J.R. Froetschel & M.N. Presley v. City of Pittsburgh Historic Rev. Comm. & City of Pittsburgh ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph R. Froetschel and :
Marla N. Presley, :
Appellants : No. 66 C.D. 2022
:
v. : Argued: February 7, 2023
:
City of Pittsburgh Historic Review :
Commission and City of Pittsburgh :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZANNO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 14, 2023
Appellants Joseph R. Froetschel (Froetschel) and Marla N. Presley
(Presley) (together, Homeowners) appeal pro se from the December 20, 2021 order
of the Court of Common Pleas of Allegheny County, Pennsylvania (trial court). The
trial court affirmed, in part, and reversed, in part, the May 5, 2021 decision of the
City of Pittsburgh Historic Review Commission (Commission), which denied
Homeowners’ Application for a Certification of Appropriateness (Certificate) for
certain proposed improvements and modifications to their home located in a historic
district of the City of Pittsburgh (City).1 Homeowners argue on appeal to this Court
that the trial court applied an incorrect standard of review and that the Commission
1
Although separate parties, both the City and the Commission are represented by the same
counsel and have aligned interests. For convenience, we will refer to both together as the
“Commission.”
proceedings deprived them of certain procedural due process rights. After careful
review, we vacate the trial court’s order and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Homeowners purchased the residence at 911 Beech Avenue,
Pittsburgh, Pennsylvania (Property) in October 2019. The Property is located in the
City’s Allegheny West Historic District. At the time of purchase, the Property was
divided into nine rental units and was in a dilapidated condition. Amidst making
other improvements to the Property, on February 12, 2021, Homeowners submitted
an Application for a Certificate of Appropriateness (Application) to the
Commission,2 in which they requested approval of the following items: adding
shingles to the front porch roof, removing the fire escape, cleaning the front
sandstone façade, installing lighting on the front façade and porch, and repainting
wood and metal trim. (Reproduced Record (R.R.) 11a, 84a.)3
Homeowners presented the Application at a public hearing on March 3,
2021.4 Present at the meeting were Commission Chairperson Lucia M. Aguirre
(Aguirre), Commission Secretary David Green (Green), and Commissioners
2
The Commission and its membership were established by section 1101.07 of Title XI of
the Pittsburgh Zoning Code (Zoning Code). City of Pittsburgh, Pa. Zoning Code (1997); See also
Title XI § 1101.07 (1997), available at
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances (last visited April 13,
2023).
3
Because of time constraints, Homeowners performed some of the proposed work prior to
receiving approval from the Commission. (Notes of Testimony (N.T.), 3/3/21, at 12-14; R.R.
142a-44a.)
4
In reviewing applications for Certificates of Appropriateness in the Allegheny West
Historic District, the Commission applies the Design Guidelines for Allegheny West Historic
District developed by the Commission pursuant to section 1101.02(g) of Title XI of the Zoning
Code. (R.R. 106a-26a.) See also Title XI § 1101.02(g) (1997), available at
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances (last visited April 13,
2023).
2
Andrew Dash (Dash), Matthew Falcone (Falcone), James Hill (Hill), Karen Loysen
(Loysen), and Sarah Quinn (Quinn) (together, Commissioners). (R.R. 131a.) At the
hearing, Froetschel explained Homeowners’ requests and introduced several
photographs of the proposed work. (N.T., 3/3/21, at 2-4; R.R. 132a-34a.) The
Commission then opened the hearing to public comment, beginning with the
testimony of Carole Malakoff (Malakoff), a representative of the Allegheny West
Local Review Committee (LRC). (N.T., 3/3/21, at 5; R.R. 135a.) Prior to hearing
Malakoff’s testimony, Aguirre noted that Malakoff had “e-mailed comments ahead
of time to us.” Malakoff then made her presentation on behalf of the LRC, objecting
to many of Homeowners’ proposed modifications. She asked if the Commission
received the “printout” of the LRC’s written response, which Aguirre confirmed.
(Id. at 5-8; R.R. 135a-38a.) Froetschel did not request the opportunity to examine
Malakoff, and the Commission received no other live testimony. Id.
The Commissioners then questioned Froetschel about the proposed
work. During the questioning, Froetschel objected to the Commission’s
consideration of the LRC’s e-mails on the ground that they had not been provided to
Homeowners. (Id. at 22; R.R. 152a.) In response to Froetschel’s objection, Quinn
noted that Malakoff “pretty much read from the e-mail that she forwarded to us.”
(Id.) Froetschel continued his objection:
She read from the [e-mail], and it can be included, but
including anything more than her statement today, which
is included by the court reporter, is improper. And I ask
that whatever e-mails are provided again to
Commissioners, and none of it was provided to me, none
of that be included as part of the record.
(Id. at 22-23; R.R. 152a-153a.) Commissioner Dash noted and effectively overruled
Froetschel’s objection, explaining:
3
And, sir, that correspondence came to us this morning and
we take e-mail correspondence for any hearing to be
introduced as correspondence to the Commissioners. So
where the applicant can get a copy of the correspondence,
it is a part of what the Commissioners can take into
account in making a decision and it is something that is
allowable for any hearing that we have.
(Id. at 23; R.R. 153a.)5 After further discussion, the Commission voted to approve
fire escape removal, cleaning of the stone façade, and repainting of wood and metal
trim. It tabled to a later hearing consideration of the front porch roof and lighting
installation so that it could receive more information and review additional
photographs. (Id. at 26-27; R.R. 156a-57a.) See also Meeting Minutes, 3/3/21;
R.R. 30a-31a.6
The Commission resumed consideration of Homeowners’ Application
at its May 5, 2021 meeting. Aguirre again presided, with Commissioners Dash,
Green, Hill, Loysen, Falcone, and Richard Snipe (Snipe) in attendance. (N.T.,
5/5/21, at 1-2; R.R. 164a-65a.) After Froetschel again presented Homeowners’
requests, the Commission received public comment. (N.T., 5/5/21, at 8; R.R. 171a.)
Malakoff again appeared for the LRC and explained its objections to the work. (Id.
at 8-9; R.R. 171a-72a). After Malakoff’s presentation, Aguirre again acknowledged
that the Commission had received e-mail comments from the LRC, which reiterated
the substance of Malakoff’s live testimony. (Id. at 9; R.R. 172a.) Another objector,
5
The published agendas for Commission hearings advise the public that hearings are
hosted on Zoom and can be streamed on YouTube. Members of the public may testify live via
Zoom or by telephone and may submit written comments in advance by e-mail (to
historicreview@pittsburghpa.gov) or letter (to 200 Ross St., 4th Floor, Pittsburgh, PA 15219).
(R.R. 26a, 54a.) Although Commissioner Dash noted that applicants may obtain copies of public
correspondence, there is no evidence in the record indicating whether or how this occurs.
6
The Commission issued a Certificate for the approved work, which expressly did not
include “alterations to the porch roof or installation of any lighting.” (R.R. 100a.)
4
John DeSantos, also appeared and noted his objections to the proposed work. (Id. at
10-13, R.R. 173a-76a.) Homeowners did not request to examine either Malakoff or
DeSantos.
After discussion and comment, the Commissioners voted to deny all
three remaining requests and asked that Homeowners provide alternative light
fixture proposals for the front porch. (Id. at 18-20; R.R. 181a-83a.) After the vote,
Froetschel began to “clarify a few issues,” but Aguirre interrupted and precluded
him from continuing. The meeting then concluded. (Id. at 21-22; R.R. 184a-85a.)
See also Meeting Minutes, 5/5/21; R.R. 63a-64a.
Homeowners appealed to the trial court on June 3, 2021. (R.R. 274a.)
They requested de novo review because the record from the Commission hearings
was not full and complete to the extent that the written e-mail communications from
the LRC were not included in the record or provided to them. They further argued
that the proceedings before the Commission violated their right to due process
because the Commission considered ex parte communications from the LRC and did
not permit Homeowners to conduct cross-examination or present rebuttal evidence.
In the alternative, Homeowners argued that even if the trial court did not conduct de
novo review, the Commission’s decision was not supported by substantial evidence.
Homeowners requested that the trial court reverse the Commission’s decision on the
three matters decided at the May 5, 2021 hearing.
The trial court declined de novo review and affirmed, in part, and
reversed, in part. (Trial Court Order, R.R. 265a; Trial Court Opinion (Trial Court
Op.) at 2, 6; R.R. 267a, 271a.) The trial court affirmed the Commission’s decision
regarding the front porch roof and front façade lighting, finding that the decision in
that regard was supported by substantial evidence and the applicable Allegheny
West Historic District guidelines. (Trial Court Op. at 4-5; R.R. 269a-70a.) The trial
court reversed the Commission’s decision regarding the front porch lighting,
5
concluding that the decision failed to reference any standards or guidelines and
instead was based on the subjective opinions of the Commissioners. (Id. at 4, 6;
R.R. 269a, 271a.) Regarding Homeowners’ due process and record challenges, the
trial court noted that the City’s solicitor at oral argument
presented evidence that there was no indication that the
letter sent to the [Commission] was reviewed by the
[Commissioners] themselves, but rather by Commission
staff. He explained that[, ]generally, letters received by
the public are reviewed by staff and are not considered ex
parte communications.
(Id. at 3; R.R. 268a.) The trial court did not conduct any further analysis or make
any additional conclusions regarding Homeowners’ due process claims.
Homeowners now appeal to this Court.
II. QUESTIONS PRESENTED
Homeowners present the following two questions for our review:
1. Did the [trial court] err by failing to apply a de novo
standard of review to the [Commission’s] decision?
2. Did the [Commission] deny [Homeowners] their
constitutional right to due process by failing to provide
a complete record, cross-examination, and rebuttal
evidence?
(Homeowners’ Br. at 4.)
III. STANDARD OF REVIEW
Although our standard of review of Commission decisions ordinarily is
deferential, here Homeowners are not seeking review of the substance of the
Commission’s determination or the evidence supporting its findings. Rather, the
issues presented involve the procedural and constitutional questions of whether the
trial court applied the correct standard of review and whether the Commission
violated Homeowners’ right to due process. Because those are questions of law, our
6
standard of review is de novo and our scope of review is plenary. Braun v. Wal-
Mart Stores, Inc., 106 A.3d 656, 663 n.8 (Pa. 2014); Medina v. Harrisburg School
District, 273 A.3d 33, 39 n.10 (Pa. Cmwlth. 2022).
IV. DISCUSSION
A. Trial Court’s Standard of Review
A trial court’s standard of review in deciding appeals from local agency
decisions depends on the state of the record created before the agency:
In the event the proceedings before the local agency fail to
establish a full and complete record, the court of common
pleas may hear the appeal de novo, or may remand the
proceedings to the agency for the purpose of making a full
and complete record or for further disposition in
accordance with the order of the court. Section 754(a) of
the Local Agency Law, 2 Pa.C.S. § 754(a).[7]
Where a full and complete record is made before the local
agency, however, a reviewing court shall hear the appeal
on the record supplied, and shall affirm the local agency’s
adjudication unless it violates constitutional rights, the
local agency committed an error of law, the decision
violates the provisions of the [Local Agency] Law, or
necessary findings of fact are not supported by substantial
evidence. Section 754(b) of the [Local Agency] Law, 2
Pa.C.S. § 754(b).[8]
7
Section 754(a) of the Local Agency Law provides as follows:
(a) Incomplete record.--In the event a full and complete record of
the proceedings before the local agency was not made, the court may
hear the appeal de novo, or may remand the proceedings to the
agency for the purpose of making a full and complete record or for
further disposition in accordance with the order of the court.
2 Pa.C.S. § 754(a).
8
Section 754(b) of the Local Agency Law provides, in pertinent part, as follows:
(Footnote continued on next page…)
7
In re Nevling, 907 A.2d 672, 674 (Pa. 2006) (some internal citations omitted). See
also In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2005). “A ‘full and complete’
record is defined as a complete and accurate record of the testimony taken so that
the appellant is given a [basis] upon which he may appeal and, also, that the appellate
court is given a sufficient record upon which to rule on the questions presented.” In
re Thompson, 896 A.2d at 668 (citation and some internal quotations omitted).
Further,
[s]ituations in which a record has been deemed incomplete
include such instances where the record fails to contain a
transcript of the proceedings before the local agency, or
where a party refuses to provide relevant and necessary
documentation to the local agency[.] . . . However, the
record before the local agency is not considered incomplete
based solely on a party’s failure to present evidence
available at the hearing. . . . Indeed, in [Retirement Board
of Allegheny County v. Colville, 852 A.2d 445, 451 (Pa.
Cmwlth. 2004)], we stated that “[t]he trial court has no
authority under section 754(b) of the Local Agency Law to
remand a matter to the local agency to give the appellant
another opportunity to prove what he or she should have
proved in the first place.”
(b) Complete record.--In the event a full and complete record of the
proceedings before the local agency was made, the court shall hear
the appeal . . . on the record certified by the agency. After hearing
the court shall affirm the adjudication unless it shall find that the
adjudication is in violation of the constitutional rights of the
appellant, or is not in accordance with law, or that the provisions of
[sections 551-555 of the Local Agency Law, 2 Pa.C.S. §§ 551-555]
have been violated in the proceedings before the agency, or that any
finding of fact made by the agency and necessary to support its
adjudication is not supported by substantial evidence. . . .
2 Pa.C.S. § 754(b).
8
Kuziak v. Borough of Danville, 125 A.3d 470, 475-76 (Pa. Cmwlth. 2015) (most
internal citations and quotations omitted). The adequacy of a local agency’s record
is a matter typically committed to the discretion of the trial court. Kuziak, 125 A.3d
at 475 n.3.
The trial court here took no additional evidence and at least implicitly
concluded that a full and complete record was made before the Commission. (Trial
Court Op. at 2; R.R. 267a.) It therefore applied the more deferential standard of
review set forth in section 754(b) of the Local Agency Law. Homeowners argue
that this was error because the e-mail correspondence received from the LRC was
not provided to Homeowners or included in the record before the Commission or in
the trial court. Accordingly, Homeowners argue that the trial court should have
either heard their appeal de novo or remanded to the Commission. We agree.
It is undisputed that the Commission received written correspondence
from the LRC prior to both the March 3, 2021 and May 5, 2021 hearings. It also is
undisputed that this correspondence was not provided to Homeowners and was not
made part of the record at any stage of these proceedings. The Commission
nevertheless argues that there is no evidence in the record indicating that the
Commissioners reviewed or considered any of these e-mail communications prior to
the hearings. Rather, the Commission argues that “the record only shows the
[Commission] introducing the correspondence into the record following related
testimony” and that only Commission “staff” receives communications from the
public. (Commission Brief (Br.). at 13.)
Contrary to both the trial court’s conclusion and the Commission’s
arguments, the record from the Commission hearings indicates that the Commission
not only permits, but also invites and regularly receives, written comments and
“testimony” from the public in advance of its hearings. At least one Commissioner
9
was able to conclude that Malakoff’s live testimony was substantially the same as
the content of the e-mails received from the LRC. Further, Commissioner Dash, in
overruling Homeowners’ objection, advised Homeowners that these types of ex
parte communications are, and in the Commission’s view appropriately may, be
considered. Although it is not clear from the record whether this correspondence
typically is provided to parties in advance of or at hearings, there is no dispute that
the LRC’s e-mails were not provided to Homeowners at any point.
Moreover, the notion that such correspondence, in whatever form, is
submitted only to Commission “staff” is unrealistic. If Commissioners never
reviewed or relied on written correspondence from the public, inviting its
submission would be pointless.9 And, although the Commission indicated that the
correspondence from the LRC was substantially the same as Malakoff’s testimony,
there was no way for Homeowners (or the trial court) to confirm that fact. Thus,
this is not a case where Homeowners knew of or had evidence that they failed to
present to the Commission. Rather, here it is clear that the Commission did and does
receive, review, and rely upon ex parte written communication from members of the
public at large. Those communications were neither included in the record nor
provided to Homeowners. We accordingly are constrained to conclude that the
record before the Commission was not “full and complete,” and the trial court erred
in not applying section 754(a) of the Local Agency Law.10
9
The City’s solicitor noted at oral argument that correspondence received by the
Commission generally is reviewed only by staff and that the Commission did not consider such
correspondence to be ex parte communication. (Oral Argument Transcript, 11/30/21, at 24-28;
R.R. 246a-250a.) This information was presented to the trial court by argument only. It is not
substantiated by any evidence in the record.
10
Even if we were to conclude that the trial court did not err or abuse its discretion in
finding the Commission’s record to be “full and complete,” we nevertheless could review whether
(Footnote continued on next page…)
10
B. Due Process
Homeowners next argue that the Commission violated their
constitutional rights to due process by (1) considering the ex parte communications
from the LRC, (2) not permitting Homeowners to cross-examine the objectors who
appeared in person at the March 3, 2021 and May 5, 2021 hearings, and (3) not
permitting Homeowners to present rebuttal evidence and argument. The
Commission argues in response that the ex parte e-mails received by the
Commission were duplicative of the objectors’ live testimony and are accepted by
the Commission as part of its standard practice. The Commission further argues that
Homeowners never requested to either cross-examine the objectors or present
rebuttal evidence.
Parties involved in administrative proceedings are entitled to due
process:
Due process principles apply to administrative
proceedings, and require an opportunity, among other
things, to hear the evidence adduced by the opposing party,
cross-examine witnesses, introduce evidence on one’s own
behalf, and present argument. As our Supreme Court
explained, there must be notice, an opportunity to present
one’s cause, a proceeding appropriate to the character of
the particular case, and an adjudication of the same nature
the Commission committed errors of law, complied with the procedural requirements of the Local
Agency Law, or violated constitutional rights. 2 Pa.C.S. § 754(b); Meyer v. City of Pittsburgh
Historic Review Commission, 201 A.3d 929, 935 n.6 (Pa. Cmwlth. 2019). We also hasten to add
and re-emphasize that “it is a fundamental principle of administrative law that an administrative
agency’s interpretation of the statute it is charged to administer is entitled to deference on appellate
review absent fraud, bad faith, abuse of discretion, or clearly arbitrary action.” Turchi v.
Philadelphia Board of License and Inspection Review, 20 A.3d 586, 591 (Pa. Cmwlth. 2011)
(internal quotations and citation omitted). In this appeal, however, we are not asked to interpret
the Allegheny West Historic District guidelines or the Commission’s application of those
guidelines to Homeowners’ proposed work. We are presented only with questions of law.
11
as is present in other cases. Where these things are present
there is due process of law.
D.Z. v. Bethlehem Area School District, 2 A.3d 712, 720 (Pa. Cmwlth. 2010)
(citation and quotation omitted). Further, “it is well-settled that due process requires
that cross-examination be afforded in administrative agency proceedings. Those due
process rights are violated where an agency considers additional evidence provided
in an ex parte communication.” Picone v. Bangor Area School District, 936 A.2d
556, 563 (Pa. Cmwlth. 2007) (internal citation omitted).11
1. Ex parte Communications
Regarding the ex parte communications, Homeowners objected to the
inclusion in the record of any e-mail correspondence other than those portions read
into the record at the hearing. (N.T., 3/3/21, at 22-23; R.R. 152a-53a.) They did not
request that the e-mails be disclosed. The objection informally was overruled by
Commissioner Dash, who explained that the Commission routinely accepts and
considers written correspondence from the public. (N.T. 3/3/21, at 23; R.R. 153a.)
Although these ex parte e-mails were not disclosed to Homeowners, the inclusion in
the transcript of the substance of the e-mail communications afforded Homeowners
enough notice and opportunity to challenge the objectors’ testimony. There also is
no evidence in the record indicating that the Commission received any ex parte
11
Sections 551-555 of the Local Agency Law apply to “all local agencies.” 2 Pa.C.S. §
551. These sections set forth the basic requirements for agency proceedings. Sections 552 and
553 provide that parties before a local agency may be represented by counsel, must be afforded
reasonable notice and a right to be heard, and may have the proceedings transcribed. Id. §§ 552,
553. Section 554 provides that “[l]ocal agencies shall not be bound by technical rules of evidence
at agency hearings,” that “all relevant evidence of reasonably probative value may be received,”
and that “[r]easonable examination and cross-examination shall be permitted.” Id. See also 2
Pa.C.S. § 555 (“All adjudications of a local agency shall be in writing, shall contain findings and
the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or
by mail.”).
12
communications from any parties that did not also testify at the hearing. Thus, we
cannot conclude that the Commission considered the substance of any “additional
evidence” that was not available to Homeowners. We accordingly conclude that,
although the record before the Commission was not complete, the omission of the
challenged e-mail communications from the record did not deprive Homeowners of
due process.12
2. Cross-Examination and Rebuttal
With regard to Homeowners’ arguments about cross-examination and
rebuttal, we are constrained to agree with the Commission that Homeowners did not
request the opportunity to cross-examine the live witnesses at either the March 3,
2021 or May 5, 2021 hearings. (N.T., 3/3/21, at 8; R.R. 138a; N.T., 5/5/21, at 9, 13;
R.R. 172a, 176a.) Further, although Homeowners attempted to present additional
argument after the Commission members voted at the conclusion of the May 5, 2021
hearing, see N.T., 5/5/21, at 20-22; R.R. 183-85a, they did not request the
opportunity to present any rebuttal evidence at the March 3, 2021 hearing and did
not request rebuttal after public comment ended at the May 5, 2021 hearing. (Id. at
13-14; R.R. 176a-77a.) Although section 554 of the Local Agency Law provides
for the opportunity to cross-examine witnesses, “statutory guarantees of due process
do not prohibit parties from waiving their rights.” Lewis v. School District of
Philadelphia, 690 A.2d 814, 817 (Pa. Cmwlth. 1997) (where neither party nor his
lawyer requested the ability to submit briefs to school district board, any due process
right to do so under section 506 of the Administrative Agency Law, 2 Pa.C.S. § 506,
was waived). Because Homeowners did not timely request the opportunity to cross-
12
We also note that the production of the e-mail communications to Homeowners likely
would not have changed the Commission’s decision. The Commission considered both the e-mails
and the associated live testimony in rendering its decision. Homeowners did not request the ability
to cross-examine the public witnesses at either hearing.
13
examine witnesses or present rebuttal evidence, we conclude that they waived their
right to do so.13
V. CONCLUSION
In sum, we conclude that the record before the Commission was not full
and complete. The trial court therefore erred in not applying section 754(a) of the
Local Agency Law. We accordingly vacate the trial court’s order and remand to that
court for further proceedings. On remand, the Commission shall supplement the
record in the trial court with any written correspondence it received from the public
in any form. The trial court thereafter shall reconsider Homeowners’ appeal de novo.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
Although we conclude that Homeowners’ issues on appeal regarding cross-examination
and rebuttal are waived, we nevertheless note that sections 551-555 of the Local Agency Law
continue to apply to Commission proceedings. Nothing in our decision should therefore be
interpreted to sanction the Commission’s practices in either permitting or precluding cross-
examination and rebuttal.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph R. Froetschel and :
Marla N. Presley, :
Appellants :
:
v. : No. 66 C.D. 2022
:
City of Pittsburgh Historic Review :
Commission and City of Pittsburgh :
ORDER
AND NOW, this 14th day of April, 2023, the Order of the Court of
Common Pleas of Allegheny County, Pennsylvania entered December 20, 2021,
hereby is VACATED. This matter is remanded to that court for further proceedings
as instructed in the foregoing Memorandum Opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge