In Re: City of Philadelphia ~ From a Decision of: Philadelphia CSC (R. Evers) ~ Appeal of: R. Evers ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: City of Philadelphia :
:
From a Decision of: :
Philadelphia Civil : No. 167 C.D. 2022
Service Commission : Submitted: August 12, 2022
(Robin Evers) :
:
Appeal of: Robin Evers :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 29, 2023
Robin Evers (Appellant), proceeding pro se, appeals from an order of
the Philadelphia County Court of Common Pleas (trial court) reversing a decision of
the City of Philadelphia Civil Service Commission (Commission). The trial court
determined that Appellant waived her appellate rights by failing to properly file a
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Upon review, we affirm.
Appellant worked for the City of Philadelphia’s Department of Public
Property (City) as a Clerk III processing payroll and leave requests. Following a
work injury, Appellant took a paid leave of absence between December 2018 and
October 2019. Once she exhausted all of her accumulated leave, Appellant
requested an unpaid leave of absence, which the City denied. When Appellant failed
to return to work as directed, the City terminated her employment.
In June 2020, Appellant filed an appeal with the Commission
challenging the denial of her unpaid leave request. Following an evidentiary
hearing, the Commission sustained Appellant’s appeal upon finding that the City
had abused its discretion.
The City appealed the Commission’s determination to the trial court.
Following briefing, oral argument, and review of the administrative record, the trial
court reversed the Commission’s decision by order dated January 21, 2022, without
opinion. Appellant timely filed an appeal in this Court.1
Upon receipt of the notice of appeal, by order dated February 22, 2022,
the trial court ordered Appellant to file and serve a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) (1925(b) Statement) within
21 days – by March 15, 2022. The order also directed Appellant to serve the 1925(b)
Statement on the trial court judge via email and provided an email address.
Appellant timely emailed her 1925(b) Statement to the trial court judge
as directed, but she did not serve it on the trial court as ordered.2 In its Pa.R.A.P.
1925(a) Opinion (1925(a) Opinion) dated on April 7, 2022, the trial court opined
1
In an appeal from a Commission adjudication where the trial court took no additional
evidence, our review is limited to a determination of whether any constitutional rights have been
violated, whether the Commission abused its discretion or committed an error of law, and whether
the findings made by the Commission are supported by substantial evidence. City of Philadelphia
v. Civil Service Commission of City of Philadelphia, 772 A.2d 962, 966 n.2 (Pa. 2001); Smith v.
Civil Service Commission of City of Philadelphia, 417 A.2d 810, 812 (Pa. Cmwlth. 1980).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate
to support the conclusion.” Civil Service Commission v. Poles, 573 A.2d 1169, 1172 (Pa. Cmwlth.
1990).
2
As a result, Appellant’s 1925(b) Statement never appeared on the docket.
2
that Appellant waived her appellate rights by failing to properly file and serve the
1925(b) Statement as ordered. Consequently, the trial court did not address any of
the issues contained therein.
By order of this Court dated April 20, 2022, we directed the parties to
address in their principal briefs on the merits or in an appropriate motion whether
Appellant preserved any issues on appeal in light of her apparent failure to properly
file a 1925(b) Statement. We also noted that Appellant filed an Application for
Relief (Application) with this Court on April 18, 2022, in which she attached a copy
of her 1925(b) Statement. The City responded that Appellant should have filed the
1925(b) Statement with the trial court rather than this Court, and asserted that the
Application did not seek any relief that this Court could grant. We agreed. However,
recognizing that Appellant was seeking to correct her failure to properly file the
1925(b) Statement with the trial court, we denied the Application without prejudice
to Appellant to file an application for leave to file the 1925(b) Statement nunc pro
tunc with the trial court. See Pa.R.A.P. 1925(b)(2)(i) (“In extraordinary
circumstances, the judge may allow for the filing of a Statement or amended or
supplemental Statement nunc pro tunc.”). Despite this opportunity, Appellant never
filed a 1925(b) Statement nunc pro tunc with the trial court, and has offered no
explanation to this Court regarding this omission. In addition, Appellant did not
address in her brief whether she preserved any issues on appeal in light of her
apparent failure to properly file a 1925(b) Statement as directed.
It is well settled that the failure to file a 1925(b) Statement waives all
issues raised on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Castillo,
888 A.2d 775, 779-80 (Pa. 2005); Commonwealth v. Schofield, 888 A.2d 771, 774-
75 (Pa. 2005); Jenkins v. Fayette County Tax Claim Bureau, 176 A.3d 1038, 1042
3
(Pa. Cmwlth. 2018). Before we may determine waiver, we must first evaluate
whether the trial court’s order strictly complied with the requirements of Pa.R.A.P.
1925(b).
Pa.R.A.P. 1925(b) provides, in relevant part:
(1) Filing and service. The appellant shall file of record
the Statement and concurrently shall serve the judge.
Filing of record shall be as provided in Pa.R.A.P. 121(a)
and, if mail is used, shall be complete on mailing if the
appellant obtains a United States Postal Service Form
3817, Certificate of Mailing, or other similar United States
Postal Service form from which the date of deposit can be
verified in compliance with the requirements set forth in
Pa.R.A.P. 1112(c). Service on the judge shall be at the
location specified in the order, and shall be either in
person, by mail, or by any other means specified in the
order. Service on the parties shall be concurrent with filing
and shall be by any means of service specified under
Pa.R.A.P. 121(c).
(2) Time for filing and service.
(i) The judge shall allow the appellant at least 21
days from the date of the order’s entry on the docket for
the filing and service of the Statement;
***
(3) Contents of order. The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file and
serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1) and both the place the
4
appellant can serve the Statement in person and the
address to which the appellant can mail the Statement. In
addition, the judge may provide an email, facsimile, or
other alternative means for the appellant to serve the
Statement on the judge; and
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to subdivision
(b) shall be deemed waived.
Pa.R.A.P. 1925(b)(1)-(3) (emphasis added).
Here, the trial court properly ordered Appellant to file a 1925(b)
Statement in accordance with the foregoing requirements. Specifically, the trial
court directed Appellant, within 21 days from the date of the order, to file and serve
the 1925(b) Statement of record. Original Record (O.R.) at 291.3 The order also
directed Appellant to serve the 1925(b) Statement on the trial court judge via email
and any party required. Id. The order warned: “Any issues not properly included
in the Statement timely filed and served pursuant to [Pa.R.A.P.] 1925(b) shall be
deemed waived.” Id. at 292. The trial court’s order conforms with the requirements
of Pa.R.A.P. 1925(b).
Although Claimant emailed her 1925(b) Statement to the trial court
judge as directed, she failed to file and serve her Statement on the docket as ordered.
Unfortunately, Appellant did not avail herself of the opportunity to seek nunc pro
tunc relief to remedy the issue. Consequently, we conclude that all issues on appeal
are waived for failure to file a 1925(b) Statement. Even if we did not find waiver
for failure to file a 1925(b) Statement, the issues4 are waived for the additional reason
3
Because the Original Record was filed electronically and was not paginated, the page
numbers referenced in this opinion reflect electronic pagination.
4
Appellant’s statement of questions asks whether the trial court erred by not including
findings of fact or conclusions of law in its opinion or providing a reason for its reversal. The
(Footnote continued on next page…)
5
that Appellant did not sufficiently develop her arguments with citation to relevant
legal authority and the record. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”); Berner v. Montour Township, 120
A.3d 433, 437 n.6 (Pa. Cmwlth. 2015) (ruling that a party’s failure to sufficiently
develop an issue in a brief constitutes waiver of the issue); see also Pa. R.A.P.
2119(a).
Mindful of Appellant’s pro se status,5 we nonetheless offer a brief
explanation of why, even if she had not waived her arguments, we would affirm the
trial court’s reversal of the Commission’s decision. The City’s Civil Service
Regulation 22.02 states: “The appointing authority, subject to the approval of the
Director, may grant a leave of absence without pay for a period not exceeding one
year, to an employee upon the employee’s written request.” O.R. at 182 (emphasis
added). The regulation does not require that the appointing authority -- the City --
approve all requests for a leave of absence. Rather, the regulation commits the
approval of an unpaid leave request to the sound discretion of the City. The
Commission reviewed the City’s actions regarding leave for abuse of discretion.
summary of the argument appears to identify additional errors related to the merits of the case,
namely that the trial court erred by: substituting its judgment for that of the Commission, not
reviewing the evidence in the light most favorable to Appellant; not considering that Appellant’s
physician had not cleared her to return to work; not considering substantial evidence presented at
the Commission hearing; not considering the Commission’s reasons for sustaining Appellant’s
appeal; and not providing an opinion on the merits. In support, Appellant’s one-paragraph
argument merely sets forth this Court’s scope of review, nothing more. Appellant fails to cite
authority, cite to the record, or otherwise develop her position.
5
However, we note that Appellant was represented by counsel before the Commission and
the trial court, but not in the appeal process.
6
“An abuse of discretion is more than merely an error of judgment.”
Commonwealth v. Perrin, 291 A.3d 337, 342 (Pa. 2023). Rather, it is “the result of
an error of law or is manifestly unreasonable or the result of partiality, prejudice,
bias, or ill-will.” Id.; accord Pennsylvania Turnpike Commission v. Electric
Transaction Consultants Corp., 230 A.3d 548, 560 (Pa. Cmwlth. 2020). Acts of
discretion will not be overturned “absent bad faith, fraud, capricious action[,] or
abuse of power.” Fatool v. State Civil Service Commission (Danville State
Hospital), 14 A.3d 919, 921 (Pa. Cmwlth. 2011). The challenger of a discretionary
decision bears the heavy burden of proving an abuse of discretion by substantial
evidence. Commonwealth v. King, 212 A.3d 507, 512 n.3 (Pa. 2019); Application
of Milton S. Hershey Medical Center of Pennsylvania State University, 634 A.2d
159, 161 (Pa. 1993).
Here, although Appellant presented evidence regarding her work
history and medical issues, she did not prove or even claim that the City abused its
discretion in denying her leave request. Appellant did not allege that the City acted
with partiality, prejudice, bias, or ill will, or articulate any legal basis upon which
we could conclude that the City’s denial of her leave request was arbitrary or
capricious. The Commission based its decision upon the following mitigating
factors: “Appellant was a longstanding City [] employee who was injured while
working; Appellant worked with the work injury for one year before taking any time
off due to the work injury; [and] she had an unblemished discipline and a perfect
attendance record.” O.R. at 206-07. However, the Commission also found that the
City “acknowledged that accommodating Appellant’s absence was challenging,”
albeit “not impossible.” Id. at 207. The Commission then concluded that the City,
by “failing to take into account the foregoing mitigating factors, . . . abused its
7
discretion in denying Appellant’s unpaid leave of absence request.” Id. However,
these mitigating factors, while certainly worthy of consideration, do not support a
conclusion that the City manifestly abused its discretion. The record is devoid of
any evidence that the City acted with bad faith, fraud, partiality, prejudice, bias, or
ill will or abused its power in denying Appellant’s leave request. Rather, the
evidence merely showed that the City exercised its managerial discretion based on
its operating needs and the challenges posed by Appellant’s absence. Thus, we
conclude that the trial court properly reversed the Commission decision.
Accordingly, we affirm the trial court’s order.
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: City of Philadelphia :
:
From a Decision of: :
Philadelphia Civil : No. 167 C.D 2022
Service Commission :
(Robin Evers) :
:
Appeal of: Robin Evers :
ORDER
AND NOW, this 29th day of June, 2023, the order of the Philadelphia
County Court of Common Pleas, dated January 21, 2022, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge