           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Pittsburgh,                   :
                      Appellant       :
                                      :
      v.                              : No. 1 C.D. 2019
                                      : ARGUED: February 11, 2020
Jaz’Mine Henderson                    :


BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                          FILED: April 20, 2020

      The City of Pittsburgh (City) appeals from the November 27, 2018 order of
the Court of Common Pleas of Allegheny County (trial court), affirming the decision
of the City’s Civil Service Commission (Commission) to reinstate Jaz’Mine
Henderson (Henderson) as a clerical specialist with the City’s Department of Human
Resources (Department). As the adjudication issued by the Commission precludes
effective appellate review, we vacate the trial court’s order and remand this matter
for further proceedings.
                                   I. Background
      Henderson held a full-time position with the Department as a clerical
specialist from December 27, 2016, through March 2, 2018. Reproduced Record
(R.R.) at 97a. In a letter dated February 22, 2018, Janet Manuel (Manuel), the
Department’s Acting Director, notified Henderson she was suspended without pay
for five days. R.R. at 73a. The Department based Henderson’s suspension on a
report from the City’s Office of Municipal Investigations (OMI), which alleged
Henderson submitted falsified documents to the Pennsylvania Department of Human
Services (DHS).            Id. at 73a.      These documents falsely stated Henderson’s
employment had terminated on two occasions in 2017; as a result, Henderson
improperly received increased public assistance. Id. at 73a-74a. Henderson was
given five work days to respond and state her reasons, in writing, why she should
not be discharged. Id. at 73a. Failure to respond would result in Henderson’s
termination as of the close of business on February 28, 2018. Id.
          In a subsequent letter dated March 2, 2018, the City’s Mayor, William Peduto,
notified Henderson she was discharged from her position with the Department.1 Id.
at 81a. Mayor Peduto indicated Henderson’s response to the February 22, 2018
letter was unsatisfactory and provided no basis to call into question the conclusions
drawn from OMI’s investigation.2 Id.
          Henderson appealed her termination to the Commission, which held a hearing
on March 29, 2018. The City presented the testimony of Manuel and Erin Bruni
(Bruni), the manager of OMI, and introduced the OMI report. Henderson, who
appeared pro se, testified on her own behalf.




         Henderson’s dismissal was governed by Section 20 of the Act of May 23, 1907, P.L. 206,
          1

which provides, in pertinent part, that no employee in the classified civil service shall be
discharged except for just cause. 53 P.S. § 23453. What constitutes just cause for dismissal is
largely a matter of discretion for the superior officer, provided that such cause is personal to the
employee and renders her unfit for the position occupied. Pittsburgh Civil Serv. Comm’n v.
Beaver, 315 A.2d 672, 674 (Pa. Cmwlth. 1974).

          2
              The original record does not contain Henderson’s written response to the suspension
notice.


                                                  2
                               A. The Department’s Evidence
      Evidence at the hearing revealed that the Department received an inquiry from
DHS regarding two letters Henderson sent to DHS stating her employment with the
Department had terminated. R.R. at 26a, 29a. The first letter, dated January 18,
2017, and purportedly signed by Henderson’s supervisor, Rhonda Nesbit (Nesbit),
stated Henderson’s temporary position with the Department had terminated effective
January 20, 2017, and Henderson received pay in the amount of $8.84 per hour. Id.
at 29a, 74a-75a. The second letter, dated December 29, 2017 and ostensibly signed
by Deb Lestitian (Lestitian), the Department’s Director, advised that Henderson’s
position with the Department had terminated effective November 20, 2017.3 Id. at
29a, 47a.
      On those dates, however, Henderson was still employed by the Department,
and her position was full-time, not temporary. Id. at 26a, 30a. Furthermore, the rate
of pay set forth in the January 18, 2017 letter – $8.84 per hour – conflicted with an
earnings report in Henderson’s personnel file, which indicated she earned $16.75 per
hour when first hired and received an hourly rate of $17.09 at the time of her
termination. Id. at 75a, 77a.
      The letters were neither written nor signed by Nesbit and Lestitian. Id. at 29a.
Bruni testified that Nesbit denied signing the January 18, 2017 letter purportedly
terminating Henderson effective January 20, 2017. Id. at 48a. Nesbit provided Bruni
a sample of her signature, which did not match the signature on the January 18, 2017
letter. Id. at 75a. Bruni contacted the individuals and entities allegedly copied on
the January 18, 2017 letter and none had received a copy or had seen the letter
previously. Id. at 48a-49a. From this, Bruni deduced that the only individual who


      3
          Neither letter allegedly mailed to DHS appears in the original record filed with this Court.


                                                  3
received a copy was Henderson, whose name and address appeared at the top of the
letter. Id. at 49a, 76a.
       Bruni further interviewed the Department staff working on December 29,
2017, the day Lestitian allegedly signed and faxed the letter acknowledging
Henderson’s termination effective November 20, 2017. Id. at 51a. None recalled
having seen or having faxed the letter to DHS. Id. Upon examination, the body of
the letter appeared to have a different font than the signature block at the bottom. Id.
at 77a.
       Henderson confirmed during an interview with Bruni that she received public
assistance benefits and the amount of those benefits was determined by Henderson’s
income, if any, and the number of individuals in her household. Id. at 78a-79a.
Henderson denied having seen the January 18, 2017 and December 29, 2017 letters.
Id. at 78a.
       Bruni ultimately concluded that Henderson was the only person to possess the
January 18, 2017 and December 29, 2017 termination letters sent to DHS, that
Henderson’s denial of any knowledge of the letters was not credible, and that she
had a financial incentive to falsify her employment status with the Department. Id.
at 79a.
       As a result of the investigation, Henderson’s employment was suspended for
five days. Id. at 73a. However, the OMI report also detailed further inconsistencies
with the documentation sent to DHS. Id. at 35a. Copies of these documents were
not contained in Henderson’s personnel file, which was standard practice for the
Department when verifying an individual’s employment status. Id. Further, the
letter allegedly signed by Lestitian, while faxed from an office fax number, was sent
on a day Lestitian was not in the office. Id. at 36a. Manuel reviewed the OMI report



                                           4
with Mayor Peduto, who then signed a letter terminating Henderson’s employment.4
Id. at 37a.
       Manuel testified that, following Henderson’s termination, Nesbit packed up
Henderson’s work space and discovered a letter from Henderson directed to DHS in
which Henderson stated she was no longer employed by the Department. Id. at 38a.
The letter asserted Henderson was attending school on a full-time basis and had no
income. Id. Manuel confirmed this letter was dated for a period during which
Henderson still worked full time for the Department. Id.
       Neither Nesbit nor Lestitian testified, and the only documentary evidence
introduced by the City consisted of the February 22, 2018 letter from Manuel
suspending Henderson without pay, the OMI report, and Mayor Peduto’s March 2,
2018 letter terminating Henderson. R.R. at 73a-81a.
                                B. Henderson’s Evidence
       Henderson denied signing the January 18, 2017 and December 29, 2017 letters
and maintained someone else submitted them. Id. at 58a, 61a. Henderson alleged
issues with her employment began when she notified Nesbit of her pregnancy. Id.
at 60a. Henderson testified her personnel file contained disciplinary action reports
for incidents that took place on days she was out of the office. Id. at 61a-62a. When
Henderson reported an issue concerning Nesbit, she was “yelled at for complaining
about it.” Id. at 63a.
       Henderson acknowledged she received public assistance during the period she
worked for the Department. Id. at 64a. Henderson testified DHS contacted the
Department directly for the proof of her income. Id. She asserted the Department


       4
         Manuel testified that, as Acting Director, she lacked authority to terminate Henderson.
R.R. at 28a.


                                               5
knew she received such benefits because the City provided healthcare benefits to her
at a reduced rate. Id. at 65a.
                        C. The Commission’s Adjudication
       The Commission issued its adjudication on April 6, 2018. The Commission
made the following enumerated findings of fact:


              1. [Henderson] was employed as a Human Resources
                 Specialist for the [Department] for one (1) year and two
                 (2) months;

              2. On February 22, 2018[,] [Henderson] was given a
                 Suspension Pending Termination notice from [the
                 Department’s] Acting Director, [Manuel];

              3. [Henderson] submitted a written response to the
                 Suspension Pending Termination notice;

              4. On March 2, 2018[,] Acting Director [Manuel] issued
                 a termination notice to [Henderson];

              5. On March 8, 2018[,] [Henderson] submitted a written
                 notice of appeal and a hearing was scheduled for
                 Thursday, March 29, 2018.

Id. at 12a.
       Additionally, the Commission “[found] that [Henderson] has provided
sufficient testimony and evidence to overturn the decision of the [Department].” Id.
The Commission directed the Department to reinstate Henderson to her position with
the Department with back pay and no loss of seniority. Id. at 12a-13a.
                           D. The Trial Court’s Decision
       The City appealed to the trial court, which affirmed the Commission. In its
opinion, the trial court acknowledged that the Commission was “not specific in the
interpretation of the facts.” Id. at 99a. Nevertheless, the trial court opined that the


                                          6
Commission’s decision to reinstate Henderson was “supported by the findings of
fact in the record.” Id. In reaching this conclusion, the trial court relied on
Henderson’s testimony that she was forthcoming with the Department about the
public assistance she received, her current pregnancy, and the “documentation
signed by her superiors.”5 Id. Henderson testified that she was unfamiliar with the
signatures on the January 18, 2017 and December 29, 2017 letters and she did not
fabricate those letters. Id. Rather, they were sent directly by the Department to
DHS. Id. Henderson’s credibility “was not challenged by the Commission,” and
her testimony was deemed sufficient to overturn the Department’s decision to
terminate her employment. Id. The credibility and weight to be given Henderson’s
testimony was within the provision of the Commission, and, while the evidence
could support findings other than those made by the Commission, the only issue
before the trial court was whether the findings made by the Commission were
supported by substantial evidence. Id. at 99a-100a. The trial court then “[found]
that [Henderson’s] testimony was found credible by the Commission and their [sic]
conclusions were supported by substantial evidence.” Id. at 100a. This appeal
followed.
       Subsequent to the filing of its appeal with this Court, the City filed a motion
requesting this Court take judicial notice of online records maintained by the
Administrative Office of Pennsylvania Courts (AOPC) that indicated criminal
charges were filed against Henderson in relation to her receipt of public assistance.6



       5
           It is not clear to which documentation the trial court refers.

       6
         Henderson was charged with violating Section 481 of the Human Services Code, Act of
June 13, 1967, P.L. 31, as amended, 62 P.S. § 481. Section 481 prohibits the use of fraudulent
means to obtain public assistance.


                                                    7
       This Court granted the City’s motion, stating it would take judicial notice of
the requested court records.            This Court did not, however, address the
appropriateness of considering the records as part of the underlying appeal, as they
were not part of the original record and were not considered below. The parties were
advised to address the issue in their principal briefs on the merits.
                                            II. Issues
       On appeal,7 the City argues that the Commission capriciously disregarded the
evidence presented and failed to elucidate its reason for crediting Henderson’s
testimony in light of the City’s contrary evidence. Consequently, the Commission’s
findings of fact are not supported by substantial evidence. The City further argues
it had just cause to terminate Henderson where the City’s evidence supported a
conclusion that Henderson submitted falsified documents to qualify for public
assistance and where the nature of Henderson’s position granted her access to
sensitive employee information such as bank account and social security numbers.
                                         III.    Analysis
                                   A. Capricious Disregard
       The City first argues that the Commission capriciously disregarded evidence
where it made only cursory findings of fact and conclusions of law. The City asserts
that the Commission made no findings in regards to the Department’s internal
investigation and reasons for terminating Henderson and the Commission failed to
explain why the Department’s evidence was disregarded.




       7
         Our review of the Commission’s decision is limited to determining whether constitutional
rights have been violated, whether errors of law have been committed, or whether its findings are
supported by substantial evidence. Moore v. State Civil Serv. Comm’n (Dep’t of Corr.), 922 A.3d
80, 84 n.3 (Pa. Cmwlth. 2007).


                                                8
      Henderson argues the City’s evidence was not competent to support a finding
in its favor, as its witnesses had no personal knowledge of the relevant events.
Henderson notes that neither Nesbit nor Lestitian testified and the City relied entirely
on Bruni’s second-hand representation of the facts relayed to her by the witnesses
she interviewed during the course of her investigation. Henderson argues that such
evidence constituted uncorroborated hearsay, which was incompetent to support any
findings that she was terminated for just cause.
      Section 555 of the Local Agency Law requires the Commission to include in
its adjudication “findings and the reasons for the adjudication[.]” 2 Pa.C.S. § 555.
“A capricious disregard of evidence occurs ‘when there is a willful and deliberate
disregard of competent testimony and relevant evidence which one of ordinary
intelligence could not possibly have avoided in reaching a result.’” Kenney v.
Bureau of Prof’l and Occupational Affairs, State Bd. of Pharmacy, 203 A.3d 421,
430 (Pa. Cmwlth. 2019) (internal citations omitted). Where strong critical evidence
contradicts contrary evidence, the adjudicator must provide an explanation as to how
it made its determination. Id. In other words, the ultimate question is whether the
adjudicator failed to properly explain overwhelming critical evidence. Id.
      The Commission’s enumerated findings of fact concern matters for which
there exists no dispute. Henderson worked for the Department for approximately 14
months, at which point she received a notice suspending her employment.
Henderson submitted a written response to the suspension notice, after which her
employment was terminated by letter dated March 8, 2018. Henderson appealed her
termination and a hearing was scheduled for March 29, 2018.
      The Commission concludes its review of the record by stating “we find that
[Henderson] provided sufficient testimony and evidence to overturn the decision of



                                           9
the City,” and directing the City to reinstate Henderson to her former position with
back pay. R.R. at 12a. Given the Commission failed to summarize the vast majority
of evidence presented, we are unable to discern what “sufficient testimony and
evidence” led the Commission to conclude reinstatement was warranted. Indeed,
the Commission failed to even cursorily address the evidence presented at the
hearing.   Henderson’s testimony clearly conflicted with the City’s, yet the
Commission made no attempt to resolve these conflicts through credibility findings.
      With regard to the trial court’s review, argument was limited to the briefs of
the parties and the “record that has been filed in the Department of Court Records.
The hearing will not be a de novo hearing.” R.R. at 87a (emphasis added).
Consequently, the trial court took no additional evidence and was bound by the
following standard of review as set forth in Section 754(b) of the Local Agency Law:


             [T]he [trial] court shall affirm the adjudication unless it
             shall find that the adjudication is in violation of the rights
             of the appellant, or is not in accordance with law, or that
             the [procedural rules of the Commission] have been
             violated in the proceedings before the agency, or that any
             finding of fact made by the agency and necessary to
             support its adjudication is not supported by substantial
             evidence.
2 Pa.C.S. § 754(b).
      In affirming the Commission, the trial court acknowledged that the
Commission’s decision “is not specific in the interpretation of the facts.” R.R. at
99a. The trial court then attempted to fill in the blanks left by the Commission by
speculating as to the evidence which led to the Commission’s ultimate conclusion
that Henderson should be reinstated. That undertaking necessarily involved fact-
finding, a task falling outside the trial court’s appellate jurisdiction, as none of the
testimony upon which the trial court relied was cited by the Commission in its

                                          10
adjudication. The trial court’s exercise in fact-finding was particularly evident in its
determination that Henderson’s testimony “was found credible by the Commission
and their [sic] conclusions were supported by substantial evidence.” Id. at 100a.
      The trial court’s assertion that the Commission gave “credibility and weight”
to Henderson’s testimony is unsubstantiated, as the Commission failed utterly to do
so in its decision. Id. at 99a. Moreover, the fact that Henderson’s credibility “was
not challenged by the Commission” does not by itself signify a finding of credibility
by the Commission.
      Section 555 of the Local Agency Law requires the Commission to include in
its adjudication “findings and the reasons for the adjudication[.]” 2 Pa.C.S. § 555
(emphasis added). Beyond a bare statement that Henderson “provided sufficient
testimony and evidence,” however, R.R. at 12a, the Commission’s opinion is bereft
of reasons supporting its conclusion that Henderson must be reinstated.
      The Commission’s deficient adjudication is similar to that presented in Turner
v. Civil Service Commission, 462 A.2d 306 (Pa. Cmwlth. 1983). Turner concerned
the appeal of a police officer discharged for conduct unbecoming an officer. At a
hearing before the Civil Service Commission of the City of Philadelphia
(Philadelphia Commission), testimony was elicited that the officer was observed
drinking in a bar while in uniform. The results of a breathalyzer test indicated a
blood alcohol level of 0.22%. A subsequent examination by the police surgeon
confirmed the officer was under the influence of alcohol.            The Philadelphia
Commission upheld the officer’s dismissal. His appeal was dismissed by the court
of common pleas. This Court vacated the order of the court of common pleas and
remanded the matter to the Philadelphia Commission.               We noted that the
Philadelphia Commission thoroughly recited the testimony of the parties and



                                          11
reviewed the applicable law. Following that recitation, however, the Philadelphia
Commission merely concluded the officer’s dismissal was for good cause. The
Philadelphia Commission neglected to make any findings regarding whose
testimony was credible, which allegations were substantiated by the evidence, or
what facts were found to constitute just cause. Such a decision did not comport with
the requirements of Section 555 of the Local Agency Law that such adjudications
contain findings and the reasons for the adjudication.
      Presently, in light of the Commission’s ultimate disposition in this matter, the
trial court evidently assumed that the Commission found Henderson’s testimony
more credible than that of the City’s witnesses. Absent from the Commission’s
adjudication, however, is any indication why the Commission deemed Henderson
more credible or why the City’s evidence was somehow wanting or lacking in
credibility. The Commission’s failure to comment on, or even acknowledge the
existence of, the City’s evidence constitutes capricious disregard of evidence.
Consequently, we are unable to affirm the trial court and are constrained to remand
this matter so the Commission may issue an adjudication that comports with Section
555 of the Local Agency Law.
                                      B. Hearsay
      While we have concluded that the Commission’s adjudication was fatally
deficient, we are compelled to address Henderson’s hearsay argument. Hearsay
evidence to which no objection has been lodged must still be corroborated by
competent evidence. Pa. Game Comm’n v. State Civil Serv. Comm’n (Wheeland),
219 A.3d 1257, 1266 (Pa. Cmwlth. 2019) (quoting Walker v. Unemployment Comp.
Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976)). A finding based solely on
hearsay, even where admitted without objection, cannot stand. Walker, 367 A.2d at



                                         12
370. Henderson concedes she did not object to the City’s evidence on hearsay
grounds. She maintains, however, that the City’s evidence was not otherwise
corroborated and it was thus incompetent to support any findings in the City’s favor.
We agree, to a point.
       Bruni’s testimony, and the OMI report that formed the basis for Henderson’s
termination, was primarily based on statements made to Bruni by the witnesses she
interviewed, none of whom testified before the Commission. Nesbit did not testify
to confirm or deny that the signature on the January 18, 2017 letter was hers, nor did
she testify as to the contents of the letter she discovered while packing up
Henderson’s work station. Indeed, none of the letters allegedly submitted by
Henderson to DHS were introduced at the March 29, 2018 hearing. Similarly,
Manuel’s testimony largely consisted of conversations she had with Nesbit and
Lestitian and Manuel’s recollection of the letters that allegedly bore their signatures.
Henderson’s concession that she did not object to the City’s evidence as hearsay is
of no moment because the bulk of that evidence is otherwise uncorroborated by the
record.8
       Manuel and Bruni did testify to matters within their personal knowledge,
however, and their testimony was subject to cross-examination by Henderson.
Manuel was present, for example, when Bruni interviewed Henderson as part of the
OMI investigation, and she had personal knowledge of Henderson’s work duties and
employment status throughout the relevant time period. As the manager of OMI,
Bruni clearly had knowledge of the investigation process that informed a portion of
her testimony. Because we are unable to dismiss the entirety of evidence presented



       As we have determined a remand is required, we need not address the City’s remaining
       8

arguments.


                                            13
by the City as uncorroborated hearsay, affirmance of the Commission’s decision on
hearsay grounds is not appropriate.
                                      C. Conclusion
      The Commission failed to address in its adjudication the evidence presented
by the City and further neglected to resolve the apparent conflicts between that
evidence and Henderson’s contrary testimony.            These failures result in an
adjudication that precludes effective appellate review. Accordingly, we vacate the
order of the trial court and remand this matter to the trial court for further remand to
the Commission. Following remand, the Commission is directed to issue a new
adjudication which sets forth findings of fact, including credibility determinations,
and the reasons for its disposition, in accordance with the requirements of Section
555 of the Local Agency Law.

                                        __________________________________
                                        ELLEN CEISLER, Judge




                                          14
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Pittsburgh,                     :
                      Appellant         :
                                        :
      v.                                : No. 1 C.D. 2019
                                        :
Jaz'Mine Henderson                      :


                                       ORDER


      AND NOW, this 20th day of April, 2020, the November 27, 2018 order of the
Court of Common Pleas of Allegheny County (trial court) is hereby vacated and this
matter is remanded to the trial court for further remand to the Civil Service
Commission of the City of Pittsburgh (Commission).          Following remand, the
Commission shall issue a new adjudication which sets forth findings of fact,
including credibility determinations, and the reasons for its disposition, in
accordance with the requirements of Section 555 of the Local Agency Law, 2 Pa.C.S.
§ 555. Jurisdiction is relinquished.


                                        __________________________________
                                        ELLEN CEISLER, Judge
