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DONALD L. WHITTAKER v. COMMONWEALTH PENNSYLVANIA (09/23/86)

decided: September 23, 1986.

DONALD L. WHITTAKER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Appeal from the Order of the Pennsylvania State Police in the case of Re: Donald Whittaker, dated August 22, 1984.

COUNSEL

Anthony C. Busillo, II, Mancke, Lightman & Wagner, for petitioner.

Gregory R. Neuhauser, Deputy Attorney General, with him, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Barry and Palladino. Opinion by Judge Doyle.

Author: Doyle

[ 100 Pa. Commw. Page 632]

This is an appeal by Donald L. Whittaker (Petitioner) from a determination of the Background Investigation Appeal Board (Appeal Board) disqualifying Petitioner as an applicant for the position of a cadet in the State Police. On February 23, 1984 the State Police Director of Personnel notified Petitioner that the State Police Background Investigation Screening Board

[ 100 Pa. Commw. Page 633]

(BISB) had disqualified Petitioner as a candidate for appointment as a State Police Cadet. This letter advised Petitioner of his right to appeal this determination to the Appeal Board and stated that in order to do so Petitioner "must submit a written rebuttal to the specified disqualification factors*fn1 within twenty (20) days of the date appearing on this notification." The letter further stated, "[i]f you desire to present evidence, this fact must be stated in your appeal specifying the nature of the evidence to be offered (including witnesses' names), as well as the reason(s) why such evidence cannot be presented adequately in the written rebuttal (appeal)." (Emphasis added.)

Petitioner timely appealed the BISB decision and while Petitioner listed witnesses he wished to call and the general nature of their proposed testimony, he did not indicate why their testimony could not be submitted in written rebuttal form. A March 9, 1984 letter from the Director of the Bureau of Personnel indicated receipt of Petitioner's appeal but denied Petitioner's request for a hearing inasmuch as he had not indicated why written submissions of rebuttal would be insufficient. A later letter from Petitioner's attorney again requested that Petitioner be permitted to present live witnesses but this letter also gave no reason for the request.

[ 100 Pa. Commw. Page 634]

By letter dated May 3, 1984 Petitioner was informed that the Appeal Board had affirmed the BISB determination. The letter also stated that the Appeal Board's decision was "the last step in the State Police Cadet processing cycle". In a letter dated May 9, 1984 Petitioner's attorney again requested the opportunity to appear before the Appeal Board. The letter also alleged that thirty-five affidavits submitted by Petitioner had been reviewed for "only a few minutes" by the Board before rejecting Petitioner as a cadet. When the May 9, 1984 letter received no reply, Petitioner's attorney again requested a hearing on August 13, 1984. In a letter dated August 22, 1984 the State Police, by its chief counsel, again advised Petitioner's counsel that no hearing would be forthcoming. Petitioner then filed an appeal with this Court on September 17, 1984. The State Police in response filed a motion to quash Petitioner's appeal as untimely filed. The question of whether Petitioner's appeal is timely depends upon whether the May 3, 1984 letter constitutes the final appealable order.

Petitioner asserts that the May 3, 1984 letter is not a final appealable order but, rather, is an "invalid" adjudication. He cites Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), in support of this proposition. In Callahan the Pennsylvania Supreme Court held that a letter advising a state police officer of the impending termination of his heart and lung benefits was an invalid adjudication because it failed to comply with the statutory requirement that a final determination affecting property ...


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