           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Cook,                                 :
                     Appellant                :
                                              :
              v.                              :    No. 638 C.D. 2017
                                              :    Argued: March 9, 2018
City of Philadelphia Civil Service            :
Commission                                    :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge1

OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: January 7, 2019

              Michael Cook appeals an order of the Court of Common Pleas of
Philadelphia County (trial court) dismissing his local agency appeal sua sponte
because he failed to file a brief by the date set forth in the trial court’s scheduling
order.2 Cook argues that the trial court lacked authority to dismiss the case sua
sponte, and the City of Philadelphia Civil Service Commission (City) was not
prejudiced by his failure to file a brief. We reverse and remand.

                                       Background

              In 2012, Cook applied for the position of Philadelphia Police Officer
and was placed on a list of eligible candidates by the City’s Office of Human
Resources. All eligible candidates must undergo a psychological evaluation, which
Cook did. He received a score of 7.5; the passing score was 8.0. On May 6, 2013,
the Philadelphia Police Department advised Cook by letter that because he did not

1
  This case was decided before Senior Judge Pellegrini’s service on the Court ended on December
31, 2018.
2
  On March 8, 2018, this matter was held in abeyance pending mediation; it was reinstated for
decision on November 20, 2018, because an agreement was not reached.
receive a passing score on his psychological evaluation, he would “not be given any
further consideration for appointment to [the] position.” Reproduced Record at 127a
(R.R. __). Cook’s name was removed from the list of eligible candidates.
             Cook appealed to the City’s Office of Human Resources, challenging
the validity of his psychological evaluation and his removal from the list of eligible
candidates. On June 13, 2013, Cara Leheny, the Divisional Deputy City Solicitor,
advised Cook, via letter, that she was in charge of investigating his claim of
irregularities regarding his psychological evaluation. On September 8, 2016, Cook
received a letter from Glenn Harper, an Executive Assistant at the Office of Human
Resources, denying his request for reinstatement to the list of eligible candidates.
             Cook appealed to the trial court, identifying the decision under appeal
as one made by the “Director of the Civil Service Commission.” Notice of Appeal
at 1; R.R. 10a. Cook asserted that the Civil Service Commission was part of the
City’s Office of Human Resources and charged with the creation and management
of lists of eligible police officer recruits.   Cook further asserted that he was
improperly removed from the eligibility list because his psychological evaluation
was not completed in accordance with the City’s “Personnel Department Examiner’s
Manual” (Personnel Manual). R.R. 20a-50a. Cook challenged the credentials of the
interviewer and the method used to calculate his score. He also claimed the City’s
Personnel Manual guaranteed him a right to request a second evaluation, but he was
not informed of this right.
             On September 30, 2016, the trial court issued a case management order,
directing Cook to obtain a transcript of the Civil Service Commission hearing and
to file it electronically with the court. The City responded that Cook was appealing
a decision of the Office of Human Resources, not the Civil Service Commission.


                                          2
Because the Civil Service Commission had neither held a hearing nor rendered any
decision, it had “no associated record that can be filed.” R.R. 67a.
               On November 17, 2016, the trial court issued a scheduling order
directing Cook to file any motion for extraordinary relief and a supporting brief by
February 6, 2017. The City’s brief was due by March 6, 2017.
               On January 25, 2017, Cook filed a motion for extraordinary relief
seeking 120 days to conduct discovery and create a record regarding the procedures
set forth in the Personnel Manual in order to establish that his removal from the
eligibility list was improper. The City responded that a decision to remove an
applicant from a list of eligible candidates for failing a psychological evaluation is
not appealable because an applicant has no property interest in prospective
employment. On February 8, 2017, the trial court denied Cook’s motion.
               Cook did not file a brief by February 6, 2017. On March 6, 2017, the
City filed a brief.3 On April 17, 2017, the trial court dismissed Cook’s appeal. The
order provided no explanation for the dismissal.4
               After Cook’s appeal to this Court, the trial court filed an opinion in
support of its order pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).5


3
  In its brief, the City argues that Cook’s appeal lacks merit because he had no property right or
vested interest in continued placement on the eligibility list. The City does not cite Cook’s failure
to file a brief.
4
  Cook filed for reconsideration. Cook assumed that his appeal was dismissed based on the City’s
response to his motion for extraordinary relief. His motion for reconsideration asserted that the
removal of his name from the eligibility list did constitute a final order. The trial court denied
reconsideration, without discussion.
5
  It provides, in relevant part:
         Except as otherwise prescribed by this rule, upon receipt of the notice of appeal,
         the judge who entered the order giving rise to the notice of appeal, if the reasons
         for the order do not already appear of record, shall forthwith file of record at least


                                                 3
The trial court explained that Cook’s appeal was dismissed as a sanction for
noncompliance with its scheduling order. Specifically, Cook’s brief was due by
February 6, 2017. At the time the trial court dismissed the case, i.e., April 17, 2017,
the brief was 70 days overdue.
               The trial court asserted that it had authority to dismiss Cook’s appeal
under Pennsylvania Rule of Appellate Procedure 2188, which states as follows:

               If an appellant fails to file his designation of reproduced record,
               brief or any required reproduced record within the time
               prescribed by these rules, or within the time as extended, an
               appellee may move for dismissal of the matter. If an appellee
               fails to file his brief within the time prescribed by these rules, or
               within the time as extended, he will not be heard at oral argument
               except by permission of the court.

PA. R.A.P. 2188 (emphasis added). The trial court acknowledged that the First
Judicial District of Pennsylvania, i.e., Philadelphia County, has not adopted Rule
2188. Rather, the Philadelphia County Rules of Civil Procedure govern local agency
appeals, and they do not authorize sanctions for not filing a brief. The trial court
relied, instead, upon King v. City of Philadelphia, 102 A.3d 1073 (Pa. Cmwlth.
2014), for the proposition that “a trial court, acting as an appellate court, may look
to the Pennsylvania Rules of Appellate Procedure for guidance and ‘such points of
procedure are best left to the sound discretion of the trial court.’” Id. at 1077
(quoting City of Pittsburgh v. Kisner, 746 A.2d 661, 664 (Pa. Cmwlth. 2000)).




       a brief opinion of the reasons for the order, or for the rulings or other errors
       complained of, or shall specify in writing the place in the record where such reasons
       may be found.
PA. R.A.P. 1925(a).


                                                 4
                                             Issues

               On appeal to this Court,6 Cook raises two issues. First, he argues that
the trial court abused its discretion in dismissing the case because Rule 2188 does
not authorize a trial court to dismiss an appeal sua sponte when a party does not file
a brief. Second, he argues the trial court erred and abused its discretion in dismissing
his case because the City was not prejudiced by his failure to file a brief. In response,
the City argues Cook’s appeal should be dismissed as moot.

                   Pennsylvania Rule of Appellate Procedure 2188

               Cook acknowledges that he did not file a brief. He argues that because
he never had a hearing of any sort, there was no record or brief that could be filed as
contemplated by Rule 2188. He contends that the trial court arbitrarily dismissed his
appeal “for not filing an empty brief[.]” Cook Brief at 19. Further, the trial court
had no authority to act sua sponte.
               The City responds that a court may dismiss a case for failure of a party
to follow any procedural rule, including a failure to file a brief. In support, the City
directs the Court to seven cases where appeals were dismissed for failure to file a
brief, none of which involve Rule 2188.7

6
  A trial court’s order imposing sanctions for noncompliance with a procedural rule is reviewed
under the abuse of discretion standard. Muth v. Ridgway Township Municipal Authority, 8 A.3d
1022, 1027 (Pa. Cmwlth. 2010). “An abuse of discretion is defined as a misapplication of the law,
a manifestly unreasonable exercise in judgment, or a final result that evidences partiality,
prejudice, bias, or ill-will.” I.B.P.O.E. of West Mount Vernon Lodge 151 v. Pennsylvania Liquor
Control Board, 969 A.2d 642, 648 (Pa. Cmwlth. 2009).
7
  The City cites to five per curiam orders by the Pennsylvania Supreme Court dismissing appeals
due to the appellants’ failure to file a brief: Joseph v. Pennsylvania Department of Probation and
Parole, 28 A.3d 867 (Pa. 2011); Gibson v. Pennsylvania Department of Probation and Parole, 22


                                                5
               We begin with a review of King, 102 A.3d 1073, on which the trial
court based its dismissal of Cook’s appeal. In that case, Mr. King challenged 17
parking ticket fines, asserting that the hearing examiner had incorrectly interpreted
the law. He requested an appeal hearing from the City of Philadelphia, Bureau of
Administrative Adjudication (Bureau). He submitted documentary evidence in
support of his position but did not appear at the hearing. The Bureau issued a final
determination upholding all 17 parking tickets.
               King then appealed to the trial court, claiming the Bureau failed to give
him adequate notice of the hearing date. The trial court directed King to file a brief
by March 4, 2013. On March 20, 2013, the Bureau filed a motion to quash the appeal
because King had not filed a brief.8 King then obtained counsel, who unsuccessfully
sought reconsideration.
               The trial court granted the Bureau’s motion to quash the appeal. King
appealed to this Court, asserting that he missed the deadline for filing a brief because
he did not know how to prepare one. This Court affirmed the trial court’s dismissal
of his appeal.


A.3d 1030 (Pa. 2011); Veasy v. Pennsylvania Department of Probation and Parole, 22 A.3d 1029
(Pa. 2011); Szarewicz v. McCormick, 973 A.2d 427 (Pa. 2009); and Ray v. Pennsylvania Board of
Probation and Parole, 741 A.2d 185 (Pa. 1999). City Brief at 10. The City does not explain the
relevance of these five per curiam orders.
         Notably, Pennsylvania Rule of Appellate Procedure 3305, which applies solely to the
business of the Pennsylvania Supreme Court, permits a party to be penalized “upon the failure to
comply with the rules of appellate procedure[.]” PA. R.A.P. 3305. The sanctions include
“[q]uashing the appeal, petition or motion[.]” Id.
         The City also cites two other cases: Commonwealth v. Shaffer, 712 A.2d 749 (Pa. 1998)
(trial court abused its discretion in dismissing criminal case because prosecutor did not schedule
trial within time set forth in scheduling order) and Brocker v. Brocker, 241 A.2d 336 (Pa. 1968)
(holding father in civil contempt for failing to return his children to their mother pursuant to
custody order). City Brief at 10. The relevance of these two cases is opaque.
8
  The appellant had requested an extension of time to file a brief, but the trial court denied it.
                                                6
             This Court explained that because a full record was made before the
local agency, the trial court reviewed the appeal as an appellate court. King, 102
A.3d at 1076. We explained that the Pennsylvania Rules of Appellate Procedure do
not apply to a trial court acting in an appellate capacity on a local agency appeal
unless the county where that trial court sits has specifically adopted the Pennsylvania
Rules of Appellate Procedure. Nevertheless, we reasoned that a “trial court, acting
as an appellate court, may look to the Pennsylvania Rules of Appellate Procedure
for guidance and ‘such points of procedure are best left to the sound discretion of
the trial court.’” Id. at 1077 (quoting Kisner, 746 A.2d at 664). We noted that Rule
2188 permits an appellee to “move for dismissal” where the appellant does not file
a brief within the time prescribed. King, 102 A.3d at 1077 (quoting Civil Service
Commission of the City of Philadelphia v. Farrell, 513 A.2d 1123, 1125 (Pa.
Cmwlth. 1986)). We concluded that the trial court did not err or abuse its discretion
in quashing King’s appeal.
             Cook argues that King is distinguishable. First, it involved a case where
there had been a complete evidentiary record made before the local agency. By
contrast, here, there has not been an evidentiary hearing. Second, in King, the trial
court acted upon a motion to quash.
             Rule 2188 specifies that “an appellee may move for dismissal of the
matter[ ]” where an appellant fails to file a brief. PA. R.A.P. 2188. Rule 2188 does
not give a trial court authority to act sua sponte, as the trial court did on Cook’s
appeal. Precedent shows that Rule 2188 has applied only where a party has filed a
motion to quash. See, e.g., Smith v. City of Philadelphia, 147 A.3d 25 (Pa. Cmwlth.
2016) (motion to quash for violation of trial court’s scheduling order); Pedro v.
Bureau of Administrative Adjudication (Pa. Cmwlth., No. 876 C.D. 2017, filed July


                                          7
10, 2017) (unreported) (motion to dismiss for appellant’s failure to file a brief);9
Powelton Village Civic Association v. Philadelphia Zoning Board of Adjustment (Pa.
Cmwlth., No. 355 C.D. 2015, filed January 27, 2016) (unreported) (motion to quash
for appellant’s failure to file a brief.)
              The City has not identified any authority for the proposition that a trial
court may sua sponte dismiss a case under Rule 2188. Further, other rules of court
procedure specify when a court may act sua sponte. See, e.g., PA. R.A.P. 1573(f)
(“A petitioner may file an application for a stay in the trial or appellate court pending
the determination of the petition for review, or the trial or appellate court may issue
a stay sua sponte.”); PA. R.C.P. No. 1023.3 (“On its own initiative, the court may
enter an order describing the specific conduct that appears to violate Rule 1023.1(c)
[regarding signing of documents] and directing an attorney, law firm or party to
show cause why it has not violated Rule 1023.1(c) with respect thereto.”); PA. R.C.P.
No. 1930.7 (“At any time in the proceedings, the court, the court’s designee or the
master, sua sponte or upon application of any party, may hold a status
conference….”); PA. R.C.P. No. 1012.1(f) (“The court may revoke an admission pro
hac vice sua sponte or upon the motion of a party, if it determines, after a hearing or
other meaningful opportunity to respond, the continued admission pro hac vice is
inappropriate or inadvisable.”).
              The First Judicial District has not adopted the Pennsylvania Rules of
Appellate Procedure to govern its handling of local agency appeals. Likewise, the
First Judicial District has not adopted a rule authorizing the dismissal of a case where
a party does not file a brief in accordance with a scheduling order.


9
 Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court filed
after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).
                                               8
                 In Kirsch v. Parking Authority of the City of New Castle, 558 A.2d 930
(Pa. Cmwlth. 1989), this Court addressed whether a trial court’s sanction, imposed
sua sponte, was permissible under Pennsylvania Rule of Civil Procedure No.
4019(a)(1).10 Specifically, Rule No. 4019(a)(1) permits the court “on motion” to
“make an appropriate order” regarding sanctions when a party has not fulfilled
discovery obligations. PA. R.C.P. No. 4019(a)(1).
                 In Kirsch, a plaintiff filed a personal injury action against the parking
authority after falling in a stairwell.                The parking authority filed written
interrogatories, which, inter alia, directed the plaintiff to provide all expert reports


10
     It provides:
           (a)(1) The court may, on motion, make an appropriate order if
                  (i) a party fails to serve answers, sufficient answers or objections
                  to written interrogatories …;
                  (ii) a corporation or other entity fails to make a designation
                  [regarding persons authorized to testify on its behalf];
              (iii) a person … fails to answer, answer sufficiently or object to
              written interrogatories …;
              (iv) a party or an officer, or managing agent of a party or a person
              designated … to be examined, after notice … fails to appear before
              the person who is to take the deposition;
              (v) a party or deponent, or an officer or managing agent of a party
              or deponent, induces a witness not to appear;
              (vi) a party or an officer, or managing agent of a party refuses or
              induces a person to refuse to obey an order of court made under
              subdivision (b) of this rule requiring such party or person to be
              sworn or to answer designated questions or an order of court made
              …;
              (vii) a party, in response to a request for production or inspection
              … fails to respond that inspection will be permitted as requested or
              fails to permit inspection as requested;
              (viii) a party or person otherwise fails to make discovery or to obey
              an order of court respecting discovery.
PA. R.C.P. No. 4019(a)(1).
                                                   9
and state the nature of the stairwell’s defect. The plaintiff did not comply with the
interrogatory. At the pre-trial conference, the parking authority sought to preclude
the plaintiff’s expert from testifying. The trial court issued an order (1) disallowing
the expert’s testimony and (2) prohibiting “any testimony relating to matters in
regard to any condition caused by either the defective design or construction of the
stairway in question.” Kirsch, 558 A.2d at 931.
              On appeal, this Court held the trial court had the authority under the
Pennsylvania Rules of Civil Procedure to sanction the plaintiff for not disclosing the
identity of the expert. However, Rule No. 4019(i) required the trial court to
determine “if the failure to disclose the identity of the [witness was] the result of
extenuating circumstances beyond the control of the defaulting party….” Kirsch,
558 A.2d at 931 (citing PA. R.C.P. No. 4019(i)). Because this issue had not been
addressed, we remanded for further consideration.
              Nevertheless, we concluded that the trial court had no authority to
preclude testimony regarding the defective condition of the stairway. We explained
that Rule No. 4019(a)(1) permitted a court to impose sanctions only “on motion.”
PA. R.C.P. No. 4019(a)(1). We held, “[t]he trial court’s sua sponte order was a clear
violation of the rule, since there was no motion for sanctions except as to the expert’s
testimony.” Kirsch, 558 A.2d at 931.
              In sum, Rule 2188 does not confer authority on a court to dismiss a case
sua sponte. Unlike the appellee in King, the City did not file a motion to quash. Rule
2188 states specifically that, “an appellee may move for dismissal of the matter.”
PA. R.A.P. 2188.11

11
  Because we conclude the trial court abused its discretion by dismissing Cook’s case, we need
not address Cook’s second argument, i.e., that the dismissal constituted an abuse of discretion
because the City was not prejudiced by the delay.
                                              10
                                       Mootness

             The City argues that Cook’s case is moot because the list to which he
seeks to have his name restored expired years ago.
             First, Cook does not request to have his name returned to an expired
list. His appeal seeks a reevaluation by a professional who possesses the training
and expertise to assess him, using the standards set forth in the Personnel Manual,
and placement of his name on the current list of eligible candidates. Cook’s Notice
of Appeal at 7; R.R. 16a.
             Cook argues that his psychological evaluation was not administered or
scored by the psychologist in the manner prescribed by the Personnel Manual. In
support of this claim, Cook states that he filed a complaint with the State Board of
Psychology against Nancy Rosenberg, M.D., the psychologist that conducted his
examination. In response, on January 13, 2017, the Department of State, Bureau of
Professional and Occupational Affairs issued an order to show cause to Dr.
Rosenberg.
             Dr. Rosenberg entered into a consent decree with the Bureau of
Professional and Occupational Affairs that was adopted and approved by the State
Board of Psychology on April 24, 2017. Commonwealth of Pennsylvania, Bureau
of Professional and Occupational Affairs v. Nancy Gail Rosenberg, Psy.D (State
Board of Psychology, Docket No. 0066-63-17, filed April 24, 2017). In the consent
decree, Dr. Rosenberg stipulated that she scored Cook’s evaluation using an
outdated version of the Police Applicant Standardized Interview Format. Further,
she rated Cook’s ability to deal with stress as a 1 on a scale of 1 to 5, which indicated
a pathological problem. Dr. Rosenberg admitted that the data did not support that
score. Dr. Rosenberg agreed to the following discipline: to cease doing police

                                           11
applicant or risk assessment evaluations; to receive a public reprimand; to pay a civil
penalty of $5,000; to pay for the costs of investigation; and to complete 20 hours of
remedial education.
             Second, the merits of Cook’s appeal are not before this Court. See
Department of Environmental Resources v. Marra, 594 A.2d 646, 648 (Pa. 1991)
(an issue is not ripe for decision by an appellate court when it has yet to be addressed
by a lower court). As such, the City’s claims of mootness may be raised before the
trial court on remand.
                                     Conclusion

             In sum, Cook has established the trial court abused its discretion in sua
sponte dismissing his appeal. Accordingly, we reverse the order of the trial court
and remand for further proceedings.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Cook,                            :
                   Appellant             :
                                         :
            v.                           :   No. 638 C.D. 2017
                                         :
City of Philadelphia Civil Service       :
Commission                               :


                                     ORDER


            AND NOW, this 7th day of January, 2019, the order of the Court of
Common Pleas of Philadelphia County, dated April 17, 2017, is REVERSED and
this matter is REMANDED in accordance with the attached opinion.
            Jurisdiction relinquished.

                                     _____________________________________
                                     MARY HANNAH LEAVITT, President Judge
