L. Allen v. City of Philadelphia ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lisa Allen, :
Appellant :
:
v. :
: No. 764 C.D. 2021
City of Philadelphia : Submitted: March 25, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 10, 2022
Lisa Allen (Allen), pro se, appeals from an order of the Court of
Common Pleas of Philadelphia County (lower court) that affirmed the denial of
Allen’s grievance filed with the Philadelphia Housing Authority (PHA). Allen
contends that PHA erred during disposition of her administrative grievance by
failing to consider her allegations of an interpersonal dispute with PHA personnel.
Upon review,1 we affirm the lower court’s order.
I. Background
Allen has a lease with PHA for the United States Department of
Housing and Urban Development (HUD) assisted housing in Philadelphia. As part
1
Our review of the lower court’s order “is limited to determining whether [Allen’s]
constitutional rights have been violated and whether the lower court manifestly abused its
discretion or committed an error of law.” Cox v. Johnstown Hous. Auth., 212 A.3d 572, 577 n.10
(Pa. Cmwlth. 2019).
of PHA’s biennial lease recertification process, PHA scheduled a meeting with Allen
for January 22, 2020. Supplemental Reproduced Record (SRR) at 68b.2 Allen
complained that the meeting was scheduled too far in advance of her May
recertification date and insisted the meeting be moved to a later date not more than
90 days before the recertification date; PHA accommodated that demand.3 Id. at
68b-69b. The meeting was later moved up a week; Allen complained but kept the
new meeting appointment. Id. at 69b.
As the recertification process progressed, PHA’s property manager
informed Allen that records showed she had not complied with a requirement for
112 hours of community service in an earlier certification term. SRR at 70b. Allen
disputed the applicability of the community service requirement, claiming she was
exempt. Id. at 70b-71b. At the hearing before an administrative law judge (ALJ),
discussed further below, Allen provided a PowerPoint presentation in which she
claimed PHA’s manager “verbally threatened” to terminate her lease if she did not
sign an acknowledgment regarding her obligation to perform community service.
Id. at 110b. In its brief before the lower court, PHA averred that Allen was ultimately
not required to sign the community service form because HUD issued a community
service waiver in March 2020 in light of the COVID-19 pandemic. Original Record
(OR) at 259. In any event, the only lease termination notice PHA issued was based
on Allen’s failure to provide unemployment information; by the time of the hearing
2
Allen filed this appeal in forma pauperis and, accordingly, did not file a reproduced
record. See Pa.R.A.P. 2187(c) (providing requirements for appellants filing in forma pauperis to
file briefs, but not requiring reproduced records). PHA elected to file a supplemental reproduced
record, but neglected to number the pages properly by following each page number with a small
“b.” See Pa.R.A.P. 2173 (directing that page numbers in a supplemental reproduced record shall
be followed by “b”). References herein to the supplemental reproduced record are numbered as
required by Rule 2173.
3
Allen does not explain the significance, if any, of the meeting date.
2
before the ALJ, that issue had been resolved, and there was no termination notice
outstanding. SRR at 81b & 116b. Allen does not allege that she has been required
to perform any community service.
Allen also received several notices of rent increases to be effective May
1, 2020, based on failure to provide PHA with updated information concerning her
unemployment compensation benefits. SRR at 72b & 75b-80b. PHA was later able
to verify that Allen no longer had income from unemployment benefits; as a result,
Allen’s monthly rent, which had been $57.00, dropped to PHA’s minimum of $50.00
beginning May 1, 2020. Id. at 75b-80b. Allen was never required to pay any rent
increase. Id. at 82b.
Notwithstanding the resolution of all recertification issues, Allen
complained about the conduct of PHA’s manager during the recertification process;
Allen insisted on receiving a grievance hearing before an ALJ, which was held
virtually on December 6, 2020. See SRR at 63b-86b. At the start of the hearing, the
ALJ explained that “the grievance is only about rent calculation and recertifications.
Because that’s what the grievance is based on. . . . When it goes to interpersonal
relationships between residents and management, unfortunately that’s not something
that I have any jurisdiction over.” Id. at 66b. Nonetheless, Allen persisted in raising
issues concerning what she perceived as the manager’s errors during the
recertification process, attributing improper motives to the manager and becoming
increasingly argumentative until the ALJ eventually had to mute Allen’s
microphone, and then, observing that “we can’t seem to get a word in edgewise,”
was forced to conclude the hearing. Id. at 68b-86b.
Finding that Allen had no outstanding request for relief connected to
recertification, the ALJ denied her grievance. SRR at 124b-27b. Allen obtained
3
counsel and appealed to the lower court, which affirmed after briefing and argument
without taking additional evidence. Id. at 8b. Allen then appealed to the Superior
Court, which transferred her appeal to this Court.
Upon receipt of Allen’s notice of appeal, the lower court issued an order
on July 8, 2021,4 pursuant to Pa.R.A.P. 1925(b), directing Allen to file, within 21
days, a concise statement of errors complained of on appeal (Statement). OR at 303.
The order stated, inter alia, that any issues not included in a timely filed Statement
would be deemed waived. Id.On or about July 8, 2021, Allen’s counsel filed a request to withdraw.
See OR at 305. On July 26, 2021, the lower court issued a rule to show cause giving
Allen 20 days to contest counsel’s withdrawal, absent which the withdrawal would
be granted. Id. at 315.
On July 27, 2021, Allen filed a motion for an extension of time to file
her Rule 1925(b) Statement. Id. at 316-23. In the motion, Allen averred that counsel
had initially agreed to represent her pro bono on appeal, but then retracted that offer.
Id. at 318. She asserted that in light of counsel’s withdrawal, which she apparently
assumed the lower court had effectively granted by its July 26, 2021 order, she would
need additional time to complete a 1925(b) Statement on her own in light of its
imminent due date. Id.
Allen filed her motion using the lower court’s preprinted form. See OR
at 316-23. The instructions on the form indicated the motion would be forwarded to
the court after the response due date, but the form did not state what the response
period was and did not inform Allen that she needed to take any other action besides
filing the motion in order to get it before the court. See generally id. The form also
4
The order was not docketed until July 12, 2021.
4
did not provide an option to designate the motion as one seeking emergency relief.
Id. Moreover, the applicable local rule governing emergency motions, Philadelphia
Civil Rule 208.3(a)(1), merely states that such motions will be assigned to a judge
but does not provide instruction on how to designate a motion as one seeking
emergency relief. Phila. Civ. R. 208.3(a)(1).
Because the motion for extension was not designated as seeking
emergency relief, the lower court did not address it before the July 29, 2021 due date
for Allen’s Rule 1925(b) Statement. SRR at 9b-10b. Allen filed her 1925(b)
Statement on August 16, 2021. Id. at 10b & 13b-14b. The motion for extension was
finally assigned to the court on August 18, 2021, at which point the lower court
denied it as moot. See id. at 10b.
After reviewing Allen’s 1925(b) Statement, the lower court filed a Rule
1925(a) opinion in support of its order affirming the PHA’s denial of Allen’s
grievance. SRR at 9b-12b; see Pa.R.A.P. 1925(a). After reciting the circumstances
surrounding Allen’s motion for extension, the lower court concluded that Rule
1925(b) sets forth a bright line rule requiring timely filing of the 1925(b) Statement.
SRR at 9b-11b. Therefore, if a 1925(b) Statement is untimely filed, an automatic
waiver applies, and no issues are preserved for appeal. Id. at 11b (first citing Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223-24 (Pa. Super.
2014); and then citing Jenkins v. Fayette Cnty. Tax Bureau, 176 A.3d 1038, 1041
(Pa. Cmwlth. 2018)). Because the lower court’s 1925(b) order was docketed on July
12, 2021, and Allen did not file her 1925(b) Statement until August 16, 2021, the
lower court concluded she had waived all issues on appeal. SRR at 11b.
Despite its finding of waiver, however, the lower court addressed the
merits of Allen’s appeal. The court explained that the applicable regulation allows
5
a tenant to grieve a dispute regarding PHA’s “action or failure to act in accordance
with the individual tenant’s lease or PHA regulations.” SRR at 12b (quoting 24
C.F.R. § 966.53) (internal quotation marks omitted). As the court explained,
“[b]ecause the issue [] Allen raised with PHA concerns an interpersonal dispute, and
does not involve her lease with PHA, or any PHA regulation, the issue was not a
proper issue for the administrative grievance.” SRR at 12b. Accordingly, the lower
court opined that this Court should affirm the lower court’s order affirming PHA’s
decision. Id.II. Issues
In an order dated October 8, 2021, this Court directed the parties to
address in their briefs the question of whether Allen’s untimely 1925(b) Statement
failed to preserve any issues for appeal. PHA echoes the lower court’s determination
of untimeliness and resulting failure to preserve issues. Allen does not address the
question in her brief.
In her 1925(b) Statement, Allen raises a single issue for appeal. Allen
asserts that the grievance officer made an error of law in determining that PHA
lacked jurisdiction to entertain Allen’s grievance. SRR at 14b. Allen insists the ALJ
should have addressed the interpersonal issues Allen raised concerning the alleged
conduct of the PHA property manager during the recertification process. Id.III. Discussion
A. Untimely 1925(b) Statement
As a threshold matter, we must consider whether Allen preserved her
asserted issue for appeal in light of the untimely filing of her 1925(b) Statement.
6
Rule 1925(b)(2)(i) requires a judge to allow at least 21 days from the docketing date
of an order for an appellant to file a 1925(b) Statement. Pa.R.A.P. 1925(b)(2)(i).
The rule also expressly allows a judge, “upon application of the appellant and for
good cause shown,” to enlarge the time for filing the Statement. Id.In Bierley v. Kowalski (Pa. Cmwlth., No. 551 C.D. 2017, filed March
2, 2018),5 the appellant filed a timely application for an extension of time to file a
1925(b) Statement, which averred potential good cause for an extension but which
the common pleas court denied after the expiration of the 21-day period for filing
the Statement. See id., slip op. at 4-5. Because the common pleas court failed to
determine whether the appellant had shown good cause for an extension of time
before denying the application, this Court remanded the matter for such a
determination, as well as a determination of whether the application merited nunc
pro tunc relief. Id., slip op. at 5-6; see also Commonwealth v. Hopfer, 965 A.2d 270,
271 (Pa. Super. 2009) (holding that “when an appellant timely files for an
enlargement or extension of time within which to file his Rule 1925(b) statement,
the []court must explain why it finds that good cause was not shown before it may
deny the request”).
Here, the lower court’s order for a 1925(b) Statement was docketed on
July 12, 2021, and Allen’s Statement was due 21 days thereafter, on August 2, 2021.
Upon receiving the court’s July 26, 2021 order regarding her counsel’s withdrawal,
Allen promptly filed a motion on July 27, 2021 seeking an extension of time in order
to file her Statement pro se. OR at 316-23. Allen expressly stated in the motion that
the due date for the Statement was imminent and that the court’s order was allowing
5
Unreported opinions of this Court issued after January 15, 2008 may be cited for their
persuasive value pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a).
7
her counsel to withdraw. Id. at 318. Nothing on the court’s preprinted form alerted
her to either the court’s regular timetable for consideration of her motion or the
necessity or procedure for specifically designating the motion as seeking emergency
relief. See generally id. at 316-23. Indeed, even had Allen sought guidance in the
court’s local rules, she would have found no information directing her to notify the
court that she was seeking emergency relief or explaining how to do so. See Phila.
Civ. R. 208.3(a)(1).
The lower court did not consider the motion for extension because the
court’s regular motions procedure did not provide the motion to the judge until after
the due date for the 1925(b) Statement. See SRR at 9b-10b. The court then simply
concluded the motion was moot, making the Statement untimely and resulting in
automatic waiver of Allen’s issue on appeal. Id. at 10b. However, nothing in Rule
1925 requires more than the timely filing of an extension request before the court
must make a good cause determination. Allen’s motion for an extension was facially
timely. Further, it averred potential good cause for an extension based on counsel’s
withdrawal. Accord Zokaites Props., LP v. Butler Twp. Unif. Constr. Code Bd. of
Appeals (Pa. Cmwlth., No. 519 C.D. 2016, filed May 3, 2017), slip op. at 9
(observing that “[e]xamples of ‘good cause’ as provided in the note to Rule
1925(b)(2) include the retention or appointment of new counsel”). Therefore, we
are persuaded by the holdings of Bierley and Hopfer that the lower court here should
have considered whether Allen’s motion asserted good cause for an extension of
time before denying the motion. This is particularly so because, as explained above,
the lower court’s local rules and preprinted motion form both failed to apprise Allen
8
of the need to designate her motion as an emergency in order to obtain a disposition
before the due date for her 1925(b) Statement.6
Our holding in Bierley suggests that a remand is appropriate to allow
the lower court to determine whether Allen’s motion established good cause for an
extension and, thus, whether her 1925(b) Statement should be deemed timely. See
also Zokaites, slip op. at 5-6. However, in the interest of judicial economy, and
because both parties have addressed the merits underlying Allen’s claim, we will
treat the Statement as timely and dispose of Allen’s appeal on its substance, which
we conclude is without merit, such that the lower court’s error, if any, in finding the
1925(b) Statement untimely is harmless.
B. Merits of Allen’s Appeal
PHA’s written grievance procedure explains:
PHA’s grievance procedure is for resolving disputes
between a tenant and PHA because of either an action that
PHA did or that it failed to do (under the lease or under
PHA’s regulations), which will have an “adverse” impact
on the tenant’s rights, duties, welfare or status. This
includes lease termination, eviction, adding charges for
maintenance or repair, not scheduling timely repairs, or
transferring to another unit. It is not for disputes between
tenants, for class grievances, or for dealing with issues
between tenants or tenant groups and the PHA Board of
Commissioners, personal injury, property damage or
challenging PHA policies. 24 [C.F.R.] §§ 966.51, 966.53.
SRR at 24b (emphasis added). In her grievance, Allen was not seeking any specific
relief regarding her lease or the outcome of the recertification process. Her only
6
We observe, however, that Allen was ill advised to assume her motion had been granted
and to file her Statement 14 days late without having received an extension order from the lower
court. We further observe that, in light of Allen’s failure to follow this Court’s directive to discuss
the timeliness issue in her brief, we do not have the benefit of any explanation for that assumption.
9
argument was and is that PHA should have considered and addressed her complaints
that she was treated unfairly during recertification.7 However, PHA accommodated
Allen’s demand for a later recertification meeting; rescinded its notices of rental
increase once she documented her lack of income, without ever charging her a higher
rent; and rescinded its notices of lease termination. SRR at 68b-69b & 75b-82b. In
light of the fact that all of the disputed lease issues were resolved by PHA in Allen’s
favor during recertification and prior to the hearing, we agree with both the ALJ and
the lower court that nothing remained for adjudication in a grievance pursuant to 24
C.F.R. § 966.53. Accordingly, we affirm the lower court’s order regarding the
merits of Allen’s appeal.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
For example, in her PowerPoint presentation at the ALJ hearing, Allen alleged, inter alia,
that she was “interrogated” concerning why she wanted to change her initial certification
appointment from January to February 2020; that the manager was “quarreling back and forth”
about the appointment change “with a joker smile upon her face”; that the manager began reading
the applicable HUD regulations to Allen “really, really fast as if [Allen] wasn’t going to catch
her”; that the manager “gave [Allen] the evil eye”; that the manager smoked cigarettes outside in
front of her office although there was a no-smoking sign, causing second-hand smoke to drift
toward Allen’s rental unit; that the manager was “abusing [PHA] policy for personal self[-]
gratification”; and that the manager had “a smurk gesture upon her face” while requesting that
Allen sign a form agreement to cure her non-compliance with her community service obligation.
SRR at 96b-104b & 109b.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lisa Allen, :
Appellant :
:
v. :
: No. 764 C.D. 2021
City of Philadelphia :
ORDER
AND NOW, this 10th day of June, 2022, the order of the Court of
Common Pleas of Philadelphia County, dated June 10, 2021, is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge