Opinion

Johnson, G. v. Lansdale Boro, Aplts.

637 Pa. 1
146 A.3d 696
2016 Pa. LEXIS 2188
2016 WL 5463055

Court: Supreme Court of Pennsylvania
Filed: Sep 28, 2016
Status: Published
On the bench: Saylor, Baer, Todd, Donohue, Dougherty, Wecht
Cited by: 39 cases
Authority: More cited than 3.1%

cautioning that courts “may not inject new theories into appellate proceedings by merely directing the parties to brief a MHW - 2 particular issue.”

How later courts described this case

cautioning that courts “may not inject new theories into appellate proceedings by merely directing the parties to brief a MHW - 2 particular issue.”
“the inquiry posed by the court was directly related to disposition of the appeal before it”
“It is well-established that where the parties in a case fail to preserve an issue for appeal, an appellate court may not address that issue sua sponte.”
applying the Local Agency Law, 2 Pa. C.S. §754(b)

Written by the judges who cited it.

The opinion

[J-41-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

GEORGE JOHNSON, : No. 62 MAP 2015

Appellee : Appeal from the Order of the

: Commonwealth Court at No. 134 CD

: 2013 dated November 19, 2014

v. : affirming the Order of Montgomery

: County Court of Common Pleas, Civil

: Division, at No. 2010-34399 dated

LANSDALE BOROUGH AND LANSDALE : January 3, 2013.

BOROUGH CIVIL SERVICE :

COMMISSION, :

Appellants : ARGUED: April 5, 2016

OPINION

JUSTICE BAER DECIDED: September 28, 2016

We granted allowance of appeal to determine whether a trial court’s standard of

review of an adjudication of a municipal civil service commission where no new

evidence is presented on appeal is governed by the Borough Code, which has been

interpreted as providing for de novo review, or by the Local Agency Law, which provides

for a limited appellate review under those circumstances. For the reasons set forth

herein, we hold that when the two statutes are read in pari materia, it becomes clear

that a limited appellate standard of review applies. Accordingly, we respectfully reverse

the order of the Commonwealth Court, which held that de novo review was appropriate,

and remand the matter for further proceedings consistent with this opinion.

The record establishes that Lansdale Borough Police Officer George Johnson

received a subpoena to attend a preliminary hearing on May 18, 2010. His attendance

at the hearing was critical as he had conducted the field sobriety tests relating to a

criminal defendant’s charges of driving under the influence of alcohol. Without

requesting a continuance or notifying anyone of his inability to attend, Officer Johnson

failed to appear at the preliminary hearing, resulting in the dismissal of the criminal

charges.

On May 26, 2010, Lansdale Borough Police Chief Robert McDyre met with

Officer Johnson to determine why he missed the preliminary hearing. Notably, the

meeting was not recorded, and no written statement was made confirming what was

said. Present during the inquiry were Sergeant Richard Bubnis and Sergeant Alex

Kromdyk. Chief McDyre began by providing the customary written warning, advising

Officer Johnson that he was being questioned as a part of an official investigation and

that he must answer the questions posed honestly and completely or be subject to

disciplinary action. When Chief McDyre asked why he failed to appear at the

preliminary hearing, Officer Johnson responded that he had forgotten about the hearing

as he had been distracted because his son had been bitten by the neighbor’s pitbull on

May 13, 2010, five days before the preliminary hearing. Based on his response, Chief

McDyre discussed methods to avoid missing hearings in the future. Chief McDyre then

questioned Officer Johnson regarding whether he had received prior notice of the May

18th preliminary hearing, to which he responded that he did receive such notice, but

mistakenly believed that the hearing was later in the month of May.

As the meeting continued, Chief McDyre asked Officer Johnson whether he

could reinstate the criminal charges where he simply forgot to appear for the preliminary

hearing.1 Officer Johnson replied that he was attempting to reinstate the criminal

A criminal complaint dismissed at a preliminary hearing may generally be reinstituted

as long as the statute of limitations has not expired. Commonwealth v. Thorpe, 701

A.2d 488, 489 (Pa. 1997). The decision to reinstitute charges must be made by the

(continuedD)

[J-41-2016] - 2

charges by informing both the district court and the assistant district attorney that he

had missed the preliminary hearing, not because he forgot that it was scheduled, but

rather because he was sick. Specifically, he asserted that he apologized personally to

the district court for missing the preliminary hearing and informed the court that he failed

to appear because he was sick. Additionally, Officer Johnson provided to Chief McDyre

a letter that he had drafted to the assistant district attorney, which had not yet been

sent, seeking re-arrest of the criminal defendant and again asserting that he had missed

the May 18th preliminary hearing because he “was home sick.”2 Officer Johnson

elaborated that he had called off sick on the day prior to the scheduled preliminary

hearing due to a sinus infection and that he remained sick on the day of the hearing.

Notably, he acknowledged that he was well enough to attend the hearing, had he

remembered it.

The tenor of the meeting at that point changed as Chief McDyre viewed Officer

Johnson’s explanations to the court and the assistant district attorney as being

inconsistent with his initial response that he failed to appear at the preliminary hearing

(Dcontinued)

prosecutor. See Pa.R.Crim.P. 544(A) (providing that when charges are dismissed at a

preliminary hearing, the attorney for the Commonwealth may reinstate the charges by

approving, in writing, the refiling of the complaint with the issuing authority).

Officer Johnson’s letter to the assistant district attorney read, in relevant part:

On Tuesday, May 18, 2010, I did not attend the Preliminary Hearing

because he [sic] was home sick. My department was unaware of this

because I was on a scheduled day off and I did not notify them of my

illness until I returned to work. [District Justice Borek] was not notified by

me of the situation until several days later and he had already dismissed

the case.

Letter to Deputy District Attorney Christopher Maloney, dated May 26, 2010; Exhibit 9

B-8(L).

[J-41-2016] - 3

because he forgot that it was scheduled. Officer Johnson then asserted that the

reasons he had forgotten about the hearing were twofold, i.e., that he had been sick and

that he had been distracted by his son’s recent injury. Concluding that Officer Johnson

was being dishonest in his responses, Chief McDyre placed him on administrative

leave.

Following a Loudermill hearing on June 10, 2010, Chief McDyre recommended

that the Borough terminate Officer Johnson’s employment.3 Accordingly, the Borough

subsequently issued a statement of charges, alleging that Officer Johnson: (1) failed to

appear at the May 18, 2010 preliminary hearing, resulting in the dismissal of the criminal

charges, thereby constituting his fourth failure to appear in court when subpoenaed to

do so; (2) was untruthful during the May 26, 2010 questioning about why he failed to

appear at the preliminary hearing after he had been ordered to answer honestly and

completely; (3) made a false statement to the court regarding why he failed to appear at

the preliminary hearing; and (4) prepared a document to the assistant district attorney in

which he stated a false reason for missing the preliminary hearing and sought

permission to re-arrest based on the same false grounds, all in violation of Borough

police regulations and Borough ordinances. The Borough Council subsequently voted

to terminate Officer Johnson’s employment.

Officer Johnson thereafter appealed to the Borough Civil Service Commission

(“Commission”), which held hearings on the matter on July 19, 2010, July 26, 2010, and

August 17, 2010. In addition to establishing that Officer Johnson failed to appear at the

May 18th preliminary hearing and had a disciplinary history of three similar infractions,

conflicting testimony was presented regarding what transpired during Chief McDyre’s

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985)

(holding that a public employee is entitled to a hearing consistent with the guarantees of

procedural due process before his or her employment is terminated).

[J-41-2016] - 4

May 26, 2010 inquiry. As described supra, Chief McDyre testified that Officer Johnson

lied to him during the formal investigation after he was given a direct order to be honest

and truthful. Specifically, he asserted, Officer Johnson responded that he missed the

preliminary hearing because he forgot about it due to his son’s recent dog bite injury,

but when asked whether he could re-arrest the criminal defendant under such

circumstances, Officer Johnson then asserted that he missed the hearing because he

was sick with a sinus infection. Chief McDyre further testified that Officer Johnson

repeated his false statement to the court and in a letter drafted to the assistant district

attorney. He explained that there were steps that Officer Johnson could have taken if

he was sick on the day of the preliminary hearing, including notifying the police

department or the judge. When asked on cross-examination whether Officer Johnson

could have had more than one reason for failing to appear at the preliminary hearing,

Chief McDyre clarified his belief that the officer’s sickness was not a second reason for

failing to appear but, rather, constituted a different version of the facts that Officer

Johnson offered during the questioning when he was confronted with inconsistencies in

his account of the events. Finally, Chief McDyre indicated that he would not have

recommended termination had it not been for Officer Johnson’s untruthfulness.

Sergeant Bubnis and Sergeant Kromdyk also testified before the Commission, largely

corroborating Chief McDyre’s testimony.

To the contrary, Officer Johnson testified that he never lied to Chief McDyre but,

rather, explained at the May 26th meeting that he had forgotten to attend the preliminary

hearing because he was both sick and distracted due to his son’s recent dog bite and

resulting injuries. He explained that he did not inform the court or the prosecutor of his

son’s injuries as he felt that was his personal business. Officer Johnson reiterated that

his sickness did not physically prevent him from attending the May 18th preliminary

hearing, that he would have attended the hearing had he remembered, and that his

[J-41-2016] - 5

illness was a contributing factor in why he forgot. Officer Johnson further presented the

testimony of his physician, establishing that he suffers from chronic sinusitis, that he

had been treated for the same on May 24, 2010, and that he could have been suffering

from such malady on May 18, 2010, the date of the missed preliminary hearing.

Finally, Officer Justin DiBonaventura, a patrol officer with the Lansdale Police

Department, testified that a recorded statement should have been made of the May 26,

2010 meeting between Chief McDyre and Officer Johnson to ensure accuracy regarding

what was said. Officer DiBonaventura explained that if he were interviewing a police

officer as part of an internal investigation, he would have taken notes during the

interview and prepared a formal question and answer statement, which he would have

presented to the officer for him to read and sign.

Following the hearing, the parties filed with the Commission proposed findings of

fact and conclusions of law with supporting legal memoranda. Upon review of such

filings, the Commission denied Officer Johnson’s appeal and concluded there was

sufficient evidence for three of the four charges, which evidence supported the

Borough’s decision to terminate his employment. Specifically, the Commission

sustained the Borough’s first charge, relating to the failure to appear at the May 18th

preliminary hearing, as this charge was undisputed.

As to the second charge, alleging that Officer Johnson failed to respond fully and

honestly during the May 26, 2010 internal investigation into why he failed to appear at

the preliminary hearing, the Commission credited the testimony of Chief McDyre and

Sergeant Kromdyk that Officer Johnson provided different and somewhat contradictory

reasons why he missed the preliminary hearing. Nevertheless, the Commission held

that the Borough failed to provide sufficient evidence that Officer Johnson lied during

the May 26th inquiry because it failed to follow accepted investigatory procedures by

creating a contemporaneous written record of the questioning, particularly given the

[J-41-2016] - 6

importance of recording the precise chronology and wording of the explanations offered

by Officer Johnson.4

The Commission sustained the third and fourth charges, alleging that Officer

Johnson made false statements to the district court and included a false statement in a

document to be given to the assistant district attorney. It asserted that Officer Johnson

provided only a single reason to the district court and in his letter to the assistant district

attorney, i.e., that he was sick, and did not disclose that he had failed to appear at the

May 18th preliminary hearing because he forgot. In concluding that these constituted

false statements, the Commission relied on Officer Johnson’s testimony that even

though he was sick, he was physically able to attend the hearing and would have done

so had he not forgotten. Adjudication of the Lansdale Borough Civil Service

Commission, Oct. 28, 2010, at 11, ¶ 30 (citing Notes of Testimony, Jul. 26, 2010, at

172; Aug. 17, 2010, at 21-22). The Commission reasoned that by omitting the

undisputed fact that he forgot the preliminary hearing, the message conveyed to the

district court and the assistant district attorney was that he was physically unable to

attend because he was sick, which was untrue.

The Commission explained:

The Commission accepts the testimony of the Borough witnesses

to the extent that their testimony demonstrated that Officer Johnson

provided a false statement to the District Court and attempted to provide a

false document to the Montgomery County District Attorney’s office

regarding his absence at the preliminary hearing. However, without a

better record of the May 26th meeting, the Borough did not convincingly

demonstrate that during this meeting Officer Johnson’s admitted provision

of multiple and contradictory explanations as to the missed May 18th

hearing were “lies” or that Officer Johnson did not “fully respond to the

questions” he was asked.

Adjudication of the Lansdale Borough Civil Service Commission, Oct. 28, 2010, at 9,

¶ 24.

[J-41-2016] - 7

Accordingly, based on his prior disciplinary history, his failure to appear at the

May 18th preliminary hearing, and his false statements to the court and the assistant

district attorney, the Commission denied Officer Johnson’s appeal from his termination

from employment as a Lansdale Borough police officer.

Officer Johnson thereafter appealed the Commission’s adjudication to the trial

court, which affirmed in part and reversed in part. Initially, it is significant that the trial

court did not take additional evidence and relied, instead, upon the record as made by

the Commission. Germane to the issue on appeal, the applicable standard of review

under these circumstances was not contested before the trial court and was referenced

in the trial court’s opinion as encompassing the limited review set forth in Section 745(b)

of the Local Agency Law, i.e., examining whether the Commission’s adjudication

violates constitutional rights, is not in accordance with the law, violates the procedural

provisions of the Local Agency Law, or the Commission’s findings are not supported by

substantial evidence. Trial Court Opinion, Apr. 10, 2013, at 2 (citing Moorehead v. Civil

Serv. Comm’n of Allegheny Cnty, 769 A.2d 1233, 1237-38 (Pa. Cmwlth. Ct. 2001)

(citing Section 745(b) of the Local Agency Law, 2 Pa.C.S. § 754(b))).5

After affirming the Commission’s ruling that the first charge was supported by

sufficient evidence as it was undisputed that Officer Johnson failed to appear at the

preliminary hearing, the trial court observed what it believed to be an inconsistency in

the Commission’s reasoning relating to the remaining three charges. It determined that

because the Commission found insufficient evidence to support the second charge

Citing the general tenet of appellate court jurisprudence set forth in 42 Pa.C.S. § 706

(providing that “[a]n appellate court may affirm, modify, vacate, set aside or reverse any

order brought before it for review, and may remand the matter and direct the entry of

such appropriate order, or require such further proceedings to be had as may be just

under the circumstances”), the trial court also opined that a trial court could modify a

penalty imposed by a civil service commission so long as it does not abuse its discretion

or err as a matter of law. Trial Court Opinion, Apr. 10, 2013, at 2.

[J-41-2016] - 8

(alleging that Officer Johnson was dishonest during the May 26, 2010 meeting with

Chief McDye because he gave inconsistent reasons for failing to attend the preliminary

hearing), there was likewise insufficient evidence to support the third and fourth charges

(alleging that Officer Johnson made false statements to the district court and in a letter

to the assistant district attorney, indicating that he failed to attend the hearing because

he was home sick).

The trial court reasoned that if Officer Johnson’s multiple explanations did not

constitute deliberate lies for purposes of the second unsubstantiated charge (dishonesty

during internal investigation), those same explanations could not constitute lies under

the third and fourth charges.6 The court opined that the Commission did not reject the

evidence establishing that Officer Johnson was, in fact, sick on the day of the

preliminary hearing and that the record supported such conclusion. Thus, the court

determined, Officer Johnson’s statements to the district court and the assistant district

attorney, that he failed to appear at the preliminary hearing because he was sick, were

truthful. It further held that neither the third nor fourth charges (false statements to the

court and assistant district attorney) alleged that Officer Johnson provided incomplete

reasons for failing to appear, as the charges only alleged that he presented false

reasons.

Accordingly, the trial court affirmed the Commission’s rulings on charges one and

two; reversed the Commission’s rulings on charges three and four for lack of substantial

evidence; vacated the Commission’s order terminating Officer Johnson; and reinstated

The court reached this conclusion without acknowledging that the Commission’s

finding of insufficient evidence supporting the second charge appeared to be based

upon the Borough’s failure to create a record of the May 26, 2010 internal investigation

meeting, rather than any credibility determination regarding Officer Johnson’s

explanations for failing to appear at the preliminary hearing. See n.4, supra.

[J-41-2016] - 9

him as an officer with the Lansdale Borough Police Department after a thirty-day

suspension for his failure to appear at the preliminary hearing.

In their appeal to the Commonwealth Court, Lansdale Borough and the Lansdale

Borough Civil Service Commission (hereinafter collectively referred to as “Borough”)

contended that the trial court erred in conducting its substantial evidence review by

rejecting the Commission’s factual findings that were supported by the record and by

modifying Officer Johnson’s termination to a thirty-day suspension. Notwithstanding

that neither the Borough nor Officer Johnson had ever taken the position that the trial

court’s standard of review regarding the Commission’s adjudication was governed by

the Borough Code instead of the Local Agency Law, the Commonwealth Court directed

the parties to address at oral argument: (1) the reviewing court’s standard of review of

a borough civil service commission’s decision where the court takes no additional

evidence; (2) whether Section 1191(c) of the Borough Code confers authority upon a

trial court to modify discipline imposed by a borough’s civil service commission where

the trial court takes no additional evidence and does not otherwise modify the

commission's findings of fact or conclusions of law;7 and (3) whether the trial court erred

When Officer Johnson appealed the Commission’s adjudication, Section 1191(c) of

the Borough Code stated, in relevant part:

All parties concerned shall have immediate right of appeal to the court of

common pleas of the county, and the case shall there be determined as

the court deems proper. No order of suspension made by the commission

shall be for a longer period than one year. Such appeal shall be taken

within sixty days from the date of entry by the commission of its final order

and shall be by petition. Upon such appeal being taken and docketed, the

court of common pleas shall fix a day for a hearing and shall proceed to

hear the appeal on the original record and such additional proof or

testimony as the parties concerned may desire to offer in evidence. The

decision of the court affirming or revising the decision of the commission

shall be final, and the employe shall be suspended, discharged, demoted

or reinstated in accordance with the order of court.

(continuedD)

[J-41-2016] - 10

in reversing the Commission’s determination that Officer Johnson made false

statements to the district court and assistant district attorney. Commonwealth Court Per

Curiam Order dated May 5, 2014.

The case was argued on June 18, 2014, and the parties addressed the questions

as directed. The Commonwealth Court thereafter affirmed the trial court’s modification

of Officer Johnson’s termination in an en banc decision. Johnson v. Lansdale Borough,

105 A.3d 807 (Pa. Cmwlth. 2014). In determining the trial court’s standard of review in

an appeal from an adjudication of a borough civil service commission, the

Commonwealth Court relied upon Section 1191(c) of the Borough Code, particularly the

language providing that “[a]ll parties concerned shall have an immediate right of appeal

to the court of common pleas of the county, and the case shall there be determined as

the court deems proper.” 53 P.S. § 46191 (repealed and restated at 8 Pa.C.S. §

1191(c)).

The court interpreted the language “the case shall there be determined as the

court deems proper” as setting forth the trial court’s standard of review, irrespective of

whether the trial court accepted additional evidence on appeal from the borough civil

service commission’s adjudication. It relied on this Court’s decision in Lower Merion

Township v. Turkelson, 152 A.2d 724 (Pa. 1959), which interpreted the identical “as the

court deems proper” language in a different statute, the First Class Township Code, as

(Dcontinued)

53 P.S. § 46191 (repealed and restated at 8 Pa.C.S. § 1191(c)). In 2012, the General

Assembly amended the statute in various ways unrelated to disposition of this appeal,

but retained the “as the court deems proper” language at issue herein. Further, 53 P.S.

§ 46191 was repealed by the Act of April 18, 2014, 2014, P.L. 432, which amended Title

8 of the Pennsylvania Consolidated Statutes to consolidate multiple sections of the

Borough Code. Former Section 1191(c) is now codified at 8 Pa.C.S. § 1191(c). We

clarify that our analysis would be the same under all versions of Section 1191(c).

[J-41-2016] - 11

affording the trial court “full discretion to affirm, reverse or modify the action of the

[commission].” Johnson, 105 A.2d at 815 (quoting Turkelson, 152 A.2d at 726).

The Commonwealth Court in the instant case observed that subsequent

decisions of that court construed this Court’s Turkelson decision as affording trial courts

broad discretion to revisit the discipline imposed by a civil service commission under the

Borough Code. See Reichenbach v. Civil Serv. Comm’n of the Borough of Wilkinsburg,

417 A.2d 1292, 1294 (Pa. Cmwlth. 1980) (relying on Turkelson in holding that because

Section 1191(c) of the Borough Code directs a trial court to review an adjudication of a

borough civil service commission “as the court deems proper,” the trial court’s review is

broad, and it may revise the Commission’s penalty as long as the court does not abuse

its discretion in doing so); see also Appeal of Redo, 401 A.2d 394, 398 (Pa. Cmwlth.

1979) (suggesting that pursuant to Turkelson the language “as the court deems proper”

vests the trial court with discretion to make its own order concerning the penalty

imposed upon the officer, which decision is reviewed by the Commonwealth Court for

an abuse of discretion).

Based on these decisions, the Commonwealth Court below held that “a trial court

has broad discretion to modify a police officer’s discipline in any appeal of a civil service

commission decision.” Johnson, 105 A.3d 807 at 816. The Commonwealth Court

categorized this standard as de novo review, allowing the trial court to make

independent fact-finding, even where no new evidence was presented to the trial court

on appeal. Id. at 816-17 (citing In re Appeal of Blystone, 600 A.2d 672 (Pa. Cmwlth.

1991) (holding that under the Borough Code, a trial court shall determine an appeal of a

decision of a borough civil service commission as the court “deems proper” and, thus,

has the authority to conduct a more expansive de novo review)).

Having determined that the Borough Code affords the trial court de novo review

of the Commission’s adjudication, the Commonwealth Court concluded that the trial

[J-41-2016] - 12

court acted within its statutory authority when it rejected the Commission’s conclusions

on charges three and four (false statements to court and assistant district attorney). It

cited the trial court’s finding that Officer Johnson was, in fact, sick on the day that he

failed to appear at the preliminary hearing and that the charges alleging false

statements did not claim that he provided incomplete reasons for his absence, only

false ones. Johnson, 105 A.3d at 817. The Commonwealth Court agreed with the trial

court that the Borough’s evidence proved, at most, that Officer Johnson made an

incomplete statement to the court and the assistant district attorney, but not an

untruthful statement. Id. at 817-18. Accordingly, the court held that the trial court’s

modification of Officer Johnson’s discipline from termination to a thirty-day suspension

was a proper component of de novo review.

Judge Covey dissented and opined that the majority’s holding that the trial court

had de novo review of the Commission’s adjudication is contrary to a wealth of case law

establishing that where no new evidence is presented to the trial court and the court

relied upon the complete record of the proceedings before the municipal civil service

commission, the trial court’s standard of review is limited to the deferential review set

forth in Section 754(b) of the Local Agency Law.8 See Day v. Civil Serv. Comm’n of the

Section 754(b) provides:

In the event a full and complete record of the proceedings before the local

agency was made, the court shall hear the appeal without a jury on the

record certified by the agency. After hearing the court shall affirm the

adjudication unless it shall find that the adjudication is in violation of the

constitutional rights of the appellant, or is not in accordance with law, or

that the provisions of Subchapter B of Chapter 5 (relating to practice and

procedure of local agencies) have been violated in the proceedings before

the agency, or that any finding of fact made by the agency and necessary

to support its adjudication is not supported by substantial evidence. If the

adjudication is not affirmed, the court may enter any order authorized by

42 Pa.C.S. § 706 (relating to disposition of appeals).

(continuedD)

[J-41-2016] - 13

Borough of Carlisle, 931 A.2d 646, 650 (Pa. 2007) (holding that where the trial court

took no new evidence and relied upon the record as made before the civil service

commission, appellate review of a municipal civil service commission’s adjudication is

limited to determining whether constitutional rights have been violated, an error of law

has been committed, or findings of fact necessary to support the adjudication are

supported by substantial evidence); Tegzes v. Bristol Twp. Civil Serv. Comm’n of

Philadelphia, 472 A.2d 1386, 1387 (Pa. 1984) (holding that pursuant to Section 754(b)

of the Local Agency Law, where a full and complete record is made before a municipal

civil service commission, a reviewing court must affirm unless the adjudication violates

constitutional rights, is not in accordance with the law, the procedural provisions of the

local agency law are violated, or the findings of fact are not supported by substantial

evidence); Keslosky v. Old Forge Borough Civil Serv. Comm’n, 73 A.3d 665, 670 n.5

(Pa. Cmwlth. 2013) (same).9

The dissent found no error of law in the Commission’s determinations and opined

that substantial evidence supported its factual findings that Officer Johnson made false

statements to the court and in the letter drafted to the assistant district attorney. The

dissent emphasized that the false statement for which Officer Johnson was disciplined

was not the assertion that he was sick on the day of the preliminary hearing, which was

largely uncontested, but rather that Officer Johnson’s sickness prevented him from

appearing at the preliminary hearing, as he admitted that he could have attended while

sick, but simply forgot that the hearing was taking place that day. Id. at 823.

(Dcontinued)

2 Pa.C.S. § 754.

The Commonwealth Court majority discounted the precedential value of the Local

Agency Law decisions relied upon by the dissent, contending that the standard of

review was not a contested issue in those cases. Johnson, 105 A.3d at 821 n.4.

[J-41-2016] - 14

Concluding that the record supported the Commission’s finding that Officer Johnson

failed to appear at the hearing because he forgot, and not because he was sick, the

dissent agreed with the Commission that his statements to the court and assistant

district attorney were falsehoods, intended to suggest misleadingly that he had a

legitimate reason for his absence, purportedly so that he could reinstitute the criminal

charges that had been dismissed due to his failure to appear. Id.

The dissent further explained that the Commission did not make inconsistent

findings regarding charge two (dishonesty during internal investigation) and charges

three and four (false statements to court and in letter to the assistant district attorney) as

the Commission’s rejection of charge two was based on the lack of a contemporaneous

record of the May 26th meeting between Officer Johnson and Chief McDyre and not

because the Commonwealth believed Officer Johnson and discredited Chief McDyre.

Indeed, the Commission specifically credited Chief McDyre’s testimony over that of

Officer Johnson. See n.4, supra. Accordingly, the dissent concluded that the trial

court, without taking any additional evidence, erred by ignoring the Commission’s

factual findings that were supported by the record regarding whether the underlying

conduct of making false statements occurred. It further posited that the trial court erred

by modifying the Commission’s penalty based on its independent view of the facts.

This Court granted the petition for allowance of appeal filed by the Borough to

determine whether the Commonwealth Court erred by holding that the trial court’s

standard of review of a municipal civil service commission’s adjudication is de novo

where the trial court takes no additional evidence on appeal and limits itself to the

record before the Commission. Related thereto, we granted allowance of appeal to

determine whether the Commonwealth Court erred by holding that a penalty imposed

[J-41-2016] - 15

by a municipality could be modified absent evidence that the penalty was arbitrary,

capricious, or discriminatory.10

Preliminarily, the Borough contends, the Commonwealth Court erred by sua

sponte raising the issue regarding the appropriate standard by which a trial court

reviews an adjudication of a municipal civil service commission. According to the

Borough, both parties agreed in the proceedings before the trial court that the standard

of review was governed by Section 754(b) of the Local Agency Law and was limited in

nature. It asserts that no party advocated in favor of applying a de novo standard of

review in accordance with the Borough Code and emphasizes the trial court’s reference

to the Local Agency Law’s limited deferential standard of review in its opinion. See Trial

Court Opinion, Apr. 10, 2013, at 2.11

Regarding the merits of the proper standard for a trial court to apply in reviewing

an adjudication of a municipal civil service commission, the Borough contends that the

plain language of Section 754(b) of the Local Agency Law governs here, where a full

and complete record was made before the Commission and no new evidence was

presented to the trial court on appeal. The Borough posits that this limited standard of

review is well-established and has been set forth in no less than three decisions issued

by this Court and in numerous decisions of the Commonwealth Court over the last three

decades. See e.g. Day v. Carlisle Borough Civil Serv. Comm’n, 931 A.2d 646, 650 (Pa.

This Court denied allocatur on the issue of whether the Commonwealth Court

committed reversible error by affirming the trial court’s disregard of factual findings

made by the Commission, which were supported by substantial evidence of record.

The Borough submits that while the trial court cited the correct standard of review,

i.e., limited review under Section 754(b) of the Local Agency Law, it erred in its

application of that standard when it reweighed the evidence and erroneously substituted

its judgment for that of the Commission. As noted, this Court denied allocatur on the

issue of whether the trial court disregarded the Commission’s factual findings, which

were supported by evidence of record.

[J-41-2016] - 16

2007) (acknowledging that where the trial court took no new evidence and relied upon

the record as made before the civil service commission, appellate review of a municipal

civil service commission’s adjudication is limited to determining whether constitutional

rights have been violated, an error of law has been committed, or findings of fact

necessary to support the adjudication are supported by substantial evidence); Lewis v.

Phila. Civil Serv. Comm’n, 542 A.2d 519, 522 (Pa. 1988) (same); Tegzes v. Bristol

Twp., 472 A.2d 1386, 1387 (Pa. 1984) (same); Keslosky v. Old Forge Civil Serv.

Comm’n, 73 A.3d 665, 670 n.5 (Pa. Cmwlth. 2013) (same); Veit v. North Wales

Borough, 800 A.2d 391, 397 (Pa. Cmwlth. 2002) (same). Were we to hold to the

contrary and adopt a de novo standard for the trial court’s review, the Borough

contends, the proceedings before the civil service commission would be rendered

meaningless.

The Borough further asserts that the Commonwealth Court ignored this wealth of

precedent, which is consistent with the express language of Section 754(b) of the Local

Agency Law, and erroneously relied upon Section 1191(c) of the Borough Code and

older cases interpreting the “as the court deems proper” language included in that

provision, particularly this Court’s decision in Turkelson. This reliance is misplaced, the

Borough argues, because when Turkelson was decided, the Local Agency Law was

inapplicable to appeals from an agency decision to a court of record, but in 1978, the

General Assembly broadened its scope to include such appeals.12 Thus, the Borough

The Borough observes that former Section 10 of the Local Agency Law, applicable

prior to 1978, provided that the Local Agency Law did not apply “to any adjudication

which under any existing act may be appealed to a court of record.” 53 P.S. § 11310

(repealed). In 1978, the General Assembly repealed Section 10 and replaced it with

Section 751(b) of the Local Agency Law which, as discussed infra, reversed the prior

sentiment and states that “[t]he provisions of this subchapter shall apply to any

adjudication which under any existing statute may be appealed to a court of record, but

only to the extent not inconsistent with such statute.” 2 Pa.C.S. § 751(b).

[J-41-2016] - 17

contends, Turkelson and its progeny no longer have application to appeals from

municipal civil service commission adjudications.

In a related issue, the Borough maintains that the Commonwealth Court’s holding

that a trial court has de novo review in all appeals from a municipal civil service

commission adjudication is inconsistent with well-established case law holding that a

civil service commission can only modify a penalty imposed by a municipality if there is

evidence that the penalty is arbitrary, capricious, or discriminatory. See Brief for

Appellant at 51 (citing York Township Board of Commissioners v. Batty, 694 A.2d 395,

397 (Pa. Cmwlth. 1997) (holding that the civil service commission, in reviewing

disciplinary actions against civil servants, must determine “whether the penalty imposed

is not otherwise prohibited, and whether the selection of the penalty is not arbitrary,

discriminatory or an abuse of discretion”); Herrmann v. Civil Serv. Comm’n of the

Borough of Jenkintown, 478 A.2d 961, 963 (Pa. Cmwlth. 1984) (holding that “[w]here

the charges brought by the borough are found by the commission to be supported by

the evidence, the penalty imposed is not otherwise prohibited, and the selection of the

penalty is not arbitrary, discriminatory or an abuse of discretion, the commission may

not modify the council’s penalty”); McNaughton v. Civil Serv. Comm’n of the Borough of

Camp Hill, 650 A.2d 1157, 1160 (Pa. Cmwlth. 1994) (same)).

The Borough maintains that these holdings, relating to a civil service

commission’s standard of review, are based upon this Court’s recognition in Appeal of

Baker, 185 A.2d 521, 523 (Pa. 1962), that due respect and weight must be afforded to

the action of the municipal body that is authorized to discipline its police officers, and

the function of the reviewing entity is only to ensure that just cause for the discipline

exists both factually and legally.13 The Borough concludes that the Commonwealth

The Baker decision was based upon the Civil Service Act, and not the Borough Code

or Local Agency Law at issue here.

[J-41-2016] - 18

Court’s holding that trial courts have de novo review in all appeals from municipal civil

service commission adjudications not only renders meaningless the proceedings before

the civil service commission, as alleged above, but also repudiates the deference

afforded to local officials to determine, in the first instance, the appropriate discipline for

their police officers. Accordingly, the Borough requests that we reverse the

Commonwealth Court’s order and remand the matter for further proceedings consistent

with our opinion.

In response, Officer Johnson contends that the Commonwealth Court did not err

by examining the trial court’s standard of review. He emphasizes that the

Commonwealth Court had advocacy on the particular issue as that court directed the

parties to address it, and the Borough complied without objection. Officer Johnson

explains that when the Commonwealth Court directed him to address the applicable

review standard, he discovered the Turkelson line of cases, which described the

standard as broader and more akin to de novo review. He concludes that the

Commonwealth Court acted within its authority in affirming the trial court’s modification

of discipline imposed by the Commission on this alternative ground. See Brief for

Appellee at 14 (citing Friends of Pennsylvania Leadership Charter School v. Chester

County Board of Assessment Appeals, 101 A.3d 66, 75 (Pa. 2014) (holding that an

appellate court may affirm for any valid reasons of record)).

Regarding the merits of the controversy surrounding the proper standard of

review, Officer Johnson maintains that the General Assembly did not make uniform the

standards under which trial courts review adjudications of civil service commissions. He

argues that when the subject of discipline is employed by a borough, the standard set

forth in Section 1191(c) of the Borough Code governs and the deferential standard of

review espoused in Section 754(b) of the Local Agency Law has no application. Officer

Johnson relies on Turkelson, which, as noted, interpreted the “as the court deems

[J-41-2016] - 19

proper” language in the First Class Township Code as affording the trial court full

discretion to affirm, reverse, or modify the decision of the civil service commission,

thereby signifying a broad, rather than narrow and deferential standard of review.

Officer Johnson further disputes the Borough’s contention that the 1978

amendment to the Local Agency Law renders the Borough Code’s standard of review

inapplicable to municipal civil service appeals. While the 1978 adoption of Section

751(b) directed for the first time that Local Agency Law provisions were applicable to

adjudications appealed to a court of record, Section 751(b) limited application of the

Local Agency Law “to the extent not inconsistent with” the statute that authorized the

appeal of the adjudication. See 2 Pa.C.S. § 751(b) (providing that “[t]he provisions of

this subchapter shall apply to any adjudication which under any existing statute may be

appealed to a court of record, but only to the extent not inconsistent with such statute”).

Thus, Officer Johnson suggests, even after 1978, the Local Agency Law remains

inapplicable where there is a conflict between it and the statute authorizing the appeal,

here, the Borough Code. This is evident, Officer Johnson asserts, as the

Commonwealth Court continued to apply the Borough Code’s “as the court deems

proper” language, providing for de novo review, after 1978. See Reichenbach v. Civil

Ser. Comm’n of Wilkinsburg, 417 A.2d 1292, 1294 (Pa. Cmwlth. 1980) (holding that

Section 1191(c) of the Borough Code gives the trial court full discretion to modify

penalties with a broad scope of review, subject to Commonwealth Court review only for

abuse of that discretion).

Regarding the Borough’s reliance on case law holding that a civil service

commission cannot modify a municipality’s penalty absent evidence that it is arbitrary,

capricious, or discriminatory, Officer Johnson merely reiterates his position that

Turkelson and its progeny govern the trial court’s standard of review and provide for de

novo review of the Commission’s adjudication pursuant to Section 1191(c) of the

[J-41-2016] - 20

Borough Code. Accordingly, Officer Johnson requests that we affirm the

Commonwealth Court’s decision, which held that a trial court reviews an adjudication of

a borough civil service commission de novo, thereby authorizing the trial court to reduce

his penalty from termination to a thirty-day suspension based upon the trial court’s

reversal of charges three and four, which the Commission had sustained.

We begin by addressing the Borough’s contention that the Commonwealth Court

erred by sua sponte examining the proper standard by which a trial court reviews a

municipal civil service commission’s adjudication. It is well-established that where the

parties in a case fail to preserve an issue for appeal, an appellate court may not

address that issue sua sponte. Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).

Appellate courts consider only the controversies preserved by the litigants because sua

sponte consideration of issues disturbs the process of orderly judicial decision-making

by depriving the court of the benefit of counsel’s advocacy, Danville Area Sch. Dist. v.

Danville Area Educ. Ass'n, 754 A.2d 1255, 1259 (Pa. 2000), and depriving the litigants

the opportunity to brief and argue the issues. Wiegand v. Wiegand, 337 A.2d 256, 257

(Pa. 1975).

These serious concerns that arise from an appellate court’s sua sponte

consideration of an issue are not implicated here. When the Commonwealth Court

identified what it purportedly believed to be a threshold issue in deciding the Borough’s

appeal, it directed the parties to address the proper standard by which a trial court

reviews an adjudication of a municipal civil service commission, and the parties

complied without objection. Thus, the litigants had an opportunity to address the

distinct, albeit significantly-related issue of whether the Borough Code governed the trial

court’s standard of review, and the Commonwealth Court rendered its decision upon

consideration of the advocacy presented. We caution, however, that courts may not

inject new theories into appellate proceedings by merely directing the parties to brief a

[J-41-2016] - 21

particular issue. We condone the Commonwealth Court’s actions in the instant case

because the inquiry posed by the court was directly related to disposition of the appeal

before it as the inquiry involved the propriety of the standard of review applied by the

trial court. Accordingly, we do not believe the Commonwealth Court’s actions preclude

us from addressing the issue in this appeal.

We now turn to the dispositive inquiry of whether a trial court’s standard of review

of an adjudication of a municipal civil service commission where no new evidence is

presented on appeal is governed by the Borough Code, which has been interpreted as

providing for de novo review, or by the Local Agency Law, which provides for a limited

appellate review under those circumstances. Because this issue requires us to interpret

the two relevant statutes, it constitutes a question of law over which our standard of

review is de novo, and our scope of review is plenary. A.S. v. I.S., 130 A.3d 763, 768

(Pa. 2015).

While the parties and the lower courts have placed much emphasis on the cases

that interpret the Borough Code and the Local Agency Law, we will first examine the

statutes themselves. When interpreting a statute, our primary goal is “to ascertain and

effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). “When the

words of a statute are clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). Additionally, we

construe every statute “if possible, to give effect to all its provisions.” Id. § 1921(a); see

also id. § 1922(2) (stating that “the General Assembly intends the entire statute to be

effective and certain”).

Upon examination of the Local Agency Law, it is clear that its express terms

dictate when it applies. Section 751(a) sets forth the general rule that Subchapter B of

the Local Agency Law, entitled “Judicial Review of Local Agency Action,” shall apply to

all local agencies, regardless of whether a statute provides for an appeal from an

[J-41-2016] - 22

agency’s adjudication. 2 Pa.C.S. § 751(a). An exception to this general rule is found in

Section 751(b), which states that “[t]he provisions of this subchapter shall apply to an

adjudication which under any existing statute may be appealed to a court of record, but

only to the extent not inconsistent with such statute.” Id. § 751(b).14

These provisions, enacted in 1978, directed for the first time that all local agency

adjudications were appealable to a court of record, but contemporaneously provided

that to the extent a preexisting statute already governed the judicial review of a

particular adjudication, the preexisting statute, rather than the Local Agency Law, would

govern. Here, Section 1191(c) of the Borough Code authorized the appeal of the

Commission’s adjudication by affording all parties an immediate right of appeal to the

court of common pleas. Thus, facially, the Borough Code is the preexisting statute that

would control this appeal, and, under the Commonwealth Court’s jurisprudence based

on Turkelson, would result in broad trial court review. This does not end our analysis,

however, as we are unconvinced that there is an inconsistency between the Local

Agency Law and the Borough Code regarding judicial review of a municipal civil service

commission adjudication, and, accordingly, that the application of the Borough Code

results in affording trial courts de novo review of local agency adjudications.

We first examine Section 754 of the Local Agency Law, entitled “Disposition of

appeal,” which, as noted, states:

The parties do not contest that Lansdale Borough constitutes a “local agency,” which

is statutorily defined as “[a] government agency other than a Commonwealth agency.”

Id. § 101. A “government agency” is, in turn, defined as including, inter alia, “[a]ny

political subdivision or municipal or other local authority.” Id. Additionally, the parties do

not appear to dispute that the Commission’s ruling constitutes an “adjudication,” which

is defined as “[a]ny 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.” Id.

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(a) Incomplete record. -- 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 or for further disposition in

accordance with the order of the court.

(b) Complete record. -- In the event a full and complete record of the

proceedings before the local agency was made, the court shall hear the

appeal without a jury on the record certified by the agency. After hearing

the court shall affirm the adjudication unless it shall find that the

adjudication is in violation of the constitutional rights of the appellant, or is

not in accordance with law, or that the provisions of Subchapter B of

Chapter 5 (relating to practice and procedure of local agencies) have been

violated in the proceedings before the agency, or that any finding of fact

made by the agency and necessary to support its adjudication is not

supported by substantial evidence. If the adjudication is not affirmed, the

court may enter any order authorized by 42 Pa.C.S. § 706 (relating to

disposition of appeals).

2 Pa.C.S. § 754.

A plain reading of this statute provides that the trial court’s standard of review

under the Local Agency Law varies, depending upon on the state of the record as it

exists on appeal to the that court. See In re Appeal of Nevling, 907 A.2d 672, 674 (Pa.

Cmwlth. 2006) (holding that “[w]hen considering an appeal from a local agency, a

court’s standard of review is determined by the condition of the record created before

that local agency”). The statute directs that if a full record was not made before the

local agency, the trial court may either remand the matter to the agency for further fact-

finding or hear the matter de novo. If, however, the trial court hears the appeal on the

complete record of the proceedings before the local agency, the trial court’s standard of

review is limited to determining whether there was a constitutional violation, an error of

law, a failure by the local agency to comply with the statute’s procedural provisions, or a

material finding of fact that is unsupported by substantial evidence.

We next compare Section 754(b) of the Local Agency Law to Section 1191(c) of

the Borough Code, which stated, in relevant part:

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