DocketNumber: Appeal, No. 2977 C.D. 1984
Citation Numbers: 97 Pa. Commw. 550, 510 A.2d 846
Judges: Barbieri, MacPhail, Rogers
Filed Date: 5/30/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
The Philadelphia Board of Pensions and Retirement (Board) appeals here an order of the Court of Common Pleas of Philadelphia County which reversed a decision of the Board and remanded the matter to the Board with instructions to enter an order granting Robert A. Amantas application for disability benefits.
On April 15, 1981, Mr. Amanto applied to the Board for disability retirement benefits, which differ
Mr. Amanto then requested a hearing before the Board so that he could cross-examine the members of the Medical Panel who had submitted reports to the Board. A hearing was held before three members of the Board on August 23, 1983, although the Medical Panel members did not testify because the Board did not require them to do so. Mr. Amantos attorney instead presented depositions from two of the members. The hearing panel voted two to one to recommend denial of Mr. Amantos application.
On November 17, 1983, the Board voted four to three to deny Mr. Amantos application for disability benefits. Mr. Amanto filed a timely appeal with the Common Pleas Court. That Court, in reversing and remanding, said:
Briefly stated, the ultimate decision of the Board rested upon the key vote of Ralph Teti, Esquire. Because Mr. Teti participated in two capacities in the case at bar, i.e. as an advocate for the City and as a member of the Board, we hold that there has been an impermissable [sic] commingling of functions. See Schwartz v. Board of Pensions and Retirement, C.C.P. March Term, 1983, No. 1793 (White, J., August 16, 1984)[3 ]; Gold v. Philadelphia Commission on Human Relations, C.C.P. August Term, 1982, No. 2168 (White, J., June 15, 1984).
As in Schwartz, supra, it is our opinion that the proper remedy is to merely disqualify Mr.*554 Tetis vote on the matter. Accordingly, we note that appellant would have been successful in the absence of the due process violation above-mentioned.
Amanto v. Philadelphia Board of Pensions and Retirement, (December Term, 1983, No. 2081 in the Court of Common Pleas of Philadelphia County Civil Trial Division, filed September 27, 1984), slip op. at 1. The Common Pleas Court then ordered the Board to grant Mr. Amantos application.
Our review
In Kreiger v. Philadelphia Board of Pensions and Retirement, 47 Pa. Commonwealth Ct. 131, 408 A.2d 170 (1979), a deputy city solicitor was counsel for the Board before a three member panel. He objected to questions put by Kreigers counsel in direct examination of Kreigers witnesses before the panel, and he cross-examined these witnesses. Later, when Kreigers application for benefits came before the full Board, the depu
In the instant case, Mr. Teti served as counsel for the Board before the three member hearing panel. He cross-examined Mr. Amanto about the extent of his injuries, objective evidence of those injuries, the treatment he was receiving and the nature of his current employment.
In Bell v. Philadelphia Board of Pensions and Retirement, 84 Pa. Commonwealth Ct. 47, 478 A.2d 537 (1984), we granted a remand where the Executive Director of the Board who presided over a panel of the Board hearing Bells claim for retirement benefits had earlier represented the city in an adversarial proceeding concerning Bells workmens compensation claim based on the same facts which comprised her claim for retirement benefits. We held that the procedural safeguards in place before the Board were inadequate to protect claimants right to a fair and unbiased hearing.
In the case sub judice, the record certified to us by the Board makes clear that Mr. Teti was one of the attorneys who represented the Board in proceedings con
We reach the inescapable conclusion on the basis of Kreiger and Bell that prosecutorial and adjudicatory functions were improperly commingled in Mr. Teti. We reach this conclusion in the light of the oft repeated maxim that “judicial proceedings must not only be unbiased, but must also avoid the appearance of bias. . . .” Bell at 51, 478 A.2d at 539.
The Board attempts to persuade us to escape this conclusion by noting that the Philadelphia Home Rule Charter of 1971 mandates that the Law Department serve both as counsel to the Philadelphia Board of Pension and Retirement and as a full member of the Board. See Philadelphia Home Rule Charter §§3-803; 4-400(a), (b) and Ann. 1 and 2 thereto; 351 Pa. Code §§3.3-803; 4.4-400(a), (b). We see nothing improper about these provisions as long as the same individual does not serve both as an adversary to a claimant and as a voting member of the Board. See Board of Pensions and Retirement v. Schwartz, 97 Pa. Commonwealth Ct. 539, 510 A.2d 835 (1986).
We do agree with the Board that the Common Pleas judge should not have merely disqualified Mr. Tetis
In both Kreiger and Bell we remanded for proceedings consistent with the respective opinions. As Judge Palladino stated in Bell, “the proper remedy in the case before us is a remand for a new hearing before the Board, rather than a conclusive reversal of the determination made below.” Bell at 51, 478 A.2d at 539.
We feel compelled to comment upon one of the other issues raised by Mr. Amantas counsel which could affect the hearing upon remand.
This Court held in Kreiger that if a party objects to the admission of a medical report into evidence, the Board should require the attendance of the author of such report to testify. Mr. Amantas counsel did object to such admissions by letter to the Board dated January 6, 1983.
We find that in the circumstances of this case depositions are a poor substitute for live cross-examination. Here, the behavior of the doctors in connection
Accordingly, we remand this case for proceedings not inconsistent with this opinion.
Order
The order of the Court of Common Pleas of Philadelphia County at No. 2081 December Term, 1983, dated September 27, 1984 is vacated and the case remanded to that Court for further remand to the Philadelphia Board of Pensions and Retirement for proceedings in accordance with the foregoing opinion.
Jurisdiction relinquished.
In Board of Pensions and Retirement of Philadelphia v. Hodge, 72 Pa. Commonwealth Ct. 59, 455 A.2d 1270 (1983), this
Regulation 32 was enacted to provide benefits for all employees of the City of Philadelphia in the event they were injured or disabled in the course of their public service. See Smith v. Civil Service Commission of Philadelphia, 53 Pa. Commonwealth Ct. 164, 167 n. 1, 417 A.2d 810, 812 n. 1 (1980).
This Court, in an opinion filed contemporaneously with this one, reverses and remands the Common Pleas Courts decision in Schwartz. See infra note 6 and accompanying text.
This Court noted in Bell v. Philadelphia Board of Pensions and Retirement, 84 Pa. Commonwealth Ct. 47, 478 A.2d 537 (1984) that our scope of review, where a full and complete record was made of the hearings before the Board, is the same as that prescribed for the Common Pleas Courts review:
(b) Complete record.—In the event a fall and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury 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 Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) 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.
Section 754 of the Local Agency Law, 2 Pa. C. S. §754.
Notes of Testimony from August 23, 1983 at 27-30; R.R. at 37b-40b.
In the Schwartz case, not only were the prosecutorial and adjudicatory functions not commingled in the same individual, but the facts of the case as presented to the Board were not in dispute, as they are in the instant case. The question presented to the Board in Schwartz was strictly one of law.
The Board asserts that because the Common Pleas Court based its decision on the commingling of functions issue alone we are now precluded from considering the other issues raised by Mr. Amantas counsel in his brief presented to this Court. Our review of the record reveals that all of those issues were raised before the Board and before the Common Pleas Court. Mr. Amanto did not waive any issues, merely because the Common Pleas Court did not address them. We hold, therefore, that we are not precluded from considering any issues properly raised below and properly submitted to us in Mr. Amantas brief.
R.R. at 176b.