Sunday, July 04, 2010

admin. law - local agency appeal - adequacy of record

Pittsburgh Water and Sewer v. Gladstone - Cmwlth. Court - June 23, 2010

In a local agency appeal, the authority of the common pleas court to remand or hear a case de novo is tied to a finding that a complete record was not made before the local agency. Only if common pleas determined that the record before the agency was incomplete does it have discretion to determine the manner of correcting a deficient record. Ret. Bd. of Allegheny County v. Colville, 852 A.2d 445, 450 (Pa. Cmwlth 2004) appeal after remand at 888 A.2d 21 (Pa. Cmwlth. 2005), aff’d¸592 Pa. 433, 926 A.2d 424 (2007); The School District of the City of Erie v. Hamot Med. Center of the City of Erie, 602 A.2d 407, 408 (Pa. Cmwlth. 1992) (“It is clear from the language of Section 754 that the trial court is empowered to hear the case de novo only if it determines that the record before the local agency was incomplete.”).

The CCP here determined that it had committed an error of law pursuant to Section 754 of the AAL by failing to determine whether the record submitted by the Authority was a complete record before proceeding to a de novo hearing. 2 Pa. C.S. § 754 provides:

(a) INCOMPLETE RECORD.-- In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

(b) COMPLETE RECORD.-- In the event a full 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. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

A review of the transcript here shows that common pleas proceeded to a hearing de novo after being advised by counsel for the Authority that this was the appropriate method of review of the agency determination It did so, however, without first independently reviewing the record to determine its completeness. We agree with the trial court that this procedure was not in accordance with Section 754 of the AAL.

The court did, however, make such a review post trial and determined the agency record to be inadequate. Moreover, at the de novo hearing both parties had the opportunity to submit documents into evidence and adduce testimony, thus compiling a complete record, and the trial court did not find that any error occurred during the course of that hearing. Therefore, the failure to make the determination required by Section 754 before proceeding de novo is entirely harmless, and we reverse the grant of a new trial.


On the merits, concerning a very large water bill , the Authority sent an invoice to Appellants for water service at the Residence for the thirty-four day period of $12,627.18 based upon a purported consumption of 1,204,000 gallons of water. The meter reading history for water usage at the Residence for the twenty-three months prior to May 2007 indicated usage had not exceeded 10,000 gallons per month and often had not exceeded 5,000 gallons per month. The average monthly invoice amount, which reflected both actual meter readings and estimates, was less than fifty dollars. After a de novo hearing in the CCP, the court reduced the invoice to $42.98