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THOMAS W. HITCHINGS v. COMMONWEALTH PENNSYLVANIA (09/08/89)

decided: September 8, 1989.

THOMAS W. HITCHINGS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE ETHICS COMMISSION, RESPONDENT



PETITION FOR REVIEW (PENNSYLVANIA ETHICS COMMISSION)

COUNSEL

Regis J. McNally, Pittsburgh, for petitioner.

Jerome T. Foerster, Deputy Atty. Gen., with him, John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, and Ernest D. Preate, Jr., Atty. Gen., Harrisburg, for respondent.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Palladino, McGinley and Smith, JJ. Palladino, Judge, dissenting.

Author: Craig

[ 128 Pa. Commw. Page 470]

Petitioner Thomas W. Hitchings appeals from an order of the Pennsylvania State Ethics Commission which held that the petitioner had violated various sections of the Act of October 4, 1978, P.L. 883, 65 P.S. § 401 et seq. (Ethics Act). The decision of this court is to remand for a hearing.

According to an investigation for the commission, the petitioner is employed by the City of Pittsburgh Fire Department as a fire captain. During the time in question, the petitioner was assigned as an arson investigator with the Arson Strike Team. In connection with the duties of his employment, the petitioner investigated a fire at the Arcade Theater in Pittsburgh, which occurred on February 5, 1984.

[ 128 Pa. Commw. Page 471]

The petitioner filed a detailed written report of his investigation of the Arcade Theater fire, which concluded that the fire was deliberately set.

After the fire, the building owners filed two federal civil actions, one seeking recovery of fire insurance proceeds, and the second seeking damages for an alleged defamatory news broadcast by KDKA-TV, in which the owners were allegedly implicated in the arson burning of the Arcade Theater. In the fire insurance case, the petitioner testified on behalf of the insurance company, and received the standard witness fee. In the defamation case, the petitioner testified on behalf of KDKA-TV and received a fee of $650.00.

On September 28, 1988, after the investigation, the commission issued Order No. 679, the order here appealed, which declared that the petitioner had violated section 3 of the Ethics Act, 65 P.S. § 403, by using confidential information obtained through his public position for private gain, and section 4 of the Ethics Act, 65 P.S. § 404, by failing to file a statement of financial interest.

The pertinent issues raised by the petitioner are: (1) whether the order is illegal because it violates the Administrative Agency Law, 2 Pa.C.S. § 504; and (2) whether the order is void because it violates the due process and equal protection provisions of the United States and Pennsylvania Constitutions. The commission argues that the petitioner failed to exhaust the available administrative remedies.

However, because the commission here has issued a purported decision against the petitioner without having held a hearing to obtain evidence and without extending any opportunity for a hearing after the issuance of that decision, the commission's decision was not a valid adjudication, the commission's order must be vacated, and this case must be remanded to the commission with a direction that it conduct an administrative hearing in accordance with 51 Pa.Code §§ 2.34-2.38.

[ 128 Pa. Commw. Page 472]

The Administrative Agency Law, 2 Pa.C.S. § 504, establishes the fundamental requisites for a valid adjudication as follows:

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. (Emphasis added.)

The Pennsylvania Supreme Court, in Callahan v. Pennsylvania State Police, 494 Pa. 461, 465, 431 A.2d 946, 948 (1981), clearly held that an agency's adjudication was not valid where it "failed to comply with the statutory requirements of notice of a hearing and an opportunity to be heard." In that situation, the courts must vacate and remand with a direction that the agency conduct a hearing.

The record here shows that the commission operated contrary to its own regulations in reaching its so-called decision condemning the petitioner.

The order in this matter contained the following language:

[T]his Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and/or challenges pertinent factual findings. See 51 Pa.Code § 2.38.

In that order, the commission made no mention of a hearing ; it offered only "reconsideration," not a hearing, and the commission demanded "documentation" -- not merely a request -- in order to obtain such "reconsideration."

This court cannot hold that the petitioner failed to exhaust his administrative remedies when the only available remedy was "reconsideration" upon the condition of supplying documentation. In parlance commonly understood, "reconsideration" refers to a tribunal's act of giving additional thought to its decision, ordinarily without any further reception of evidence. For example, when this court grants

[ 128 Pa. Commw. Page 473]

"reconsideration" of a decision, it reviews its order without reargument.

Moreover, the commission's order did not explain whether the "documentation" requirement meant merely that petitioner had to file some sort of pleading in order to persuade the commission to reconsider, or whether the order required the presentation of documentary evidence. If the latter meaning were intended, the commission certainly could not condition a hearing solely upon the availability of documentary evidence, as distinguished from testimonial ...


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