Appealed From No. 2735 February Term, 1993. Common Pleas Court of the County of Philadelphia. Judge BRADLEY.
Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.
The opinion of the court was delivered by: Mirarchi
OPINION BY SENIOR JUDGE MIRARCHI
David Sofronski (Sofronski), a former police lieutenant of the Philadelphia Police Department, appeals from an order of the Court of Common Pleas of Philadelphia County dismissing his appeal from the decision of the Civil Service Commission of the City of Philadelphia (Commission). The issues raised on appeal are: (1) whether the Commission had jurisdiction to consider Sofronski's appeal filed more than six years after expiration of the thirty-day appeal period; and (2) whether the Commission's finding that Sofronski's resignation was voluntary is supported by substantial evidence.
On November 30, 1984, Sofronski was discharged for accepting money from Robert Sadowl, a video poker machine operator, after Sadowl testified at the federal police corruption trial that he had paid Sofronski $750 to $950 a month for protection of his illegal activities. Sofronski was not one of the named defendants in the federal criminal trial. Pursuant to the collective bargaining agreement with the City of Philadelphia (City), the Fraternal Order of Police (FOP) filed grievances on behalf of Sofronski and eight other police officers who were also discharged after they were implicated during the federal trial. Subsequently, the City and FOP submitted the grievances for arbitration.
The City thereafter could not locate Sadowl to serve a subpoena for his appearance at an arbitration hearing. As a result, the City served the subpoena on Sadowl's attorney, who later appeared at the hearing and stated that Sadowl had moved to Florida and would not testify against Sofronski and that he was not authorized to accept the service of the subpoena for Sadowl.
On November 25, 1985, the arbitrator ordered the City to reinstate two grievants, Sofronski and Louis Gniotek, unless within two weeks it could bring in the witnesses who implicated them at the federal criminal trial. *fn1 The arbitrator further ordered the parties to discuss a possible settlement of remedy aspects of the cases during the four-week period following reinstatement of Sofronski and Gniotek. Finally, the arbitrator stated that in the event of institution of criminal proceedings against them, the City may request a stay of the award.
The City subsequently informed Sofronski and his attorney that it would appeal the arbitrator's award. Thereafter, the City and Sofronski entered into a settlement agreement following negotiations through their counsel. Pursuant to the agreement, the City administratively reinstated Sofronski on December 10, 1985, and Sofronski then immediately retired and became eligible to receive pension benefits and a lump sum payment for accrued sick leave. *fn2
On April 1, 1992, more than six years after his reinstatement and resignation, Sofronski filed an appeal with the Commission under the Commission's Regulation 15.02, alleging that his resignation was involuntary. The Regulation 15.02 provides:
15.02 INVOLUNTARY RESIGNATION Any person who resigns from the Civil Service may ask the Commission, in writing, within thirty (30) days after the effective date of such resignation, for a public hearing, stating his reasons. If on investigation there appears to be satisfactory evidence that the employee has been forced to resign against his will and without just cause, or that his separation from the service has been involuntary and without just cause, the Commission shall grant him a public hearing as hereinafter provided in the case of removal or demotion, and shall treat the separation as though it were a removal. (Emphasis added.)
The Commission held a hearing to determine whether it had jurisdiction to hear the appeal filed beyond the thirty-day appeal period set forth in the Regulation 15.02. After the hearing, the Commission permitted Sofronski's appeal nunc pro tunc and agreed to hear the merits of the appeal. The City appealed the Commission's decision to the trial court.
While the City's appeal is pending, the Commission proceeded to hold hearings on the merits. In its decision issued on January 20, 1993, one Commissioner recused himself from the case, and the two remaining Commissioners rendered a split decision on the issue of the voluntariness of Sofronski's resignation. The tie vote maintained the status quo, thereby upholding Sofronski's resignation as voluntary. See AT & T Communications of Pennsylvania, Inc. v. Pennsylvania Public Utility Commission, 131 Pa. Commw. 390, 570 A.2d 612 (Pa. Commw. 1990) (where a party requests an administrative body to take action on a matter, a tie vote of that body is equivalent to a refusal to take action). Sofronski appealed the Commission's decision to the trial court. *fn3
The trial court concluded that Sofronski failed to establish any basis for granting the appeal nunc pro tunc, and that the Commission therefore lacked jurisdiction to hear Sofronski's appeal. The trial court also considered the merits of the appeal and concluded that the Commission's finding of the voluntariness of Sofronski's resignation is ...