C. Brown v. Pittsburgh City Council Member R.V. Burgess in his official capacity as Councilman of the City of Pittsburgh

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmen Brown, :
Appellant :
:
v. : No. 1279 C.D. 2020
: Submitted: November 19, 2021
Pittsburgh City Council Member :
Ricky V. Burgess in his official :
capacity as Councilman of the :
City of Pittsburgh :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 16, 2022
Appellant Carmen Brown (Appellant) asks this Court to review the December
3, 2020 Order of the Court of Common Pleas of Allegheny County (Trial Court)
dismissing her Complaint in Equity against Appellee, Pittsburgh City Council
(Council) Member Ricky V. Burgess (Appellee). In her complaint, Appellant alleges
that Appellee is prohibited from holding his City Council seat while simultaneously
working as a professor at the Community College of Allegheny County (CCAC) and
that Appellee must therefore forfeit his Council seat. After review, we vacate the
Trial Court’s order.
Appellee has been a tenured professor at CCAC since 1991. Reproduced
Record (R.R.) at 59. In 2007, while teaching at CCAC, Appellee was elected to
represent Pittsburgh’s ninth council district. He is currently serving his fourth term
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
on City Council. Id. Appellant is a private citizen and a resident of the ninth district.
Id. at 41. On December 11, 2019, she filed a Complaint in Equity against Appellee
in the Trial Court alleging that, by simultaneously holding the Council seat and his
professorship, Appellee violated a Charter provision which prohibits Council
members from holding other government employment while in office. Id. at 14.
Appellant requested that the court enforce the Charter by “ordering” that Appellee
“immediately forfeit the office.” Id. at 16-20.
On October 14, 2020, Appellee submitted a brief to the Trial Court. In it, he
made several objections to Appellant’s allegation that he had violated the Charter.
Id. at 62-67. In a section titled “Standard of Review,” he also explained the standard
by which trial courts are to consider motions for judgment on the pleadings under
Pa. R.Civ.P. 1034. Id. at 61. Yet, Appellee’s brief was not accompanied by a motion
or application for judgment on the pleadings. In fact, no motion for such judgment
appears to have been filed in the case.
Notwithstanding the absence of a motion, the Trial Court issued an opinion
and order on December 3, 2020, which granted “Councilman Burgess’ Motion for
Judgment on the Pleadings” and dismissed Appellant’s Complaint. Trial Ct. Op. at
10-11. Appellant timely filed an appeal from the order to this Court.
It is well settled that a trial court is without power under Pa. R.Civ.P. 1037(c)
or 1034 to enter judgment on its own motion. Paulish v. Bakaitis, 275 A.2d 318, 322
(Pa. 1971) (reversing trial court’s judgment in favor of defendant “who had filed no
motion for judgment”). Rather, it must at least be presented with a motion by one of
the parties before it can consider the sufficiency of the pleadings. Bensalem Twp.
Sch. Dist. v. Commonwealth, 544 A.2d 1318, 1321 n.2 (Pa. 1988). The Trial Court
in this case erred as a matter of law when it granted a purported motion for judgment
2
on the pleadings which, in fact, did not exist. We therefore vacate the Trial Court’s
December 3, 2020 order and remand to the Trial Court to take action it deems
necessary consistent with this opinion.
Jurisdiction is relinquished.
___________________________
ELLEN CEISLER, Judge
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carmen Brown, :
Appellant :
:
v. : No. 1279 C.D. 2020
:
Pittsburgh City Council Member :
Ricky V. Burgess in his official :
capacity as Councilman of the :
City of Pittsburgh :
ORDER
AND NOW, this 16th day of February, 2022, the December 3, 2020 order of
the Court of Common Pleas of Allegheny County in the above matter is VACATED
and this matter is remanded to the Trial Court.
Jurisdiction is relinquished.
__________________________________
ELLEN CEISLER, Judge