shall be
divided into as many parts as there are questions to be argued; and shall have at the head of each
part—in distinctive type or in type distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are deemed pertinent.” Pa. R.A.P.
2119(a).
4
Although not bound by the Rules of Appellate Procedure, a court of
common pleas conducting an appellate review of a local agency decision may look
to the Rules of Appellate Procedure as guidance. King, 102 A.3d at 1077. Relevant
to this matter, Rule 2188 provides that “[i]f an appellant fails to file [her] . . . brief
. . . within the time prescribed by these rules . . . an appellee may move for dismissal
of the matter.” Pa. R.A.P. 2188.
Courts may impose sanctions, including dismissal, based on the failure
of a party to follow the court’s procedural rules. Smith, 147 A.3d at 31; King, 102
A.3d at 1077; Muth v. Ridgway Township Municipal Authority, 8 A.3d 1022, 1027
(Pa. Cmwlth.), appeal denied, 21 A.3d 1195 (Pa. 2010). Indeed, courts possess the
inherent power to enforce their orders and judgments. Commonwealth v. Shaffer,
712 A.2d 749, 751 (Pa. 1998).
Such determinations will not be disturbed absent an abuse of discretion.
Smith, 147 A.3d at 31; King, 102 A.3d at 1077; Muth, 8 A.3d at 1027. “Where the
discretion exercised by the trial court is challenged on appeal, the party bringing the
challenge bears a heavy burden.” Commonwealth v. Safka, 141 A.3d 1239, 1248
(Pa. 2016) (quoting Paden v. Baker Concrete Construction, Inc., 658 A.2d 341, 343
(Pa. 1995)). In this regard, “‘it is not sufficient to persuade the appellate court that
it might have reached a different conclusion . . . .’” Id. at 1248-49 (quoting Paden,
658 A.2d at 343). “Rather, one must go further and show an abuse of the
discretionary power.” Id. at 1249. “‘An abuse of discretion is not merely an error
of judgment, but occurs only where the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill will, as shown by the evidence or the record.’” Id. (quoting Paden, 658
A.2d at 343).
5
Here, the trial court issued a case management order stating that the
appeal would be handled under the guidelines set forth in Local Rule 320 and that
the court would enter a scheduling order if the case was not disposed of within 60
days of the entry of the order. O.R. at 11. On October 17, 2016, the trial court issued
a scheduling order requiring Pedro to file her brief by January 3, 2017. O.R. at 25.
The scheduling order further provided that motions for extraordinary relief shall be
filed no later than January 3, 2017. Id. Although Pedro timely filed a motion for
extraordinary relief requesting an extension of time to file her brief, the trial court
denied the motion. O.R. at 6, 46-49. Pedro did not file a brief. At the request of the
BAA, the trial court dismissed Pedro’s appeal as a sanction for noncompliance.5
Upon review, we conclude that the trial court did not err or abuse its
discretion in denying Pedro’s appeal. As the party who initiated the local agency
appeal in the trial court, Pedro “had an affirmative duty to prosecute the appeal [s]he
filed.” King, 102 A.3d at 1077 (quoting Civil Service Commission of the City of
Philadelphia v. Wenitsky, 521 A.2d 80, 82 (Pa. Cmwlth. 1987)). By failing to file a
brief within the time prescribed, Pedro did not comply with the scheduling order.
The trial court, acting within its discretion, dismissed the appeal. See Smith, 147
A.3d at 31; King, 102 A.3d at 1077; Muth, 8 A.3d at 1027.
Although the scheduling order also permitted motions for extraordinary
relief, the trial court did not abuse its discretion by denying Pedro’s request. In her
motion for extraordinary relief, Pedro asked the trial court to: “1.) suspend all
5
We note that the issue of Pedro failing to comply with the trial court’s scheduling order
is not one of first impression for this Court. In a similar appeal recently filed by Pedro from a
BAA determination, this Court issued an unreported memorandum opinion affirming the order of
the trial court denying Pedro’s appeal because she failed to file a brief in violation of the scheduling
order. See Pedro v. Bureau of Administrative Adjudication (Pa. Cmwlth., No. 876 C.D. 2016, filed
July 10, 2017).
6
existing deadlines; 2.) compel the production of the Certified Record; and 3.) request
an extension of time to file her brief.” O.R. at 47. In support, Pedro alleged that she
did not receive a copy of the Certified Record. O.R. at 47. However, the Certified
Record contains a certificate of service indicating that service was made
electronically and through the U.S. mail to Pedro’s address on record. O.R. at 45.
Pedro does not refute the accuracy of her address or offer any explanation to
overcome the presumption that the Certified Record was mailed to her. Compare
O.R. at 44 (Pedro’s Pennsylvania Driver’s License listing her address) with O.R. at
45 (Certificate of Service using same address) and Appellant’s Brief (Proof of
Service bearing same address); see Kerr v. Commonwealth, 186 A.3d 520, 524 (Pa.
Cmwlth. 2018) (“[T]he mailbox rule creates a rebuttable presumption that an item
which is properly mailed will be received; the presumption cannot be nullified by
only an assertion that the item was not received.”) (citation and quotation omitted).
Pedro also asserted that the trial court should have given her more time
to file her brief on the basis that the scheduling order allowed her only 29 days to
file her brief while allowing the BAA 34 days to file its brief. O.R. at 47. Although
we recognize that parties typically have 30 days to file briefs, unless otherwise
ordered, see Pa. R.A.P. 2185(a), the discrepancy of five days in a briefing schedule
is not manifestly unreasonable.6 Moreover, this discrepancy was readily apparent at
the time the trial court issued the October 17, 2016, scheduling order. Yet, Pedro
waited until the last day upon which to file her brief to seek relief on this basis.
6
In fact, it is not uncommon for one party to receive more time when the last day of the
filing deadline falls on a weekend or holiday. See 1 Pa. C.S. §1908 (excluding weekends and
holidays from the computation of time when the last day of the time period falls on a weekend or
holiday).
7
Finally, Pedro’s claims of partiality, prejudice, bias or ill will are not
adequately developed in her brief or otherwise supported by the record.7 City of
Philadelphia v. Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004) (holding that
the failure to develop an issue in the argument section of the brief constitutes a
waiver of the issue); see also Pa. R.A.P. 2119(a) (requiring that the argument shall
be divided into as many parts as there are questions followed by discussion and
citation of pertinent authority).
For these reasons, we conclude that the trial court did not err or abuse
its discretion by denying Pedro’s appeal. Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
7
Pedro’s claims of partiality, prejudice, bias or ill will are primarily directed at Judge Linda
Carpenter, who handled the case until January 3, 2017, as well as Pedro’s previous appeal. See
Pedro, slip op. at 5-6; see also Appellant’s Supplemental Brief at 2-5. Although Judge Carpenter
issued the scheduling order in this matter, Judge Daniel Anders ruled on Pedro’s motions for
extraordinary relief and her appeal, which form the basis of this appeal. O.R. at 4-6 (Docket Sheet).
Pedro’s only claim against Judge Anders appears to be his enforcement of the scheduling order.
See Appellant’s Supplemental Brief at 3 (describing the scheduling order as the “fruit of the
poisonous tree” because Judge Anders issued it). However, Pedro does not allege how Judge
Anders’s denial of her appeal or motions was “manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will.” See Safka, 141 A.3d 1249. The record is devoid of any indication that
the trial court acted in an unreasonable or arbitrary manner.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmencita Maria Pedro, :
:
Appellant :
:
v. : No. 530 C.D. 2017
: Submitted: April 6, 2018
Bureau of Administrative :
Adjudication
ORDER
AND NOW, this 29th day of August, 2018, the order of the Court of
Common Pleas of Philadelphia County, dated March 22, 2017, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge