Opinion
No. 1984 C.D. 2012
04-05-2013
Willie Mundy Jr., Appellant v. Bureau of Administrative Adjudication
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Willie Mundy, Jr. (Mundy), representing himself, asks whether the Court of Common Pleas of Philadelphia County (trial court) erred in dismissing as untimely his appeal from a decision of a parking hearing examiner of the City of Philadelphia, Bureau of Administrative Adjudication (BAA) that upheld several parking citations against him. Upon review, we conclude Mundy failed to exhaust his administrative remedies before filing an appeal with the trial court, thereby precluding the trial court from properly assuming jurisdiction over his appeal. As a result, we affirm the trial court's dismissal of Mundy's appeal on other grounds.
From the record certified by the BAA to the trial court, see Certified Record (C.R.), Item #3, we glean the following facts. Mundy received numerous parking tickets in Philadelphia for various violations. He challenged several of the tickets at an administrative hearing before a BAA parking hearing examiner on October 5, 2011. That same day, the hearing examiner dismissed four of the parking tickets and sustained the remaining tickets. More than 60 days later, on December 22, 2011, Mundy filed an appeal of the BAA hearing examiner's decision with the trial court.
Where the trial court does not take any additional evidence, our review of the decision of the BAA, a local agency, is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether the procedure before the local agency was contrary to statute, and whether necessary findings of fact were supported by substantial evidence. Kovler v. Bureau of Admin. Adjudication, 6 A.3d 1060 (Pa. Cmwlth. 2010) (citing Section 754 of the Local Agency Law, 2 Pa. C.S. §754).
Here, the record submitted by the BAA to the trial court states: "I, Kathleen Hayden, [(Clerk, Bureau of Administrative Adjudication)] hereby certify that the Appellant did not appear before the Philadelphia Bureau of Administrative Adjudication due to his failure to file a timely appeal and the attached documents consist of the full and complete record related to Appellant's Petition for Appeal filed on December 22, 2011." Certified Record (C.R.), Item #3 (emphasis added).
In addition, the record transmitted by the trial court to this Court contains a copy of a transcript of oral argument before the trial court on Mundy's appeal from the BAA as well as numerous other documents Mundy attached to various filings before the trial court. Although the trial court held oral argument, there is no indication it received additional evidence. Thus, the trial court was required to confine its review to the record developed before the BAA. See 2 Pa. C.S. 754(b) ("In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal ... on the record certified by the agency.") (Emphasis added).
Before the trial court, the parties filed briefs and a patient trial judge held oral argument. Thereafter, the trial court issued an order dismissing Mundy's appeal as untimely. Mundy sought reconsideration, which the trial court denied. Mundy then appealed to the Superior Court, which later transferred the matter to this Court.
At oral argument, Mundy asserted he underwent a subsequent hearing before another hearing examiner on November 4, 2011. Beyond Mundy's statements at oral argument, the record contains no indication that a hearing occurred on that date.
After Mundy filed his notice of appeal, the trial court issued an order, directing Mundy to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b). In response, Mundy filed a timely, but lengthy, 1925(b) Statement.
In turn, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a) in which it opined Mundy did not preserve any issues for appeal. Specifically, it stated Mundy's 10-page 1925(b) Statement "failed to assert any cognizable error," precluding "a clear and meaningful review of his claims." Tr. Ct., Slip Op., 11/7/12, at 3. In any event, the trial court stated Mundy's appeal from the BAA's decision was untimely as it was taken more than 30 days after the BAA hearing examiner's decision. This matter is now before us for disposition.
The trial court also recommended that this Court remand for the trial court to consider whether Mundy met his burden to proceed nunc pro tunc or "now as of then." As set forth more fully below, we conclude Mundy failed to exhaust his administrative remedies. As such, we need not consider the trial court's suggestion that we remand for a determination of whether Mundy is entitled to proceed nunc pro tunc on his untimely appeal.
Initially, the BAA asserts Mundy waived all of his issues on appeal because his statement of matters complained of on appeal did not comply with Pa. R.A.P. 1925(b). Specifically, it contends the issues raised in Mundy's 1925(b) Statement were vague and repetitive, leaving the trial court to guess as to the issues he would raise on appeal. The BAA argues that where, as here, a court has to guess which issues an appellant will raise on appeal, meaningful review is precluded and a waiver of all appellate issues results. See Jiricko v. Geico Ins. Co., 947 A.2d 206 (Pa. Super. 2008); Commonwealth v. Reeves, 907 A.2d 1 (Pa. Super. 2006); Jones v. Jones, 878 A.2d 86 (Pa. Super. 2005).
Pennsylvania Rule of Appellate Procedure 1925, amended in 2007, states, in pertinent part:
(4) Requirements; waiver.Pa. R.A.P. 1925(b)(4)(iv).
(iv) The Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver.
In Jiricko, a case decided under the prior version of Pa. R.A.P. 1925, the Superior Court found waiver based on an appellant's five-page 1925(b) Statement, which was not only "lengthy," but, even more problematic, was an "incoherent, confusing, redundant, defamatory rant." Id. at 213. Viewing the self-represented appellant's 1925(b) Statement in the context of his lack of good faith throughout the litigation, the Superior Court determined the 1925(b) Statement amounted to a deliberate attempt to circumvent the purpose of Pa. R.A.P. 1925 and to overwhelm the court system.
In Jiricko, the Superior Court discussed in detail our Supreme Court's plurality opinion in Eiser v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 938 A.2d 417 (2007), in which the Court indicated the number of issues raised in a 1925(b) Statement alone should not foreclose appellate review, but rather a court should examine whether the circumstances of the litigation reveal a lack of good faith. Only where the record reveals a lack of good faith should a litigant "suffer the loss of appellate review due to the volume of issues raised." Jiricko, 947 A.2d at 213 (quoting Eiser, 595 Pa. at 383, 938 A.2d at 427 n.16); see also Jones (seven-page 1925(b) Statement raising 29 issues in narrative form evidenced a lack of good faith, thereby precluding appellate review).
Further, in Reeves, the Superior Court explained:
The Rule 1925(b) statement must be detailed enough so that the judge can write a Rule 1925(a) opinion, but not so lengthy that it does not meet the goal of narrowing down the issues previously raised to the few that are likely to be presented to the appellate court without giving the trial judge volumes to plow through.Reeves, 907 A.2d at 2-3.
Cases decided under the 2007 amendments to Rule 1925 continue to emphasize that a statement that requires a court to guess what issues an appellant seeks to raise on appeal is insufficient to allow for meaningful review. 20A PENNSYLVANIA APPELLATE PRACTICE §1925:19 (2012 ed.) (citing Commonwealth v. Lagenella, 17 A.3d 1257 (Pa. Super. 2011), appeal granted, ___ Pa. ___, 39 A.3d 990 (2012); Commonwealth v. Rolan, 964 A.2d 398 (Pa. Super. 2008); Commonwealth v. Smith, 955 A.2d 391 (Pa. Super. 2008); Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008)).
With regard to Mundy's 1925(b) Statement, the trial court here stated:
[Mundy] was ordered pursuant to Pa. R.A.P. 1925(b) to file of record '... a detailed and itemized Statement of Errors Complained of on Appeal ....' 1925(b) Order (10/04/2012). The Court notes that [Mundy] is proceeding pro se; [Mundy] is
held to the same standard as practicing attorneys. First Union Mortgage Corp., v. Frempong, 744 A.2d 327, 333 (Pa. Super. 1999). Pro se litigants are not afforded any particular advantage because of their lack of legal training. Id. at 333, 337. In reality, pro se litigants assume the risk that their 'lack of expertise and legal training will prove [their] undoing.' Id. at 337-38. First, [Mundy] submitted a ten (10) page 1925(b) Statement complete with an 'affidavit in support of matters complained of' purporting to name several 'Jane Doe' parties, and a list of 'articles' that [Mundy] sought to bring to the Court's attention. This is not the proper form for a 1925(b) Statement. Second, [Mundy] failed to assert any cognizable error made by the Court. Essentially, [Mundy] appears to be primarily upset with the Court because the Court precluded him from reading his prepared notes at [oral argument before the trial court]. 1925(b) Statement. [Mundy's] inability to comply with Pa. R.A.P. 1925(b) has precluded this Court from providing a clear and meaningful review of his claims. Therefore his claims are waived.Tr. Ct., Slip Op., 11/7/12, at 3.
We agree with the trial court that Mundy's 1925(b) Statement is unnecessarily lengthy, redundant and hard to follow. As the trial court indicated, more than half of the purported 14 issues stated by Mundy relate to his disagreement with the trial court's decision to limit him from reading his prepared notes at oral argument. We also agree with the trial court that, of the remaining issues set forth in Mundy's 1925(b) Statement, it is difficult to clearly discern the cognizable legal errors asserted by Mundy. However, Mundy does raise a vague contention assigning error in the trial court's determination that his appeal from the BAA was untimely as well as a brief assertion that he exhausted his administrative remedies before the BAA.
While the trial court opined Mundy's unwieldy 1925(b) Statement should result in waiver of all issues on appeal, the trial court did not indicate that Mundy's prolix 1925(b) Statement evidenced a lack of good faith. Additionally, the trial court's 1925(a) opinion addressed Mundy's challenge to the trial court's determination that his appeal was untimely, and his claim that the trial court erred in limiting him from reading from his prepared notes at oral argument. For these reasons, we decline to hold that Mundy waived all issues on appeal. See LSI Title Agency, Inc. v. Evaluation Services, Inc., 951 A.2d 384 (Pa. Super. 2008) (where trial court did not indicate it found a lack of good faith in appellant's presentation of issues in its 1925(b) Statement, Superior Court would not deny appellate review); Co. Image Knitware, Ltd. v. Mother's Work, Inc., 909 A.2d 324 (Pa. Super. 2006) (declining to find waiver based on appellant's 11-page 1925(b) Statement that contained numerous statements that were not allegations of error, where Statement included issues raised on appeal and trial court fully addressed issues).
As an additional threshold matter, the BAA contends Mundy failed to exhaust his administrative remedies, thereby depriving the trial court of jurisdiction over his appeal. Specifically, the BAA asserts that after the parking hearing examiner's decision, Mundy did not seek review before the parking appeals panel as required by Section 12-2808(2) of the Philadelphia Code. The BAA maintains Mundy's failure to do so constitutes a failure to exhaust an administrative remedy that precluded the trial court from exercising jurisdiction over Mundy's appeal. We agree.
In his brief to this Court, Mundy asserts that his inability to cross-examine the parking ticket writer at the hearing before the hearing examiner resulted in a denial of due process. He also briefly challenges the constitutionality of an amendment to the Philadelphia Code regarding civil penalties and costs for parking violations as well as certain executive orders signed by the Mayor of Philadelphia that resulted in the creation of the BAA. Further, he contends the trial court erred in preventing him from reading his prepared notes in their entirety at oral argument.
With the exception of his contention that the trial court erred in preventing him from reading his prepared notes in their entirety at oral argument, Mundy did not raise any of these other issues in his Statement of Matters Complained of on Appeal, resulting in waiver of these issues. See Pa. R.A.P. 1925(b)(4)(vii).
"The courts of this Commonwealth have long held that a party challenging administrative decision-making must first exhaust administrative remedies before seeking judicial review; where such remedies exist, courts lack jurisdiction." Pa. Pharmacists Ass'n v. Dep't of Pub. Welfare, 733 A.2d 666, 672 (Pa. Cmwlth. 1999). Thus, a party challenging administrative decision-making is precluded from obtaining judicial review without first exhausting administrative remedies. Canonsburg Gen. Hosp. v. Dep't of Health, 492 Pa. 68, 422 A.2d 141 (1980).
Further, as this Court, speaking through Judge (now President Judge) Pellegrini, explained:
The exhaustion doctrine is a rule of judicial administration created under the inherent powers of the court which has since been incorporated in legislation requiring that statutorily prescribed remedies be strictly pursued. The doctrine of exhaustion prohibits prospective parties to administrative agency actions from bypassing that process and challenging the administrative action directly in the courts. The reasons for requiring exhaustion are that it is more efficient to allow an agency to proceed uninterrupted until its conclusion so that it can find facts, apply its expertise and exercise its discretion. The doctrine also allows agencies the opportunity to correct their own mistakes.Gardner v. Dep't of Envtl. Res., 658 A.2d 440, 445 (Pa. Cmwlth. 1995) (citations omitted).
Sections 12-2807 and 12-2808 of the Philadelphia Code contemplate a two-step administrative process for parking ticket appeals: an adjudication of a parking violation by a parking hearing examiner, and an appeal of a parking hearing examiner's determination to a parking appeals panel. In particular, Section 12-2808 states, as pertinent (with emphasis added):
(2) An appeal from a determination of any Parking Hearing Examiner after adjudication of a plea denying liability ... shall be submitted to a Parking Appeals Panel which shall have power to review the facts and the law, and shall have power to affirm the determination or to reverse or modify any determination appealed from for error of fact or law, or to remand for additional proceedings, or, in appropriate cases, to hear the matter de novo.
(3) A party aggrieved by the final determination of a Parking Hearing Examiner may obtain a review thereof by serving upon the Parking Authority, within thirty (30) days of the entry of such final determination, a notice of appeal on a form provided by the Parking Authority, setting forth the reasons why the final determination should be reversed or modified. Service of the notice of appeal upon the Parking Authority shall be made by certified or registered mail, return receipt requested. ...
* * * *
(5) The order of a Parking Appeals Panel shall be the final order of the Finance Director's Office. However, in the event that no appeal is taken, the order of the Parking Hearing Examiner shall be the final order. If payment is not made within thirty (30) days after entry of a final order determining liability for a parking violation and fixing fines, costs and additional fees for
such violations, such fines, costs and additional fees shall be considered a debt due and owing the City.Sections 12-2808(2), (3), (5) of the Philadelphia Code.
With regard to the appeal process for parking tickets in Philadelphia, in O'Neill v. City of Philadelphia, 711 A.2d 544, 545, 548 (Pa. Cmwlth. 1998), this Court previously observed (with emphasis added):
In 1989, the Philadelphia City Council enacted an ordinance that permitted the transfer of control over parking violations from Traffic Court to the Office of the Director of Finance. Under the new system, the recipient of a parking ticket has fifteen days to admit the violation and pay a fine or deny liability and request a hearing. Failure to do either results in the entry of a default order sustaining the charge and fixing the fine, costs and fees. If liability is denied, a hearing is held before [BAA] hearing examiner, whose decision may be appealed to the BAA Parking Appeals Panel, and thereafter to the Court of Common Pleas. ...
[The] [a]ppellants had the right to appeal the decision of the hearing examiner to the BAA Parking Appeals Panel, 12 Phila. City Code § 12-2808, and the decision of the Parking Appeals Panel to the Court of Common Pleas, and then to this Court. Sections 751-754 of the Local Agency Law, 2 Pa. C.S. §§751-754. ...
Here, on the date of the hearing before and adjudication by the parking hearing examiner, Mundy signed a BAA "Statement of Rights and Responsibilities" form, which specifically states:
8. You have the right to appeal from a final determination of the Parking Hearing Examiner within thirty (30) days from the entry of such final determination. Appeals must be made by certified or registered mail only , 913 Filbert Street, Phila., PA 19107 .
9. In the event that your appeal is denied, you have the right to appeal in Common Pleas Court. Please ask for procedures to be followed.C.R., Item #3 (bold emphasis in original; underlined emphasis added). Additionally, near the conclusion of the hearing, the parking hearing examiner provided Mundy with similar information regarding his right to a further administrative appeal. Id., Hearing of 10/5/11, at 6 ("THIS IS YOUR APPEAL FORM YOU SEND THAT IN CERTIFIED OR REGISTERED MAIL WITHIN 29 DAYS AND YOU WILL COME BACK HERE TO SEE ANOTHER HEARING EXAMINER.")
Despite these instructions, there is no indication in the record certified from the BAA that Mundy filed an administrative appeal of the parking hearing examiner's decision to the parking appeals panel. Instead, the record reflects that he chose to appeal the parking hearing examiner's determination directly to the trial court. Further, the numerous documents Mundy attached to his filings before the trial court, which were not part of the record transmitted by the BAA, do not show Mundy did, in fact, file an administrative appeal of the parking hearing examiner's October 5, 2011 decision. Mundy's decision to forego this available administrative remedy, which is specifically prescribed by the Philadelphia Code, precluded the trial court from assuming jurisdiction over his appeal. See Krug v. City of Phila., 620 A.2d 46 (Pa. Cmwlth. 1993) (taxpayer who did not appeal tax assessments to city's tax review board as required by Philadelphia Code did not exhaust his administrative remedies and thus could not challenge validity of those assessments before common pleas court without having done so before agency). Thus, we affirm the trial court's dismissal of Mundy's appeal on other grounds.
Moreover, the documents Mundy attached to his filings concerning his purported administrative appeal are conflicting. For instance, attached to Mundy's 1925(b) Statement is a handwritten appeal of the hearing examiner's decision dated November 14, 2011 to the BAA (more than 30 days after the hearing examiner's October 5, 2011 decision), which contains no indication it was actually filed with or received by the BAA. C.R., Item #13 at 35.
Also, attached to Mundy's notice of appeal (erroneously filed with the Superior Court) is a purported request for appeal of the hearing examiner's decision, dated November 5, 2011, also more than 30 days after the hearing examiner's decision, which contains no indication it was actually filed with or received by the BAA. C.R., Item #11 at 4.
In short, these documents, which were not part of the record transmitted to the trial court by the BAA, do not demonstrate Mundy properly exhausted his administrative remedies. Moreover, our review of the transcript of oral argument before the trial court reveals that Mundy did not attempt to submit these documents to the trial court.
Mundy also briefly contends the record transmitted by the BAA did not include the records from several of his subsequent administrative hearings. However, Mundy does not assert that any of these hearings were before the parking appeals panel on the parking violations at issue as contemplated by Section 122808 of the Philadelphia Code. Further, despite the numerous documents Mundy attached to his filings before the trial court, Mundy did not supply copies of any hearing transcripts, decisions, or other documentation from these purported subsequent administrative hearings either at oral argument or at any other time before the trial court.
"This Court may affirm on other grounds where grounds for affirmance exist." Tran v. State Sys. of Higher Educ., 986 A.2d 179, 183 n.9 (Pa. Cmwlth. 2009) (citation omitted). --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of April, 2013, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED on other grounds.
/s/_________
ROBERT SIMPSON, Judge