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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott Harding, : Appellant : : v. : : Baldwin Borough Civil Service : No. 1111 C.D. 2004 Commission : Submitted: November 19, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COLINS FILED: February 7, 2005 Scott Harding appeals from the May 10, 2004 order of the Court of Common Pleas of Allegheny County (Common Pleas Court) that dismissed Harding's statutory appeal and upheld the decision of the Baldwin Borough Civil Service Commission (the Commission) disqualifying and removing Harding from the eligibility list for the Baldwin Borough Police Department. On June 20, 2002, Harding submitted an application in response to an advertised police officer position with Baldwin Borough. Thereafter, Harding took and passed the required written examination, a physical agility test, and an oral examination. By letter dated September 9, 2002, Harding was informed by the Commission that he was "being disqualified for the position of police officer because he failed to meet the requirements of a background investigation in accordance with the Rules and Regulations." In this regard, the Trial Court's opinion notes that the Commission determined Harding to be unfit because of false statements he made on his application to the Baldwin Borough. Specifically, Harding denied that he had ever appeared as a defendant in a criminal or civil case, although he was one of the defendants in a claim brought for unsubstantiated arrest in United States District Court, in the matter of Longo v. Borough of Brentwood and Scott Harding, individually, United States District Court Docket 01-1797. He also apparently denied that he received certain unfavorable evaluations by the Brentwood Police Department, his current employer, and concealed that acts of misconduct were charged against him while he was a Brentwood police officer. Pursuant to Section 1183 of The Borough Code, 53 P.S. §46183,1 Harding requested and was granted two hearings, the first on October 8, 2002, and the second on June 26, 2003, the latter of which is the subject of this appeal. Prior to the second hearing, the Common Pleas Court, on March 6, 2003, ordered the Commission to: (1) provide a complete statement of the misstatements of fact that Harding allegedly made that were the basis for his disqualification as a police officer; (2) schedule a hearing to determine the merits after affording Harding time to review the foregoing statement and prepare whatever defenses he might have; (3) provide for a court reporter and a transcript of the proceedings; (4) present the Commission's evidence first and then allow Harding to present his evidence; and 1 Act of February 1, 1966, P.L. (1965), as amended, 53 P.S. §46183 provides in relevant part: If any applicant or other person feels himself aggrieved by the action of the commission, in refusing to examine him or to certify him as eligible after examination, the commission shall, at the request of such person, within ten days, appoint a time and place where he may appear personally and by counsel. Whereupon the commission shall then review its refusal to make such examination or certification and take such testimony as may be offered. 2 (5) issue findings of fact and conclusions of law so that the Common Pleas Court could review the proceedings. The Commission avers that prior to the June 26, 2003 hearing, Harding's counsel received a set of 20 documentary exhibits that were considered in disqualifying Harding as a candidate for the Baldwin Borough police officer position. Although these exhibits were admitted into evidence, and although the Borough had available for cross-examination at the hearing, two witnesses, the Baldwin Borough Chief of Police Christopher Kelly, and an investigator, Anthony Cortazzo, Harding's counsel insisted that these exhibits constituted hearsay not subject to any exception. In this regard, Harding's counsel maintained that the Borough's failure to present live testimony from the individuals who had prepared the negative reports about Harding's performance, as for example, from Brentwood Police Department Chief Butelli, unequivocally violated Harding's due process rights, such that Harding's counsel refused to proceed with the hearing. In contravention of the Common Pleas Court's March 6, 2003 order, the Commission never issued findings of fact and conclusions of law. Harding avers that on July 16, 2003, he asked the Commission to do so, but it refused because of his failure to present evidence at the hearing. On August 4, 2003, Harding filed a petition to reinstate his statutory appeal, which petition was granted on December 16, 2003. On May 10, 2004, the Common Pleas Court affirmed the Commission's decision in removing Harding from the eligibility list. This appeal followed.2 2 The standard of review involving agency adjudications is limited to a determination of whether constitutional rights have been violated, errors of law have been committed, or whether the findings of the agency are supported by substantial evidence. Pennsylvania Department of Corrections v. State Civil Service Commission (Clapper), 842 A.2d 526 (Pa. Cmwlth. 2004). 3 It has consistently been reaffirmed that where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication unless it is in violation of the constitutional rights of the appellant or not in accordance with law, the procedural provisions of the local agency law are violated, or a finding of fact of the commission necessary to support its adjudication is not supported by substantial evidence. Davis v. Civil Service Commission of Philadelphia, 820 A.2d 874 (Pa. Cmwlth. 2003). In the matter before us, the Commission never issued findings of fact and conclusions of law in spite of the Common Pleas Court order to do so. Moreover, Harding's counsel placed on the record strenuous hearsay objections to the Commission's reliance upon documented negative reports of Harding's performance, in view of the Commission's failure to produce the individuals who authored said reports. Neither the hearsay issue raised by Harding's counsel and summarily dismissed by the Commission, nor the Commission's failure to render findings of fact and conclusions of law is addressed by the Common Pleas Court. Instead, Common Pleas Court peremptorily finds that "the material evidence relied upon in this case was admissible under the Pennsylvania Rules of Evidence, . . . there was a variety of competent evidence in which the Respondent could disqualify Mr. Harding," and that "[a]ccordingly, the Civil Service Commission of Baldwin Borough's adjudication disqualifying Mr. Harding is supported by substantial competent evidence." Upon review, we disagree with the foregoing generalizations made by Common Pleas Court, and we therefore vacate its order and remand the matter to Common Pleas Court for remand to the Commission to make findings of fact and 4 conclusions of law that include addressing the hearsay objections made by Harding's counsel. ______________________________________ _ JAMES GARDNER COLINS, President Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott Harding, : Appellant : : v. : : Baldwin Borough Civil Service : No. 1111 C.D. 2004 Commission : O R D E R AND NOW, this 7th day of February 2005, the order of the Common Pleas Court of Allegheny County in the above-captioned matter is vacated, and the matter is remanded to the Common Pleas Court for remand to the Baldwin Borough Civil Service Commission for the latter to issue findings of fact and conclusions of law consistent with the directives of this opinion. Jurisdiction relinquished. ______________________________________ _ JAMES GARDNER COLINS, President Judge
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