DocketNumber: Appeal, No. 1945 C.D. 1984
Citation Numbers: 95 Pa. Commw. 76, 503 A.2d 1120
Judges: Blatt, Colins, Doyle
Filed Date: 2/7/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by the Philadelphia Commission •on Human Relations (Commission) from an order of the Court of Common Pleas of Philadelphia County which reversed the determination of the Commission that Dr. Reginald R. Gold (Gold), appellee, had committed unlawful discrimination against a female employee-in the form of sexual harassment and remanded the matter for new proceedings.
-Gold was charged with violating Section 9-1103 (A) (1) of the Philadelphia Code pertaining to unlawful discrimination in matters of employment. Subsequent to public hearings on March 4,1982 and May 25, 1982 the Commission found that Gold had violated the
[W]e emphasize that we do not question the honesty or integrity of anyone associated with this case.. We merely hold that the appearance of impropriety on behalf of the City Solicitor’s office mandates a fresh determination of the matter.
Because of its disposition of this issue the trial court remanded the case for entirely new proceedings and, hence, did not reach the merits of Gold’s appeal. The Commission, however, has appealed from the trial oourt order and Gold has filed a motion to quash maintaining that that order is interlocutory. We will first consider the Gold motion.
We have repeatedly held that a court order remanding a matter to an administrative agency for additional hearings is interlocutory and not appealable. See, e.g., Municipality of Bethel Park Appeal, 51 Pa. Commonwealth Ct. 128, 414 A.2d 401 (1980); DePaul Realty Company v. Borough of Quakertown, 15 Pa. Commonwealth Ct. 16, 324 A.2d 832 (1974); Esterhai v. Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 361, 274 A.2d 556 (1971). But despite the above precedent we have recognized a narrow exception to the nonappealability of interlocutory orders in instances
In the instant case if we quash the appeal now the question of impermissible commingling will never be reached, for it is certain that once a new hearing is held any impropriety in the previous hearing would be moot on appeal despite the Commission’s efforts to obtain appellate review.
-Case law dealing with commingling can be divided into two categories: those in which one individual serves as both a prosecutor and an adjudicator and those in which these functions are performed by more than one person. The former is clearly unconstitutional. See Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commonwealth Ct. 295, 361 A.2d 497 (1976). As to the latter, there are cases where prosecutorial and adjudicatory functions are handled by separate branches of the administrative agency and cases where they are not. Those cases where separate branches handle the prosecutorial and adjudicatory portions of the case have withstood constitutional scrutiny. See Thorp. Those cases in which prosecutorial and adjudicatory functions are performed by the same branch (the situation here) 'may also be constitutionally permissible. See Thorp.
We have previously held that “ [w]here two attorneys of the same agency appear in different roles in the same proceeding, due process is not per se violated.” Miller v. Department of Transportation, 59 Pa. Commonwealth Ct. 446, 447, 429 A.2d 1278, 1279 (1981). ‘ ‘ The focus is whether the function performed by the two are adequately separate so that there is no actual prejudice.’’ Id. (emphasis added).
In the instant case not only did the two attorneys sit together at counsel table but the prosecuting attorney admitted that the Commission’s attorney spoke to her, although she maintained that he did not “counsel” her. In our view the fact that the prosecutor admitted to conversation but not to counseling does not cleanse the taint from the Commission proceedings. ■ The fact finding process must be afforded the broadest dimensions of constitutional protection, Thorp, and where conversation to which Gold’s attorney was not privy went on at counsel table between the prosecuting attorney and the Commission’s attorney we believe the record does disclose that the two attorneys concerned themselves with each other’s activities. Hartman at 113, 454 A.2d at 1152.
The burden to show actual prejudice is an onerous one especially where Gold’s attorney must rely only upon the statements of the prosecuting attorney that no “counseling” occurred. We note that any explanation of the details of what was in fact said at counsel table, is lacking. Neither of the two attorneys sitting at that table offered any specifics on this matter into the record. We will not permit this lack of explanation to operate to the possible detriment of Gold, especially where, as here, the charges are of .such a serious nature. The order of the trial judge who first sensed the impropriety is affirmed.
. Now,' February 7, 1986,. the appellee’s motion to quash .the appeal in the above cáptioned matter is dismissed and the motion to limit the subject of appellate review before this Court is granted. Furthermore, the .order of the trial court, dated June 15, 1984,' No. 2JL68 August Term 1982, is hereby affirmed. The case is remanded to the. trial, court to remand to the Commission for a new hearing. Jurisdiction relinquished.
The Commission would have been wise to have taken an interlocutory appeal by permission to this Court pursuant to Pennsylvania Rules of Appellate Procedure 1311-1323 which grant us authority to allow interlocutory appeals when such allowance would “materially advance the ultimate termination of the matter.”
The trial court, in utilizing the appearance of impropriety test, employed the incorrect legal standard. Those cases upon which the lower court relied were ones where a single person was performing dual functions.