Opinion

C. DeLuca and DeLuca's Auto Repair and Towing, Inc. v. Hazleton PD and Chief of Police F v. DeAndrea, Jr.

  • 144 A.3d 266
  • 2016 Pa. Commw. LEXIS 341
  • 2016 WL 4063073
Court
Commonwealth Court of Pennsylvania
Filed
Jul 28, 2016
Status
Published
Author
Robert Simpson
On the bench
Simpson, McCullough, Leadbetter
Cited by
1 cases
Authority
More cited than 50.3%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia DeLuca and DeLuca's Auto :

Repair and Towing, Inc. :

Appellants :

: No. 2401 C.D. 2015

v. : Argued: June 6, 2016

:

Hazleton Police Department and :

Chief of Police Frank V. DeAndrea, Jr. :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: July 28, 2016

The key issue in this case is whether suspension from a municipality’s

emergency service towing rotation is an “adjudication” under our Local Agency

Law,1 requiring a hearing and the right of appeal. A towing business was

suspended from the towing rotation in Hazleton amid accusations of misconduct,

including dishonesty or corruption affecting the health, safety and welfare of

others, but it was denied a hearing before the local agency and a trial court. The

towing business appeals.

More particularly, DeLuca’s Auto Repair and Towing, Inc., and its

owner, Cynthia DeLuca (collectively, DeLuca) appeal from an order of the Court

of Common Pleas of Luzerne County (trial court) dismissing their local agency

appeal. DeLuca appealed from a letter of the Hazleton Police Department

1

2 Pa. C.S. §§551-555, 751-754.

(Department) and Chief of Police Frank V. DeAndrea, Jr. (Police Chief)

suspending DeLuca from being placed on the Department’s emergency service

towing rotation list for a period of three years. In granting the Department’s

motion to dismiss, the trial court determined DeLuca demonstrated no

constitutionally protected rights or interests in the Department’s towing rotation

warranting a right to appeal the Department’s suspension letter. For the reasons

that follow, we reverse and remand for further proceedings.

I. Background

DeLuca is a Pennsylvania corporation located in the City of Hazleton.

It is in the business of towing vehicles. Prior to June 9, 2015, DeLuca received

towing assignments on a rotating basis with other approved towers. On June 9,

2015, the Department faxed DeLuca a notification of suspension of towing

services for three years under Section 1.06 of the Department’s Towing

Requirements Policy (Towing Policy) for repeated conduct by a towing service

employee that tends to demean the public image of the Department. See

Reproduced Record (R.R.) at 7a. The Department described Ms. DeLuca’s

offending conduct as follows:

Facebook posting under your personal account have [sic]

accused the Mayor of the City of Hazleton with being [a]

criminal and accepting bribes. This by means of the

relationship [DeLuca] has with the City of Hazleton and

the [Department], tends to demean the public image of

the Department.

Id. The Department’s notice of suspension also provided:

Your suspension shall be for three years. It shall

commence immediately and shall end June 10, 2018.

2

Prior to your towing service becoming eligible to receive

service calls at the end of this suspension you must take

appropriate remedial action. Your towing services

recourse to this suspension is through civil litigation.

Id. (emphasis added). Thereafter, news articles about DeLuca’s suspension

appeared on-line and in the local newspaper. See R.R. at 31a-36a.

In response to the notice of suspension, DeLuca, through counsel,

requested either a rescission of the suspension or a hearing on the suspension in the

nature of an appeal. R.R. at 8a-9a. On June 17, 2015, the Department issued a

revised notice of suspension, which provided (with emphasis added):

The suspension is pursuant to Section 1.06(C)(3)

of the [Towing Policy]: ‘The commission of any act by

an owner or manager of a towing service involving

dishonesty or corruption, when the act directly or

indirectly affects the health, welfare, or safety of others.’

The Facebook posting under ‘Hazleton Corrupts’ created

under your name and Facebook account has accused the

[Department], the Mayor, Frank Vito and [Police Chief]

of being corrupt, accepting bribes, and improperly

discriminating against your towing company (which is

untrue). I enclose a copy of the policy for your

convenience. I note that you were given a copy of same

when you were originally placed on the list, which you

consented to.

Your suspension shall be for three years. It shall

become effective June 9, 2015, and it shall end on June

10, 2018. Prior to your towing service becoming eligible

to receive service calls at the end of this suspension you

must take appropriate legal action. Your towing services

recourse to this suspension is through civil litigation, per

Section 1.06(F) of the Policy.

I am copying your Attorney … with this Notice.

The Hazleton City Solicitor … advises [your attorney]

3

that no appeal hearing will be provided in this matter, his

recourse is via suit, per Section 1.06(F) of the policy.

Additionally, any suit claiming constitutional protection

of free speech and association for this activity will be met

with a counterclaim for defamation and attorneys’ fees.

R.R. at 10a.

In July 2015, DeLuca filed a local agency appeal from the

Department’s first notice of suspension asserting the suspension of DeLuca’s

towing privileges constituted an adjudication imposed without a hearing in

violation of DeLuca’s due process rights. See R.R. at 4a-6a. In its appeal, DeLuca

averred:

5. The purported suspension was without prior notice or

hearing and is without basis in fact.

6. The purported suspension is in violation of both the

United States and Pennsylvania Constitutions in that it

was done without due process and in contravention of

[DeLuca’s] rights of political speech, activity and

affiliation.

7. [DeLuca’s] constitutional property and liberty interests

have been impaired by the purported suspension.

DeLuca’s Appeal at ¶¶5-7; R.R. at 5a.

In August 2015, the Department responded with a motion to dismiss

the appeal. R.R. at 16a-23a. The Department argued that a local agency appeal is

permitted only where an agency issues an adjudication adversely affecting the

personal or property rights or interests of an individual or business. Here, the

Department asserted, DeLuca had no statutory or contractual entitlement to remain

4

in the towing service rotation. Therefore, the Department argued, DeLuca had no

personal or property rights at stake and thus had no right to an appeal.

Thereafter, the trial court held oral argument on the Department’s

motion. R.R. at 26a-29a. Before the trial court, DeLuca asserted it suffered both a

business loss and a reputational loss. The suspension cost DeLuca two rotations in

just six weeks, and the business it would have received. See Notes of Testimony

(N.T.), 8/17/15, at 3-4; R.R. at 27a. DeLuca further asserted it lost additional

business from other customers who thought DeLuca went out of business or could

no longer work in Hazleton. Id. Therefore, in addition to a financial loss, DeLuca

claimed it suffered a reputational loss as a result of the suspension. Id.

In response, the Department asserted DeLuca had neither a contract

with the Department nor a statutory right to be on the Department’s towing rotation

list. N.T. at 6-7; R.R. at 28a. To that end, the Department argued its Towing

Policy did not create a contractual relationship between the Department and

DeLuca. N.T. at 8; R.R. at 28a. Absent a right to a local agency appeal, the

Department asserted DeLuca’s claim for loss of reputation or stigma must be

brought in a proper forum, such as a state or federal court. Id.

Following oral argument, the trial court also set up a briefing schedule

for the parties and concluded the hearing. On October 1, 2015, the trial court

entered an order granting the motion to dismiss the appeal.

5

Thereafter, in an opinion in support of its order, the trial court, citing

our decision in Wilco Mechanical Services, Inc. v. Department of General

Services, 33 A.3d 654 (Pa. Cmwlth. 2011), recognized a letter may constitute an

adjudication if it is a final determination of an agency impacting a party’s personal

or property rights, privileges, immunities, duties or obligations. See Tr. Ct., Slip

Op., 12/30/15, at 7. Further, the court reasoned, to have a constitutionally

protected property interest, a party must have more than a unilateral expectation, it

must possess a legitimate and enforceable claim under the law. Id. at 7-8. In

addition, an agency’s general statement of policy is neither a rulemaking nor an

adjudication. Id. at 9. Reviewing additional cases cited by the Department, the

trial court reasoned:

We have reviewed the authority submitted by the

[Department] defining and delimiting the nature of the

purported rights and interests asserted in the instant

context. These include: [In re J.B., 107 A.3d 1 (Pa.

2014)]; [Pipkin v. Pennsylvania State Police, 693 A.2d

190 (Pa. 1997)]; [Stumpp v. Stroudsburg Municipal

Authority, 658 A.2d 333 (Pa. Cmwlth. 1995)]; Wilco;

[Scott v. City of Pittsburgh, 903 A.2d 110 (Pa. Cmwlth.

2006)]; [Nitterhouse v. Department of Public Services,

706 A.2d 381 (Pa. Cmwlth. 2006)]; and [Nearhood v.

City of Altoona, 705 A.2d 1363 (Pa. Cmwlth. 1998)].

Both the holdings and tenor of the referenced

decisions require, in our judgment, an interpretation of an

asserted right or interest which is consistent with the

language employed by the legislature. Indeed, these

decisions do not seek to judicially expand or create

interests or privileges not contemplated by the

legislation.

Tr. Ct., Slip. Op., at 8 (citation omitted).

6

Ultimately, the trial court determined, “[i]t is not the court’s

prerogative to interfere with the operation of municipal government or the

decisions made by municipal officials absent some legally cognizable and

necessary reason to do so.” Tr. Ct., Slip. Op., at 10 (emphasis in original).

With respect to DeLuca’s claim of injury to its reputation, the trial

court rejected DeLuca’s argument that the Supreme Court’s decision in J.B.

dictates that an injury to a party’s reputational interest permits an agency appeal

and hearing. In J.B., the Supreme Court reviewed a trial court’s determination that

lifetime registration provision in the state’s Sex Offender Registration and

Notification Act (SORNA), 42 Pa. C.S. §§9799.10-9799.41, as applied to

juveniles, violated their due process rights. In J.B., the Supreme Court recognized

the juveniles had an interest in their reputation protected by Article I, Section 1 of

the Pennsylvania Constitution, which provides (with emphasis added):

All men are born equally free and independent and have

certain inherent and indefeasible rights, among which are

those of enjoying and defending life and liberty, of

acquiring, possessing and protecting property and

reputation, and of pursuing their own happiness.

PA CONST. art. 1, §1. In addition, Article I, Section 11 of the Pennsylvania

Constitution provides (with emphasis added):

All courts shall be open; and every man for an injury

done him in his lands, goods, person, or reputation shall

have remedy by due course of law, and right and justice

administered without sale, denial or delay. Suits may be

brought against the Commonwealth in such manner, in

such courts and in such cases as the Legislature may by

law direct.

7

PA CONST. art. 1, §11.

Ultimately, the Supreme Court determined the irrebuttable

presumption of recidivism in 42 Pa. C.S. §9799.11(a)(4), which states sexual

offenders “pose a high risk of committing additional sexual offenses,” violated the

juveniles’ procedural due process right to protect their reputation by denying them

an opportunity to be heard on the issue of the likelihood that they will commit

additional sexual offenses. In particular, the Court observed, the studies credited

by the trial court indicated that unlike adult sexual offenders, juvenile sexual

offenders exhibit low levels of recidivism. In short, “the vast majority of juvenile

offenders are unlikely to recidivate.” J.B., 107 A.3d at 18. Consequently, the

Supreme Court upheld the trial court’s determination that SORNA’s lifetime

registration requirement, based on an irrebuttable presumption of recidivism, was

unconstitutional as applied to juvenile offenders. J.B.

In the present case, however, the trial court reasoned the Supreme

Court’s decision in J.B. did not create a right of appeal under the Local Agency

Law, 2 Pa. C.S. §§551-555, 751-754, for the deprivation of a party’s right to

reputation without due process. To that end, the trial court stated:

We fail to discern how the reputational interest

recognized in J.B. requires a hearing presently. The

correspondence which removes DeLuca from the towing

rotation specifically advises her that recourse is through

civil litigation. No one suggests, and we have certainly

not determined, that DeLuca does not possess a

reputational interest or that the reputational interest was

not adversely affected. Today’s decision does not

deprive DeLuca from pursuing any appropriate cause of

action against [Police Chief] or the [Department.]

8

Our conclusion, informed by the referenced

appellate decisions, is simply that Local Agency Law

does not provide the forum or context within which to

address the alleged wrong.

The Pennsylvania legislature could certainly

expand the scope of these provisions to include the type

of interest presently asserted. This, in our judgment, is

certainly a legislative prerogative not a judicial one. It

involves a policy determination with which a court

should not meddle or interfere. In the context

considered, it is our view that the judiciary should not

thrust itself into each and every decision made by a

validly constituted municipal government. The perils of

doing so, aside from failing to recognize its place in our

constitutional scheme, should be obvious. It is not the

court’s prerogative to interfere with the operation of

municipal government or the decisions made by

municipal officials absent some legally cognizable and

necessary reason to do so.

Tr. Ct., Slip Op., at 9-10 (emphasis in original). DeLuca appeals.2

II. Issues

DeLuca presents three issues for our review. DeLuca first contends

the trial court erred in failing to find the Department’s June 9, 2015 suspension

letter constituted an adjudication under the Local Agency Law. DeLuca further

asserts the trial court erred in failing to find that DeLuca was entitled to a de novo

hearing on its appeal from the Department’s suspension letter. In addition, DeLuca

argues, in light of J.B., the trial court erred in failing to find that DeLuca’s right to

2

Our review of the trial court’s order dismissing DeLuca’s appeal is limited to

determining whether the trial court erred as a matter of law or abused its discretion. Bray v.

McKeesport Hous. Auth., 114 A.3d 442 (Pa. Cmwlth. 2015).

9

its reputation is a personal right protected by the Pennsylvania Constitution and a

right which cannot be impaired by a local agency adjudication without due process.

III. Discussion

A. Local Agency Law

1. Argument

DeLuca first contends the trial court’s determination that a contractual

or statutory entitlement is a prerequisite to the right to a hearing under the Local

Agency Law is contrary to applicable statutory law and case law. To the contrary,

DeLuca asserts, the Department’s suspension of its towing privileges satisfies the

following definition of “adjudication” in 2 Pa. C.S. §101 (with emphasis added):

Any final order, decree, decision, determination or ruling

by an agency affecting personal or property rights,

privileges, immunities, duties, liabilities or obligations of

any or all of the parties to the proceeding in which the

adjudication is made. The term does not include any

order based upon a proceeding before a court or which

involves the seizure or forfeiture of property, paroles,

pardons or releases from mental institutions.

Further, “[n]o adjudication of a local agency shall be valid as to any

party unless he shall have been afforded reasonable notice of a hearing and an

opportunity to be heard.” 2 Pa. C.S. §553. “In the event a full and complete

record of the proceedings before the local agency was not made, the court may

hear the appeal de novo, or may remand the proceedings to the agency for the

purpose of making a full and complete record ….” 2 Pa. C.S. §754(a).

10

DeLuca asserts it is beyond dispute that the Department’s suspension

of its towing privileges constituted a final order. Therefore, DeLuca argues, the

primary issue is whether the Department’s suspension adversely affected its

property rights, privileges, immunities or obligations. Citing Guthrie v. Borough

of Wilkinsburg, 478 A.2d 1279 (Pa. 1984), DeLuca argues the Department’s

suspension constituted a concrete alteration of its legal status. DeLuca also asserts

the sole purpose of the Department’s suspension was to punish it for the Facebook

posting.

If so, DeLuca posits, it is entitled to a remand for an agency hearing or

a de novo hearing before the trial court. 2 Pa. C.S. §754(a). On remand, either the

agency or the trial court must make a full and complete record of the proceeding.

Id.

DeLuca maintains the Department’s notices of suspension, which

received wide publicity in the Hazleton area, plainly and clearly stated DeLuca

engaged in “dishonesty or corruption [which] directly or indirectly affects the

health, welfare or safety of others.” See R.R. at 10a. The Department based the

suspension on a finding that DeLuca violated Section 1.06(C) of the Towing

Policy, relating to “Suspension of Towing Service(s)”, which provides (with

emphasis added):

C. The following are considered to be valid reasons for

the suspension of a towing service and the amount of

time for the suspension:

1. Three instances of inability to respond or failure

to respond in an appropriate time period due to

11

circumstances within their control during any six-month

period. (1 year suspension)

2. Failure to maintain the standards for towing

services set forth in this regulation. (First Offense 1 year

suspension; Second and subsequent offenses 3 year

suspension)

3. The commission of an act by an owner or

manager of a towing service involving dishonesty or

corruption, when the act directly or indirectly affects the

health, welfare or safety of others. If the act constitutes a

crime, conviction thereof in a criminal proceeding is not

a necessary condition precedent to the suspension. (3

year suspension up to and including lifetime revocation

of privileges)

4. Furnishing false information on the Application

to Provide Emergency Towing Services (Appendage A)

(lifetime revocation of privileges)

5. Overcharging for services rendered, as

determined in conjunction with the Fee Schedule filed

with the Application to Provide Emergency Towing

Services or the institution of fees not listed on the Fee

Schedule. (3 year suspension up to and including

lifetime revocation of privileges)

6. Repeated conduct by any employee of the

towing service of a nature which, by means of the

relationship the service has with the Department, tends to

demean the public image of the Department. (3 year

suspension up to and including lifetime revocation of

privileges)

Towing Policy at 1.06(C)1-6; R.R. at 14a-15a.

The Department’s first notice of suspension identifies Section

1.06(C)(6) of the Towing Policy (repeated conduct tending to demean the public

12

image of the Department by means of a Facebook posting accusing the mayor of

accepting bribes) as the reason for the suspension. See R.R. at 7a.

The Department’s revised notice of suspension identifies Section

1.06(C)(3) of the Towing Policy (acts by owner or manager involving dishonesty

or corruption affecting the health, welfare or safety of others) as the reason for the

suspension. See R.R. at 10a.

DeLuca contends the Department’s suspension notices resulted in a

business loss because of DeLuca’s absence from the rotation and the belief by

others that it was no longer in business or that it could no longer operate in

Hazleton. As such, DeLuca asserts the Department’s suspension constituted an

appealable adjudication because it adversely affected DeLuca’s personal or

property rights, interests or privileges.

In addition to the business loss resulting from removal from the

towing rotation, DeLuca asserts the false accusations in the Department’s

suspension notices damaged its reputation as a Hazleton towing company. In its

brief submitted to the trial court, DeLuca attached a June 10, 2015 newspaper

article from the Hazleton Standard-Speaker quoting Cynthia DeLuca’s statement

that someone hacked her Facebook account and created the posting at issue. See

R.R. at 31a. In the article, Ms. DeLuca claimed she reported the incident to

Facebook. Id.

13

DeLuca argues its reputation is a personal right protected by the

Pennsylvania Constitution. J.B. Therefore, it cannot be impaired by a government

agency adjudication without procedural due process. Id. DeLuca contends the

cases cited by the Department and relied upon by the trial court to support its

determination, that the Department’s suspension of DeLuca’s towing privileges did

not implicate a constitutionally protected personal or property interest, predated the

Supreme Court’s 2014 decision in J.B.

2. Analysis

a. Generally

“Whether a hearing and notice is required under the Local Agency

Law depends on whether a local agency’s actions constitute an adjudication.”

Guthrie, 478 A.2d at 1281. For a letter to qualify as an adjudication under 2 Pa.

C.S. §101, a two-pronged test must be met: (1) the letter must be an agency’s final

order, decree, decision or ruling; and, (2) it must impact on a person’s personal or

property rights, privileges, immunities, duties, liabilities or obligations. Guthrie.

To be entitled to procedural due process protection for injury to a personal or

property interest, the injury flowing from the agency action must be concrete, not

abstract. Id. Neither due process nor the Local Agency Law can be viewed as

protecting remote, future, indirect or speculative rights. Id. For example, in an

employment situation, a written warning, as opposed to a discharge, demotion or

suspension, would not constitute an adjudication. Id.

In addition, apart from a property interest, in some instances

government action seriously criticizing an individual may implicate a liberty

14

interest triggering due process protection. Guthrie. However, to justify the

invocation of the Local Agency Law’s due process safeguards, the government

criticism must be combined with a concrete alteration of the person’s legal status.

Id. (citing Paul v. Davis, 424 U.S. 693 (1976)).

For these reasons, DeLuca requests a remand either for a local agency

appeal before the Department or a de novo hearing before the trial court on the

Department’s notice of suspension.

In the present case, the Towing Policy includes the following

provisions (with emphasis added):

1.01 PURPOSE

The purpose of this regulation is to establish policy and

procedures governing the provision of assistance to

individuals on the roadway, and the criteria for and

selection of towing services when for any legal reason

the [Department] needs to remove a vehicle from its

location to a location of safety or safekeeping ….

1.02 POLICY

It is the policy of [the Department] to provide necessary

assistance to individuals in need in a timely, efficient and

safe manner. It is also the policy of [the Department] not

to recommend a towing service.… It shall be the policy

of [the Department] to first use businesses that are

located within the limits of the City of Hazleton. Only in

emergency, or unforeseen/extenuating circumstances will

[the Department] contract for or solicit service from an

Emergency Towing Service whose established place of

business is outside of the geographic limits of the City.

****

15

1.04 PROCEDURES

A. The Chief of Police shall review the applications of

any Towing Service that desires to handle emergency

towing calls for the City of Hazleton.

B. The Chief of Police shall provide the names of all

qualified Towing Services to Luzerne County 911 to be

placed on the Hazleton Emergency Towing Service

Rotation and contacted in turn when the need arises for

emergency towing. The [T]owing Service Rotation shall

address the distribution of service calls within [the

Department’s] geographic area of responsibility.

****

1.05 APPLICATION PROCEDURE FOR TOWING

SERVICE

A. Towing services interested in receiving service calls

from [the Department] must make application to [the

Department]. The application, and Fee Schedule, can be

found in Appendage A.

B. Towing services must have an established place of

business, a secure storage facility and a secure storage

lot, as defined in this regulation.

C. Towing services shall indicate on the application all

services it intends to provide: Heavy Duty, Medium

Duty, Light Duty, or Recovery Service. The service shall

be equipped for the service it intends to provide, as

described in this regulation.

D. Towing services shall advise [the Department] of its

[sic] fees in accordance with the Fee Schedule,

Appendage A. Prior to fees being changed, the towing

service shall submit a new fee schedule to [the

Department].

1.06 SUSPENSION OF TOWING SERVICE(S)

16

A. The Chief of Police shall be authorized to suspend a

towing service from contact by [the Department]. Any

such suspension shall follow the schedule set forth

below.

B. Notice of the suspension shall be sent to the

established place of business of the towing service and to

all members of [the Department] and the appropriate

dispatch personnel likely to be affected.

****

D. A towing service that has been suspended must take

appropriate remedial action before it will become eligible

to receive service calls at the end of its suspension.

****

F. Towing services recourse to suspension is through

civil litigation.

Towing Policy at 1.01-1.06; R.R. at 11a-15a.

As discussed above, the Police Chief, on behalf of the Department,

first suspended DeLuca for a three-year period for a violation of Section 1.06(C)(6)

of the Towing Policy for conduct by an employee tending to demean the public

image of the Department. R.R. at 7a. The notice alleged a Facebook posting

accusing the Mayor of “being criminal and accepting bribes.” Id.

In response, DeLuca attempted to appeal or rescind the suspension.

R.R. at 8a-9a. DeLuca asserted the suspension violated its constitutional rights to

due process, free speech and association. Id. DeLuca further asserted it sustained

serious harm. Id.

17

Thereafter, Police Chief issued a revised notice suspending DeLuca

for a three-year period for a violation of Section 1.06(C)(3) of the Towing Policy

for the commission of an act by an owner or manager of a towing service involving

dishonesty or corruption and directly or indirectly affecting the health, welfare or

safety of others. R.R. at 10a. The notice described the offensive conduct as a

Facebook posting accusing the Department, Police Chief and others as being

corrupt, accepting bribes and engaging in discrimination against DeLuca. Id.

In determining whether the Department’s notice of suspension

constituted an adjudication under 2 Pa. C.S. §101, we must first determine whether

the notice constituted a final order. Guthrie. Here, as indicated by the plain

language of the notices, the Department and Police Chief intended the notice to

announce their final decision to suspend DeLuca’s towing privileges for three

years beginning June 9, 2015, based on DeLuca’s allegedly demeaning Facebook

posting regarding the Mayor, Department and Police Chief. Id. Thus, the

Department’s notice of suspension is a final order. Id.

The crucial inquiry, however, is whether the Department’s suspension

affected DeLuca’s personal or property rights or privileges, immunities, duties,

liabilities or obligations. 2 Pa. C.S. §101; Guthrie. In order to have a

constitutionally protected property interest, a party must have a legitimate and

enforceable claim under the law. Wilco. Such a claim may be guaranteed by

statute or contract. Guthrie. It may also be quasi-contractual in nature. Id.

18

In Caba v. Weaknecht, 64 A.3d 39 (Pa. Cmwlth. 2013), we

recognized that property interests entitled to due process protection may take many

forms. Citing Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972),

we recognized that the U.S. Supreme Court fully rejected the “wooden distinction

between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of

procedural due process rights.” Caba, 64 A.3d at 56, n.12 (quoting Roth, 408 U.S.

at 571)).

b. “Stigma-Plus”

Roth, the United States Supreme Court case we cited in Caba,

involved an asserted “liberty” interest. The rationale is instructive here. In Roth, a

state university hired David Roth as a political science professor for a period of

one year. At the end of the year, the university informed Roth that he would not be

rehired. The university offered no reason for its decision and provided no right of

appeal. Thereafter, Roth brought an action in federal court asserting the

university’s decision, which failed to provide any reasons for not rehiring him,

deprived him of a liberty interest without due process of law. Ultimately, the

Supreme Court determined the university did not deprive Roth of a protected

liberty interest under the particular circumstances of the case. Nonetheless, the

Supreme Court reasoned (with emphasis added):

There might be cases in which a State refused to

re-employ a person under such circumstances that

interests in liberty would be implicated. But this is not

such a case.

The State, in declining to rehire [Roth], did not

make any charge against him that might seriously

damage his standing and associations in his community.

19

It did not base the nonrenewal of his contract on a

charge, for example, that he has been guilty of

dishonesty, or immorality. Had it done so, this would be

a different case. For ‘[w]here a person’s good name,

reputation, honor or integrity is at stake because of what

the government is doing to him, notice and an

opportunity to be heard are essential.’ … In such a case,

due process would accord an opportunity to refute the

charge before University officials. In the present case,

however, there is no suggestion whatever that [Roth’s]

‘good name, reputation, honor or integrity’ is at stake.

Similarly, there is no suggestion that the State, in

declining to re-employ [Roth], imposed upon him a

stigma or other disability that foreclosed his freedom to

take advantage of other employment opportunities. The

State, for example, did not invoke any regulations to bar

[Roth] from all other public employment in state

universities. Had it done so, this, again, would be a

different case. For ‘[t]o be deprived not only of present

government employment but of future opportunity for it

certainly is no small injury ….”

Roth, 408 U.S. at 573-74 (citations omitted).

The quoted language in Roth can be applied to the present case. As in

Roth, DeLuca did not have a contractual or statutory right to remain on the towing

rotation list. However, DeLuca’s suspension was imposed upon it with a stigma

that allegedly affected its ability to take advantage of other employment

possibilities. In particular, DeLuca argued before the trial court and in its briefs

here that its business suffered a financial loss from lost business due to removal

from the rotations, and an additional loss of business from potential customers who

thought DeLuca went out of business or could no longer provide towing service in

Hazleton. See N.T. at 3-4; R.R. at 27a. If anything, the stigma attached to DeLuca

here is more significant under Pennsylvania law than federal law in Roth, because

20

Pennsylvania’s state constitution specifically recognizes a protected interest in

reputation.

In Guthrie, a 1984 Pennsylvania Supreme Court decision citing Roth

and other cases, the Court recognized that government action seriously criticizing a

person could implicate a liberty interest and trigger due process rights where the

government combined allegations of misconduct or criminal activity with a

concrete alteration of the person’s legal status, such as a suspension of

employment. Guthrie, 478 A.2d at 1283.

In the present case, DeLuca meets the criteria described in Guthrie.

To participate in the Department’s towing service rotation, a towing service must

be located in Hazleton, apply for approval, and demonstrate certain qualifications.

Once approved, a participant may be suspended for: (1) three instances of inability

to respond within an appropriate time, due to circumstances within its control, in a

six-month period (§1.06(C)(1)); (2) failing to maintain the Towing Policy’s service

standards (§1.06(C)(2)); or (3) for one of the types of misconduct listed in

§§1.06(C)(3)-(6). Thus, DeLuca, a Hazleton towing service, had an ongoing

towing relationship with the Department, and interruption of that relationship was

constrained by the Towing Policy.

In Caba this Court determined that it is not the existence of discretion

that precludes recognition of a property interest, but whether that discretion is

unfettered and thus unassailable. By its Towing Policy, the Department limited its

discretion to suspend an approved Hazleton towing service from the towing

21

rotation. This limitation of discretion to suspend is the interest which DeLuca

seeks to enforce. Stated differently, DeLuca had a legitimate expectation, as an

approved Hazleton towing service, that its towing rotation privileges would not be

arbitrarily suspended under Section 1.06(C) of the Towing Policy based on

unproven allegations of misconduct. See Roth (to have a property interest in a

benefit or privilege that is protected by procedural due process, one must have a

legitimate claim of entitlement to it); Caba (same).

Moreover, there can be no question that the Department’s suspension

of DeLuca was a concrete alteration of DeLuca’s ongoing relationship with the

Department. Guthrie.

Further, there is no doubt that the Department’s suspension of DeLuca

involved allegations of misconduct or criminal activity. In the initial suspension

notice, the offending conduct was described as tending to demean the public image

of the Department. R.R. at 7a. The revised suspension notice referenced “[t]he

commission of any act … of a towing service involving dishonesty or corruption

when the act directly or indirectly affects the health, welfare or safety of others.”

R.R. at 10a.

In sum, by applying the Pennsylvania Supreme Court’s language in

Guthrie, and the U.S. Supreme Court’s language in Roth, we conclude that a

“stigma-plus” situation has been averred which, if proved, would qualify as a type

of privilege referenced in the definition of “adjudication” in the Local Agency

22

Law. 2 Pa. C.S. §101. Under the terms of the Local Agency Law, DeLuca is

entitled to a hearing and to an appeal. 2 Pa. C.S. §§553, 554, 752-754.

c. Protected Interest in Conformance with Policy

Our conclusion is supported by our recent decision in Bray v.

McKeesport Housing Authority, 114 A.3d 442 (Pa. Cmwlth. 2015). In Bray we

determined that a housing authority decision not to accept an application for public

housing is an “adjudication” subject to appeal under the Local Agency Law. We

held that even if an applicant does not have a property interest in the housing itself,

an applicant has a right to have her eligibility determined in accordance with the

law.

Similarly, here DeLuca has an interest in the Department’s written

Towing Policy limiting the reasons for suspension of a Hazleton towing service

from the towing rotation. Indeed, because DeLuca already has an established,

ongoing relationship with the Department by virtue of its approved application to

be added to the towing rotation list, DeLuca has an arguably stronger case that the

unapproved applicant for housing in Bray.

d. Remedy

As can be seen from the portions of the Towing Policy quoted above,

the Policy provides for neither a hearing nor an appeal. The only “recourse to

suspension is through civil litigation.” Section 1.06(F) of the Towing Policy, R.R.

at 15a.

23

However, Article V, Section 9 of the Pennsylvania Constitution

provides (with emphasis added):

There shall be a right of appeal in all cases to a

court of record from a court not of record; and there shall

also be a right of appeal from a court of record or from an

administrative agency to a court of record or to an

appellate court, the selection of such court to be as

provided by law; and there shall be such other rights of

appeal as may be provided by law.

Although this provision is not self-executing, the Local Agency Law was enacted

to implement the appeal rights from local agencies set forth in the State

Constitution. Bray.

We are mindful that the right of appeal sought to be implemented by

the Local Agency Law is of a constitutional dimension. Having determined that

the Department’s two notices of suspension from the towing rotation are

“adjudications” of a local agency pursuant to the Local Agency Law, DeLuca is

entitled to a hearing on the record and to an appeal. We reverse the trial court’s

order and remand to the trial court, which shall remand to the Department for an

initial hearing.

B. Reputational Interest

DeLuca also contends in J.B. the Supreme Court mandated that the

right to reputation is a personal right protected by the Pennsylvania Constitution

and one which cannot be impaired by a government adjudication without due

process.

24

Although J.B. recognized that an individual’s right to reputation is

protected by the Pennsylvania Constitution and entitled to due process protection

in light of the circumstances in that case, the Court did not address whether a

reputational interest alone is sufficient to invoke the statutory due process

protections of the Local Agency Law, as DeLuca asserts. In view of our holding

that the Local Agency Law applies to the facts here, we need not reach that issue

now.

For the above reasons, we reverse the order of the trial court and

remand for further proceedings consistent with this opinion.

ROBERT SIMPSON, Judge

25

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia DeLuca and DeLuca's Auto :

Repair and Towing, Inc. :

Appellants :

: No. 2401 C.D. 2015

v. :

:

Hazleton Police Department and :

Chief of Police Frank V. DeAndrea, Jr. :

ORDER

AND NOW, this 28th day of July, 2016, the order of the Court of

Common Pleas of Luzerne County is REVERSED and this case is REMANDED

for further proceedings consistent with the foregoing opinion. Jurisdiction is

relinquished.

ROBERT SIMPSON, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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