In Re: Appeal of M. Murawski ~ Appeal of: M. Murawski ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Michael Murawski :
: No. 349 C.D. 2021
Appeal of: Michael Murawski : Submitted: March 18, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: June 2, 2023
Appellant Michael Murawski (Murawski) appeals from the Order entered in
the Court of Common Pleas of Philadelphia County (common pleas) on March 16,
2021, affirming the decision of the Board of License and Inspection Review (the
Board) upholding the City of Philadelphia, Department of Licenses and Inspections’
(the Department) revocation of Murawski’s Contractor’s License (License) after the
Board had denied his request for a continuance of a previously scheduled hearing
regarding the revocation of his License. Following our review, we affirm.
The procedural history of this matter is not in dispute. By letter, dated April
23, 2019, the Department notified Murawski that his License had been revoked due
to the repeated violations of the License at six construction sites in the City of
Philadelphia (City) in which he and various individuals under his direction and
control had repeatedly engaged. Specifically, the revocation stemmed from
violations of the following sections of the Philadelphia Building Construction and
Occupancy Code, Title 4 of the Philadelphia Code, City of Philia. Pa., Building
Construction and Occupancy Code (2018) (Code): Section 9-1004(9)(a)(6) for
repeated failure to secure required permits; 9-1004(9)(a)(8) for repeated failure to
comply with violations issued by the Department; 9-1004(9)(a)(9) for repeated
removal or destruction of a stop work order; and 9-1004(7)(a) for repeated failure to
obtain all required permits. Phila. Code § 9-1004(9)(a)(6), (8), (9), and (7)(a);
(Notice of Revocation at 2, Reproduced Record (R.R.) at A-151.1) In the Notice of
Revocation, the Department detailed the behavior leading to the violations, which
occurred in 2018 and 2019. Such behavior included Murawski’s performance of
construction work without having first obtained the proper zoning and building
permits or performance of work exceeding the scope of issued permits, as well as
his failure to halt construction despite stop work orders issued by the Department
and common pleas’ orders directing him to cease all work until he obtained the
proper permits. (Notice of Revocation at 2-6, R.R. at A-151–A-155.)
On May 7, 2019, Murawski’s initial counsel, John Raimondi, Esq., filed a
timely appeal of the revocation to the Board. The Board scheduled a hearing for
June 11, 2019, and both parties and their witnesses appeared at that time. Due to
other matters scheduled to be heard by the Board that day, the hearing did not occur,
and it was continued to July 9, 2019. On July 9, 2019, once again, the parties and
their witnesses appeared, but due to the numerous cases on the hearing list, the Board
again ran out of time to hear Murawski’s appeal. (11/12/19 Notes of Testimony
(N.T.) at 5, R.R. at A-36;2 3/16/21 N.T. at 18-19, R.R. at A-67–A-68.) On July 9,
1
The Reproduced Record does not comport with Pennsylvania Rule of Appellate
Procedure 2173, Pa.R.A.P. 2173 (requiring that the pagination of reproduced records be in the
form of an Arabic number followed by a small “a”). For ease, the Court will utilize the method
used by the Reproduced Record.
2
The Notes of Testimony from the November 12, 2019, hearing appear twice in the
reproduced record. (See R.R. at A-34–A-49; A-120–A-137.) We will cite to the earlier
reproduction.
2
2019, the Department requested that the matter be scheduled for a special session to
occur outside of the Board’s normal hearing hours to allow for the significant time
the hearing was expected to require and for witnesses, including the code
administrator, a supervisor, and possibly other inspectors, to arrange their schedules
accordingly. (R.R. at A-116; 11/12/19 N.T. at 5-7, R.R. at A-36–A-38.)
An email thread commenced on July 9, 2019, and the Board and Murawski’s
then-new counsel, Shawn Ward, Esq., ultimately agreed that a special session
hearing would be held on November 12, 2019. (R.R. at A-111–A-116.) On
November 11, 2019, which was Veteran’s Day and a federal holiday, Attorney Ward
informed the Board that Murawski had obtained new counsel, Samuel C. Stretton,
Esq., and Attorney Stretton would be requesting a continuance due to a conflict.
(Common pleas’ [Pa. R.A.P.] 1925(a) Opinion (Rule 1925(a) Op.) at 3; 11/12/19
N.T. at 4, 8, R.R. at A-35, A-39.) On the morning of November 12, 2019, Attorney
Stretton formally requested the continuance via a letter emailed to the Board’s
Administrator. (R.R. at A-119.)
On the afternoon of November 12, 2019, at which time Attorney Ward
appeared for the hearing with Murawski, the Board called the case as scheduled and
heard from the parties on the continuance request prior to determining whether to
proceed. Attorney Ward advised the Board that although he no longer represented
Murawski, he was appearing as a professional courtesy in an effort to obtain a
continuance, and he placed argument in support thereof on the record. (11/12/19
N.T. at 4-10, R.R. at A-35–A-41.) When the Board inquired of Murawski as to the
status of representation, Murawski responded “I’m no longer using [Attorney] Ward.
I’m using [Attorney] Stretton.” (11/12/19 N.T. at 7, R.R. at A-38.) Murawski was
then asked whether Attorney Ward was representing him for the continuance
3
request, and Murawski responded “Yes.” (Id.) The Department opposed the
continuance request claiming it had received inadequate notice and that due to the
complexity of the matter, several inspectors and supervisors had to modify their
schedules and be taken from their other, official duties to be present. (Id. at 7-8,
R.R. at A-38–A-39.) Following a brief deliberation, the Board denied Murawski’s
continuance request after which Attorney Ward reminded the Board he no longer
represented Murawski and, therefore, was not prepared to proceed with the hearing
on the merits. (Id. at 10-11, R.R. at A-41–A-42.) Murawski was given the
opportunity to represent himself, but he said, “I’m not able to represent myself” and
“[y]ou can have your show. I have no say.” (Id. at 12-13, R.R. at A-43–A-44.) The
Board then voted to affirm the Department’s revocation of Murawski’s License. (Id.
at 14, R.R. at A-45.)
Murawski filed a timely appeal of the Board’s decision with common pleas.
On March 16, 2021, common pleas held oral argument. Without taking additional
evidence and following its review of the certified record, common pleas affirmed
the Board’s decision in its Order entered that same day.
Murawski appealed common pleas’ Order to this Court, and on March 25,
2021, common pleas directed him to file and serve a concise statement of the errors
complained of on appeal. Murawski complied, and common pleas filed its Rule
1925(a) Opinion. Therein, common pleas explained its reasoning behind the Order.
Common pleas determined the Board did not abuse its discretion in denying
Murawski’s continuance request because the special session was scheduled to
accommodate schedules, Attorney Stretton entered his appearance late and requested
the continuance just hours before the hearing, the City would have been prejudiced
by the continuance, and Murawski had the opportunity to present his case but chose
4
not to do so. (Rule 1925(a) Op. at 5-6.) Common pleas also determined there was
substantial evidence to support the Board’s decision. It reasoned a presumption
arose that the violations occurred, based on the issuance of the Notice of Violation,
and it was Murawski’s burden to rebut the presumption, although he did not do. (Id.
at 6-7.) Common pleas further concluded Murawski had notice and an opportunity
to be heard, which is all due process required. (Id. at 7-8.) To the extent Murawski
argued he was entitled to counsel of his choice, common pleas disagreed, stating
Murawski had three different attorneys represent him before the Board and there is
no constitutionally protected right to counsel in civil proceedings. (Id. at 8.) Lastly,
common pleas explained the Board was within its discretion to dismiss Murawski’s
appeal for failure to prosecute when he did not present any evidence. (Id. at 9.)
On appeal,3 Murawski raises two issues.4 First, Murawski asserts common
pleas abused its discretion in upholding the Board’s decision denying his
continuance request and requiring him to proceed with the November 12, 2019,
hearing pro se.5 Murawski avers that there would have been “no true inconvenience
3
“Where [common pleas] takes no additional evidence subsequent to the board’s
determination, our scope of review is limited to determining whether the board committed a
manifest abuse of discretion or an error of law.” Levin v. Bd. of Supervisors of Benner Twp.,
Centre Cnty., 669 A.2d 1063, 1068 (Pa. Cmwlth. 1995) (citations omitted) aff’d, 689 A.2d 224(Pa. 1997).
4
In his statement of issues, Murawski identifies multiple issues, which the Court has
consolidated.
5
In his brief, Murawski describes an agreement Attorney Stretton allegedly had with
Attorney Ward who “does not know appellate work and does not really enjoy trials,” whereby the
latter, nevertheless, promised he would represent Murawski if the continuance request was denied,
but instead indicated he had been “fired” and “walked out on” Murawski leaving him
unrepresented and costing him his livelihood. (Murawski’s Br. at 35-45, 47). There is no evidence
pertaining to this alleged agreement between counsel in the notes of testimony from November 12,
2019, or anywhere else in the original record. As an appellate court, this Court’s review is limited
to the contents of the original record. Pa.R.A.P. 1921. Moreover, the assertion that Attorney Ward
abandoned Murawski is belied by the record which evinces he argued in support of Murawski’s
(Footnote continued on next page…)
5
to the [Department]” had the Board granted his first request for a continuance,
especially because the hearing had been unreasonably delayed due to the
Department’s actions. (Murawski’s Brief (Br.) at 48-54.) Second, Murawski argues
that the revocation of his License summarily without a hearing and without requiring
the Department to produce “one iota” of supporting evidence or testimony
constituted a violation of his due process rights (Id. at 31.) Murawski admits that
there is “case law that seems to support this very odd position that a license can be
revoked without any evidence based on a presumption,” but nonetheless posits a
presumption should not “carry the day in a post[-]deprivation hearing.” (Id. at 57-
58; see also id. at 18, 43, 55-58, 61, 66-68.) Murawski further argues he had good
cause for not proceeding because he wanted counsel, which he was being denied.
(Id. at 67.) Therefore, he asserts this matter is distinguishable from Fountain Capital
Fund, Inc. v. Pennsylvania Securities Commission, 948 A.2d 208, 214 (Pa. Cmwlth.
2008), in which this Court held dismissing a proceeding for failure to prosecute or
appear at a hearing without good cause did not violate due process. (Murawski’s Br.
at 67.)6
continuance request and was present at least until the Board’s brief pause for deliberation.
Furthermore, when the Board asked Murawski who was representing him, he indicated he was “no
longer using [Attorney] Ward,” except as to the continuance request, and was instead “using
[Attorney] Stretton.” (11/12/19 N.T. at 7, R.R. at A-38.)
6
We are compelled to make several observations regarding Murawski’s filings. This Court
has stressed the Rules of Appellate Procedure were promulgated to govern practice and procedure
before the appellate courts, and a party’s noncompliance with those Rules “only makes this
[C]ourt’s review of appeals more difficult.” Levin, 669 A.2d at 1068 n.3. Murawski’s concise
statement of errors complained of on appeal exceeds four pages in length, consists of six
paragraphs several of which contain subparts, and presents legal argument and case citations. (See
Murawski Br. “Exhibit ‘E’.”) As the Superior Court recently stressed, “[t]he fact Appellant filed
a timely 1925(b) statement does not automatically equate with issue preservation[,]” for a Rule
1925(b) statement “is a crucial component of the appellate process because it allows the trial court
to identify and focus on those issues the party plans to raise on appeal. . . . A concise [s]tatement
which is too vague to allow the court to identify the issues raised on appeal is the functional
(Footnote continued on next page…)
6
equivalent to no Concise Statement at all.” Commonwealth v. Juray, 275 A.3d 1037, 1041 n.4 (Pa.
Super. 2022) (citations omitted). Despite its deficient construction, Murawski’s Rule 1925(b)
statement identifies the issues he presents on appeal to this Court; therefore, we will not find the
issues he presents for our review to be waived due to his lengthy concise statement.
Notwithstanding, we also emphasize this Court repeatedly has held that substantial
omissions, defects, and/or failures to conform to the minimal requirements for writing an
appellate brief set forth in Chapter 21 of the Pa.R.A.P. will result in the quashing or dismissal of
the appeal. Lal v. Department of Transportation, 755 A.2d 48, 49 (Pa. Cmwlth. 2000). Further,
Pa.R.A.P. 2101 underscores the seriousness with which appellate courts take deviations from
procedural rules, as it permits this Court to quash or dismiss an appeal for procedural
noncompliance. Pa.R.A.P. 2101 (stating “[b]riefs and reproduced records shall conform in all
material respects with the requirements of these rules as nearly as the circumstances of the
particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal or other matter may be quashed
or dismissed[.]”) To assess whether this Court can reach the merits of a claim, we must consider
whether the defects are so substantial that they preclude “meaningful appellate review.” Tewell v.
Unemployment Comp. Bd. of Rev., 279 A.3d 644, 652 n.9 (Pa. Cmwlth. 2022).
Although presented as only two questions, Murawski’s Statement of the Questions
Involved in his brief contains multiple questions combined in each numbered paragraph and fills
two pages. Pa.R.A.P. 2116 states:
(a) General rule. The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail. The statement will be deemed to include every
subsidiary question fairly comprised therein. No question will be considered unless
it is stated in the statement of questions involved or is fairly suggested thereby.
Each question shall be followed by an answer stating simply whether the court or
government unit agreed, disagreed, did not answer, or did not address the question.
If a qualified answer was given to the question, appellant shall indicate the nature
of the qualification, or if the question was not answered or addressed and the record
shows the reason for such failure, the reason shall be stated briefly in each instance
without quoting the court or government unit below.
Pa.R.A.P. 2116(a). Moreover, although Murawski’s 73-page brief purports to be divided into two
sections to correspond with the questions raised on appeal, the text is disorganized and repetitive.
The result of the overlapping arguments is that the “Statement of the Questions Involved” bears
little relation to the argument section of his brief. Pa.R.A.P. 2119 provides that an “argument shall
be divided into as many parts as there are questions to be argued; and shall have at the head of
each part—in distinctive type or in type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). “The purpose of this rule is to facilitate the reader’s comprehension of the arguments
being made.” Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999). Despite these
briefing defects, we have not been prevented from properly reviewing this case; therefore, we
decline to quash or dismiss the instant appeal. See Pa.R.A.P. 2101.
7
Having reviewed the record, the arguments of the parties, and the relevant
case law, we conclude common pleas ably resolved the issues raised by Murawski
in the thorough and well-reasoned opinion of the Honorable Joshua Roberts. In re:
Appeal of Michael Murawski (C.C.P. Philadelphia Cnty., Nov. Term 2019 No.
02760, filed June 24, 2021). Accordingly, following our careful review, we adopt
common pleas’ opinion and affirm.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
Judge McCullough did not participate in the decision in this case.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Michael Murawski :
: No. 349 C.D. 2021
Appeal of: Michael Murawski :
ORDER
NOW, June 2, 2023, the Order of Court of Common Pleas of Philadelphia
County, entered on March 16, 2021, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge