       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Winston J. Banks,                       :
                         Petitioner     :
                                        :
             v.                         :   No. 1495 C.D. 2018
                                        :   Submitted: April 5, 2019
State Civil Service Commission          :
(York County Office of                  :
Children, Youth and Families),          :
                        Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: July 12, 2019


             Winston J. Banks (Banks), acting pro se, petitions for review of the
State Civil Service Commission’s (Commission) decision denying his untimely
request for reconsideration of the Commission’s prior order, which dismissed
Banks’s appeal challenging his removal from employment with the York County
Office of Children, Youth and Families (Respondent). For the reasons that follow,
we affirm.
             Banks was employed by Respondent in a probationary role as a County
Caseworker 2.     (Reproduced Record (R.R.) at 19a, 101a.)       By letter dated
May 9, 2017, Respondent terminated Banks’s employment, effective May 11, 2017,
due to “ongoing concerns related to [Banks’s] job performance.” (Supplemental
Reproduced Record (Supp. R.R.) at 19b.) Banks timely appealed Respondent’s
action to the Commission pursuant to Section 951 of the former Civil Service Act,1
alleging that Respondent’s action against Banks was based on gender discrimination.
(R.R. at 27a.) By order and opinion dated September 20, 2018, the Commission
denied Banks’s appeal on the ground that Respondent provided sufficient evidence
to prove that its action was based on Banks’s job performance and not gender
discrimination. (R.R. at 34a-35a.) On October 9, 2018, Banks filed a petition for
reconsideration with the Commission, pursuant to Section 105.17 of the Rules of the
Civil Service Commission (Commission Rules), 4 Pa. Code § 105.17.2 By letter
dated October 18, 2018, the Commission denied Banks’s petition for reconsideration
based on its untimeliness as the operative order was issued on September 20, 2018,
and Banks’s October 9, 2018 petition for reconsideration was filed outside of the
fifteen-day limit imposed by Section 105.17(c) of the Commission Rules. (Supp.
R.R. at 2b.) Banks now petitions this Court for review.


       1
          Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.950. The General Assembly
repealed the Civil Service Act by Act of June 28, 2018, P.L. 460, effective March 28, 2019. The
subject matter of various provisions of the former Civil Service Act may be found in Title 71,
Part III of the Pennsylvania Consolidated Statutes, relating to Civil Service Reform, as enacted by
the Act of June 28, 2018, P.L. 460. The subject matter of Section 951 of the former Civil Service
Act is now found at 71 Pa. C.S. §§ 2202 and 3003.
       2
           Section 105.17 of the Commission Rules provides, in part:
       ....
       (c) Filing and service. Every petition for reconsideration shall be filed
       within 15 calendar days after issuance of the Commission order involved.
       ....
       (e) The procedure for reconsideration contained in this subsection does not alter or
       replace any procedures provided elsewhere for the timely filing of appeals of
       Commission adjudications to appellate courts.


                                                2
               On appeal,3 Banks appears to raise challenges to the Commission’s
September 20, 2018 determination alone. Banks’s arguments may be summarized
as follows: (1) Banks should be permitted to file the instant appeal nunc pro tunc;
and (2) if so permitted, this Court should conclude that the Commission’s
September 20, 2018 determination was not supported by substantial evidence of
record.4 In response, Respondent argues that Banks’s appeal to this Court is
untimely pursuant to Pennsylvania Rule of Appellate Procedure 1512(a)(1),5 and,
therefore, the Court does not have jurisdiction over the substantive issues related to
the Commission’s determination. Respondent further contends that the only issue
properly within this Court’s jurisdiction is whether the Commission abused its
discretion in denying Banks’s request for reconsideration.                      In the alternative,
Respondent argues that the Commission’s determination upholding Banks’s
termination was supported by substantial evidence of record.
               We first address Banks’s request that we consider his appeal to this
Court nunc pro tunc.                  Pursuant to Pennsylvania Rule of Appellate
Procedure 1512(a)(1), Banks had thirty days to appeal from the Commission’s
determination. Due to the fact that the Commission issued its determination on

       3
          “Whether to grant or deny a request for reconsideration is a matter of administrative
discretion, [and] this [C]ourt’s scope of review of that decision is limited to determining whether
the agency abused its discretion.” W. Penn Power Co. v. Pa. Pub. Util. Comm’n, 659 A.2d 1055,
1065 (Pa. Cmwlth. 1995). “An abuse of discretion has occurred only where the agency’s decision
demonstrates evidence of bad faith, fraud, capricious action or abuse of power.” Id.
       4
         Banks set forth three substantive arguments, all of which challenge the Commission’s
September 20, 2018 determination as unsupported by substantial evidence of record. We have,
therefore, set forth these three arguments as one general challenge for the sake of brevity.
       5
          Pennsylvania Rule of Appellate Procedure 1512(a)(1) provides, in relevant part: “A
petition for review of a quasijudicial order . . . shall be filed with the prothonotary of the appellate
court within 30 days after the entry of the order.” Pa. R.A.P. 1512(a)(1).


                                                   3
September 20, 2018, Banks’s appeal date of October 26, 2018, 6 falls outside of the
permitted timeframe to file an appeal in this Court. “[F]ailure to file a timely appeal
of an administrative agency’s decision creates a jurisdictional defect.” R.H. v. Dep’t
of Human Servs., 205 A.3d 410, 415 (Pa. Cmwlth. 2019). Appeals nunc pro tunc
are generally granted in cases where “the delay in filing the appeal was caused by
extraordinary circumstances involving fraud or a breakdown in the administrative
process, or non-negligent circumstances related to the appellant, his counsel, or a
third party.” Id. at 416. Accordingly, appeals nunc pro tunc are “reserved for
‘unique and compelling cases in which the appellant has clearly established [that he]
attempted to file an appeal, but unforeseeable and unavoidable events precluded
h[im] from actually doing so.’” C.E. v. Dep’t of Pub. Welfare, 97 A.3d 828, 832
(Pa.   Cmwlth. 2014)       (alterations    in       original)   (quoting   Criss   v.   Wise,
781 A.2d 1156, 1160 (Pa. 2001)).
              Here, Banks proffered no reasons for his untimely appeal but instead
baldly alleges that “[o]bviously Banks took all measures to comply with the rules of
appellate procedure.” (Petitioner’s Reply Br. at 16.) Banks has not, therefore,
established any reasons to allow this appeal to proceed nunc pro tunc. Consequently,
to the extent Banks attempts to appeal the Commission’s September 20, 2018
determination, the appeal is untimely, and this Court is deprived of subject matter
jurisdiction over the matter. See Ricketts v. Cent. Office Review Comm. of the Dep’t
of Corr., 557 A.2d 1180, 1181-82 (Pa. Cmwlth.), appeal denied, 574 A.2d 75
(Pa. 1989) (dismissing sua sponte petitioner’s untimely appeal from administrative
agency’s decision for lack of subject matter jurisdiction).


       6
          (See Supp. R.R. at 3a (“The date of October 26, 2018 will be preserved as the date of
filing [Banks’s] appeal.”).)

                                                4
             We note that Banks’s letter initiating the appeal to this Court included
the Commission’s denial of reconsideration as an attachment. (Supp. R.R. at 1b-2b.)
Banks does not, however, raise any arguments concerning the Commission’s denial
of reconsideration, thereby waiving any issues related thereto. Even if Banks
properly challenged the Commission’s denial of reconsideration, we could only
overturn the denial upon finding an abuse of discretion. An adjudicator’s decision
may constitute an abuse of discretion only if, as described earlier in this opinion, the
decision constitutes evidence of bad faith, fraud, capricious action, or abuse of
power. W. Penn Power Co., 659 A.2d at 1065. The Commission denied Banks’s
petition for reconsideration because he filed the petition outside of the fifteen-day
limit for seeking reconsideration under Section 105.17(c) of the Commission Rules,
thereby making the request for reconsideration untimely.             Accordingly, the
Commission did not abuse its discretion when it denied Banks’s request for
reconsideration.
             Based on the discussion above, we affirm the decision of the
Commission.




                                           P. KEVIN BROBSON, Judge




                                           5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Winston J. Banks,                      :
                        Petitioner     :
                                       :
            v.                         :   No. 1495 C.D. 2018
                                       :
State Civil Service Commission         :
(York County Office of                 :
Children, Youth and Families),         :
                        Respondent     :


                                     ORDER


            AND NOW, this 12th day of July, 2019, the order of the State Civil
Service Commission is hereby AFFIRMED.




                                       P. KEVIN BROBSON, Judge
