The Hon. W. Scott, Mayor of the City of Reading v. City of Reading Charter Bd. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Honorable Wally Scott, :
Mayor of the City of Reading :
:
v. : No. 760 C.D. 2020
: SUBMITTED: March 15, 2021
City of Reading Charter Board, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 13, 2021
The City of Reading Charter Board (Charter Board) appeals from the July 1,
2020 Order of the Berks County Court of Common Pleas (Trial Court), which
reversed the Charter Board’s November 12, 2019 Final Order.1 In its Final Order,
the Charter Board fined the former Mayor of Reading, the Honorable Wally Scott
(Mayor Scott), for violations of the City of Reading’s (City) Home Rule Charter
(Charter) and Administrative Code (Code) due to his alleged failure to remove the
Acting Administrative Services Director after her 180-day term expired. We
conclude that the matter before the Charter Board was barred by a six-month statute
1
The Trial Court’s Order states: “the Final Opinion and Order issued by the City of
Reading Charter Board is reversed and vacated.” Reproduced Record (R.R.) at 732a. However,
the proper action would have been reversing, since the Trial Court concluded there was no
substantial evidence for the Charter Board’s determination.
of limitations. Accordingly, we affirm the Trial Court’s Order, albeit on alternative
grounds.2
I. Background
The City enacted its Charter pursuant to the Home Rule Charter and Optional
Plans Law.3 Under the Charter, the Mayor is the chief executive officer of the City.
City’s Charter § 301. The Charter also creates the position of Managing Director
and other department directors, including Administrative Services Director.4 Id. §
401. Pursuant to the Charter, the mayor has appointment and removal power, with
approval by the City Council, over the Managing Director and other department
directors. Id. § 603. Additionally, the Managing Director “[s]upervise[s] the
administration of all departments, offices, and agencies . . . as directed by the
Mayor.” Id. § 406(2).
The Charter Board was created by amendment to the Charter and functions as
a government oversight board. The Charter provides in pertinent part:
The Charter Board shall hear and decide all cases alleging
violations of the Charter or Administrative Code . . . .
Insofar as permitted by state law the Board shall issue
binding opinions, impose penalties and administrative
fines, refer cases for prosecution, and conduct
investigations on its own initiative and on referral or
complaint.
2
“[A]n appellate court may uphold an order of a lower court for any valid reason appearing
from the record.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).
3
53 Pa. C.S. §§ 2901-2984.
4
The Charter was amended in the May 2020 Primary Election, separating the
Administrative Services Department into the Department of Finance and the Department of
Human Resources, each with its own director. City’s Charter §§ 607, 707.
2
Id. amend. I, § 2(b); see also Spencer v. City of Reading Charter Bd., 97 A.3d 844,
849 (Pa. Cmwlth. 2014) (“The [Charter Board] claims to have been modeled after
the State Ethics Commission, which was created to administer, prosecute, enforce,
and adjudicate cases under the Public Official and Employee Ethics Act, 65 Pa. C.S.
§§ 1101-1113.”).
The Charter Board’s enforcement powers include both prosecutorial and
adjudicatory functions. City’s Code of Ordinances § 23-603(A). The members of
the Charter Board hear cases arising from “complaints alleging violations of the
Charter and Administrative Code,” and may “[i]mpose penalties and administrative
fines.” Id. § 23-603(A)(1)-(2). The Charter Board is advised by its solicitor, who
assists with examining witnesses and documents, ruling on evidence, and
preparation and review of the final order. Id. § 23-605(A)(7)(d). The prosecutorial
arm is vested in the Investigating Officer, who is appointed by the Charter Board.
Id. §§ 23-602(A)(8); 23-603(A)(4). The Investigating Officer works independently
from the Charter Board and “is charged with determining jurisdiction, conducting
preliminary and full investigations, issuing written findings reports, [and]
prosecuting complaints before evidentiary hearings.” Id. § 23-602(A)(8)(a). The
Investigative Officer must “be a member in good standing of the Pennsylvania Bar
Association . . . for at least five years.” Id. § 23-602(A)(8)(b).
On March 11, 2019, City resident Ernest H. Schlegel filed a Complaint with
the Charter Board, alleging that Mayor Scott5 violated Section 8-503(A) of the City’s
5
The Complaint named Mayor Scott, former Managing Director Glenn Steckman, and
current Managing Director Osmer S. Deming. After an investigation, the Investigative Officer
dismissed the Complaint as to Mr. Deming, because he held the position for insufficient time to
have caused the alleged violations. R.R. at 96a. Mr. Steckman entered a settlement with the
Charter Board and agreed to the penalty of private admonishment. R.R. at 235a.
3
Administrative Code6 (Code) and various Charter provisions by allowing then-
Acting Administrative Services Director, Josephine Encarnacion, to serve beyond
the prescribed 180-day term for an “acting” director.7 R.R. at 50a-52a.
On October 8, 2019, Mayor Scott filed a pre-hearing Motion to Dismiss the
Complaint. Id. at 193a. Although Mayor Scott did not point to a specific statute of
limitations, he asserted that “[his] right to due process will be violated if the Board
exercises jurisdiction without any statute of limitations.” Id. at 195a (emphasis
added). Mayor Scott noted that the Complaint was filed March 14, 2019, but the
alleged violations dated back to 2016. Id. at 194a. Furthermore, Mayor Scott argued
that the case was moot because “[w]hen the Complaint was filed[,] . . . there was no
matter in controversy[] and . . . there was no alleged ongoing violation of the
Charter.” Id. at 195a.
The Charter Board held hearings on October 15 and October 30, 2019. At the
first hearing, the parties discussed the potential for a settlement, but there was a
disagreement as to the proposed penalty. R.R. at 220a-21a. At the second hearing,
6
Section 8-503(A) of the Code states:
The Managing Director shall appoint acting department directors
and temporary managers within 10 days of the date the position
becomes vacant. Acting department directors appointed by the
Managing Director may serve no more than 180 days. Council may
agree to extend said term for additional [90]-day period by
resolution upon request by the Mayor and upon satisfactory proof
that the Mayor and/or Managing Director have made a diligent effort
to recruit and hire a department director.
Reading, Pa., Code of Ordinances § 8-503(A) (emphasis added).
7
The gravamen of Mr. Schlegel’s Complaint was that Mayor Scott abused the “acting”
director provisions of the Charter. R.R. at 52a. However, the Charter Board’s Investigative Officer
narrowed the scope of this matter to the length of Ms. Encarnacion’s term as Acting Director. Id.
at 191.
4
Mayor Scott and the Investigative Officer submitted an agreed-upon stipulation of
facts. The stipulation of facts did not include a recommended penalty because the
parties had not agreed to settle the case. Id. at 255a-56a. Mayor Scott again raised
the issues of statute of limitations and mootness. Id. at 257a-59a. However, neither
the Investigative Officer nor the Charter Board addressed the issue of statute of
limitations at the hearing. Id. at 259a.
On November 12, 2019, the Charter Board issued its Final Order, publicly
censuring Mayor Scott and imposing $1,500 in fines. Id. at 290a. The Charter Board
neither addressed nor ruled on Mayor Scott’s pre-hearing Motion to Dismiss in its
decision. The Charter Board charged Mayor Scott with the following four violations
of the Charter and Code:
[1] failing to remove [Ms.] Encarnacion as Acting
Administrative Services Director at the expiration of the
180-day period permitted by [Code Section 5-803(A)],
[2] failing to obtain a 90-day extension of the 180-day
period in accordance [with Code Section 5-803(A)],
[3] failing to make a diligent search for an Administrative
Services Director for a period of more than a year, ending
in approximately April 2018, and
[4] failing to execute and perform the duties and
obligations of the Office of Mayor in connection with the
facts stipulated[.]
Id. at 287a.
Mayor Scott timely appealed to the Trial Court. After a review of the record,
the Trial Court determined that “there was no substantial evidence of violations of
the City Charter.” Trial Court Order, 7/1/20, R.R. at 732a. In support of its decision,
5
the Trial Court found that “[i]f one [was] to conclude that there was an inadvertent
‘technical’ violation[] of the City Charter, a review of the record provided shows no
evidence to support the issuance of any monetary penalties.” Id. Accordingly, the
Trial Court reversed the Charter Board’s Final Order. This appeal followed.8
II. Issues
On appeal, the Charter Board argues that Mayor Scott waived all defenses,
including the statute of limitations, when he entered the stipulation of facts and
through various “admissions”9 by his counsel, Mark Merolla, Esquire, at the
8
“When the trial court does not take additional evidence, our standard of review of a local
agency’s adjudication is limited to determining whether constitutional rights were violated, an
error of law was committed, or the necessary factual findings are supported by substantial
evidence.” Spencer, 97 A.3d at 839.
9
The Charter Board claims that the following statements should be deemed “admissions”:
a. After being asked if he agreed with the [I]nvestigative
[O]fficer’s findings of fact sufficient to demonstrate two acts in
violation of the Charter, Attorney Merolla stated “Yes, I do.” [Notes
of Testimony (N.T.),10/15/19, at 15.]
b. Attorney Merolla advised the [Charter] Board that “we
believe if there was a hearing, the reasonable resolution, those would
be the findings that would occur . . . [w]e just have a disagreement
about the penalty.” [Id. at 16.]
c. In advancing the stipulation reached orally at the time with
the [I]nvestigative [O]fficer, Attorney Merolla advised the [Charter]
Board that he thought “the resolution . . . was reasonable regarding
the violations.” [Id. at 16.]
d. Attorney Merolla admitted [] that [Mayor] Scott never
requested to extend the appointment of Encarnacion [] and that it
was [Mayor] Scott’s responsibility [] and that [Ms.] Encarnacion
served too long and [Mayor] Scott agreed to that violation[. Id. at
17.]
6
hearings. Charter Bd.’s Br. at 37-38.10 In response, Mayor Scott counters that
“[g]enerally, an attorney’s statement in an argument does not constitute evidence.”
Mayor Scott’s Br. at 36 (quoting Sch. Dist. of Phila. v. Bd. of Revision of Taxes, 217
A.3d 472, 485 (Pa. Cmwlth. 2019)). Further, Mayor Scott contends that the
stipulation of facts was not a settlement and that he did not waive the objections
raised in his pre-hearing Motion to Dismiss the Complaint. Id. at 39.
III. Discussion
A. Applicable Statute of Limitations
Although Mayor Scott never cited a specific statute of limitations, and neither
the Charter Board nor the Trial Court addressed this issue, we conclude that the
applicable statute of limitations for this action was six months. Pursuant to Section
5522(b)(1) of the Judicial Code, the statute of limitations for “[a]n action against any
officer of any government unit for anything done in the execution of his office” is
six months. 42 Pa. C.S. § 5522(b)(1). Mayor Scott was a government officer at the
e. Attorney Merolla admitted that [Mayor] Scott had the
responsibility as the City’s mayor to request the extension of [Ms.]
Encarnacion’s service and that it did not happen. [Id. at 18-19.]
f. On October 30, 2019, when specifically offered the
opportunity to disavow the stipulated facts in Joint Exhibit #1 and
to proceed to a hearing that night, or at a continued hearing on a
different night, Attorney Merolla responded “No.” [N.T., 10/30/19,
at 17-18.]
Charter Bd.’s Br. at 41-42.
10
In addition to asserting that Mayor Scott waived his defenses, the Charter Board asserts
that the Trial Court erred in concluding that (1) the Charter Board’s determination that Mayor Scott
violated the Charter was unsupported by substantial evidence and (2) the record did not support
the penalties imposed.
7
time of the incident, and the allegations on which the Complaint were based occurred
“in the execution of his office.” Id.
Before the Trial Court, the Charter Board asserted that the catch-all six-year
statute of limitations should apply to this action. R.R. at 694a (citing 42 Pa. C.S.
5527(b) (“Any civil action or proceeding which is neither subject to another
limitation specified in this subchapter nor excluded from the application of a period
of limitation by section 5531 (relating to no limitation) must be commenced within
six years.”)). Alternatively, the Charter Board argued that the five-year period for
claims before the State Ethics Commission should apply. Id. (citing 65 Pa. C.S. §
1108(m)). These assertions are without merit.
First, the catch-all six-year limitations period applies only where an action or
proceeding is not “subject to another limitation specified in this subchapter.” 42 Pa.
C.S. § 5527(b). Where the alleged conduct is specified by statute, however, the
prescribed limitations period applies. Section 5522(b)(1) of the Judicial Code applies
to an action alleging the wrongful conduct of a government official “for anything
done in the execution of his office.” 42 Pa. C.S. § 5522(b)(1); see Stoppie v. Johns,
720 A.2d 808, 811 (Pa. Cmwlth. 1998). Here, Mayor Scott was a government
official at the time of the incident, and the allegations on which the Complaint were
based occurred “in the execution of his office.” The Complaint contained no
allegations that would have resulted in the application of another statute of
limitations. Therefore, we conclude that the six-month limitations period in Section
5522(b)(1) applies.
Second, contrary to the Charter Board’s assertion, the five-year investigatory
period for claims before the State Ethics Commission is specific to that agency
pursuant to its enabling legislation. Charter Amendment I, creating the Charter
8
Board, sets no specific statute of limitations, so we must apply the general laws of
the Commonwealth. See 53 Pa. C.S. § 2962(e) (“Statutes that are uniform and
applicable in every part of this Commonwealth shall remain in effect and shall not
be changed or modified by [the Home Rule Charter and Optional Plans Law].
Statutes shall supersede any municipal ordinance or resolution on the same
subject.”).
Here, Mr. Schlegel filed his Complaint on March 11, 2019, more than two
years after Ms. Encarnacion’s tenure as Acting Administrative Services Director
ended.11 Therefore, we conclude that the six-month statute of limitations bars this
action.
B. Waiver of Statute of Limitations Defense
With regard to the Charter Board’s argument that Mayor Scott waived the
statute of limitations defense, we first conclude that Attorney Merolla’s statements
at the hearings did not constitute admissions. This Court has explained:
Generally, an attorney’s statement in an argument does not
constitute evidence. East Norriton Township v. Gill
Quarries, Inc., 604 A.2d 763, 766 n.9 (Pa. Cmwlth. 1992)
(“[S]elf-serving, unsubstantiated and unsworn statements
by counsel are not competent evidence.”); Jacquin v.
Pennick, 449 A.2d 769, 772 n.1 (Pa. Cmwlth. 1982). On
the other hand, a “judicial admission is ‘an express waiver
made in court or preparatory to trial by a party or his
attorney, conceding for the purposes of trial, the truth of
the admission,’ and may be contained in the pleadings,
stipulations and other like documents.” Sherrill v.
11
To the extent the Board found that Mayor Scott violated the Charter and Code by “failing
to make a diligent search for an Administrative Services Director for a period of more than [one]
year, ending in approximately April 2018,” R.R. at 287a, this alleged violation ended
approximately 11 months before the Complaint was filed and, therefore, is also barred by the six-
month statute of limitations.
9
Workmen’s Comp. Appeal Bd. (Sch. Dist. of Phila.), 624
A.2d 240, 243 (Pa. Cmwlth. 1993). A judicial admission
“must be a clear and unequivocal admission of
fact.” Coleman v. Wyeth Pharms., Inc., 6 A.3d 502, 524
(Pa. Super. 2010).
Sch. Dist. of Phila., 217 A.3d at 485 (emphasis added).
A review of the hearing transcripts reveals that Attorney Merolla’s statements
did not rise to the level of admissions, as he did not clearly or unequivocally express
an intent to waive the statute of limitations defense. At the October 15, 2019 hearing,
Attorney Merolla and the Investigative Officer were in the process of trying to reach
a settlement. See N.T., 10/15/19, at 15-16. Mr. Steckman, the former Managing
Director, had just agreed to settle with the Investigative Officer. R.R. at 210a; see
supra note 5. Attorney Merolla and the Investigative Officer were in the midst of
negotiations but had not agreed to a penalty. N.T., 10/15/19, at 15. It is evident
from our review of the transcript that the statements from the October 15, 2019
hearing that the Charter Board attempts to characterize as admissions were made in
anticipation of settlement with the Charter Board.
Importantly, in a discussion between Attorney Merolla and the solicitor for
the Charter Board, Attorney Merolla unequivocally reasserted his objections in his
pre-hearing Motion to Dismiss, in the event that a binding settlement was not
reached. Specifically, when asked if he “reserved his rights” in the event that a
settlement was not reached, Attorney Merolla responded, “Correct.” Id. at 22
(emphasis added).
At the second hearing, the parties introduced the stipulation of facts, and
Mayor Scott entered two other exhibits for mitigation purposes as to the penalty.
N.T., 10/30/19, at 5. Attorney Merolla also attempted to offer into evidence Mayor
Scott’s affidavit, but the Charter Board excluded it on the basis that the stipulation
10
of facts alone formed the record. Id. at 15-17. Attorney Merolla objected to the
exclusion of Mayor Scott’s affidavit, but ultimately agreed with the stipulation of
facts. Id. at 16-18. When asked if he wanted to renegotiate the stipulated facts to
attempt to include the Mayor’s affidavit, Attorney Merolla responded, “No, I made
our position clear.” Id. at 18. The Charter Board characterizes this as an admission,
but Attorney Merolla clearly raised an objection, made argument, and preserved the
issue for appeal. Thereafter, Attorney Merolla again specifically raised the issues of
statute of limitations and mootness, id. at 22-24, but neither the Investigative Officer
nor the Charter Board responded to these objections, id. at 24-25. Accordingly, we
conclude that Attorney Merolla did not waive the objections raised in his pre-hearing
Motion to Dismiss.12
We also reject the Charter Board’s contention that Mayor Scott’s stipulation
of facts constituted a waiver of the statute of limitations defense. A stipulation of
facts is binding and conclusive on an adjudication; however, the adjudicating body
may draw its own legal conclusions from those facts. Mader v. Duquesne Light Co.,
241 A.3d 600, 615 (Pa. 2020). While litigants may limit the issues in a case with
stipulations, they cannot limit matters affecting the jurisdiction, business, or
convenience of the court. Id.In relevant part, the stipulation of facts stated:
A. [Mayor Scott] took office as Mayor of [the City] in
January 2016.
12
While there is no discussion on the record pertaining to the statute of limitations, the
Charter Board went off the record multiple times at the October 30, 2019 hearing. See N.T.,
10/30/19, at 3, 5, 7, 8 (executive session from 6:18 p.m. to 6:39 p.m.). Attorney Merolla later
stated: “[W]e have been told many times there’s no statute of limitations.” Id. at 22. In light of
this statement, it appears that the statute of limitations was discussed at some point off the record.
Nevertheless, Attorney Merolla continued to assert this defense while on the record.
11
***
G. On March 24, 2016, [Mayor Scott] appointed
Human Resources Manager [Ms. Encarnacion] as Acting
Administrative Services Director.
H. There was no Managing Director serving [the City]
at the time of Ms. Encarnacion’s appointment as Acting
Administrative Services Director.
I. Ms. Encarnacion served as Acting Administrative
Services Director through January 2017 when [Mr.
Steckman], former Managing Director, took over as
Acting Administrative Services Director as part of his
employment as Managing Director.
J. Ms. Encarnacion served as Acting Administrative
Services Director in excess of 180 days.
K. At the conclusion of Ms. Encarnacion[’s] 180 days
as Acting Administrative Services Director, the Mayor did
not request City Council to adopt a Resolution agreeing to
extend Ms. Encarnacion’s time as Acting Administrative
Services Director for an additional 90 days.
L. [Mayor Scott] did not remove or require removal of
Ms. Encarnacion upon expiration of her 180 days service
as Acting Administrative Services Director.
R.R. at 262a-63a. Nowhere in the stipulation of facts did Mayor Scott waive his pre-
hearing Motion to Dismiss, nor did the stipulation address the statute of limitations.
Mayor Scott did not settle his case with the Charter Board as did Mr. Steckman.
Because Mayor Scott did not settle his case with the Charter Board, we conclude
that the stipulation did not waive his statute of limitations defense.
12
IV. Conclusion
For the forgoing reasons, we affirm the Trial Court’s Order. 13
__________________________________
ELLEN CEISLER, Judge
13
Because we conclude that the statute of limitations bars this action, we need not address
whether there was substantial evidence for the Charter Board’s determination that Mayor Scott
violated the Charter or whether the record supported the penalties imposed.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Honorable Wally Scott, :
Mayor of the City of Reading :
:
v. : No. 760 C.D. 2020
:
City of Reading Charter Board, :
Appellant :
ORDER
AND NOW, this 13th day of April, 2021, the Order of the Berks County Court
of Common Pleas, dated July 1, 2020, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge