IN THE COMMONWEALTH COURT OF PENNSYLVANIA Peter C. Wood, Jr., : Appellant : : No. 1348 C.D. 2013 v. : : Submitted: January 10, 2014 City of Philadelphia : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: March 13, 2014 Peter C. Wood, Jr. (Appellant) appeals pro se from the July 1, 2013 order of the Court of Common Pleas of Philadelphia County (trial court) denying Appellant s motion for sanctions in an underlying action challenging his receipt of two parking citations issued by the Philadelphia Parking Authority (PPA). 1 We affirm. On January 22, 2012, the PPA issued a parking ticket to Appellant in the amount of $41.00 for an expired inspection sticker. Appellant challenged this ticket and requested an administrative hearing. A hearing was scheduled and held before the Bureau of Administrative Adjudications (BAA) on March 2, 2012. Appellant alleged that his inspection sticker was valid as of the date of the ticket and that the 1 Appellant is an attorney and has represented himself throughout the course of the proceedings before the trial court and now this Court.
PPA officer was looking at his emissions sticker, which he admitted was not current. Nevertheless, Appellant alleged that inspection stickers and emission stickers are distinct and that the section referenced by the PPA officer on his ticket only applied to the former. At the conclusion of this hearing, a BAA hearing examiner found Appellant liable for the ticket. While Appellant attended the hearing, the PPA issued a second parking ticket to Appellant in the amount of $41.00 for the same offense. Appellant filed an appeal with the BAA on March 14, 2012. In this appeal, Appellant referenced the second ticket and, given the hearing examiner s disposition of the first ticket, Appellant requested that an initial hearing regarding the second ticket be waived and that the citations be consolidated for purposes of appeal. (Reproduced Record (R.R.) at 14a-26a.) By letter dated August 22, 2012, the BAA notified Appellant that the hearing examiner s decision was sustained and that he was liable for both citations. This letter did not provide any explanation for the BAA s decision. On September 21, 2012, Appellant filed a notice of appeal with the trial court identifying the PPA as appellee. 2 The BAA subsequently filed the certified record with the trial court, but did not include a copy of the BAA s August 22, 2012 decision letter. At the same time, the BAA filed preliminary objections to Appellant s request for appeal, noting the discrepancy with respect to the named appellees and alleging that, in any event, the appeal against the BAA was legally insufficient because the BAA was a department of the City of Philadelphia (City) and not an entity subject to suit. The BAA requested that Appellant s appeal be dismissed. (R.R. at 10a-42a, 77a.) 2 However, the civil cover sheet and subsequent caption in the trial court s docket identified the BAA as the appellee. (R.R. at 50a.) 2
In a brief in support of its preliminary objections, the BAA alleged that all suits against a department of the City must be brought in the name of the City itself because a City department does not maintain an independent corporate existence. The BAA cited our decision in City of Philadelphia v. Glim, 613 A.2d 613 (Pa. Cmwlth. 1992), for support. 3 Appellant filed a response admitting that he originally named the PPA as appellee and noting that he did not create the civil cover sheet identifying the BAA as appellee. Appellant requested that the BAA s preliminary objections be quashed, or, alternatively, overruled. In an accompanying brief, Appellant asserted that the BAA s preliminary objections were frivolous and lacked support in the law. Appellant also contended that the BAA lacked standing to participate as a party because the BAA acted as a neutral examiner in hearing his appeal of the parking citations and lacked any interest in the trial court s ultimate determination regarding his liability. Alternatively, Appellant contended that the BAA was properly named as an appellee because the BAA was a local agency and he has a right to appeal the determination of such an agency under section 752 of the Local Agency Law, 2 Pa.C.S. 752. 4 Appellant distinguished Glim as a case 3 In Glim, Bruce Glim filed a civil action against the City and the City s fire department alleging negligence in that the fire department failed to provide proper medical care and the City failed to properly train, equip, and supervise the persons in the Medic Unit. This Court ultimately held that the common pleas court erred in failing to grant judgment on the pleadings for the fire department because the fire department could not be sued as though it were a legal entity separate from the City. Additionally, we noted that pursuant to section 11 of the Act of April 21, 1855, P.L. 264, as amended, 53 P.S. 16257, all suits against any department of the City must be brought in the name of the City itself. 4 Section 752 provides that: Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal (Footnote continued on next page ) 3
involving a claim for monetary damages arising out of the conduct of the City s fire department, a claim which by law, namely 53 P.S. 16257, must be brought against the City itself. (R.R. at 43a-55a.) By order dated February 1, 2013, the trial court overruled the BAA s preliminary objections. Appellant thereafter filed a brief in support of the merits of his appeal from the BAA a August 22, 2012 determination. Shortly thereafter, on February 13, 2013, Appellant filed a motion for sanctions alleging that the BAA s preliminary objections were frivolous, had no real chance of success, and were filed for the sole purpose of harassing him. Additionally, Appellant alleged that the BAA acted in bad faith by not including a copy of its August 22, 2012 decision letter in the certified record filed with the trial court. Appellant sought an award of attorney s fees and costs. (R.R. at 56a-62a.) In both his motion for sanctions and an accompanying brief, Appellant cited the trial court s decision in the unrelated matter of Pavlock v. Bureau of Administrative Adjudication (Court of Common Pleas of Philadelphia County, August Term 2011, No. 01049, filed July 9, 2012). In Pavlock, the trial court granted the appeal of James Pavlock from the decision of the BAA sustaining Pavlock s liability for two traffic citations issued by the PPA. The trial court further granted equitable relief in Pavlock, directing the BAA to forthwith, inter alia, set forth in writing findings of fact and the underlying reasons for an adverse determination following the conclusion of a BAA violation hearing. Appellant notes that the trial court s order granting this equitable relief was filed on July 9, 2012, nearly six weeks (continued ) therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). 4
prior to the BAA s August 22, 2012 determination in this case. He also notes that in its October 2, 2012 opinion, the trial court stated in Pavlock that the BAA completely ignored the laws of the Commonwealth of Pennsylvania and the Philadelphia Code by... not issuing findings and reasons for an adverse determination. (Pavlock, Trial court op. at 9.) (R.R. at 58a-95a.) The BAA filed a response denying that its preliminary objections were frivolous or that it acted in bad faith. The BAA noted that its preliminary objections were premised on Appellant s naming of the wrong party, the PPA, in his appeal to the trial court. The BAA also stated that all of its decision letters, including the August 22, 2012, letter in this case, are system-generated and that it does not retain copies of these letters. In an accompanying brief, the BAA referenced prior cases where similar preliminary objections were successful and the trial court either dismissed the appeal or ordered that the caption be amended to include the BAA and the City. In a reply brief, Appellant noted that the BAA conceded that its August 22, 2012 determination did not comply with the law and offered to withdraw both of his challenged citations and reimburse his filing fees. Appellant also asserted that the BAA could have produced the August 22, 2012, determination letter via a simple computer search, noting that the BAA retained copies of all other correspondence. (R.R. at 101a-34a.) By order dated March 21, 2013, the trial court again overruled the BAA s preliminary objections and directed that the caption be amended to reflect the City as appellee and the BAA as the agency from which the appeal was taken. On May 9, 2013, the trial court conducted a hearing with respect to Appellant s appeal and his motion for sanctions. After much discussion regarding the BAA s offer to withdraw the citations and reimburse Appellant his filing fees, which he rejected, the trial court stated that it would simply issue an order granting Appellant s appeal, 5
dismissing the citations, and directing the BAA to reimburse his filing fees. Appellant again asserted he was entitled to sanctions, reiterated the allegations in his motion and accompanying brief, and again cited Pavlock. However, Appellant conceded that, at the time of the hearing, the trial court s decision in Pavlock was on appeal to this Court and assigned to this Court s mediation program. The BAA responded that its preliminary objections were not frivolous because they caused the caption to be amended, noting that the trial court had ordered similar remedies in several other BAA appeals. Additionally, the BAA denied that it acted in bad faith by intentionally withholding the August 22, 2012 determination letter, reiterating that the letter was system-generated and that these types of letters were not retained. The BAA also stated that it was undertaking efforts to change this non-retention policy. The Court then informed the parties that it would deny any sanctions relating to the filing of preliminary objections and continue the matter for the BAA to provide more specific information regarding changes to its recordretention policy. In separate orders dated May 9, 2013, the trial court granted Appellant s appeal, dismissed the citations, directed the BAA to reimburse Appellant his filing fees, and directed that a further hearing be held on June 6, 2013. (R.R. at 161a-70a.) At the June 6, 2013 hearing, the BAA presented the testimony of its Director, Jeremy Connors. Connors explained the BAA s process in issuing determination letters. Connors noted that the hearing examiner simply selects the desired outcome from a drop-down menu which results in an electronic file being transmitted for printing, i.e., the determination letter. The letter proceeds directly to the City s mail room, where it is postmarked and forwarded to the appealing party. Connors testified that this procedure has been in effect since 1991 and that a physical copy of this letter has never been retained. Connors stated that the procedure had 6
recently changed and that the BAA now retains a physical copy of this letter for the file along with written findings of fact and conclusions of law. By order dated July 1, 2013, the trial court denied Appellant s motion for sanctions. 5 (R.R. at 171a-88a.) Appellant filed a notice of appeal with the trial court. The trial court issued an opinion in support of its orders dated September 4, 2013. The trial court noted that, with respect to the BAA s preliminary objections, the BAA had prevailed on virtually identical preliminary objections in similar situations. (Trial court op. at 5.) The trial court concluded that the BAA had articulated a plausible, legal basis for their Preliminary Objections and, thus, had a reasonable chance of obtaining a ruling in its favor.... Id. With respect to the August 22, 2012 determination letter, the trial court cited the testimony of Connors that the BAA never retained a physical copy of its determination letters and that it recently changed its policy to retain such letters and to issue written findings of fact and conclusions of law. However, the trial court noted that implementation of this new procedure was ongoing and slow given the inherent difficulty of swiftly altering long-standing policies within large governmental agencies.... Id. Thus, the trial court concluded that the omission of this letter from the original record was the result of organization inertia, rather than duplicity or unethical behavior on the part of the BAA. 6 (Trial court op. at 5-6.) 5 At the June 6, 2013 hearing, the trial court orally denied Appellant s motion for sanctions, but this denial was not memorialized in writing. Appellant thereafter filed a praecipe to enter adverse order, prompting the trial court s July 1, 2013 order. 6 The trial court further held that, contrary to an argument raised by Appellant in his brief in opposition to the BAA s preliminary objections, the BAA had standing to participate in Appellant s appeal. 7
On appeal to this Court, 7 Appellant argues that the trial court abused its discretion in failing to find that the BAA s preliminary objections were vexatious and that the BAA acted in bad faith in failing to retain and produce a copy of its August 22, 2012 determination letter. We disagree. Pennsylvania Rule of Civil Procedure 1023.1(c) provides that: The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, Pa.R.C.P. No. 1023.1(c). (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. 7 An appellate court s scope of review in cases involving counsel fees is limited to determining whether the trial court abused its discretion. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996); Scalia v. Erie Insurance Exchange, 878 A.2d 114 (Pa. Super. 2005). 8
A court may sanction a party by ordering it to pay an opponent s counsel fees if the court finds that the party acted in an arbitrary or vexatious manner or operated in bad faith. Sections 2503(7) and (9) of the Judicial Code, 42 Pa.C.S. 2503(7), (9). Specifically, section 2503(7) provides for the imposition of a counsel fee as part of the taxable costs where a participant is awarded such a fee as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. Section 2503(9) provides for said imposition where a participant is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. Our Supreme Court addressed these concepts in Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996), stating as follows: An opponent s conduct has been deemed to be arbitrary within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature. An opponent also can be deemed to have brought suit vexatiously if he filed the suit without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance. Finally, an opponent can be charged with filing a lawsuit in bad faith if he filed the suit for purposes of fraud, dishonesty, or corruption. Appellant first asserts that the trial court abused its discretion in failing to find that the BAA s preliminary objections were vexatious. Appellant notes that, pursuant to Philadelphia Court of Common Pleas Rule 320(E)(2), the City is deemed a party to all appeals from decisions of the BAA, a local agency. Appellant also discounts the BAA s reliance on Glim, as that case involved a direct claim against the City s fire department, which may not be sued as a separate legal entity. Appellant s 9
assertions in both regards are correct; nevertheless, these assertions do not warrant reversal of the trial court s decision. 8 As our Superior Court stressed in Scalia, a common pleas court has great latitude and discretion with respect to an award of attorney s fees pursuant to a statute. 878 A.2d at 116. Additionally, the burden is on the party seeking counsel fees under sections 2503(7) and (9) of the Judicial Code to prove the existence of one of the statutory conditions. Berg v. Georgetown Builders, Inc., 822 A.2d 810 (Pa. Super. 2003). In the present case, we agree with the trial court that the BAA articulated a plausible, legal basis for their Preliminary Objections, and, thus, had a reasonable chance of obtaining a ruling in its favor. (Trial court op. at 5.) The record establishes that Appellant incorrectly identified the PPA as the appellee in his notice of appeal filed with the trial court. 9 Moreover, even if Appellant had identified 8 Appellant further discounts the BAA s reliance on Dagostino v. Bureau of Administrative Adjudication (Court of Common Pleas of Philadelphia County, July Term 2012, No. 03537, filed December 10, 2012), in its brief in opposition to Appellant s motion for sanctions. In Dagostino, Stephen Dagostino was issued three parking citations, which he contested before the BAA. The BAA hearing examiner found Dagostino liable, but he never filed an appeal with the BAA. Instead, Dagostino filed an appeal with the trial court, after the thirty-day period within which he was required to file an appeal with the BAA had expired. The BAA filed preliminary objections, similar to the ones filed here, alleging that the appeal should be dismissed because the BAA was a department in the City and not a separate legal entity subject to suit. In a subsequent brief in support of its preliminary objections, the BAA alleged that it was improperly named as a party in the appeal. However, the BAA further noted in this brief the procedural improprieties with respect to Dagostino s direct appeal to the trial court. The trial court ultimately sustained the BAA s preliminary objections and dismissed Dagostino s appeal, without stating any reasons therefor. Given this lack of reasoning, as well as the fact that the BAA s preliminary objections solely referenced its non-party status, we cannot agree with Appellant that the BAA s reliance on Dagostino was misplaced. 9 Contrary to Appellant s reply brief, the BAA did not waive this issue by failing to raise it before the trial court. The BAA raised this issue in its preliminary objections to Appellant s appeal. (R.R. at 41a.) 10
the BAA as the appellee, the record includes several examples where the BAA filed preliminary objections to its naming as a party and the preliminary objections were sustained and the appeal dismissed, Dagostino, or the caption amended to include the City. 10 While Appellant finds these cases unsurprising because the City is deemed a party to all local agency appeals, Appellant fails to explain how the City would have become a party and been named in the caption absent the BAA s preliminary objections. Moreover, we note that in his brief in opposition to the BAA s preliminary objections, Appellant himself alleged that the BAA lacked standing to participate as a party. 11 Thus, the trial court did not abuse its discretion in failing to find that the BAA s preliminary objections were vexatious. Next, Appellant asserts that the trial court abused its discretion in failing to find that the BAA acted in bad faith in failing to retain and produce a copy of its August 22, 2012 determination letter. However, Connors testified before the BAA hearing examiner that the determination letters in every case since 1991 were generated electronically and that the BAA s standard practice was not to retain a physical copy of these letters. While Appellant is correct that the trial court found the form of these letters to be legally insufficient because they lacked written findings of fact and conclusions of law, Pavlock, the trial court s order in Pavlock was issued on July 9, 2012, less than six weeks prior to the BAA s August 22, 2012 determination 10 In its brief in opposition to Appellant s motion for sanctions, the BAA cited similar cases where its preliminary objections resulted in amendments to the caption. Fischer v. Bureau of Administrative Adjudication (Court of Common Pleas of Philadelphia County, July Term 2012, No. 03768, filed October 12, 2012); Zuecca v. Bureau of Administrative Adjudication (Court of Common Pleas of Philadelphia County, December Term 2012, No. 04034, filed February 15, 2013). 11 In his appeal to this Court, Appellant did not challenge the trial court s holding that the BAA had standing to participate in his appeal. 11
in this case. 12 Hence, we agree with the trial court that the record herein failed to establish that the BAA s omission of this determination letter from the original record was duplicitous or unethical, or otherwise in bad faith. In the course of this argument, Appellant further asserts that the trial court misconstrued Connors testimony as stating that the BAA electronically retained a copy of its determination letters and placed undue weight on the BAA s modifications to its documents retention practices. Even if the trial court misconstrued Connors testimony in the manner Appellant alleges, we do not believe the result here would be any different. The fact remains that Connors testified that the BAA policy was not to retain determination letters, a policy which was applicable to every case and was not done in a deliberate manner such that it suggested a bad faith intent on the part of the BAA. Moreover, while Appellant is correct that the focus of the trial court was on the BAA s actions prior to any policy modifications, we stress again that the trial court found no bad faith on the part of the BAA. Additionally, we note that Appellant himself raised an issue regarding the BAA s actions in light of the trial court s decision in Pavlock, which decision provided the impetus for the policy modifications discussed by Connors and the trial court. Thus, the trial court did not abuse its discretion in failing to find that the BAA acted in bad faith. Accordingly, the order of the trial court is affirmed. PATRICIA A. McCULLOUGH, Judge 12 Furthermore, we note that the trial court s decision in Pavlock was not issued until October 2, 2012. 12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Peter C. Wood, Jr., : Appellant : : No. 1348 C.D. 2013 v. : : City of Philadelphia : ORDER AND NOW, this 13 th day of March, 2014, the order of the Court of Common Pleas of Philadelphia County, dated July 1, 2013, is hereby affirmed. PATRICIA A. McCULLOUGH, Judge