admin. law - continuance - due process

Hite v. City of McKeesport – Pa. Cmwlth. – 3-8-24 – reported opinion

https://www.pacourts.us/assets/opinions/Commonwealth/out/180CD23_3-11-24.pdf?cb=1

 

Held: Claimant for disability pension was denied due process when his request for a continuance to subpoena an examining physician was denied.

 

From the opinion:  

 

The basic elements of procedural due process are “adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” . . . . Additionally, the opportunity to be heard must occur “at a meaningful time and in a meaningful manner.” . . . . This Court has noted that in addition, due process requires “an opportunity to offer evidence in furtherance of such issues.” . . . .We have further observed that “[t]he key factor in determining whether procedural due process is denied is whether the party asserting the denial of due process suffered demonstrable prejudice.” 

Additionally, the power to grant or refuse a continuance is an inherent power of a court or administrative agency, which is normally discretionary and subject to review only on a clear showing of an abuse of that discretion.  . . . .In such cases, our chief considerations in determining the existence of an abuse of discretion are “whether or not the grant or refusal of the continuance would be in furtherance of justice and whether or not a refusal would prejudice the rights of one of the parties.”

For example, in [one case] this Court concluded that the State Civil Service Commission abused its discretion in denying a continuance for the petitioner to obtain counsel, when the petitioner had attempted but was unable to obtain counsel prior to the hearing. See Replogle, 430 A.2d at 1222. By contrast, in a workers’ compensation matter, this Court upheld the denial of a continuance where each party had had ample opportunity to present its case, and the damaging testimony “sought to be refuted was extracted by appellant’s own counsel who called the claimant as his own witness as if on cross-examination, after a continuance at appellant’s request.” . . .. . This Court concluded that there was no abuse of discretion in denying a second request for a continuance in such circumstances.. 

In the instant matter, Hite requested a single continuance in order to secure the presence of a necessary witness.13 The hearing officer denied that request. However, the refusal of the continuance was not in the furtherance of justice: the opportunity to cross-examine Dr. Tucker was integral to Hite’s arguments on appeal.. . . . Further, the denial did prejudice Hite, as Dr. Tucker’s opinion was the basis for denying him his disability pension. . . . .Finally, if the hearing officer had granted the continuance, Hite would continue to receive what he had been receiving from the Plan: no money and no benefits. Accordingly, the denial prejudiced Hite, but not the Board.

 

 

procedural due process - right to pre-deprivation hearing - legislative act doctrine not applicable

Washington v. Pa. Department of Corrections – Pa. Supreme Court – December 19, 2023

 

Majority https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023mo%20-%20105773995249529739.pdf?cb=1

 

Concurring https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023co%20-%20105773995249530389.pdf?cb=1

 

Dissenting  https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023do%20-%20105773995249529957.pdf?cb=1

 

 Held: Prisoner’s right to procedural due process violated when it increased the rate of deductions from his prison pay from 20% to 25% without pre-deprivation notice and hearing. 

 

This was the case even though the increased deduction resulted from a statutory change, because the prison policy about deductions was not universal or even near-universal in application, but rather was applied differently to different inmates, based, inter alia, on their individual financial circumstances.

 

 

 

real property - tax sale - RETSL - waiver of personal services of notice of sale

Johnson v. Greene County Tax Claim Bureau – Cmwlth. Court – 1-16-24 – not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/266CD22_1-16-24.pdf?cb=1

 

Held: Tax sale was proper under Real Estate Tax Sale Law (RETSL), 72 P.S> sec. 5860.101 et seq., since

1. TCB complied with notice provisions of RETSL
2. TCB established good cause for waiver of personal service requirement

 

Good cause for waiver of personal service established, since

1. TCB twice made good faith efforts at personal service at the owner-occupied property
2. Objector called the TCB and was aware of the sale
3. Objector admitted having seen the notice of sale posted on the property

 

From the opinion

 

Standard of review – Appellate review in tax sale cases is limited to determining whether the trial court abused its discretion or erred at law. See Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006). When specifically reviewing a trial court’s decision to grant a tax claim bureau’s request to waive personal service, “we focus our inquiry on whether the trial court abused its discretion.” Appeal of Neff, 132 A.3d at 650. In considering whether a trial court abused its discretion, this Court looks to whether the trial court engaged in “a manifestly unreasonable exercise in judgment[] or [rendered] a final result that evidences partiality, prejudice, bias, or ill-will.” Allegheny Cnty. v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa. Cmwlth. 2009) (citation omitted). 

 

Actual notice of sale excuses strict compliance with notice provisions - While a tax sale is typically  void in the face of defective service, this Court has determined that “strict compliance with the notice requirements of Section 602 is not required when the [b]ureau proves that a property owner received actual notice of a pending tax sale.” Appeal of Neff, 132 A.3d at 645 (citing Sabbeth v. Tax Claim Bureau of Fulton Cnty., 714 A.2d 514, 517 (Pa. Cmwlth. 1998)). The trial court determined Objector had actual notice of the tax sale because Objector admitted to seeing the physical posting on the Property. Because Objector received actual notice, the Bureau was not required to show it satisfied Section 602’s certified mailing requirement. See id. 

 

The Tax Claim Bureau established good cause for waiver of personal service

The Petition alleged the Bureau made good faith efforts at personal service and did post the property for sale. Because the Bureau’s actions are cloaked in a presumption of regularity, we cannot say the Petition was facially defective. See Famageltto, 133 A.3d at 348. Therefore, we must determine whether the evidence the Bureau presented at the hearing on the Objections was sufficient to establish good cause to waive personal service under Section 601(a)(3). See id. at 348-89. 

In Appeal of Neff, this Court noted that while “good cause shown” is not defined in the Tax Sale Law, Pennsylvania courts have defined it to require a “substantial reason, one that affords a legal excuse.” Appeal of Neff, 132 A.3d at 650  (citation omitted). We also explained that what constitutes good cause shown will depend on the particular facts and circumstances in each case. Id. at 649-50. Finally, we noted “‘the determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion.’” Id. at 650 (citation omitted). 

Here, the Bureau established it attempted personal service on two occasions, once during the work week and once during the weekend, at different times of day. The Bureau also established it published notice of the tax sale and attempted to serve Objector through the mail on numerous occasions. In addition, the Bureau established it posted the Property and Objector had actual notice of the tax sale by virtue of seeing the posting. Under these circumstances, we cannot hold the trial court abused its discretion in determining the Bureau established good cause to waive personal service. 

++++++++++++++++++

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 (a)  An unreported opinion of this Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

UC - self-employment

Hope v. UCBR – Cmwlth Court – 1-16-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/1208CD22_1-16-24.pdf?cb=1

 

 

Held: UCBR decision that claimant was self-employed and liable for non-fault overpayment upheld, because

• Claimant controlled and directed his services as a tax consultant
• He chose the companies with whom he contracted
• He negotiated his pay rates
• He performed services on his own computer
• He most commonly received 1099 tax forms.

The decision has extended discussions of Starinieri v. UCBR, 289 A.2d 726 (Pa. 1972), and Lowman v. UCBRw, 235 A.3d 278 (Pa. 2020). 

UC - failure to subpoena crucial witness precludes claim of due process violation for inability to cross-examine that witness

Phila. Parking Authority v. UCBR – Cmwlth. Court – 1-17-24 – precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/116CD23_1-17-24.pdf?cb=1

 

Held: 

1. Where employer was not at initial hearing, failure to subpoena claimant at remand hearing precludes claim of violation of procedural due process for inability to cross-examine claimant, who testified at initial hearing.

2) Employer failed to prove claimant misconduct 

3) Court cannot reweigh the evidence, where the Board resolved conflicting evidence in favor of prevailing party

4) Where certain testimony is crucial to employer’s case, it must present that evidence directly, through a witness, and not by uncorroborated hearsay

 

UC - construction workers - employers v. indpt. contractors

Linda’s Cleaning Consultants v. Dept. of Labor and Industry – Pa. Cmwlth. – 1-18-24

https://www.pacourts.us/assets/opinions/Commonwealth/out/457CD21_1-18-24.pdf?cb=1

 

Linda’s Cleaning Consultants, Inc. (Employer) petitions for review of the March 26, 2021, decision and order of the Department of Labor and Industry (Department). The Department denied Employer’s petitions for reassessment of its required contributions to the unemployment compensation (UC) system after concluding that certain of Employer’s workers were employees and not independent contractors. Upon review, we affirm. 

 

Section 301 of the UC Law requires employers to pay contributions into the UC system based on their employees’ wages. See 43 P.S. § 781(a)(1).3 The UC Law defines “employment” as “all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as an officer of a corporation.” Section 4(l)(1) of the UC Law, 43 P.S. § 753(l)(1). “Once the Department shows that an individual is performing services for wages, as that term is defined under the [UC Law], the burden shifts to the taxpayer to bring itself within an exception” that would relieve the employer of having to pay contributions. A Special Touch v. Dep’t of Lab. & Indus., 228 A.3d 489, 503 (Pa. 2020) (quotation marks omitted). Employer contributions are a tax and therefore are to be construed in the employer’s favor, but the burden of disproving an individual’s employee status is heavy. Jia v. Unemployment Comp. Bd. of Rev., 55 A.3d 545, 548 (Pa. Cmwlth. 2012); Gulf & W. Corp. v. Dep’t of Lab. & Indus., Off. of Emp. Sec., 459 A.2d 1369, 1371 (Pa. Cmwlth. 1983). 

The relevant exception in both issues raised by Employer is whether an individual is an independent contractor as opposed to an employee. Subsection 4(l)(2)(B) of the UC Law states that an employer seeking to establish that an individual who has performed services for remuneration is an independent contractor must show that “(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. § 753(l)(2)(B). The employer must establish both factors, and whether it has done so is a question of law subject to our review. Tobey-Karg Sales Agency, Inc. v. Dep’t of Lab. & Indus., 34 A.3d 899, 903 (Pa. Cmwlth. 2011). 

Construction Workplace Misclassification Act, Act of October 13, 2010, P.L. 506, 43 P.S. §§ 933.1-933.17 (CWMA) 

 The UC Law includes a general provision to guide in determining whether an individual is an employee or independent contractor. If, however, the services rendered involve construction, then a preliminary determination must be made as to whether the more specific CWMA applies. In enacting the CWMA, “the legislature clearly intended to combat the deceptive business practice of classifying employees as independent contractors so as to avoid the expenses and responsibilities attending the employment relationship[.]” Dep’t of Lab. & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 187 A.3d 914, 924 (Pa. 2018) (Eastern Taste).

 

 

 

 

 

 

housing - reasonable accommodation - emotion support animal - "cautionary tale for landlords"

Jackson v. PHRC – Cmwlth. Court – 1-5-24 -  reported -  precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/46CD23_1-5-24.pdf?cb=1

 

Held:  PHRC finding favor of tenant upheld. The evidence established prima facie cases showing a) failure to grant reasonable accommodation  and b)retaliation against tenant.

 

Parties entered into lease on 2-1-19 for married couple, their two children, and Tenant’s adult dog, an emotional support animal (ESA). Things were ok until dog died in 6-19 and T asked L to approve a puppy ESA named Violet..  L refused, even though T offered to sign contract agreeing to replace carpet if it got damaged. When T again asked L to allow the puppy, L called her husband, who came home and called 911. L then put up no trespassing signs and had her lawyer send T a notice to quit. T moved out shortly thereafter and then filed a complaint with PHRC.

 

After a hearing at which T presented credible testimony and a detailed doctor’s note establishing her need for an ESA and L  did not present any evidence of undue hardship, the hearing examiner entered findings and a proposed order, which the PHRC adopted, directing that L a) cease and desist from discriminating against some who asks for a reasonable accommodation; b) cease and desist from retaliating against someone who engages in a protected activity; c) pay T’s reasonable moving expenses; d) pay T compensatory damages of $5,000; and e) pay the Commonwealth $3,000 as a civil penalty.

The concurring judge called this case “a cautionary tale for landlords. . . . [T]he PHRA provides an important bulwark against discrimination, including discrimination against those with mental health disabilities. Whether a landlord has one tenant or one thousand, he or she must comply with the PHRA. A landlord would be wise to familiarize himself or herself with all legal obligations and consult an attorney.”

 

civil procedure - default judgment - petition to open timeliness

Wilmington Savings Fund Society v. Bogo – Pa. Super. 12-27-23 – unreported**

https://www.pacourts.us/assets/opinions/Superior/out/J-A25023-23m%20-%20105782574250221495.pdf?cb=1

 

 Held: A petition to open a default judgment filed 167 days after that judgment was entered is not timely.

“In general, a default judgment may be opened when the moving party establishes three requirements: (1) a prompt filing of a petition to open the default judgment; (2) a meritorious defense; and (3) a reasonable excuse or explanation for its failure to file a responsive pleading.” Smith, 29 A.3d at 25. Additionally, “the trial court cannot open a default judgment based on the ‘equities’ of the case when the defendant has failed to establish all three of the required criteria.” Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009) (emphasis added). Hence, the court may dismiss a petition to open a default judgment based on one or more of the criteria. 

Here, the trial court denied relief based upon the first criteria – i.e., that the Bogos failed to file their petition to open the default judgment promptly. The promptness requirement stems from the fact that the party seeking to open a default judgment appeals to the equitable power of the court. Under the ancient maxim, “equity aids the vigilant, not those who slumber upon their rights.” Riley v. Boynton Coal Co., 157 A. 794, 795 (Pa. 1931). 

Equity’s window for lending aid closes quickly when parties seek to open judgments after defaulting under the Rules of Civil Procedure. “The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received.” Myers, 986 A.2d at 176. While there is no “specific time period within which a petition to open a judgment must be filed to qualify as [timely] . . . the [trial] court must consider the length of time between discovery of the entry of the default judgment and the reason for delay.” Id. “In cases where the appellate courts have found a ‘prompt’ and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month.” Id. 

Indeed, as the trial court said, our precedents are “clear regarding what should be deemed a prompt request to open a default judgment . . . .” Trial Court Order and Opinion, 1/13/23, at 2. Relying on US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009), the trial court observed that delays 55 days, 63 days, and 82 days were not prompt for equitable purposes. Id. (quoting US Bank N.A. and decisions cited therein). 

Here, the Bogos delayed far longer than any case upon which the trial court relied. They waited 167 days after the entry of the default judgments to appear and to petition to open those judgments. “Based on these previous decisions, we find support for the trial court’s conclusion that the delay in this case does not constitute a prompt filing, and therefore, we find no abuse of discretion on this basis.” US Bank N.A., 982 A.2d at 995. 

+++++++++++

Superior Court – unreported decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

employment - EMT certification - appeal - abuse of discretion

Knelly v. Pa. Dept. of Health – Cmwlth. Court (2-1)  – 12-13-23

https://www.pacourts.us/assets/opinions/Commonwealth/out/1088CD22_12-13-23.pdf?cb=1

 

Held: It was an abuse of discretion for the Dept. of Health to revoke Knelly’s EMT certification rather than impose a lesser penalty, even though Knelly (a) had entered plea of nolo contendere to second degree felony strangulation involving his minor son, and (b) he failed to report the conviction to the DOH, as required by statute. The court vacated the revocation and remanded the case for further consideration.

 

Scope and standard of review

Absent an accusation of bad faith or fraud, our review of a licensing board’s disciplinary sanction is limited to determining “whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.” Goldberger v. State Board of Accountancy, 833 A.2d 815, 817 n.1 (Pa. Cmwlth. 2003) (quoting Slawek v. State Board of Medical Education and Licensure, 586 A.2d 362, 365 (Pa. 1991)). Further, a professional licensing board exercises “considerable discretion in policing its licensees.” Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514, 519 (Pa. Cmwlth. 2009). The weight to be given to evidence of mitigating circumstances is a matter of agency discretion. Burnworth v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991). Nevertheless, this Court must “correct abuses of discretion in manner or degree of penalties imposed.” Ake, 974 A.2d at 519 (internal quotation omitted); see also Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990). 

 

Constitutional right to engage in lawful employment

Legal Principles Governing Licensure Revocation 

The Pennsylvania Supreme Court has long stated: 

[E]very citizen has an inalienable right to engage in lawful employment. While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected.

Secretary of Revenue v. John’s Vending Corporation, 309 A.2d 358, 361 (Pa. 1973) (citations omitted) (emphasis added). See also King v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 195 A.3d 315, 329 (Pa. Cmwlth. 2018) (“our Supreme Court has consistently interpreted [a]rticle I, [s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as guaranteeing an individual’s right to engage in any of the common occupations of life”) (emphasis added). 

Effect of plea of nolo contendere in this particular case –

The Court agreed that the imposition of the most severe sanction was without adequate consideration of mitigating evidence and the fact a nolo contendere plea does not itself sufficiently connect the conviction to his present ability to perform his duties as an EMT.  The Court also found that “the Department completely ignored several mitigating factors that are undisputed in the record—especially the parents’ “bitter custody battle” and “[m]ost tellingly, that Knelly currently has at least partial custody of his son pursuant to an informal agreement with his son’s mother. There is no meaningful discussion or weighing of these facts anywhere in the Department’s Final Determination, which absence we find to be manifestly unreasonable. We therefore conclude that the Department’s revocation of Knelly’s EMT certification based on his nolo contendere plea was a manifest abuse of discretion and unreasonable in these circumstances.”

 

Dissenting opinion of Judge Ceisler

The majority “improperly reweighed the evidence and made its own credibility determinations” contrary to those made by the hearing officer and Department – something that “this Court is not permitted to do.” 

 

Since we will never know if Knelly actually committed the underlying felony charge to which he pled, I believe it is prudent to err on the side of caution due to the severity of the allegations. We must also give deference to the hearing officer, who actually observed the witnesses’ testimony and made credibility determinations based on those observations. 

It would not be in the public’s best interest to allow an emergency medical technician (EMT) to remain certified and continue to dispense lifesaving care in extremely stressful situations after he has been convicted of physically harming his own minor child. 

In this situation, I am uncomfortable reweighing the evidence and substituting our credibility determinations for those of the hearing officer. Because I do not believe the Department abused its discretion in revoking Knelly’s EMT certification under the circumstances, I would affirm the Department’s Final Determination. 

 

 

 

 

 

 

 

 

 

civil procedure - appeals - PRAP 1925(b) - failure to timely file statement of matters complained of

Bertino v. Tax Claim Bureau – Pa. Cmwlth. 12-12-23 – unreported**

 

Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). 

Failure to comply with the minimal requirements of Pa. R.A.P. 1925(b) will result in automatic waiver of the issues raised,” even where granting relief has equitable appeal. Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005). 

Requiring “a bright-line rule eliminates the potential for the inconsistent results that existed prior to Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998), when trial courts and appellate courts had discretion to address or to waive issues raised in non-compliant Pa.[ ]R.A.P. 1925(b) statements.” Schofield, 888 A.2d at 774. Accordingly, “the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement[,] appellants and their counsel are responsible for complying with the Rule’s requirements.” Hill, 16 A.3d at 494. 

Rule 1925(b) requires that, to preserve issues for appellate review, the 1925(b) statement must be timely filed and served on a trial judge. Finding all of the appellant’s issues waived for not complying with Rule 1925(b)’s requirements is consistent with “the Supreme Court’s commitment to a bright-line rule of waiver for failure to comply with the requirements of Rule 1925.” Commonwealth v. $766.00 U.S. Currency, 948 A.2d 912, 915 (Pa. Cmwlth. 2008),

Here, the trial court’s July 22, 2022 order directed Bertino to file a Concise Statement within 21 days. Bertino did not file his statement until 25 days later; therefore, it was untimely. 

Rule 1925(b) requires both filing of the Concise Statement and service of that statement on the trial court within the time set forth in the order. The deadlines in Rule 1925(b) are unambiguous, and a concise statement “is either timely or it is not.” Tucker v. R.M. Tours, 977 A.2d 1170, 1173 (Pa. 2009). 

Because an untimely served statement “fail[s] to comply with the minimal requirements of Pa.[ ]R.A.P. 1925(b)[, it] will result in automatic waiver of the issues raised.” Schofield, 888 A.2d at 774. 

++++++++++++

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

admin. law - timely adjudication - mandatory v. directory - "purely judicial function" -

Kabiru v. Bureau of Professional and Occupational Affairs

Commonwealth Court – 11-21-23 – not reported**

 

Car salesperson appealed a decision of the BPOA, on the facts, and because the adjudication was issued past the 90-day deadline set out in the statute, 63 Pa.C.S. § 3105(d)(4), which provides that the “[Board] shall render a final adjudication or decision on any exceptions to the decision of a hearing examiner or any applications for review within 90 days of the filing of the exceptions or applications[.]”(emphasis added). 

 

The Court held that the “shall” language of the statute was not mandatory but merely directory, because the Board was exercising a “purely judicial function,” following the jurisprudence set out below.

 

From the opinion:

 

To be sure, “[i]t has long been part of the jurisprudence of this Commonwealth that the use of ‘shall’ in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory.” In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1071 (Pa. 2020). Indeed, in 1956, our Superior Court established: 

To hold that a provision is directory rather than mandatory, does not mean that it is optional—to be ignored at will. Both mandatory and directory provisions of the legislature are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings. 

Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956) (emphasis added). Nearly four decades later, this Court similarly held that “‘shall’ has generally been regarded as directory, unless time is of the essence or the statute indicates that the provision is mandatory.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool, 618 A.2d 1231, 1232 (Pa. Cmwlth. 1992) (citing Commonwealth v. Kowell, 228 A.2d 50 (Pa. Super. 1967)). 

We have also recognized the General Assembly may not “fix a time in which the exercise of a purely judicial function must occur and, thus, when a statute appears to do so it will be construed as directory.” West Penn Power Co. v. Pa. Pub. Util. Comm’n, 521 A.2d 75, 78 (Pa. Cmwlth. 1987) (emphasis added); see JPay, Inc. v. Dep’t of Corr., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (“[The Commonwealth Court] is particularly reluctant to find a statutory provision mandatory where it requires that a Commonwealth agency issue an adjudication within a specified time frame[.]”). 

The language of Section 3105(d)(4) does not prima facie invalidate the Board’s authority in the event its final adjudication—a “purely judicial function”—exceeds the statute’s 90-day deadline. First, it is well settled that “where a statute fixes a time for an adjudicating body, the language of the statute will be construed as directory because the courts cannot punish any of the litigants for the actions of the adjudicator.” Pub. Serv. Water Co. v. Pa. Pub. Util. Comm’n, 645 A.2d 423, 430 (Pa. Cmwlth. 1994) (citing West Penn, 521 A.2d at 78). We correspondingly determined in Schulze v. Bureau of Professional and Occupational Affairs, 794 A.2d 984, 989 (Pa. Cmwlth. 2002), and Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), that Section 3(d) of the Act of July 2, 1993, P.L. 345, formerly 63 P.S. § 2203(d), repealed by the Act of July 1, 2020, P.L. 575 (the predecessor to Section 3105(d)(1)), is a directory provision. “When the meaning of a word or phrase is clear when used in one section, it will be construed to mean the same thing in another section of the same statute.” Hous. Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 946 (Pa. 1999) (citing Commonwealth v. Maloney, 73 A.2d 707, 712 (Pa. 1950)). Section 3105(d)(4) is in pari materia with Section 3105(d)(1); therefore, Section 3105(d)(4) is equally directory. See 1 Pa.C.S. § 1932. For these reasons, the Board’s delay did not prejudice Petitioner; in fact, she actually “benefited from the delay through continuous, unencumbered licensure.”

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

PFA - no claim/issue preclusion where first PFA dismissed w/o prejudice - hearing required

Moyer v. Shaffer – Pa. Superior Court – 11-17-23 – reported, precedential

 

Held: Second PFA petition not precluded, where prior  PFA petition was dismissed w/o prejudice and w/o a hearing, even though second petition based on same facts as first.

 

Claim and issue preclusion (res judicata and collateral estoppel) only apply where the “controlling issues have been decided in a prior action, in which the parties had a full opportunity to assert their rights.” E.K. v. J.R.A., 237 
A.3d 509,521  (Pa.Super. 2020); Vignola v. Vignola 39 A.3d 390,  393 (Pa. Super. 2012).

 

Here, plaintiff/appellant first PFA petition “was not litigated on the merits.” Rather, the court dismissed the case without prejudice when plaintiff failed to appear at first hearing.

 

In addition, the lower erred court erred in dismissing the second petition without holding a hearing.  “The PFA Act states unequivocally” that a “hearing shall be held before the court. . . . “