              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia                     :
                                         :
                   v.                    :
                                         :
City of Philadelphia Civil               :
Service Commission and                   :
Jason Collins                            :
                                         :   No. 1972 C.D. 2016
Appeal of: Jason Collins                 :   Argued: October 19, 2017


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: November 21, 2017

            Jason Collins (Collins) appeals from the Philadelphia County Common
Pleas Court’s (trial court) June 22, 2016 order granting the City of Philadelphia’s
(City) appeal and overruling the City Civil Service Commission’s (Commission)
September 9, 2015 decision that sustained Collins’ appeal and reinstated him to his
position as a trash collector for the Sanitation Division of the Department of Streets
(Department). The issue before this Court is whether the Commission properly
ordered Collins’ reinstatement and whether the trial court erred when it reversed the
Commission’s decision. After review, we affirm.
            On December 15, 2014, Collins was working as a trash collector for the
Department. That same date, Bernard Freeman (Freeman) approached City police
officer Ernie Williams (Officer Williams) at 65th Street and Haverford Avenue with a
large, bloody cut on his face and blood on his clothing, alleging that a Department
employee had struck him in the face in the area of 38 th and Cambridge Streets. The
Department investigated the incident, determined that Collins was the offending
employee and held a hearing on December 17, 2014. Thereafter, the Department
placed Collins on indefinite suspension without pay, and recommended his dismissal.
Collins appealed from that decision, and a hearing was held before the Department’s
Deputy Commissioner on December 24, 2014. The Deputy Commissioner upheld the
Department’s dismissal recommendation.           On January 5, 2015, the Department
served upon Collins a “Notice of Dismissal,” discharging him effective January 16,
2015. Reproduced Record (R.R.) at 14a. On January 6, 2015, the Department served
Collins with a “Notice of Intention to Dismiss,” informing Collins that his
employment would end “[e]ffective ten days from service of this notice[.]” R.R. at
16a.   The sole reason provided for dismissal in both notices was “Workplace
Violence.” R.R. at 15a, 17a.
             On February 10, 2015, Collins appealed from the Department’s decision
to the Commission. On August 11, 2015, the Commission held a hearing. The
Department presented the testimony of three witnesses.                Department District
Supervisor Barbara White (White) testified that, on December 15, 2014, the police
notified the Department that a representative needed to respond to a report of an
alleged assault. Department District Supervisor Joanne Brown (Brown) met with
police. White related that she investigated the alleged assault after discovering that it
occurred in her assigned district. White stated that she learned that Freeman had
sustained a black eye and needed hospital treatment, she identified the employees
working the route and she ultimately discovered that Collins was the alleged
perpetrator. White admitted that she did not speak to Freeman, but rather spoke to a
resident on the block who claimed to have seen the incident (Resident Witness).1


       1
          The Department did not clearly identify the Resident Witness. Counsel and witnesses
referred to him as “Mr. James,” “Mr. Jimmy,” “Jimmy James” or “Jimmy something.” R.R. at 29a,
48a.
                                             2
White described that the Resident Witness expressed that a Department employee
knocked Freeman to the ground and kicked him. White recalled Collins reporting to
her that Freeman attempted to throw something into Collins’ truck and Collins tried
to stop him. White explained that Department policy prohibits anyone other than a
Department employee from throwing anything into the sanitation truck.                           The
Department instructs and regularly reminds employees that if an individual becomes
hostile, the employees are to lock-up the truck, leave the area and notify a
supervisor.2 White stated that Collins did not inform his supervisor of the incident.
               Officer Williams testified that he and his partner were sitting in their
patrol vehicle at 65th Street and Haverford Avenue when Freeman knocked on the
vehicle window. Officer Williams observed that Freeman had a large cut and blood
on his face, and blood on his clothing. Officer Williams recalled Freeman informing
him that he was punched in the face by a sanitation worker in the area of 38th and
Cambridge Streets.          The Department’s counsel showed Officer Williams a
photograph of Freeman and Officer Williams confirmed that it was an accurate
depiction of Freeman at the time he observed him.                     Officer Williams further
recounted that he offered to call medics, but Freeman declined, stating that he would
go to the hospital.3 Officer Williams requested by radio that a Department Sanitation
Supervisor be notified. Thereafter, Brown arrived at Officer Williams’ location and
spoke with Officer Williams and Freeman. Officer Williams explained that he did
not speak to any individuals other than Freeman and Brown. In Officer Williams’
opinion, Freeman’s injuries were consistent with being struck in the face with a fist.

       2
          White also testified that if a resident is violent towards a Department employee, a
Department agreement with the City Police Department provides that the Police Department will
respond as if a police officer is in trouble. The Department also asks the crew to assist an employee
in escaping the situation, leaving the area and calling the police.
        3
          According to Officer Williams, Freeman stated that he had briefly waited for police at the
scene of the incident but left to go to the hospital and, while en route, stopped Officer Williams’
vehicle to report the incident.
                                                 3
              Department Human Resources Professional Clinton Gibson (Gibson)
testified that if a resident attempts to throw something into a truck, Department
employees are supposed to lock down the truck, leave the area, and notify a
supervisor who will address the situation. Gibson further stated that Department
workers are not supposed to engage with citizens.                   Gibson described that he
attempted to interview the two crew members working with Collins on the day of the
incident, but they refused to cooperate or provide information. Gibson explained that
he reviewed the Resident Witness’ statement which described Collins punching
Freeman, pushing him down and then stomping on Freeman’s head until Collins’ co-
worker pulled him off. Gibson recalled that he spoke to Collins, who told him that
Freeman attempted to put a trash bag in the truck in violation of Department policy.
Gibson reported that Collins also told him that he and Freeman got into an argument,
Collins pushed Freeman, and Freeman fell over trash laying on the ground and hit his
head on the pavement. Gibson asserted that Collins never said he locked the truck
down.
              Gibson concluded based on the investigation, his discussions with
Collins and individuals who spoke with the witnesses, and his review of Freeman’s
and Resident Witness’ statements, that Freeman approached Collins and attempted to
put the trash bag in the truck, at which time Collins punched and pushed Freeman.
Gibson noted that Collins had “prior issues with his temper and . . . on that day, it
sounded like he lost it once more and assaulted a citizen.”4 R.R. at 46a. Gibson


        4
           Gibson testified that the Department had previously suspended Collins under similar
circumstances. Collins’ counsel objected, and after an off-record discussion, the Commission’s
Executive Assistant stated, “the Commissioners do have a copy of [Collins’] disciplinary record as
part of its file. So there’s no need – it’s duplicative.” R.R. at 44a. Notwithstanding, that
disciplinary record is not part of the certified record before this Court and that testimony may not
and will not be considered. See Pa. Tpk. Comm’n v. Unemployment Comp. Bd. of Review, 991 A.2d
971, 974 (Pa. Cmwlth. 2009) (“This Court may not consider any evidence that is not part of the
certified record on appeal.”).
                                                 4
explained that, as a result, the Department held a hearing5 and, thereafter,
recommended Collins’ discharge based on his admission that he pushed Freeman in
violation of the Department’s Workplace Violence Policy (Violence Policy).6
               Collins described the December 15, 2014 incident as follows:

               This is our regular route. So we were working the block
               and there was a guy out there and he had construction out.
               So, as he started walking toward the truck with a bag, I told
               him, you can’t. . . . And as he grabbed the bag and walked
               toward the truck, he went to put it in and I stopped him and
               I told him you can’t put it in the truck. And he said he’s
               going to put it in the truck. So I locked the truck up. . . .
               And then he got a little mad, then I took the bag and sat it
               back on the curb and he grabbed me by my shirt. And when
               he grabbed me, I shoved him off me. When I shoved him,
               he fell over the trash that was still there -- everything that he
               had there. At this point, I hopped in the truck and I told the
               driver to just leave the block, leave the block completely.



       5
          The Department did not transcribe or otherwise preserve statements made at the
Department hearings in this matter. See R.R. at 60a-61a.
        6
          Collins’ counsel stipulated to the existence of the Department’s Violence Policy and that
Collins was aware of the Violence Policy. See R.R. at 44a. Collins also admitted that he was aware
of the Violence Policy. See R.R. at 67a. The Department’s Violence Policy states in relevant part:
               It is the [] Department’s policy to promote a safe work environment
               for all employees. The Department is committed to maintaining a
               work environment free from violence, threats, harassment,
               intimidation, and other behavior that threatens the safety of
               employees and citizens.
               These behaviors will not be tolerated in our workplace, and the
               [D]epartment will deal with all reported incidents in an expedient and
               effective manner. Such behaviors can include oral or written
               statements and gestures or expressions that communicate a direct or
               indirect threat of physical harm. This policy also applies to
               intentional damage to [] Department or employee property.
               Individuals who commit such acts shall be removed from the
               premises and shall be subject to severe disciplinary action, including
               dismissal and criminal penalties, where applicable.
R.R. at 83a.

                                                 5
R.R. at 65a-66a. Collins acknowledged that “I should have - as soon as we left the
block - actually, I should have never pushed him. I should have eliminated
myself from the situation altogether and called the police and my supervisor.”
R.R. at 66a (emphasis added).         Collins explained his reason for not calling his
supervisor, stating:

               Because it was more of a panic thing because I knew he was
               a resident, and the City has this thing - well, to my
               understanding, the City has this thing whereas though, when
               it’s something with the resident, it’s like they instantly take
               the resident’s side. We have no fight against them. So it’s
               like – I’m like – once I knew he fell over there, I’m like, I
               got to get out of here because they’re going to automatically
               take his side. It’s going to be something bigger than it has
               to be.

R.R. at 67a.
               On cross-examination, Collins acknowledged that he did not notify his
supervisor of the incident and did not call the police. He further stated:

               Once [Freeman] fell over all that trash, I got in the truck
               and I told my driver to leave the block immediately. . . . I
               said I shoved him, he stumbled over the trash. When -- I
               did not stick around for him to fall on the ground or see
               what happened after. I immediately jumped in the truck
               and told my driver to leave the block.

R.R. at 68a-69a. Collins admitted he knew that Department policy required he call
his supervisor under such circumstances, but did not do so. Collins contended that
the Violence Policy does not prevent him from defending himself, but acknowledged,
“I was in the wrong for allowing myself to not step away from the situation as
soon as he grabbed me and calling the police. Yes, I was in the wrong for that.
But defending myself, . . . I was not.” R.R. at 69a-70a (emphasis added).




                                             6
             The Commissioners also questioned Collins. He described the incident
again, stating:

             We were throwing the trash. I was actually working that
             side of the street. I saw the construction. [Freeman] was
             standing there. . . . As the truck pulls up in front of his
             trash, he grabs a bag and starts walking toward the truck. . .
             . He picked up the bag as soon as the truck stopped. He
             picked up the bag and start[ed] walking toward the truck. . .
             . As he walked toward the truck, I kind of stepped in front
             of him and said, you can’t put that in there. When he said --
             he kind of already had already sat it on the truck, so I
             decided I’ll lock the truck up. . . . I took the bag up and I
             sat it back on the curb -- I sat it back in front of him. That’s
             when he grabbed me. And soon as he grabbed me, my
             reaction -- get off me, and I pushed him, [a]nd that’s when
             he stumbled over the trash. . . . And then, at that point, is
             when I got in the truck and told my driver to leave the block
             completely.

R.R. at 73a-75a.
             Collins specifically denied striking Freeman, but admitted, “when I
pushed him off me . . . he fell over – I saw him fall over the trash and I got in the
truck. . . . He fell face first.” R.R. at 72a (emphasis added). When asked how
Freeman fell forward since Collins pushed him backwards, Collins explained: “When
I pushed him, he turned, and the normal reaction -- if somebody – if you’re falling,
you go to put your hands down to -- you turn around and put your hands down to
brace yourself for the fall. I’m pretty sure that’s how.” R.R. at 76a. He stated that he
first became aware that a complaint had been made regarding the incident in the
afternoon after his crew was taken off the route. Collins recalled: “I told [the
Department] like what initially happened, as though I was just -- he shoved me, I
shoved him back, like -- I mean, he grabbed me and I shoved him off me.” R.R. at
70a. Notably, Collins admitted that his co-workers did not speak about the incident
because: “[H]onestly, I did not think it would go to the point it did. So when – I


                                            7
asked them not to say anything. I asked them to stay out of it, let me handle it
myself.” R.R. at 73a.
            The Commission sustained Collins’ appeal, holding:

            Following a thorough review of the evidence, the testimony
            of all the parties, and the relevant and applicable case law,
            we find that the Department has not met its burden of proof,
            namely, that there is sufficient, probative, substantial
            evidence to conclude that there was just cause for [Collins’]
            dismissal. To be sufficient, all the law requires is that the
            cause be not religious or political, but concerned solely with
            the inefficiency, delinquency or misconduct of the
            employee.
            In this case, we find [Collins’] request to overturn the
            Department’s decision to be reasonable. The evidence
            presented by the Department was based mainly on hearsay -
            i.e., [Freeman’s] statement to [] Officer Williams and a
            statement made to [] Brown by [Resident W]itness to the
            incident. While the Commission is not bound by technical
            rules of evidence, we cannot base a finding on hearsay
            evidence alone. Other than [Collins’] testimony, no other
            first-hand accounts were presented. In regard to the
            photograph of [Freeman], although it contained a
            handwritten date and place on the back, it was not properly
            authenticated via testimony or electronic date/time stamp.
            Therefore we cannot determine who took the picture, or
            when or where the injury depicted in the photo occurred.
            The Commission also finds troubling the fact that
            [Freeman] traveled some distance from the scene before
            reporting the incident to the police and seeking medical
            attention. Based on all of the above, the Commission finds
            that the Department has failed to meet its burden by
            sufficient, substantial evidence.

R.R. at 6a-7a. The Department appealed from the Commission’s decision to the trial
court. On June 21, 2016, the trial court held oral argument. On June 22, 2016, the
trial court overruled the Commission’s decision and granted the Department’s appeal.




                                          8
              The trial court held:

              The law requires that just cause to terminate ‘not be
              religious or political but concerned solely with the
              inefficiency, delinquency or misconduct of the employee[.’]
              Civil Serv[.] Comm’n v. Poles, 573 A.2d 1169, 1172 (Pa.
              C[mwlth.] 1990). In its review of a decision of a City
              department, the Commission must ‘defer to the discretion of
              the agency head on what was required ‘for the good of the
              service,’’ City of Phila[.] v. Civil Serv[.] Comm’n
              [(Carter)], 895 A.2d 87, 94 (Pa. C[mwlth.] 2006).
              No evidence on the record before the [] Commission
              suggested that [] Collins was terminated for religious or
              political reasons.   The sole reason for [] Collin[s’]
              termination was his personal misconduct. See Notice of
              Dismissal, dated January 5, 2015[, R.R. at 14a-15a]. The []
              Commission is required by law to defer to the discretion of
              the [] Department, which concluded that [] Collins was not
              a suitable employee. There was ample evidence to suggest
              that [] Collin[s’] conduct was inconsistent with the []
              Department’s workplace policies.
R.R. at 121a-122a. The trial court also concluded that:
              Although the [] Commission takes issue with the hearsay
              nature of some of the testimony it heard, there was
              uncontested non-hearsay evidence that [] Collins violated
              the [] Department’s [Violence Policy].
              Officer Williams testified that he observed [Freeman]
              shortly after the incident and that [Freeman] was bleeding
              from a cut on his face. Furthermore, [] Collins admitted
              that he pushed [] Freeman causing him to fall and injure
              himself. [] Collins testified that he was familiar with the []
              Department’s [Violence Policy].          [] Collins further
              recognized that he should have removed himself from the
              confrontation with [Freeman].

R.R. at 122a (citations omitted). Collins timely appealed to this Court.7

       7
         “Our scope of review of an adjudication of the Commission is limited to determining
whether the Commission violated the constitution, erred as a matter of law or made findings of fact
not supported by substantial evidence.” City of Phila. v. Civil Serv. Comm’n (Johnson), 967 A.2d
1034, 1037 n.3 (Pa. Cmwlth. 2009).
                                                9
             This Court has explained:

             Under the Philadelphia Home Rule Charter, ‘[a]ny
             dismissal or demotion after the completion of the required
             probationary period of service, or suspension of any
             employe in the civil service shall be for just cause only.’
             351 Pa. Code § 7.7-303. The term ‘just cause’ is not
             defined therein, but Pennsylvania courts have explained:

                   What constitutes ample [just] cause for
                   removal . . . must necessarily be largely a
                   matter of discretion on the part of the head of
                   the department. To be sufficient, however, the
                   cause should be personal to the employee and
                   such as to render him unfit for the position he
                   occupies, thus making his dismissal justifiable
                   and for the good of the service.

                   . . . All that the law requires is that the cause be
                   not religious or political, but concerned solely
                   with the inefficiency, delinquency or
                   misconduct of the employe. A wide latitude
                   must be left to the superior officer—in fact a
                   discretion conditioned only on its exercise in
                   good faith and not as a screen for some reason
                   not based upon the fitness of the employe to
                   fill the position.

             Benvignati v. Civil Serv[.] Comm[‘n], . . . 527 A.2d 1074,
             1075 ([Pa. Cmwlth.] 1987) (quoting O’Gorman Appeal, . . .
             187 A.2d 581, 583-[]84 ([Pa.] 1963)). Therefore, the
             Commission must ‘defer to the discretion of the agency
             head on what was required ‘for the good of the service.’’ . .
             . Carter[], 895 A.2d [at] 94 . . . . Whether an employee’s
             behavior constitutes just cause for demotion is a question of
             law. If just cause exists, the Commission is not permitted to
             modify or reverse the sanction imposed by the employer.

City of Phila. v. Civil Serv. Comm’n (Boles), 965 A.2d 389, 393-94 (Pa. Cmwlth.
2009) (citation omitted).


                                           10
               We agree with the trial court that the Commission erred.                           The
Commission acknowledged that “[t]o be sufficient, all the law requires is that the
cause be not religious or political, but concerned solely with the inefficiency,
delinquency or misconduct of the employee.” R.R. at 6a. Notwithstanding, the
Commission failed to apply that standard.
               There is no record evidence that the cause for removal was “religious or
political[.]” Id. Instead, the Department’s employment action against Collins was
“concerned solely with the . . . misconduct of the employee[,]” in particular, his
violation of the Violence Policy. Id. Although a substantial part of the evidence
presented was indeed based on hearsay,8 there was significant non-hearsay evidence
supporting the Department’s action and based thereon, the Commission was required
to ‘defer to the discretion of the agency head on what was required ‘for the good of
the service.’’ Boles, 965 A.2d at 394. Specifically, Officer Williams observed
Freeman shortly after the incident, and testified that the Department’s photograph
accurately represented Freeman’s injured appearance at the time, and that based on
his observations, he believed that Freeman had been assaulted.9 Officer Williams’
testimony regarding his observations was not hearsay. In addition, the Department’s
witnesses testified that Collins admitted he was involved in the incident and that he

       8
         “Hearsay is defined as an out[-]of[-]court statement, either written or oral, offered in court
for the purpose of proving the truth of the matter contained in the statement.” Feinberg v.
Unemployment Comp. Bd. of Review, 635 A.2d 682, 685 n.4 (Pa. Cmwlth. 1993). Hearsay is
generally not admissible unless it is subject to an exception. See Pa. R.E. 802. This Court has
explained that “in limited circumstances - i.e., administrative and local agency proceedings -
hearsay evidence admitted without objection will be given its natural probative effect and may
support a finding of fact, this is so only if the hearsay evidence is corroborated by any competent
evidence in the record.” Malloy v. Civil Serv. Comm’n of City of Phila., 645 A.2d 434, 435-36 (Pa.
Cmwlth. 1994).
       9
          Although the Department did not offer testimony authenticating the time and place the
photograph was taken, and by whom, the photograph did contain a handwritten date and place on
the back. More importantly, Officer Williams’ testimony established that the photograph accurately
represented how Freeman appeared at the time Officer Williams encountered him on December 15,
2014, following the incident.
                                                 11
shoved Freeman, causing Freeman to fall on his face. Such statements fall within the
“Opposing Party’s Statement” exception to the hearsay rule. See Pa. R.E. 803(25).
Further, Collins’ own testimony acknowledged his involvement. Collins admitted he
“shoved” Freeman, who fell on his face as a result. R.R. at 66a, 69a, 70a. Notably,
Collins did not testify that he asked Freeman to remove his hands, that he attempted
to remove Freeman’s hands or otherwise diffuse the situation, or that he believed a
violent response was necessary for his safety.10              Although Collins explained he
“shoved” Freeman after allegedly being grabbed, Collins’ testimony did not justify
his violent, amplified response to Freeman’s alleged conduct. Id. After “shov[ing]”
Freeman and causing him to fall on his face from which Freeman sustained injuries,
Collins essentially fled the scene, asked his co-workers to remain silent about the
incident, and failed to report the incident in accordance with Department policy. R.R.
at 66a, 69a, 70a. Collins’ own statements established these facts. The Department’s
Violence Policy prohibits “violence, threats, harassment, intimidation, and other
behavior that threatens the safety of employees and citizens[,]” and warns that
employees who engage in such acts are subject to dismissal. R.R. at 83a. The non-
hearsay evidence presented at the Commission’s hearing demonstrates that Collins
violated the Department’s Violence Policy.              Substantial evidence supported the
Department’s action, and the Commission should have deferred to the Department’s
discretion. Accordingly, the Commission erred by sustaining Collins’ appeal and
ordering his reinstatement.




       10
           Collins testified: “I should have never pushed him. I should have eliminated myself from
the situation altogether and called the police and my supervisor.” R.R. at 66a. He also admitted, “I
was in the wrong for allowing myself to not step away from the situation as soon as he grabbed me
and calling the police.” R.R. at 69a. Implicit in these statements is Collins’ acknowledgement that
he could have “eliminated [him]self from the situation altogether” without “shov[ing]” Freeman.
R.R. at 66a.
                                                12
For all of the above reasons, the trial court’s order is affirmed.



                           ___________________________
                           ANNE E. COVEY, Judge




                              13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                  :
                                      :
                   v.                 :
                                      :
City of Philadelphia Civil            :
Service Commission and                :
Jason Collins                         :
                                      :   No. 1972 C.D. 2016
Appeal of: Jason Collins              :



                                   ORDER

            AND NOW, this 21st day of November, 2017, the Philadelphia County
Common Pleas Court’s June 22, 2016 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
