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decided: February 23, 1987.


Original Jurisdiction in the case of James R. Colston, Jr. v. Commonwealth of Pennsylvania, Department of Community Affairs.


Melville G. M. Walwyn, Dade, Harris & Walwyn, P.C., for petitioner.

Bernadette Barattini, Assistant Counsel, with her, Michael A. Donadee, Chief Counsel, for respondent.

Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 104 Pa. Commw. Page 166]

In this unique case, our Court must rule upon the Petition of the Department of Community Affairs (Department) to open a peremptory judgment directed to be entered by this Court on May 23, 1986.

It is necessary to review the procedural history of this case.*fn1 James Colston was dismissed as a management employee by the Department for willful violation of the Governor's Code of Conduct*fn2 and the State Ethics Act.*fn3 On February 27, 1986 the State Civil Service Commission (Commission) reversed the dismissal and ordered Colston's reinstatement with back pay. The Department filed a petition for review with this Court to

[ 104 Pa. Commw. Page 167]

No. 849 C.D. 1986 which was argued on the merits before this Court immediately after the argument was heard on the proceedings sub judice.

On April 8, 1986, Colston filed a petition for review in the nature of mandamus in this Court's original jurisdiction, contending that since no stay or supersedeas of the Commission's order had been requested or granted, he was entitled to enforcement of that order. The Department's answer admitted that no stay or supersedeas had been sought but contended inter alia that the filing of its petition for review in our appellate jurisdiction*fn4 constituted an automatic stay of the Commission's order.

Thereafter, on May 12, 1986, Colston filed a motion for special relief in the nature of peremptory judgment pursuant to Pa. R.C.P. No. 1098,*fn5 and costs. We ordered the matter for argument and, on May 23, 1986, the author of this opinion as duty Judge, entered an order and memorandum opinion granting Colston's motion for peremptory judgment.*fn6

The Department requested reconsideration which we denied. The Department then filed the instant petition to open on June 23, 1986 and, on July 3, 1986, also filed a petition for allowance of appeal with our Supreme Court. On January 7, 1987, the Supreme Court denied that petition.

In view of our order in No. 849 C.D. 1986 which vacates the Commission's order and remands the case to the Commission for further consideration, it now appears that this matter is moot. We think, however, that

[ 104 Pa. Commw. Page 168]

    there is an important public question involved here which could otherwise repeatedly escape review; therefore, we will decide it. Mifflin County School District v. Stewart, 94 Pa. Commonwealth Ct. 313, 503 A.2d 1012 (1986).

Although Colston raises procedural objections to our consideration of the application now before us*fn7 we need not rule upon those objections at this time in view of the mootness of the case since those objections do not raise important public questions nor are they matters which might otherwise repeatedly escape review.

The issue which we feel we must address notwithstanding mootness is whether an appeal to this Court by a Commonwealth agency from an order of another Commonwealth agency constitutes an automatic stay or supersedeas. We hold that it does not.

It is the Department's contention that Pa. R.A.P. 1736(b) clearly provides that it is entitled to an automatic supersedeas in these circumstances. Rule 1736(b) states:

Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in Subdivision (a) of this rule shall operate as a supersedeas in favor of such party.

The Commonwealth is a party mentioned in Subdivision (a).

[ 104 Pa. Commw. Page 169]

Chapter 17 of the Rules of Appellate Procedure is entitled "Effect of Appeals; Supersedeas and Stays." The Chapter has several sub-headings: "In General" (Rules 1701 and 1702); "Stay or Injunction in Civil Matters" (Rules 1731-1751); "Stay in Criminal Matters" (Rules 1761-1764); and "Stay Pending Action on Petition for Review" (Rules 1781 and 1782). Rule 1736(b), of course, is found under the heading "Stay or Injunction in Civil Matters." It is not found under any of the other sub-headings. It is provided in Rule 1764 under the sub-heading "Stay in Criminal Matters" that Rule 1731 "et seq." shall be applicable to stays in criminal or quasi-criminal matters which are not within the scope of Rules 1761-1763. It is thus apparent to us that had our Supreme Court intended that the provisions of Rule 1736(b) should apply to matters pending action by our Court on a petition for review, it could and would have so provided.

In Department of Education v. Postlewait, 84 Pa. Commonwealth Ct. 568, 482 A.2d 57 (1979), Judge Blatt,*fn8 using precisely the reasoning above set forth in circumstances remarkably similar to those now before us, held that a petition for review filed by the Commonwealth does not act as an automatic supersedeas or stay.

The Department calls our attention to the definition of an appeal in Pa. R.A.P. 102 as including proceedings on petition for review "[w]here required by the context" of the rule. Our short answer to this argument is that the definition is not required here because the Rules in Chapter 17 separately delineate civil actions, criminal actions and petitions for review as they relate to the

[ 104 Pa. Commw. Page 170]

    matters of supersedeas and stays. The Department further argues that our present ruling creates an artificial distinction between appeals from "judicial forums" where the Commonwealth is entitled to an automatic supersedeas, and an appeal from an administrative order. While we would hestitate to attempt to explain the rationale of the Supreme Court in making this distinction,*fn9 we think that one plausible reason is, as we have previously noted, that we are dealing with an appeal of one Commonwealth agency from the order of another Commonwealth agency. The expertise of the adjudicating agency is a factor which, in our opinion, differentiates an administrative agency order from that of a "judicial forum" and warrants the distinction of which the Department complains.

We have considered the other arguments raised in the Department's brief and find them to be without merit.

We conclude that the decision in Postlewait was correct and that the Department's application to open the judgment must be denied.


The application of the Department of Community Affairs to open or vacate peremptory judgment is denied.


Petition to open or vacate peremptory judgment denied.

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