Orenshaw v. Springfield Township , 1999 Pa. Commw. LEXIS 601 ( 1999 )

PELLEGRINI, Judge,

dissenting.

I respectfully dissent to the majority’s decision dismissing Robert Crenshaw’s (Orenshaw) notice of appeal and subsequent petition for review as untimely filed because the notice of appeal was an improper pleading under the First Class Township Code. Just because the pleading was improperly titled was not cause for its dismissal.

After Orenshaw was terminated from his employment by the Springfield Township Police Department, he filed an appeal with the Springfield Township Civil Service Commission (Commission). The Commission affirmed the Police Department’s action by order dated August 18, 1993, and Orenshaw filed a timely “notice of appeal” with the trial court on September 15, 1993. No action was taken on the case until Orenshaw filed a petition for review nunc pro tunc with the trial court on February 20, 1998, requesting a de novo hearing. The Commission filed a motion to quash the petition as untimely which the trial court granted, finding that Section 645 of the First Class Township Code¹ required Orenshaw to file a “petition” from the Commission’s order rather than a “notice of appeal,” and that his subsequent petition was filed over four years after his notice of appeal had been filed. The majority agrees that because Crenshaw’s original pleading - the notice of appeal - was not a petition and, therefore, improper and invalid under the statute, the subsequent petition was untimely filed. I disagree with the majority because even though Orenshaw titled his pleading as a “notice of appeal” rather than as a “petition,” the trial court should have allowed him to amend his pleading.

In affirming the trial court, the majority relies on our decision in Scott v. Bristol Township Police Department, 669 A.2d 457 (Pa.Cmwlth.1995), where a terminated civil service employee also filed a “notice of appeal” rather than a “petition” as required under Section 645 of the First Class Township Code. In that case, we held that because the notice of appeal did not provide the grounds upon which the appeal was taken, the notice of appeal was insufficient for review of the Commission’s decision. We stated that the notice of appeal bore no resemblance to the petition by which an appeal was to be taken, and referred to the rules of civil procedure (citing 3 Standard Pennsylvania Practice 2d § 15:14 (rev.vol.1994)) as guidance as to the proper form and content of a petition.

Unlike in Scott, though, no one is contending here that Crenshaw’s appeal was defective because it did not contain reasons for the appeal, and the First Class Township Code does not provide that reasons have to be given; the only issue presented was whether the appeal was properly titled. In any event, recently, in Gierschick v. State Employes’ Retirement Board, 551 Pa. 585, 712 A.2d 280 (1998), our Supreme Court reversed and remanded for a determination on the merits of our August 18, 1997 order in Gierschick v. State Employes’ Retirement Board, 733 A.2d 29 (Pa.Cmwlth.1997), where we quashed an appeal because the petition for review did not set forth the reasons that the agency erred as required by Pa. R.A.P. 1513. Pa. R.A.P. 1513 provides in relevant part:

The petition for review shall contain a statement of the basis for the jurisdiction of the court; the names of the parties seeking review; the name of the government unit ... which made the determination sought to be reviewed; reference to the order or other determination sought to be reviewed; a general statement of the objections to the order or other determination, and a short statement of the relief sought. (Emphasis added.)

While Gierschick was a per curiam order, our Supreme Court apparently did not want timely filed appeals quashed just because they were misnamed when they could easily be amended. Following this reasoning, in Rocco v. Workers’ Compensation Appeal Board (Parkside Realty Construction), 725 A.2d 239 (Pa.Cmwlth.1999), we held that where a “notice of appeal” was filed instead of a “petition for review,” the appeal was not to be quashed and an amendment would be allowed to correct the notice to a petition for review with the requisite reasons required by Pa. R.A.P. 1513.

While both our Supreme Court’s decision in Gierschick and our decision in Rocco involved an appeal under the Appellate Rules rather than under the First Class Township Code, both of those cases did not quash the appeal where, like here, a notice of appeal was filed rather .than a petition for review, even though Pa. R.A.P. 1513 is more stringent by requiring reasons for the appeal while the First Class Township Code does not. Because I believe that Scott is no longer controlling, I would reverse the trial court.

1 . Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 55645. That section provides in relevant part:

In the event the commission shall sustain the charges and order the suspension, removal or reduction in rank, the person suspended, removed or reduced in rank shall have immediate right of appeal to the court of common pleas... Such appeal shall be taken within sixty days from the date of entry by the commission of its final order and shall be by petition. (Emphasis added.)