S.A. Frempong v. Bd. of License & Inspection Rev. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steve A. Frempong, :
:
Appellant :
:
v. : No. 510 C.D. 2019
: Submitted: January 24, 2020
Board of License and :
Inspection Review :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 24, 2021
Steve A. Frempong (Frempong), pro se, appeals an order of the Court
of Common Pleas of Philadelphia County (trial court) dismissing his appeal of an
adjudication of the Board of License and Inspection Review (Board) for failure to
comply with the trial court’s Case Management Order. Frempong contends that he
did comply with the Case Management Order. For the following reasons, we affirm.
On October 30, 2018, the Board issued a notice of decision affirming
the City of Philadelphia (City) in Frempong’s housing appeal case. Original Record
(O.R.) Item No. 2 at 2.2 The notice of decision provided:
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
The record provides no indication of the underlying facts of the case. The City has
attached exhibits to its brief suggesting that the appeal involved safety code violations found by
(Footnote continued on next page…)
In order to pursue your appeal [before the trial court], you
must order the Notes of Testimony from your hearing
before the . . . Board. To order the Notes of Testimony[,]
you should contact Strehlow & Associates, the court
reporting agency, at 215-504-4622. Your appeal cannot
proceed without the Notes of Testimony.
Id. (emphasis in original).
On November 29, 2018, Frempong filed a statutory Notice of Appeal
of the Board’s decision with the trial court. O.R. Item No. 2 at 1. Also, on November
29, 2018, the trial court issued a Case Management Order. Reproduced Record
(R.R.) at 4a-5a. The Case Management Order states, in relevant part:
3. Scheduling: If this appeal is not disposed of within
sixty (60) days of the date on this order, the [trial] court
will enter a scheduling order that sets a date for the appeal
or events leading to its completion.
4. Notes of Testimony: You are required to obtain a
copy of the hearing transcript or certified record if
applicable from the agency once a scheduling order is
issued. Appellant must order a transcript of the
proceedings by serving the stenographer with a copy of
the Notice of Appeal and paying the stenographer for the
cost of producing the notes. The stenographer must then
transcribe the notes of testimony, file the original notes
with the appropriate agency[,] and deliver a copy of the
notes to appellant within thirty (30) days. Failure to order
the transcript will result in the dismissal of the appeal
absent good cause shown.
Note: The appellant shall incur any cost associated with
obtaining hearing transcripts.
the Department of Licenses and Inspections at 5800 N. 17th Street, Philadelphia, Pennsylvania,
19141. The City further suggests that the case was properly dismissed because Frempong never
owned the property at issue and that the violations at the property have been satisfactorily remedied
by the actual owner. None of these factual claims are part of the record, nor have they been raised
before us in this appeal. As such, they will not be considered.
2
Id. at 5a (emphasis in original). On January 18, 2019, the trial court issued a
Scheduling Order setting, inter alia, a briefing schedule and a date for oral argument,
and requiring that the Board electronically file its record by March 4, 2019, or risk
sanctions. O.R. Item No. 6 at 1.
On March 19, 2019, the Board filed a Praecipe to Notice Failure to
Comply (Praecipe) by Frempong. O.R. Item No. 7 at 1. The Board advised that
Frempong had not requested the Notes of Testimony pursuant to the Case
Management Order, and, as such, the Board was unable to prepare its findings of
fact and conclusions of law, and submit its record to the trial court by March 4, 2019.
By Order dated March 22, 2019, the trial court dismissed Frempong’s appeal for
failure to request or pay for the Notes of Testimony pursuant to the Case
Management Order. O.R. Item No. 9 at 1.
On March 25, 2019, Frempong filed a response to the Praecipe. R.R.
at 8a. He advised that on December 7, 2018, he sent the Board a request for the
Notes of Testimony. Id. In support, he provided a copy of a certified mail receipt
showing that the Board received the mailing on December 10, 2018. Id. at 9a. He
also provided a copy of the letter he enclosed to the Board Chairman requesting a
copy of the Notes of Testimony. Id. at 11a. In the letter, he mentioned the issue of
payment for the Notes of Testimony and that he attached as “Exhibit B [a] copy of
the Order of December 6, 2018[,] issued by the [trial court] with regard to the fee
for the transcript fee.” Id.3
3
We note that the trial court did not enter an order on December 6, 2018, and that there is
no such order attached to Frempong’s letter as Exhibit B in the original record. See O.R. Item No.
8 at 4. Possibly, Frempong is referencing the trial court’s December 7, 2018 order, granting him
permission to proceed in forma pauperis, which he attached to his letter as Exhibit A. See id. at
4-5.
3
On April 12, 2019, Frempong filed a motion for reconsideration of the
trial court’s March 22, 2019 Order. R.R. at 14a. He claimed that he did not receive
the Praecipe until March 25, 2019, and that he immediately filed a response that
same day. Id. at 17a. He stated that the docket indicated that the trial court had not
yet ruled on the Praecipe. Id. at 18a. He further claimed it was not until April 10,
2019, that he received the trial court’s March 22, 2019 Order, informing him that the
case had been dismissed. Id.
Frempong also argued that the trial court dismissed the case based on
a “false and erroneous Praecipe,” and that he did request the Notes of Testimony
pursuant to the Case Management Order. R.R. at 18a. In support, Frempong again
submitted a copy of the letter he sent to the Board Chairman and the certified mailing
receipt showing that the Board received the letter on December 10, 2018.
Additionally, he submitted a copy of the trial court’s docket report, which showed a
“RUN DATE” of March 25, 2019. Id. at 36a. On that date, however, the trial court’s
March 22, 2019 Order had not yet been entered. Id. at 38a. As such, he claimed that
his March 25, 2019 submission to the trial court was timely and should have been
considered.
On April 12, 2019, the trial court denied the motion for reconsideration
without discussion. O.R. Item No. 11 at 1. Following Frempong’s appeal to this
Court, the trial court ordered him to file a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), Pa. R.A.P.
1925(b). O.R. Item No. 13. Frempong submitted the following response, in full:
1. The [Board’s] filing of the [Praecipe] filed on
March 11, 2019 [sic,] with the [trial court] alleging that
[Frempong] had failed to order and/or make payment for
the [N]otes of [T]estimony from the Board hearing within
4
the time prescribed in the [trial court’s] . . . Case
Management Order was a palpabl[e] falsehood and
amount[ed] to a fraud as demonstrated in [Frempong’s]
filings in response and resultant Motion For
Reconsideration.
2. The [trial court’s] dismissal of the [a]ppeal based on
the Board’s Praecipe is clearly erroneous and [a] gross
abuse of discretion.
3. The [trial court’s] summary denial of [the] Motion
For Reconsideration despite [Frempong’s] compliance
[with] the Case Management Order and the Board’s
[f]raudulently obtained Order of March 23, 2019[sic,]
dismissing [the] appeal constitute[s] clear error of law and
gross abuse of discretion.
4. The [trial court’s] adjudication of the [a]ppeal in
this case is a denial of [Frempong’s] first amendment right
of access to the [c]ourt and violative of due process and
constitute[s] clear error of law and abuse of discretion.
O.R. Item No. 14 at 1.
The trial court then filed an opinion pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a), Pa. R.A.P. 1925(a), stating that it dismissed
Frempong’s appeal on March 25, 2019,4 because Frempong failed to request the
Notes of Testimony of the Board’s hearing pursuant to the Case Management Order
and the Scheduling Order. O.R. Item No. 15 at 1. The trial court then addressed the
issues raised by Frempong in his Rule 1925(b) statement. Id. at 2-7.
Frempong first claimed that the dismissal of his case was based on a
falsehood that he did not comply with the Case Management Order. In rejecting this
claim, the trial court observed that Frempong failed to explain why it was a falsehood
and provided no citation to authority or any evidence that he ordered the Notes of
4
The trial court’s Order is dated and stamped as filed on March 22, 2019, but was entered
on the docket on March 25, 2019. O.R. Item No. 9 at 1.
5
Testimony as mandated. O.R. Item No. 15 at 3-4. The trial court then explained
that, while Frempong submitted evidence that he sought the Notes of Testimony via
a letter to the Board Chairman, there was no evidence in the record or in Frempong’s
Rule 1925(b) statement demonstrating that he properly requested the transcript from
the stenographer or that he properly served the stenographer with a copy of his
Notice of Appeal as required by the trial court’s Order. Id. at 5. To the contrary, the
trial court pointed out that the Case Management Order directed Frempong to obtain
a copy of the Board’s hearing transcript from the stenographer, serve the
stenographer with a copy of the Notice of Appeal, and pay the stenographer for the
cost of producing the transcript, none of which he did. Id. at 4-5. The Order also
warned that “[f]ailure to order the transcript will result in the dismissal of the appeal
absent good cause shown.” R.R. at 5a. Because Frempong failed to comply with
the Case Management Order, the trial court determined that it did not err in
dismissing the appeal based on Frempong’s noncompliance with the court’s Order.
The trial court next addressed whether Frempong demonstrated good
cause for his failure to request the transcript. In doing so, the court explained that,
while Frempong was granted leave to proceed in forma pauperis, such status did not
relieve him of his duty to make a proper request to the stenographer and, therefore,
did not constitute good cause justifying his failure to serve the stenographer or timely
request the transcript. O.R. Item No. 15 at 6. The trial court also determined that
Frempong’s Rule 1925(b) statement was insufficient to allow meaningful review of
the matter due to its lack of specificity and vagueness. The trial court noted that
Frempong generally asserted that the Praecipe constituted a falsehood, and claimed
that the dismissal of the case violated his right of access to the court and his right to
due process. However, the trial court noted that he provided no facts or evidence in
6
support of his vague claims of error. As such, the trial court concluded that the
claims should be dismissed. O.R. Item No. 15 at 6-7. Finally, the trial court noted
that its refusal to grant reconsideration is not a question that is an appropriate subject
matter for appeal. See Cheathem v. Temple University Hospital, 743 A.2d 518, 521
(Pa. Super. 1999) (explaining that reconsideration orders are not considered final
orders and, thus, are not subject to appeal).
In his appeal to this Court,5 Frempong raises three issues. First, he
challenges the trial court’s conclusions that he did not provide sufficient evidence of
any error by the trial court and that his Rule 1925(b) statement failed to adequately
identify in a concise manner the issues he complained of on appeal. Second, he
claims that his appeal was improperly dismissed. Third, he claims that the trial court
should have granted reconsideration because he established his compliance with the
Case Management Order. We address each issue in turn.
Frempong first claims that the trial court erred in concluding that he did
not provide sufficient evidence of error and that his Rule 1925(b) statement failed to
adequately identify in a concise manner the issues he complained of on appeal.
Specifically, Frempong points out that the trial court found his claims of fraud and
insinuations of constitutional violations were not based in law or fact, and then
claims that the trial court actually conceded in its Rule 1925(a) opinion that he
complied with the mandate to obtain the Notes of Testimony.6 Frempong’s Brief at
10. Thus, Frempong asserts that the trial court erred in concluding that his Rule
5
Our review of a trial court’s decision is limited to whether constitutional rights were
violated, whether the trial court abused its discretion, or whether an error of law was committed.
Fraisar v. Gillis, 892 A.2d 74, 76 n.2 (Pa. Cmwlth. 2006).
6
The trial court makes no such concession in its Rule 1925(a) opinion.
7
1925(b) statement was not sufficiently specific and that he did not provide evidence
in support of his claims that he complied with the Case Management Order.
The City responds that the trial court acted well within its discretion in
dismissing Frempong’s appeal based on his noncompliance with the Case
Management Order, which action is supported by this Court’s case law. The City
also contends that neither Frempong’s letter to the Board Chairman requesting a
copy of the transcript, nor his in forma pauperis status before the trial court, relieved
him of his duty to request the transcript directly from the stenographer and pay for
it pursuant to the Case Management Order. The City further asserts that Frempong’s
passing references to “due process” and “access to the courts” without any
application to the facts of his case are insufficient to preserve those issues; they are
therefore waived. Moreover, even if those issues were not waived, the City
maintains that Frempong’s rights to due process and access to the courts were amply
protected by the trial court.
Where, as here, the trial court orders an appellant to file a Rule 1925(b)
statement, the appellant must “concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues
for the judge.” Pa. R.A.P. 1925(b)(4)(ii).7 Any “[i]ssues not included in the
Statement and/or not raised in accordance with the provisions of this paragraph
(b)(4) are waived.” Pa. R.A.P. 1925(b)(4)(vii); see also Burgoyne v. Pinecrest
Community Association, 924 A.2d 675, 678 n.1 (Pa. Super. 2007) (stating that a Rule
1925(b) statement “must be detailed enough so that the judge can write a Rule
7
On June 24, 2019, the Pennsylvania Supreme Court amended Pennsylvania Rule of
Appellate Procedure 1925, effective October 1, 2019, which was before Frempong filed his Rule
1925(b) statement in this case. See 49 Pa. B. 3867 (2019). We therefore cite the old language of
Rule 1925(b)(4)(ii), as that is the version of the rule that governed Frempong’s Rule 1925(b)
statement.
8
1925(a) opinion”); Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super. 2004),
aff’d, 924 A.2d 621 (Pa. 2007) (stating that a Rule 1925(b) statement which is too
vague to allow the court to identify the issue raised on appeal is “the functional
equivalent of no [c]oncise [s]tatement at all”).
We agree with the trial court that Frempong’s Rule 1925(b) statement
raises no facts showing that the Board acted fraudulently. Further, his references to
various constitutional rights are made without legal or factual assertions. Moreover,
all of these issues are based on his claim that he did indeed comply with the Case
Management Order. As such, we will turn to that claim, which is addressed in his
second issue.
In his second issue, Frempong claims that the trial court improperly
dismissed his appeal because he has established that he complied with the Case
Management Order. Frempong asserts that he complied with the Case Management
Order by sending a letter to the Board Chairman requesting the Notes of Testimony
and attaching the trial court’s order granting him in forma pauperis status.
The City responds that the Case Management Order required Frempong
to order the Notes of Testimony by serving the stenographer with a copy of his
Notice of Appeal and requesting the transcript directly from the stenographer.
Instead of doing that, Frempong sent a letter to the Board Chairman. As such, the
City asserts that he did not comply with the Case Management Order.
When the Board denied Frempong’s appeal, he was advised that “[i]n
order to pursue [his] appeal [before the trial court, he] must order the Notes of
Testimony from [his] hearing before the . . . Board. To order the Notes of
Testimony, [he] should contact Strehlow & Associates, the court reporting agency,
at 215-504-4622.” O.R. Item No. 2 at 2. Following his appeal to the trial court, a
9
Case Management Order was issued, advising Frempong that he was “required to
obtain a copy of the hearing transcript or certified record if applicable from the
agency once a scheduling order is issued. [He] must order a transcript of the
proceedings by serving the stenographer with a copy of the Notice of Appeal and
paying the stenographer for the cost of producing the notes.” R.R. at 5a (emphasis
omitted). Importantly, the Order warned that “[f]ailure to order the transcript will
result in the dismissal of the appeal absent good cause shown.” Id. On January 18,
2019, the Scheduling Order was issued, requiring that the Board electronically file
its record by March 4, 2019, or risk sanctions. O.R. Item No. 6 at 1.
As explained by the trial court in its Rule 1925(a) opinion, Frempong
did not serve the stenographer with the Notice of Appeal as required. Instead, he
sent a letter to the Board Chairman. As such, he did not comply with the Case
Management Order and his appeal was dismissed.
Frempong ignores the trial court’s explanation in its Rule 1925(a)
opinion regarding why it concluded that he failed to comply with the Case
Management Order. He also does not address his failure to serve the stenographer
or the express language of the Case Management Order requiring him to do so.
Instead, he claims that “it is baffling” that the Board filed the Praecipe stating that
he did not comply with the Case Management Order when he clearly did comply.
Frempong’s Brief at 15-16.
We reject Frempong’s claim that he complied with the Case
Management Order by mailing a letter to the Board Chairman. The Case
Management Order explicitly required service of the Notice of Appeal on the
stenographer, and provided Frempong with the telephone number to call to begin
this process; however, Frempong apparently chose not to follow the instructions
10
provided. We also emphasize that the Case Management Order warned that failure
to order the transcript would result in dismissal, absent good cause shown.
Frempong has not claimed good cause for his failure to order the transcript, and in
fact, he continues to assert that he properly ordered the transcript despite his own
evidence showing otherwise.8 As our Supreme Court has explained, “it is axiomatic
that a court has inherent power to enforce its own orders of court and that this court
will not interfere with enforcement absent an abuse of discretion.” Commonwealth
v. Shaffer, 712 A.2d 749, 751 (Pa. 1988). Frempong has made no showing that the
trial court abused its discretion or otherwise erred. As such, we reject his second
claim of error.
Frempong’s final claim is that the trial court should have granted
reconsideration because the Board was incorrect that he did not comply with the
Case Management Order’s directive that he order the Notes of Testimony. The City
asserts, and the trial court ruled, that this claim is meritless, and we agree. “The
refusal of a court to reconsider, rehear or permit reargument of a final decree is not
reviewable on appeal.” Commonwealth v. Rachau, 670 A.2d 731, 734 n.8 (Pa.
Cmwlth. 1996). Therefore, to the extent that Frempong challenges the denial of his
motion for reconsideration, such claim is dismissed as unreviewable.
For all of the above reasons, the order of the trial court is affirmed.
MICHAEL H. WOJCIK, Judge
8
This is not the first time Frempong has had a case dismissed for failure to comply with a
Case Management Order. In School District of Philadelphia v. Frempong (Pa. Cmwlth., No. 356
C.D. 2014, filed January 7, 2015), he appealed an adjudication of the City’s Board of Revision of
Taxes to the trial court, and a case management order was issued. The City filed a motion to quash
because Frempong did not obtain the hearing transcript or file a pretrial memorandum as required
by the case management order. The trial court quashed the appeal, and this Court affirmed.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steve A. Frempong, :
:
Appellant :
:
v. : No. 510 C.D. 2019
:
Board of License and :
Inspection Review :
ORDER
AND NOW, this 24th day of March, 2021, the Order of the Court of
Common Pleas of Philadelphia County, dated March 22, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge