          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Coretta Avery                             :
                                          :
                   v.                     :   No. 311 C.D. 2018
                                          :   ARGUED: March 12, 2019
City of Philadelphia Board of             :
Pensions and Retirement,                  :
                         Appellant        :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                      FILED: April 9, 2019


             The City of Philadelphia Board of Pensions and Retirement (the Board)
appeals from an order of the Court of Common Pleas of Philadelphia County (trial
court) sustaining the appeal of former police officer Coretta Avery (Avery) and
reversing the Board’s denial of her application for service-connected disability
retirement benefits. We conclude that the trial court abused its discretion in (1)
remanding the matter to the Board to determine the relevance and availability of a
November 2008 letter from Dr. Paul Sedacca (November 2008 letter) which Avery
alleged contradicted his September 2008 letter discharging her to return to full-duty
employment and constituted new evidence; and (2) entering judgment against the
Board for failure to schedule a hearing on remand. Accordingly, pursuant to Section
754(b) of the Local Agency Law, 2 Pa.C.S. § 754(b), we reverse and remand this
matter to the trial court for its appellate review of the merits based on the complete
record made before the Board.
              The pertinent background is as follows. In April 2008, Avery was on
duty driving a police car when she sustained injuries in an accident. There was no
emergency assistance at the scene and Avery did not seek emergency treatment.
(Board’s Finding of Fact “F.F.” No. 4.)               Thereafter, she returned to police
headquarters and then went home. (F.F. No. 55.)
              The following day, Avery sought treatment for injuries to her neck,
upper and lower back, and left shoulder at Northeastern Hospital. (F.F. Nos. 6 and
57.) There, she underwent an x-ray and was told to return in two weeks. (F.F. No.
57.) The form from that visit reflects an estimate that Avery would be out of work
for one week. (F.F. No. 6.)
              Approximately one week after the accident, Avery began treating with
Dr. Sedacca. Following his diagnosis of sprain and strain of the cervical spine,
sprain and strain of the shoulder, and lumbar sprain and strain, he prescribed physical
therapy and referred Avery for MRIs. (F.F. No. 7.) “Like the X-rays taken at the
time of the accident, the [two 2008 MRI] studies were normal on the whole and did
not reveal any acute abnormalities.” (F.F. No. 8.)
              From April to August 2008, Avery saw Dr. Sedacca approximately
every two weeks. Once in July and twice in August, Dr. Sedacca recommended that
Avery return to work with some restrictions. (F.F. No. 9.) On September 9, 2008,
Dr. Sedacca wrote that Avery could return to full-duty work effective September 22.
(F.F. No. 10.) Subsequently, Avery began treating with numerous other physicians.1
              In December 2011, Avery applied for service-connected disability
retirement benefits requiring her to prove that she was “permanently incapacitated
from the further performance of duty” and that the “incapacity resulted solely from

    1
      On April 14, 2008, the City of Philadelphia issued a notice of compensation payable for
Avery’s injuries. (F.F. No. 19.) In May of 2011, a workers’ compensation judge granted the City’s
termination petition, finding full recovery as of October 15, 2009. (F.F. No. 21.) Neither party
discusses whether that finding has preclusive effect here.
                                               2
the performance of the duties of the member’s position.” Section 22-401(1) of the
Philadelphia Retirement Code (Code). After reviewing the reports of four doctors
and other injury-related documents, the Board denied Avery’s application in
September 2012. (F.F. No. 38.) Upon Avery’s request for a hearing and a copy of
all documents, the Board provided Avery with the entire file. (F.F. No. 39.) “On
June 14, 2013, in preparation for the hearing, counsel for [Avery] submitted a packet
of medical records and a signed stipulation agreeing to proceed on [her] testimony
and the record evidence.” (F.F. No. 40.) Avery submitted additional documents
twice in June 2013. (F.F. No. 42.) After multiple continuances at her request, the
Board held a hearing in August 2013. The hearing panel kept the record open for
Avery’s counsel to supplement it with an additional report from Dr. Andrew Freese
(Freese report). (F.F. No. 78.)
               In September 2013, Avery’s counsel submitted the Freese report. (F.F.
No. 79.)2 Notably, Dr. Freese addressed his report to Avery’s current attorney, Joyce
Ullman, Esq., and indicated therein that he had reviewed the disputed November
2008 letter. (September 18, 2013, Freese Report at 5, Exhibit 56, PACFiled Record
at 651; Reproduced Record “R.R.” at 201a.) In addition, the Board considered the
Freese report in rendering its decision. (F.F. Nos. 80-83.) The Board found that
“[a]ll documents were provided to and considered by the hearing panel.” (F.F. No.
52.)
               In November 2013, the Board denied Avery’s application. In addition
to crediting numerous doctors, it accepted Dr. Sedacca’s opinion that she could
return to full-duty work. (F.F. Nos. 84 and 85.) As for Avery, the Board rejected
those portions of her testimony where she attempted to show a connection between
the accident and any current disability and to establish a head injury. In support, it

    2
      Finding of Fact No. 79 has a typo in it that erroneously indicates that the report was submitted
in 2003.
                                                  3
noted her failure to report any loss of consciousness, the lack of a contemporaneous
diagnosis of a head injury, and her failure to seek emergency treatment at the time
of the accident. In addition, it observed Avery’s failure to include as part of her
history that she was in another car accident in the fall of 2008. (F.F. Nos. 89-90.)
Avery’s December 2013 appeal followed.
               On December 29, 2014, more than a year after the Board’s adjudication
and her appeal therefrom, Avery attached Dr. Sedacca’s November 2008 letter to
Ricky Liss, Esq. as Exhibit “A” to her brief to the trial court.3 Avery alleged that
the November 2008 letter constituted new evidence and warranted either reversing
the Board’s decision or vacating and remanding the matter to the Board to reopen
the case and schedule a hearing.4 The Board disagreed.5
               Following oral argument, the trial court ordered the Board to convene
an additional hearing to consider the relevance of the November 2008 letter and its
availability at the time of the original hearing. Thereafter, the Board was to issue a
decision and submit a supplemental record to the trial court at which time the trial
court would reschedule oral argument. (Trial Court’s July 9, 2015, Order at 1; R.R.
at 10a.) However, the Board failed to schedule a hearing. By way of partial excuse
for its oversight, the Board averred that its lapse “occurred during a period in which


    3
       The Board alleges that Liss was Avery’s workers’ compensation attorney. (Board’s Motion
for Reconsideration of the Trial Court’s January 18, 2018, Order at 2; R.R. at 36a.)
     4
       In that November 2008 letter, Dr. Sedacca noted that he placed Avery on limited duty from
April 10, 2008, to August 3, 2008, with an eventual return to full duty as of September 22, 2008.
(November 19, 2008, Sedacca Letter at 2; R.R. at 144a.) Without revoking his discharge of Avery
to return to full-duty employment, Dr. Sedacca also stated that she had a continuing impairment
of bodily function. (Id.)
     5
       The Board stated that Avery’s counsel sent the November 2008 letter to it in December 2014
and requested that it reopen the case. (Board’s April 26, 2015, Trial Court Brief at p.19; R.R. at
162a.) Noting that it denied Avery’s request, the Board argued that the letter was not part of the
record and did not constitute new evidence. Accordingly, the Board maintained that the letter did
not warrant a remand or de novo review by the trial court. (Id. at 19-22; R.R. at 162a-65a.) We
agree. See infra note 7.
                                                4
the Board staff were [sic] adjusting to new responsibilities in the wake of the
departure of the legal assistant who handled these matters . . . .” (Board’s Motion
for Reconsideration of the Trial Court’s January 18, 2018, Order at 4; R.R. at 38a.)
             Over two years later, Avery filed an October 2017 petition with the trial
court requesting that it sustain her appeal and reverse the Board’s denial of her
application for benefits. In granting Avery’s requested relief, the trial court declined
to characterize its entry of judgment against the Board as a sanction but nonetheless
primarily relied on the Board’s failure to abide by the remand order in support of its
reversal. In addition, the trial court stated that it had discretion to determine the
adequacy of the Board’s record. The Board’s appeal followed.
             On appeal, the salient issues are as follows: (1) whether the trial court
abused its discretion in remanding the matter for consideration of the November
2008 letter; and (2) whether the trial court improperly entered judgment as a sanction
against the Board for failure to schedule a remand hearing to consider the letter. We
review these issues pursuant to the abuse of discretion standard, which provides:

             An abuse of discretion is not merely an error of judgment,
             but if in reaching a conclusion the law is overridden or
             misapplied, or the judgment exercised is manifestly
             unreasonable, or the result of partiality, prejudice, bias or
             ill-will, as shown by the evidence of record, discretion is
             abused.

Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934).
             As an initial matter, there were no grounds for the trial court to have
remanded the matter based on the November 2008 letter. It is well established that
a record may not be “considered incomplete based solely on a party’s failure to
present evidence available at the hearing,” and remand is not appropriate to permit
a party “another opportunity to prove what he or she should have proved in the first
place.” Kuziak v. Borough of Danville, 125 A.3d 470, 475 (Pa. Cmwlth. 2015)


                                           5
[quoting Ret. Bd. of Allegheny Cty. v. Colville, 852 A.2d 445, 451 (Pa. Cmwlth.
2004)]. As noted, the Freese report that Avery’s current counsel submitted to the
Board in September 2013 referenced the November 2008 letter. As we also noted,
the Board afforded Avery additional opportunities to supplement the record during
the pendency of the matter before it and she signed a stipulation agreeing to proceed
on her testimony and the record evidence. Thus, at the time of the Board’s hearing,
the letter was available, counsel was—or at least should have been—aware of it and
there was no legitimate excuse for not producing it.
                 Moreover, it is hard to imagine how the November 2008 letter could
have changed the result before the Board. Avery was required to establish that she
was permanently incapacitated from the further performance of duty and that such
incapacity resulted solely from the performance of the duties of her position. Section
22-401(1) of the Code. Dr. Sedacca in his November 2008 letter did not disavow or
second-guess his discharge of Avery to return to full-duty work; he merely indicated
that at the time of discharge she had a continuing impairment of her bodily function.6




    6
        Specifically, Dr. Sedacca stated:
                 Prognosis for complete recovery must be listed as guarded,
                 primarily based upon the nature, severity and permanency of the
                 aforementioned injuries . . . . These injuries in fact do constitute a
                 serious and permanent impairment of bodily function for the patient
                 regarding full use of her neck and lower back region and very
                 importantly also place her at much greater risk for further injury in
                 the future as well. As such, I can state with reasonable medical
                 certainty that upon discharge, Coretta Avery was still not enjoying
                 the same lifestyle, level of comfort nor level of activity involving
                 the full use of her neck nor lower back region to which she was
                 accustomed prior to the injuries sustained on April 2, 2008 [date of
                 the accident at issue].
(November 19, 2008, Sedacca Letter at 2; R.R. at 144a.)
                                                   6
Accordingly, we conclude that the trial court abused its discretion in remanding the
matter to the Board for consideration of the letter years after the Board’s record was
closed.
               We turn now to the trial court’s entry of judgment against the Board for
failure to schedule a hearing. Although the trial court suggested that its decision was
not imposed as a sanction, its analysis focused almost exclusively on the Board’s
fault, and certainly has all the earmarks of a sanction, and we review it as such.7 In
adopting Avery’s proffered remedy, the trial court stated:

               [T]his court properly exercised its discretion in rejecting
               the remedy which [the Board] was seeking and granting
               the remedy [Avery] was seeking. This court’s ruling was
               not a sanction against [the Board], but an
               acknowledgement for [Avery] to have her appeal timely
               adjudicated and not delayed further than the 28 months it
               had already been delayed. As such [Avery’s] prejudice by
               the delay far outweighed [the Board’s] excuses for its
               administrative errors in failing to comply with this court’s
               order to schedule a remand hearing.

(Id.)




    7
       In the midst of its lengthy discussion of the standards relating to sanctions, the trial court
stated that it “considered the letter with [the Board’s] record and made an appropriate ruling after
considering the weight of all evidence in [the] record, as well as [the Board’s] refusal to schedule
a remand proceeding to consider that letter” (Trial Court April 13, 2018, Opinion “Op.” at 9),
which seems to suggest some sort of hybrid basis for its ruling. At all events, this could not be a
valid decision on the merits. On appeal from an agency’s adjudication, the trial court may review
the agency’s decision based on its supported factual findings or, if the record is incomplete, it may
hold a de novo hearing. It cannot accept a document dehors the record and then re-weigh the
evidence before the agency and find its own facts.


                                                 7
While it is axiomatic that courts have the inherent power to enforce their orders by
imposing penalties and sanctions for failure to comply,8 that power is not unfettered
and is subject to scrutiny under the abuse of discretion standard.9
               In exercising discretion, a trial court need not mechanically consider a
laundry list of factors.10 However, a trial court should weigh at least some of the
following criteria:

               (1) Whether the transgression was part of a pattern of
               improper behavior, misconduct or abuse; (2) whether the
               transgression was inadvertent; (3) whether the court
               attempted to contact counsel; (4) whether the opposing
               party would be prejudiced by the transgression; and (5)
               whether the court gave any consideration to lesser
               sanctions.

Williams v. Sch. Dist. of Phila., 870 A.2d 414, 416 (Pa. Cmwlth. 2005).11
               In the present case, the trial court characterized the Board’s delay as
tantamount to “administrative errors.” (Trial Court’s April 13, 2018, Opinion “Op”.
at 10-11.) This determination is consistent with the concession of the Board’s
counsel that the failure to comply with the remand order was a mistake and an
administrative failure. Certainly, there is no indication that the Board exhibited a
pattern of improper behavior, misconduct, or abuse, and the trial court did not so
find.


    8
       Davis v. Se. Pa. Transp. Auth., 680 A.2d 1223, 1226 (Pa. Cmwlth. 1996).
    9
       Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998).
     10
        See Thompson v. Houston, 839 A.2d 389, 391 (Pa. Super. 2003).
     11
        These criteria or similar equitable factors are not limited to situations where counsel fails
to appear at a hearing, but also are applicable when ascertaining whether other transgressions
should be excused. See City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary), 985
A.2d 1259, 1270-71 (Pa. 2009) (failure to respond to a subpoena); Shaffer, 712 A.2d at 752 (failure
to comply with discovery orders); and Seidel v. Great Factory Store, 435 A.2d 896, 898 (Pa. Super.
1981) (failure to timely file brief).
                                                 8
              Turning to the prejudice criterion, the trial court’s determination that
Avery suffered prejudice was strained, speculative, and contingent upon facts not
found. The trial court reasoned:

              [The Board’s] assertion that [Avery] suffered no prejudice
              by [its] failure to schedule a hearing is uncertain. If the
              [B]oard had changed its decision based on Dr. Sedacca’s
              letter of November 19, 2008 then [Avery] had to continue
              to live without her pension benefits almost three (3) years
              since this court’s July 9, 2015 remand order, which could
              have a substantial effect on her quality of life. In that case
              [Avery] did suffer prejudice. [Emphasis added.]

(Id. at 11.) By way of analysis, Avery only lost money in the interim if she was
entitled to it in the first place. If the trial court ultimately finds that she was entitled
to benefits, a monetary sanction could make her whole. Accordingly, we conclude
that the trial court abused its discretion in finding prejudice.
              Turning to the severity of the sanction, we conclude that the trial court’s
entry of judgment against the Board was a manifestly unreasonable reaction to an
administrative breakdown. In choosing to reverse, the trial court never considered a
lesser sanction, but instead rendered a decision that was disproportionate to the
admitted administrative error and inappropriately focused solely on the passage of
time.
              Accordingly, we reverse and remand this matter for the trial court’s
appellate review of the merits on the complete record made before the Board.



                                          _____________________________________
                                          BONNIE BRIGANCE LEADBETTER,
                                          Senior Judge



                                             9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Coretta Avery                              :
                                           :
                  v.                       :   No. 311 C.D. 2018
                                           :
City of Philadelphia Board of              :
Pensions and Retirement,                   :
                         Appellant         :


                                     ORDER


            AND NOW, this 9th day of April, 2019, the order of the Court of
Common Pleas of Philadelphia County is hereby REVERSED and this matter is
REMANDED in accordance with the foregoing opinion.
            Jurisdiction relinquished.



                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
