Merrell v. Chartiers Valley School District

*113 Justice SAYLOR,

concurring.

Although I am in alignment with the lead opinion’s ultimate disposition, I respectfully maintain several conceptual differences with its approaches both to administrative agency law generally, as well as to questions connected more specifically to veterans’ preferences.

On the agency law point, the lead appears to rest its holding in this case on the notion that an adjudication (for purposes of triggering the pertinent appeal period under the Judicial Code, see 42 Pa.C.S. § 5571(b)) requires impact on some actual, known property (or other specified) interest. Without an interest of this sort that is apparent on the face of a prehearing record, the lead Justices’ approach seems to be that there can be no adjudication and, correspondingly, no available judicial review of an agency disposition. See Opinion Announcing the Judgment of the Court, 579 Pa. at 108-11, 855 A.2d at 720-21 (“Without an absolute preference in employment, Merrell does not have a property right to preference in employment such as to render the letter of April 28th an adjudication.”).

Certainly, this approach draws support from a literal reading of the statutory definition of adjudication. 1 It does not, however, account for the routine review afforded by Pennsylvania appellate courts to the numerous administrative agency adjudications in which claimed entitlements are denied based on agency determinations to the effect that the claimant lacks a property right or interest.

Some perspective concerning this conflict can be gleaned from the overall structure and purpose of the Administrative Agency Law. The General Assembly has crafted a statutory scheme by which various rights and entitlements can be adjudicated in a manner that comports with constitutional due process norms. See, e.g., 2 Pa.C.S. §§ 504, 553 (requiring notice of a hearing and an opportunity to be heard as a *114 prerequisite to a valid adjudication). 2 In conformance with those norms, a critical aspect of the scheme is the provision for judicial review. See generally 73A C.J.S. Public Administrative Law and Procedure § 173 (2004) (explaining, at least as a general proposition, that “[ojpportunity for judicial review is required by due process of law to determine whether administrative actions are within reasonable limits of administrative discretion or the scope of power of the agency”). Indeed, in the administrative arena the United States Supreme Court applies a presumption that a decision of an administrative body is subject to judicial review, in the absence of a clear showing that the legislature intended to preclude it. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 , 670-71 & n. 3, 106 S.Ct. 2133 , 2135-36 & n. 3, 90 L.Ed.2d 623 (1986) (“The very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law, the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the.‘common law,’ and the ultimate guarantees associated with the Constitution.” (quoting L. Jaffe, Judicial Control of Administrative Action 327 (1965))); accord 73A C.J.S. Public Administrative Law and Procedure § 172.

A framework for administrative law that would afford review to the government when a claimed entitlement to a property interest prevails, but deny review to the claimant when the interest is not recognized at the agency level and/or is not apparent from the face of a pre-hearing record, simply would not comport with the due process concepts integral to the design of Pennsylvania’s system. Therefore, to give effect to the Legislature’s clear intent, the touchstone of an adjudication in Pennsylvania administrative law should be, as it is in the federal system, 3 a genuine controversy as to a claimed *115 entitlement in the nature of a property (or other specified) right or interest. The Commonwealth Court has recognized as much, see, e.g., Hasinecz v. Commonwealth, Pennsylvania State Police, 100 Pa.Cmwlth. 622, 627-28 , 515 A.2d 351, 354 (1986) (indicating that an adjudication for purposes of appeal need involve only a final order affecting a purported property right), 4 and I would take this opportunity to expressly adopt its reasoning and conclusion to this effect.

Despite my difference with the lead Justices on this point, I agree with their decision to permit Mr. Merrell’s complaint to go forward. In this respect, my reasoning is based on the conclusion that, regardless of whether or not the School District’s decision to deny employment to Mr. Merrell was an adjudication, it was not a valid one as to him under the Local Agency Law, since the School District did not comply with the statute’s notice-of-hearing-and-opportunity-to-be-heard requirement. See 2 Pa.C.S. § 553 (“No 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.”); Callahan v. Pennsylvania State Police, 494 Pa. 461, 465 , 431 A.2d 946, 948 (1981) (holding that an adjudicatory letter that failed to comply with the statutory requirements of notice and an opportunity to be heard was not valid and *116 therefore did not provide a basis for appeal under the Local Agency Law).

On the veterans’ preference issue, the lead’s analysis segues into a discussion of various types of preferences, and its reasoning suggests that only an absolute form of preference can give rise to an interest on the order of a property right for purposes of the Administrative and Local Agency Laws. See Opinion Announcing the Judgment of the Court, 579 Pa. at 108-10, 855 A.2d at 720. However, our case law confirms that other forms of preferences may in fact give rise to such an entitlement, including the supplemental-point or tie-breaking varieties. 5 In the present case, it is simply unknown whether Mr. Merrell possesses the requisite qualifications that would entitle him to preference under the statute and thereby confirm his asserted property interest, since the judicial proceedings never progressed beyond the pleadings stage. My position is that it is therefore premature for the Court to attempt to resolve the question.

Justice NIGRO joins this concurring opinion.

. As the lead opinion indicates, this definition subsumes "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights ... of any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.C.S. § 101.

. While such procedures may not be constitutionally required in relation to entitlements that do not have a constitutional dimension, the Legislature has nevertheless standardized the procedure for adjudicating the defined interests according to a due process model.

. The federal Administrative Procedures Act defines “adjudication” as an agency process for the formulation of an “order,” and an "order” as *115 "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." 5 U.S.C. § 551 .

. In relevant part, the Commonwealth Court explained:

Whether a property right exists in the narrower sense of the definition in Section 101 of the Administrative Agency Law is a legal question requiring examination of statutes, regulations, and/or contracts. A substantive property right could never be established simply because the appealable order refers to the final determination as an adjudication. Thus, it must be that an 'adjudication,' examined for purposes of establishing this Court's original or appellate jurisdiction, does not always mean an order which does, in the final analysis, affect a property right.... While we are constrained to recognize that this interpretation of 'adjudication' is not immediately apparent, it is reconcilable with the statutory definition of the term in Section 101 of the Administrative Agency Law.... [W]e can perceive of [sic] no other rational analysis or conclusion.

Hasinecz, 100 Pa.Cmwlth. at 628 , 515 A.2d at 354 (emphasis omitted).

. See Housing Auth. of County of Chester v. Pennsylvania State Civil Serv. Comm'n, 556 Pa. 621, 643 , 730 A.2d 935, 947 (1999) (‘‘[T]he [veterans preference provisions of the Military Affairs Act] clearly require[ ] that mandatory veterans preference be afforded to any veteran who is applying for a civil service position and who is on an Eligible List due to his performance on the civil service examination[;] [t]he appointing authority may not impose additional threshold requirements on a veteran under the guise that it is setting forth the requisite qualifications[.]''); Pennsylvania Game Comm'n v. State Civil Serv. Comm’n (Taccone), 789 A.2d 839, 845 (Pa.Cmwlth.2002) (same); cf. Basile v. Elizabethtown Area Sch. Dist., 61 F.Supp.2d 392, 400 (E.D.Pa. 1999) (observing that the veteran plaintiff would have enjoyed a property interest in preference for hiring under the non-civil service appointment provision of the VPA if he had been qualified); Brickhouse v. Spring-Ford Area Sch. Dist., 540 Pa. 176, 180 , 656 A.2d 483, 485 (1995) (holding that a veteran must be given preference under the non-civil service provision only if he possesses the necessary qualifications for a position as determined by the hiring body).