F. Kelly v. OGC ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Kelly, :
Petitioner :
: No. 842 C.D. 2017
v. :
: Argued: October 19, 2017
Office of General Counsel, :
Respondent :
:
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 29, 2017
Petitioner Frank Kelly petitions for review of the June 6, 2017 order of the
Governor’s Office of General Counsel (OGC) dismissing his appeal of OGC’s decision
to withdraw its representation of him in an underlying suit filed against him by a former
Cheyney University (Cheyney) employee.
Facts and Procedural History
The present matter is related to the case captioned Thomas Flagg v.
International Union, Security, Police, Fire Professionals of America, Local 506;
International Union, Security, Police, Fire Professionals of America; Pennsylvania
State System of Higher Education; Cheyney University of Pennsylvania, and Frank
Kelly, (Pa. Cmwlth., No. 641 M.D. 2011, filed August 23, 2016), which is currently
pending before this Court. This Court’s August 23, 2016 opinion and order, ruling on
a motion by Kelly for summary relief in Flagg, set forth the lengthy factual and
procedural history of the case, a brief summary of which follows.
The underlying matter in Flagg arose from an alleged altercation that
occurred between Frank Kelly and Thomas Flagg, both of whom were sergeants in the
Cheyney University Campus Police Department and were members of the same “meet
and discuss” unit which was represented by the bargaining agents International Union,
Security, Police, Fire Professionals of America, Local 506 (Local 506) and
International Union, Security, Police, Fire Professionals of America (SPFPA).
Cheyney is one of the 14 public universities that comprise the Pennsylvania State
System of Higher Education (PSSHE). A memorandum of understanding existed
between PSSHE, Local 506, and SPFPA, which provided for a grievance and
arbitration procedure for resolving disputes regarding the imposition of discipline
against unit members. Flagg and Kelly had an acrimonious working relationship with
one another, which culminated in Kelly filing a complaint against Flagg with Cheyney,
resulting in Flagg’s termination in May 2007. Local 506 and SPFPA filed a grievance
for Flagg’s termination, which proceeded to arbitration and resulted in Flagg’s
reinstatement with a 30-day suspension in March 2009. Flagg, slip op. at 1-2.
Subsequently, Kelly and Flagg were involved in a physical altercation,
and Kelly filed a complaint against Flagg for assault, resulting in criminal charges
against Flagg. Flagg was initially placed on administrative leave but was terminated
while the charges were still pending. Local 506 and SPFPA once again filed a
grievance with Cheyney and PSSHE for Flagg’s termination. Kelly then sent a letter
to the president of Local 506, stating that Flagg had assaulted him, had been found
guilty, and had been ordered to attend anger management classes and refrain from
contacting him. Kelly also stated that rehiring Flagg would conflict with the criminal
2
court’s no-contact order and indicated that he was prepared to bring a class action suit
against Cheyney and SPFPA “to ensure the safety of all,” if they were to jeopardize his
safety by reinstating Flagg. Flagg, slip op. at 4. Approximately 10 months later,
SPFPA sent Flagg a letter advising that it would be terminating his grievance because
it determined that his grievance lacked merit to warrant arbitration. Flagg, slip op. at
3-4.
On November 14, 2011, Flagg filed a complaint in the Delaware County
Court of Common Pleas against Local 506 and SPFPA, seeking declaratory relief
requiring the unions to seek arbitration for Flagg’s 2010 termination and damages
against the unions for violating their duty of fair representation by arbitrarily and in
bad faith failing to pursue arbitration of his grievance. Flagg also listed Cheyney and
PSSHE as additional defendants. The matter was subsequently transferred to this Court
in its original jurisdiction, and in February of 2014, Flagg filed a motion for leave to
file an amended petition for review, which would allow him to add new parties,
including Kelly, and new claims. PSSHE, Cheyney, SPFPA, and Local 506 filed
objections, and Flagg withdrew the motion but simultaneously filed a motion for leave
to file a second amended petition for review. PSSHE objected to the first two counts
of the amended petition for review, but did not object to Counts III and IV, which
attempted to add Kelly as an additional respondent. SPFPA and Local 506 filed
objections to Counts I and IV. Flagg, slip op. at 4-5.
In July of 2014, this Court issued an order denying Flagg’s request to file
Count I but granted leave for Flagg to amend Counts II-IV, which permitted Flagg to
add Kelly as a respondent. Flagg subsequently filed the second amended petition for
review, which was served on Kelly in August of 2015. Count III was a 42 U.S.C.
§1983 action against Kelly for allegedly violating his First Amendment rights, and
3
Count IV was an action for tortious interference with contractual relations against
Kelly, SPFPA, and Local 506.
On August 28, 2015, PSSHE’s Chief Counsel, Andrew Lehman, sent a
letter to Kelly at his address on Lardner Street in Philadelphia indicating that the
Commonwealth would represent him in defense of the Flagg lawsuit for actions taken
by Kelly in the good faith exercise of his authority within the scope of his employment
as a police officer at Cheyney. (Adjudicator’s Finding of Fact No. 2(c).) The letter
also advised Kelly that the Commonwealth reserved the right to withdraw legal
representation and indemnification. The letter specifically stated,
[W]e will not represent you in for [sic] any actions that
were taken in your role as a SPFPA member involving
internal union business. Actions we consider as internal
union business, include but may not necessarily be
limited to letters written to SPFPA complaining about its
representation of Thomas Flagg. If new factual
information comes to our attention, we reserve the right to
reconsider our offer of legal representation and
indemnification and to withdraw our offer of representation
and/or indemnification.
(R.R. at 144a) (emphasis in original).
On August 31, 2015, Kelly accepted the terms of representation and
indicated that the best times to reach him were between 1:00 p.m. and 7:00 p.m. at the
telephone number he provided. The envelope Kelly used to return his
acknowledgement of the Commonwealth’s representation listed Kelly’s name and his
address on Lardner Street. All documents related to Kelly’s legal representation in the
Flagg suit were sent to the Lardner Street address in Philadelphia. (Adjudicator’s
Findings of Fact Nos. 2(c)-(h); R.R. at 145a-46a.)
In September 2015, Michael Ferguson, Esq., legal counsel for PSSHE,
entered an appearance on behalf of Kelly and filed an application for summary relief,
4
requesting dismissal of the claims against Kelly. (R.R. at 148a.) On August 23, 2016,
this Court issued an opinion granting Kelly’s application for summary relief as to Count
III of Flagg’s petition for review but denying it as to Count IV.
In September of 2016, Mr. Ferguson attached a copy of the August 23,
2016 opinion to an email he sent to Kelly, stating, “As discussed, I will be in contact.”
(R.R. at 150a.) Kelly notes that Mr. Ferguson did not mail a copy of the opinion to
him. (Kelly’s brief at 9.) In November 2015, Kelly states that he moved from the
Lardner Street address and lived at several other addresses in Philadelphia but did not
notify Mr. Ferguson or Mr. Lehman of his new mailing address. (Adjudicator’s
Findings of Fact Nos. 2(i)-(j).) Kelly states that he had several phone conversations
with Mr. Ferguson and that, throughout the litigation in this case, his phone number
did not change. (Kelly’s brief at 8.)
On September 28, 2016, Mr. Lehman mailed a letter to Kelly at his last
known address on Lardner Street, notifying him that the Commonwealth was
withdrawing its legal representation because Kelly’s actions in drafting the letter to
SPFPA requesting that it not represent Flagg were outside of the scope of his
employment. The letter also stated that Kelly had 10 days from the date of service of
the letter to appeal the decision and had the right to request an evidentiary hearing
under 2 Pa.C.S. §§501-508, 701-704. Although the letter was sent via certified mail,
it was returned to Mr. Lehman as “unclaimed” in early November 2016. (Adjudicator’s
Finding of Fact No. 2(k).)
In October 2016, Mr. Ferguson filed a petition for leave of court to
withdraw as counsel for Kelly citing a conflict of interest under Rule 1.7 of the Rules
of Professional Conduct and stating his belief that Kelly’s actions occurred outside the
5
scope of his employment. (Ferguson’s petition to withdraw at ¶10.)1 This Court issued
an order scheduling a telephone hearing for October 27, 2016, to hear argument on Mr.
Ferguson’s petition to withdraw, which it subsequently continued to November 21,
2016. Mr. Ferguson then filed an application for leave to file information regarding
the alleged conflict of interest in camera, ex parte, and under seal, which Kelly asserts
he did not receive since it was sent to the Lardner Street address, where he no longer
lived. In late October 2016, Mr. Ferguson sent a letter to Kelly at the Lardner Street
address, enclosing the Court’s order scheduling the hearing on the petition to withdraw.
(R.R. at 157a.)2 Kelly states that he did not receive this letter until approximately one
month later, on November 21, 2016. (Kelly’s brief at 12; Adjudication and Order at
10.)
On November 15, 2016, Mr. Ferguson sent Kelly a letter, enclosing a copy
of Mr. Lehman’s September 28, 2016 letter withdrawing representation to the Lardner
Street address, stating that the prior letter was returned as unclaimed. Both Mr.
Ferguson and Mr. Lehman assert that the November letter was not returned.
(Adjudicator’s Findings of Fact Nos. 2(l); R.R. at 152a.) The same day, the Court
granted Mr. Ferguson’s application to file information under seal.
Kelly states that, after learning for the first time about Mr. Ferguson’s
desire to withdraw as counsel, on November 27, 2016, he wrote to Lou Tartack, the
president of Local 506 and SFPFA, requesting that the union provide him with legal
1
The petition was filed on October 5, 2016, on the Flagg docket. Kelly asserts that, although
the post office verified that the petition was “left with an individual” at the Lardner Street address, he
did not receive notice of the petition since he had not lived there for nearly a year. (Kelly’s brief at
10.) Both Flagg and the union respondents, Local 506 and SPFPA, filed answers on October 10,
2016, and October 18, 2016, respectively. Kelly also notes that he was not served with the answers
to Mr. Ferguson’s petition. (Kelly’s brief at 11.)
2
Kelly emphasizes that in the letter Ferguson incorrectly stated that November 17, 2016, was
the date of the hearing. (Kelly’s brief at 12.)
6
representation. Kelly’s letter, which listed his current and correct address, was also
sent to Mr. Ferguson. (Adjudicator’s Finding of Fact No. 2(m); R.R. at 156a.)
In December 2016, Jill Fluck, Esq., entered an appearance on behalf of
PSSHE and Cheyney only and requested the withdrawal of Mr. Ferguson’s
representation of the same. The Court then issued an order granting Mr. Ferguson’s
application to withdraw as counsel but noted that the issue of whether PSSHE was
obligated to provide alternate counsel to Kelly was not before the Court.
Kelly states that on or about January 17, 2017, he received a copy of the
Court’s order granting Mr. Ferguson’s petition for withdraw. On January 19, 2017,
Kelly sent an email to Ms. Fluck, indicating that he was seeking an attorney to represent
him in the Flagg suit. On January 24, 2017, Mr. Lehman sent a letter to Kelly at his
current address, notifying him that the Commonwealth’s representation of him had
already been denied. (Adjudicator’s Findings of Fact Nos. 2(n)-(p); R.R. at 165a.)
On February 2, 2017, Dale Larrimore, Esq., faxed a letter to Mr. Lehman
and three other OGC attorneys on Kelly’s behalf, requesting that the Commonwealth
continue to provide representation to Kelly since all of his relevant conduct fell under
his duties and obligations as an employee of Cheyney. On February 14, 2017, OGC
sent a letter to Mr. Larrimore and Kelly, acknowledging Mr. Larrimore’s February 2,
2017 letter as a notice of appearance for an appeal of the decision to deny representation
to Kelly. (Adjudicator’s Findings of Fact Nos. 2(q)-(r).)
General Counsel Denise J. Smyler appointed Thomas P. Howell to serve
as an Adjudicator under 4 Pa. Code §39.3.3 The Parties stipulated to the facts and filed
3
In relevant part, section 39.3(b)(1) states:
If the General Counsel or the General Counsel’s designee determines
that the defendant’s conduct was a bad faith exercise of his authority,
7
briefs in support of their positions. In April 2017, based upon the Parties’ joint
stipulations, the Adjudicator determined that he was without jurisdiction to adjudicate
the dispute given Kelly’s untimely appeal and cancelled the scheduled hearing. On
June 6, 2017, the Adjudicator issued a decision and order dismissing Kelly’s appeal.
In his findings of fact, the Adjudicator reiterated the Parties’ stipulations.
(Adjudicator’s Findings of Fact Nos. 2(a)-(r); R.R. at 98a-101a.) Additionally, he
found that, based upon those stipulations, PSSHE mailed to Kelly, at his last known
address, a copy of the letter indicating its decision to withdraw representation on
September 28, 2016, and November 15, 2016. Accordingly, he found that Kelly was
aware of the Commonwealth’s withdrawal of representation “at least as of November
27, 2016, the date upon which he sought counsel from SPFPA” by writing to Mr.
Tartack. (Adjudicator’s Finding of Fact No. 4.) The Adjudicator emphasized Kelly’s
admission in the stipulations that he was aware on January 17, 2017, that he was no
longer being represented by the Commonwealth. Finally, the Adjudicator noted the
uncontradicted fact that Kelly did not file an appeal until February 2, 2017.
(Adjudicator’s Findings of Fact Nos. 3-6.)
In his conclusions of law, the Adjudicator stated that PSSHE carried the
burden in the proceeding and that Kelly, who was represented by counsel, had a full
opportunity to be heard with regard to his appeal. (Adjudicator’s Conclusions of Law
Nos. 1, 2.) The Adjudicator concluded that Kelly had not filed a timely appeal under
malicious or outside the scope of his employment, the General
Counsel, in his sole discretion, will determine whether the
Commonwealth will undertake the defense of the defendant. The
Commonwealth will not indemnify the defendant for a judgment
against him, and will notify the defendant that he may be subject to
personal liability and should engage his own attorney.
4 Pa. Code §39.3(b)(1).
8
4 Pa. Code §39.13,4 because it was not filed within 10 days of receiving notice that the
Commonwealth was withdrawing representation. (Adjudicator’s Conclusions of Law
Nos. 3, 7.) The Adjudicator further concluded that Kelly had not proceeded with
reasonable diligence once he became aware of the withdrawal of representation, which
occurred, at the latest, on January 17, 2017. (Adjudicator’s Conclusion of Law No. 8.)
In the discussion, the Adjudicator noted Kelly’s admission in his brief that
he became aware of the Commonwealth’s decision as early as November 21, 2016—
the date Kelly acknowledged receiving Mr. Ferguson’s October 28, 2016 letter
advising him of a hearing on his petition to withdraw—but did not appeal the decision
and instead “sought out legal representation through other means.” (Adjudication and
Order at 10.) That delay, as well as Kelly’s failure to notify PSSHE of his current
address, the Adjudicator determined, showed a “‘lack of reasonable diligence, which
[was] not excused’ by a claim that he was unaware of ‘the time for appeal.’”
(Adjudication and Order at 10) (citing Ercolani v. Department of Transportation,
Bureau of Driver Licensing, 922 A.2d 1034, 1037 (Pa. Cmwlth. 2007)).
4
In relevant part, section 39.13(d)(1) states:
If OGC disapproves a request for legal representation by
Commonwealth attorneys or attorneys retained by the Commonwealth
under subsection (b); denies a request for reimbursement of fees and
expenses under subsection (b) or (c); or determines under subsection
(b) or (c) that a member, official or employe is not entitled to
indemnification for the expense of a judgment or settlement--the
member, official or employe may file a petition of appeal to the General
Counsel under 1 Pa. Code § 35.20 (relating to appeals from actions of
the staff) within 10 days after service of the notice of the decision of
OGC.
4 Pa. Code §39.13(d)(1) (emphasis added).
9
Furthermore, the Adjudicator, noting that Mr. Ferguson was not made
aware of Kelly’s address change until he received a copy of Kelly’s November 27,
2016 letter to Mr. Tartack, stated that PSSHE was entitled to the rebuttable presumption
that items deposited in the United States mail, addressed to an individual’s last known
address, were received by that individual. Because Kelly had not rebutted that
presumption and because he did not attempt to notify PSSHE of his pending move or
new contact information, the Adjudicator held that he was not entitled to nunc pro tunc
relief. As such, the Adjudicator determined that the untimely appeal divested him of
jurisdiction to consider the merits of whether Kelly was entitled to Commonwealth
representation and indemnification and dismissed the appeal. Kelly’s appeal is now
before this Court.5
Discussion
Kelly contends that: (1) OGC violated his due process rights by not
ensuring that he received notice that OGC was withdrawing from representing him and
by refusing to provide replacement counsel for litigation in which Kelly was being sued
for actions he took on behalf of Cheyney and PSSHE; and (2) he did not forfeit his
5
This Court's review is limited to a determination of whether constitutional rights were
violated, whether the adjudication is in accordance with the law and whether necessary findings of
fact are supported by substantial evidence. 2 Pa.C.S. §704.
10
right to representation under 4 Pa. Code §39.26 or §39.37 by filing an appeal of the
decision on February 2, 2017, which was within 10 days of his receipt of the January
6
In pertinent part, section 39.2 reads:
When a Commonwealth official or employe is sued in his official or
individual capacity for alleged negligence or other unintentional
misconduct occurring while in the scope of employment, the
Commonwealth will provide a defense in all cases.
4 Pa. Code §39.2.
7
Section 39.3 reads:
(a) Good faith in exercise of authority. Regardless of the allegations
made against the defendant, if it appears to the General Counsel or to
the General Counsel's designee that the defendant's conduct giving rise
to the cause of action was within the scope of his employment and a
good faith exercise of his authority, the Commonwealth, or its
insurance company if there is coverage, will undertake the defense with
an attorney of its choosing at its expense, and will indemnify the
defendant for the expense of a judgment against him or a settlement
that is approved by the General Counsel or the General Counsel's
designee. The defendant may engage his own attorney but
indemnification and reimbursement of attorneys fees by the
Commonwealth will be in the sole discretion of the General Counsel.
(b) Bad faith or malicious conduct, or conduct outside the scope of
employment.
(1) If the General Counsel or the General Counsel's
designee determines that the defendant's conduct was a
bad faith exercise of his authority, malicious or outside
the scope of his employment, the General Counsel, in
his sole discretion, will determine whether the
Commonwealth will undertake the defense of the
defendant. The Commonwealth will not indemnify the
defendant for a judgment against him, and will notify
the defendant that he may be subject to personal liability
and should engage his own attorney.
11
24, 2017 letter from Mr. Lehman because the operative date which triggered the 10-
day appeal period was January 24, 2017, when Mr. Lehman responded to Kelly’s letter
to Ms. Fluck.
OGC’s authority to determine whether a Commonwealth employee who
is subject to a civil suit will be afforded legal representation or reimbursed for
attorney’s fees is governed by 4 Pa.Code §39.13, which clearly states, “If OGC
disapproves a request for legal representation . . . the member, official or employe may
file a petition of appeal to the General Counsel . . . within 10 days after service of the
notice of the decision of OGC.”
“The law is well settled that statutory appeal periods are mandatory and
may not be extended as a matter of grace or mere indulgence.” Stanton v. Department
of Transportation, Bureau of Driver Licensing, 623 A.2d 925, 926 (Pa. Cmwlth. 1993).
However, our Supreme Court has previously held that appellate courts may grant a
party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary
circumstances. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001). Such circumstances
traditionally included fraud or breakdown in the court’s operations; however,
negligence on behalf of a petitioner or counsel cannot justify a grant of nunc pro tunc
appellate rights. Stanton, 623 A.2d at 926. Furthermore, a petitioner “must proceed
with reasonable diligence once he knows of the necessity to take action.” Id. at 927.
(2) If the General Counsel or the General Counsel's designee
has determined initially that the defendant's conduct was a bad
faith exercise of his authority, malicious or outside the scope of
his employment, and the defendant ultimately prevails in the
civil action, the General Counsel, in his sole discretion, may
determine that the Commonwealth will reimburse the
defendant for the costs of defense and fees of his private
attorney.
12
Moreover, we note that the “mailbox rule creates a rebuttable presumption
that an item which is properly mailed will be received; the presumption cannot be
nullified by only an assertion that the item was not received. Notably, this Court has
stated that evidence of actual mailing is not required.” C.E. v. Department of Public
Welfare, 97 A.3d 828, 832 (Pa. Cmwlth. 2014) (internal citations and quotation marks
omitted) (citing Department of Transportation v. Brayman Construction Corp., 513
A.2d 562, 566 (Pa. Cmwlth. 1986)).
Here, the Parties stipulated that:
On November 15, 2016, Michael Ferguson claims he sent a
letter to Kelly, which included a copy of Chief Counsel
Lehman’s certified letter dated September 28, 2016[, which
notified him of the decision to withdraw and the 10-day
appeal period]. Michael Ferguson sent the letter to Kelly at
the Lardner Street address. Michael Ferguson and Andrew
Lehman claim that the United States Postal Office did not
return the letter.
(Adjudication and Order at 4) (emphasis added). Notably, Kelly argues that the letter
was not received since it was sent to his former address, but he does not contend that
the letter was not sent. Accordingly, under the mailbox rule, there is a presumption
that the letter was received by Kelly, which was not rebutted by his mere assertion that
he did not receive it. As such, Kelly had constructive notice of OGC’s decision to
withdraw as counsel and of the 10-day appeal period in November 2016. Kelly did not
appeal the decision or reach out to Mr. Ferguson or OGC, but instead wrote to Mr.
Tartack inquiring about representation on November 27, 2016.
Additionally, Kelly conceded that he “received notice on or about January
17, 2017, that he was no longer represented by the Commonwealth regarding Thomas
Flagg’s pending petition in the Commonwealth Court.” (Adjudicator’s Finding of Fact
No. 2(n).) As such, it is clear that, at the latest, by January 17, 2017, Kelly had actual
13
notice of OGC’s decision. Thus, Kelly had 10 days forward, until January 27, 2017,
to appeal the decision. Having failed to do so until February 2, 2017, Kelly’s appeal
was untimely, thereby divesting the Adjudicator of jurisdiction to consider the merits
of whether Kelly was entitled to Commonwealth representation. See Commonwealth
v. Yorktowne Paper Mills, Inc., 214 A.2d 203, 205 (Pa. 1965).
We reject Kelly’s argument that the decision to cease representation of an
employee is different from one disapproving a request for representation. Kelly argues
that, because PSSHE had already entered an appearance on Kelly’s behalf, some
additional type of notice was required when OGC decided to cease representation, and
that, because a withdrawal of representation is different from a decision not to engage
in representation from the start, the 10-day appeal period did not apply to Kelly until
he discovered that the Commonwealth was not going to supply him with alternative
counsel. This, Kelly argues, only occurred on January 24, 2017, when Mr. Lehman
sent a letter to Kelly in response to his request that Ms. Fluck provide him with
representation, reiterating that the Commonwealth had already declined to represent
him and attaching the letter from September 28, 2016. Kelly, however, cites no
authority for the proposition that OGC’s decision to deny counsel was not effective
until this Court granted leave for withdrawal. As OGC notes in its brief,
The standard under which the Commonwealth will provide
representation and indemnification under 4 Pa. Code § 39.3is different than the standard used by a court in determining
whether to grant an attorney leave to withdrawal as counsel
pursuant to Pa.R.C.P. [No.] 1012 . . . . Both actions follow
separate and distinct tracts that do not intersect.
(OGC’s brief at 18.) Moreover, Kelly does not explain how the ineffectiveness of
OGC’s withdrawal until the grant of court approval would have had the effect of
extending his time to appeal to February 2, 2017, given his acknowledgement of having
14
received the Court’s order granting leave to withdraw in his November 27, 2016 letter
to Mr. Tartack.
Kelly’s assertion that he was unaware of whether he would be receiving
substitute counsel does not bolster his argument. The initial letter from Mr. Lehman
offering representation in the matter specifically stated, “If new factual information
comes to our attention, we reserve the right to reconsider our offer of legal
representation and indemnification and to withdraw our offer of representation and/or
indemnification.” (R.R. at 144a.) Thus, Kelly must have had some idea that this was
a possibility. In Kelly’s November 27, 2016 letter to Mr. Tartack seeking
representation from the union, he states, “It has been brought to my attention that
Michael S. Ferguson, [PSSHE’s] Legal Counsel, has withdrawn as my counsel.” (R.R.
at 156a) (emphasis added). If Kelly was unsure of whether he was going to be provided
alternative counsel, Kelly might have easily resolved the question by reaching out to
Mr. Ferguson, per their “established pattern of communicating by phone and email.”
(Kelly’s brief at 21.) Instead, as the Adjudicator noted, Kelly chose to seek out
representation through other means, namely through his union and PSSHE, instead of
seeking an appeal. Although it does not appear that Kelly has specifically requested
nunc pro tunc relief, his actions after having received notice foreclose that option since
he failed to act with the reasonable diligence required by one seeking a nunc pro tunc
appeal. See Stanton, 623 A.2d at 926.
Finally, to the extent that Kelly asserts he was entitled to an evidentiary
hearing on the merits, we have previously held that “a hearing is not required in every
case.” Irizarry v. Office of General Counsel, 934 A.2d 143, 149 (Pa. Cmwlth. 2007).
This Court has held that where no factual issues are in
dispute, no evidentiary hearing is required under 2 Pa.C.S. §
15
504.[8] Where there are no disputed facts, the motion
proceedings, including briefs and arguments by both parties,
provide ample opportunity for the parties to be heard and the
Administrative Agency Law requires no more.
Id. (internal citations omitted) (quoting Independence Blue Cross v. Pennsylvania
Insurance Department, 802 A.2d 715, 720 (Pa. Cmwlth. 2002)).
Here, the Adjudicator reached his determination by relying entirely upon
the Parties’ stipulations, and accordingly there were no facts in dispute with regard to
the preliminary question of whether Kelly’s appeal was timely. Although there may
have been factual disputes as to the merits, specifically, whether Kelly’s conduct was
within the scope of his employment, the Adjudicator correctly determined he was
without jurisdiction to consider the merits given the untimely appeal. See Yorktowne
Paper Mills, Inc.
Conclusion
In sum, the Adjudicator properly noted that, per the Parties’ stipulations,
Kelly was aware of the Commonwealth’s decision to withdraw representation as of
November 27, 2016, and conceded he had knowledge as of January 17, 2017. By either
measure, Kelly failed to file an appeal within 10 days and, as such, the Adjudicator
properly determined that his appeal was untimely. Moreover, the Adjudicator properly
declined to grant a nunc pro tunc appeal because of Kelly’s clear failure to act with
reasonable diligence once he, by his own admission in his November 27, 2016 letter,
became aware that his attorney had withdrawn from representation.
Accordingly, OGC’s order dismissing Kelly’s appeal as untimely is
affirmed.
8
Section 504 of the Administrative Agency Law provides: “No adjudication of a
Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable
notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded
and a full and complete record shall be kept of the proceedings.” 2 Pa.C.S. §504.
16
________________________________
PATRICIA A. McCULLOUGH, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Kelly, :
Petitioner :
: No. 842 C.D. 2017
v. :
:
Office of General Counsel, :
Respondent :
:
ORDER
AND NOW, this 29th day of November, 2017, the June 6, 2017 order
of the Governor’s Office of General Counsel is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge