The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nathaniel Hite,
Appellant :
:
v. : No. 180 C.D. 2023
: Argued: February 6, 2024
City of McKeesport and City of :
McKeesport Firefighters Pension :
Plan Board :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE DUMAS FILED: March 11, 2024
Nathaniel Hite (Hite) appeals from an order of the Court of Common
Pleas of Allegheny County (trial court), which affirmed a decision of the
McKeesport Firefighters Pension Plan Board (the Board) denying Hite’s application
for a disability pension under the City of McKeesport Firefighters’ Pension Plan (the
Plan). After careful review, we vacate and remand for proceedings consistent with
this opinion.
I. BACKGROUND1
Hite was employed as a firefighter by the City of McKeesport (City).
In October 2009, in the course of his employment, he suffered a labral tear of his left
1
There are several typographical errors in the findings of fact and conclusions of law issued
by the hearing officer, specifically, Hite’s surgery dates. At the hearing, testimony established that
Hite had undergone surgeries in March 2010, October 2010, and March 2013. See Notes of
Testimony (N.T.), 8/5/19, at 10, 24-25. The findings of fact incorrectly state that Hite reinjured
his shoulder in September 2019, and that a second surgery was performed on October 1, 2019. See
shoulder that eventually required two surgical procedures. He returned to work and,
in June 2011, suffered a partial rotator cuff tear of his left shoulder that also required
surgical intervention. Thereafter, Hite was placed on permanent work restrictions.
See Letter, 10/13/13, at 1.
In October 2013, Hite wrote to the McKeesport Firefighters’ Pension
Association, requesting a disability pension. See id. To qualify, the Plan required
an injury in the line of duty as well as an evaluation of the injury from three
physicians who concluded that the injury resulted in total disability that was
permanent in nature. See Plan, § 5.01.2
Three physicians evaluated Hite. Dr. Marc D. Laufe concluded, within
a reasonable degree of medical certainty, that additional surgery was not indicated
and that Hite was permanently and totally disabled as a firefighter due to the
condition of his left shoulder. See Letter, 2/12/14. Dr. Mark W. Rodosky, Hite’s
treating physician, opined that Hite was permanently disabled and unable to return
to his pre-injury job as a firefighter. See Letter, 3/3/14; see also Letter, 7/1/14. Dr.
Jon B. Tucker, an independent medical expert, evaluated Hite and opined that Hite
was temporarily, but not permanently and totally disabled. See Letter, 4/29/14; see
Findings of Fact and Conclusions of Law, 2/3/20, at 2. September 2019 and October 2019 are, of
course, after the August 2019 hearing. This apparent typographical error does not affect the
hearing officer’s conclusions of law or our own analysis. Nevertheless, we cite to other documents
in the record in an abundance of caution and for clarity.
2
The Plan defines “total and permanent disability” as “a condition of physical . . .
impairment due to which a Participant is unable to perform any duties of Employment with the
Employer.” See Plan, § 1.33. The determination of “total and permanent disability” is to be made
by the Plan Administrator based upon the results of examinations by three physicians approved by
the Plan Administrator. See id.; see also Plan, § 504 (verification of disability). Alternatively, a
participant could qualify for benefits for a non-service-related injury, provided the participant had
completed five years of credited service. See Plan, § 5.01.
2
also Letter, 7/2/14. According to Dr. Tucker, Hite could potentially benefit from an
additional surgery.3 See Letter, 7/2/14.
Because these doctors did not unanimously agree that Hite was
permanently and totally disabled, the Board determined that Hite did not meet the
necessary criteria for a disability pension. See Pension Bd. Minutes, 11/12/14, at 1-
2; see also Pension Bd. Minutes, 12/10/15, at 1-2; see also Pension Bd. Minutes,
1/12/16, at 1-3. Subsequently, the Board sent Hite notice of the denial of his claim
for a disability pension. See Notice Letter, 1/25/16.
In March 2016, Hite sought review4 of the decision with the City
Council,5 contending that the Board should have had another expert examine the
conflicting doctors’ reports and arguing that the Board’s reliance upon Dr. Tucker’s
opinion was a violation of his due process rights. See Letter, 3/23/16, at 1-2.
Additionally, Hite argued that the Plan did not provide for any manner of challenging
the opinion of an examining physician, which means that the Plan lacks objective
standards for determining disability based upon appropriate medical testing and
examination. See id. at 2-3.
On August 15, 2019, Hite and representatives of the Board appeared
before a hearing officer sitting on behalf of the City Council. At the hearing, Hite
3
Dr. Tucker referenced a Latarjet procedure. See Letter, 4/29/14; see also Letter, 7/2/14.
This procedure is used to treat “anterior shoulder instability” and “includes soft[] tissue repair and
osseous reconstruction to stabilize the glenohumeral joint in recurrent anterior instability.” Eddie
Y. Lo et al., Comprehensive Modified Latarjet Technique: What the Masters Taught Us, 11:3 JBJS
Essential Surgical Techniques (2021).
4
The City Council did not schedule a hearing until Hite filed an ancillary mandamus action
in the trial court in an attempt to compel it to do so. See Hite v. City of McKeesport Firefighters’
Pension Bd. (No. GD-18-02872, filed Mar. 1, 2018).
5
Pursuant to Section 9.07 of the Plan, upon receipt of the notice of the denial of the claim,
the participant may request a full and fair review by the City Council within 60 days of the receipt
of the notice. See Plan, § 9.07(c).
3
requested the opportunity to depose and/or cross-examine Dr. Tucker, who was not
in attendance and had not been subpoenaed by Hite. See N.T., 8/15/19, at 8-9. After
argument on the issue, the hearing officer concluded that Dr. Tucker’s opinion spoke
for itself and that deposition or cross-examination was unnecessary. See id. at 34-
35. Accordingly, he denied Hite’s request. See id.
Hite testified on his own behalf and introduced the reports of Drs.
Laufe, Rodosky, and Tucker.6 See id. at 21-30. Hite testified that he is unable to
perform firefighting duties and that Dr. Rodosky’s opinion was that surgery would
not improve his condition. See id. at 29-31. According to Hite, Dr. Rodosky told
him that “no one would perform [the surgery].” See id. at 30.
The hearing officer issued findings of fact and conclusions of law,
determining that all three doctors were credible but that, because they were not in
mutual agreement regarding the permanency of Hite’s disability, Hite did not qualify
for a disability pension. See Findings of Fact & Conclusions of Law, 2/3/20, at 6.
The hearing officer agreed that the plain language of the Plan required unanimity of
opinion of the examining doctors. See id. Accordingly, the hearing officer denied
Hite’s request for review. See id. at 6-8.
Hite timely appealed the denial to the trial court, which affirmed the
decision of the hearing officer. See Trial Ct. Op., 2/6/23, at 1-4. Hite then appealed
to this Court.
6
None of the three examining doctors appeared or testified at the hearing, nor did the Board
present witnesses or evidence.
4
II. ISSUES
Hite contends that he was denied due process at the hearing before the
City Council, which denied Hite’s request to take the deposition testimony of a
doctor who had examined him.7 See Hite’s Br. at 4.
III. DISCUSSION8
A. The parties’ arguments
Hite contends that the hearing officer’s refusal to allow him to depose
or cross-examine Dr. Tucker was a violation of his due process rights. See Hite’s
Br. at 17-21. According to Hite, he has a vested property right in his disability
pension to which full due process rights attach. See id. at 19. Therefore, Hite
contends that the Board may not deny him his pension without a valid adjudication,
which he asserts consists of “the opportunity to know of the claims of his opponent,
to hear the evidence introduced against him, to cross-examine witnesses, to
introduce evidence on his own behalf, and to make argument.” See id. at 20-21.
Further, Hite contends that he did not waive his right to request the
testimony of Dr. Tucker, because his due process right to cross-examine Dr. Tucker
7
In a second issue, Hite asserts that the decision of the City Council hearing officer was
inconsistent and not supported by the record, where the findings of fact determined that all three
physicians were credible in their reports, but two of the physicians held diametrically opposed
views regarding the permanence of Hite’s medical condition. See Hite’s Br. at 4. However, based
upon our disposition of Hite’s first issue, we need not reach the merits of his second.
8
This Court’s review is limited to determining whether the Board violated Hite’s
constitutional rights, committed an error of law, or necessary findings of fact are supported by
substantial evidence. Wiggins v. Philadelphia Bd. of Pensions & Ret., 114 A.3d 66, 71 n.4 (Pa.
Cmwlth. 2015) (citation omitted). Substantial evidence is evidence that a reasonable person would
accept as adequate to establish the fact in question. Moorehead v. Civil Service Comm’n of
Allegheny Cnty., 769 A.2d 1233, 1238 (Pa. Cmwlth. 2001). “A reviewing court will examine, but
not weigh, the evidence” because the local agency, acting as the factfinder, “is in a better position
to discover the facts based upon the testimony and the demeanor of witnesses. The court may not
substitute its judgment for that of the [local agency].” Id. (citation omitted).
5
did not attach until he appealed the denial of his pension request to the City Council.
See id. at 23. Hite suggests that “at best, there may have been a year before the
hearing was held when a deposition could have been taken.” See id. Hite offers no
explanation for why he did not depose Dr. Tucker within that time, but instead
suggests that it is “up to the parties and the hearing officer to agree on the deposition”
and that this “failed to take place in this case.” See id. at 23-24. Therefore, Hite
contends that the Board violated his constitutional rights such that the decision must
be reversed. See id.
The City responds that it is within the local agency’s discretion to grant
a request for a postponement, and that it is undisputed that Hite waited until the
commencement of the hearing to request permission to depose Dr. Tucker. See
City’s Br. at 3-4. According to the City, Hite had over five years in which to depose
Dr. Tucker and additionally failed to subpoena him to the hearing, where he would
have been subject to cross-examination. See id. at 5. Accordingly, the City suggests
that Hite has waived any due process claim. See id.
Regardless, the City contends that Hite’s due process rights were not
violated. See id. at 6. Specifically, the City asserts that it complied with the
requirements of the Local Agency Law9 and provided Hite with a hearing at which
he had the opportunity to present and cross-examine witnesses. See id. Hite was
not prevented from presenting and cross-examining a witness: rather, he did not
subpoena any witnesses to the hearing. See id. Accordingly, the City contends that
the Board did not violate Hite’s constitutional rights, and the decision should be
affirmed. See id. at 7.
9
2 Pa.C.S. §§ 101-106, 551-555.
6
B. Analysis
The Due Process Clause of the Fifth Amendment to the United States
Constitution guarantees that “[n]o person shall be . . . deprived of life, liberty, or
property, without due process of law[.]” U.S. CONST. amend. V. The Fourteenth
Amendment also provides that no “State [shall] deprive any person of life, liberty,
or property, without due process of law.” U.S. CONST. amend. XIV, § 1. The
Pennsylvania Supreme Court has observed that due process is “a flexible concept
which varies with the particular situation.” Bundy v. Wetzel, 184 A.3d 551, 557 (Pa.
2018). Ascertaining the process due involves three considerations: “(1) the private
interest affected by the governmental action; (2) the risk of an erroneous deprivation
together with the value of additional or substitute safeguards; and (3) the state
interest involved, including the administrative burden the additional or substitute
procedural requirements would impose on the state.” See id. (quoting Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)).
Whether a hearing and notice is required under Section 553 of the Local
Agency Law “depends on whether a local agency’s actions constitute an
adjudication.”10 Guthrie v. Borough of Wilkinsburg, 478 A.2d 1279, 1281 (Pa.
1984). The Local Agency Law defines “adjudication” 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.” 2 Pa.C.S. § 101. In the context
of pension and disability benefits, this Court has held that retirement benefits are a
property right that cannot be taken without due process. See Cherillo v. Retirement
10
Section 553 of the Local Agency Law provides that “[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.
7
Bd. of Allegheny Cnty., 796 A.2d 420, 421-22 (Pa. Cmwlth. 2002) (citing Callahan
v. Pa. State Police, 431 A.2d 946 (Pa. 1981)). Accordingly, the denial of a disability
pension is an adjudication to which attach the due process requirements of notice
and the opportunity to be heard. See Guthrie, 478 A.2d at 1281; Cherillo, 796 A.2d
at 421-22.
The basic elements of procedural due process are “adequate notice, the
opportunity to be heard, and the chance to defend oneself before a fair and impartial
tribunal having jurisdiction over the case.” J.P. v. Dep’t of Hum. Servs., 170 A.3d
575, 580 (Pa. Cmwlth. 2017). Additionally, the opportunity to be heard must occur
“at a meaningful time and in a meaningful manner.” Bundy, 184 A.3d at 557
(quoting Mathews, 424 U.S. at 335). This Court has noted that in addition, due
process requires “an opportunity to offer evidence in furtherance of such issues.”11
See Wiggins, 114 A.3d at 74. We have further observed that “[t]he key factor in
determining whether procedural due process is denied is whether the party asserting
the denial of due process suffered demonstrable prejudice.” City of Phila. v. Urban
Mkt. Dev., Inc., 48 A.3d 520, 522 (Pa. Cmwlth. 2012).
Additionally, the power to grant or refuse a continuance is an inherent
power of a court or administrative agency, which is normally discretionary and
subject to review only on a clear showing of an abuse of that discretion. See Replogle
v. Dep’t of Transp., 430 A.2d 1221, 1221-22 (Pa. Cmwlth. 1981); see also Phillips-
Farmer v. John Wanamaker-Philadelphia, 369 A.2d 1339, 1340 (Pa. Cmwlth.
11
This requirement is echoed in the Local Agency Law, which provides that “[l]ocal
agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant
evidence of reasonably probative value may be received. Reasonable examination and cross-
examination shall be permitted.” 2 Pa.C.S. § 554.
8
1977).12 In such cases, our chief considerations in determining the existence of an
abuse of discretion are “whether or not the grant or refusal of the continuance would
be in furtherance of justice and whether or not a refusal would prejudice the rights
of one of the parties.” See Replogle, 430 A.2d at 1222.
For example, in Replogle, this Court concluded that the State Civil
Service Commission abused its discretion in denying a continuance for the petitioner
to obtain counsel, when the petitioner had attempted but was unable to obtain
counsel prior to the hearing. See Replogle, 430 A.2d at 1222. By contrast, in a
workers’ compensation matter, this Court upheld the denial of a continuance where
each party had had ample opportunity to present its case, and the damaging
testimony “sought to be refuted was extracted by appellant’s own counsel who called
the claimant as his own witness as if on cross-examination, after a continuance at
appellant’s request.” See Phillips-Farmer, 369 A.2d at 1340 (emphasis added). This
Court concluded that there was no abuse of discretion in denying a second request
for a continuance in such circumstances. See id.
In the instant matter, Hite requested a single continuance in order to
secure the presence of a necessary witness.13 The hearing officer denied that request.
However, the refusal of the continuance was not in the furtherance of justice: the
opportunity to cross-examine Dr. Tucker was integral to Hite’s arguments on appeal.
See, e.g., Replogle, 430 A.2d at 1222; Phillips-Farmer, 369 A.2d at 1340. Further,
the denial did prejudice Hite, as Dr. Tucker’s opinion was the basis for denying him
12
Although these cases reference the Administrative Agency Law, 2 Pa.C.S. §§ 501-508,
701-704, and the instant matter was decided under the Local Agency Law, in matters where
property rights are at stake, we have held that “the basic principle that a property right cannot be
taken without due process remains the same.” See Cherillo, 796 A.2d at 422.
13
Although Hite did not specifically request a continuance, both parties accept that his
request to cross-examine Dr. Tucker, who was not present at the hearing, would require a
continuance. See N.T., 8/15/19, at 8-9, 34-35.
9
his disability pension. See Replogle, 430 A.2d at 1222. Finally, if the hearing officer
had granted the continuance, Hite would continue to receive what he had been
receiving from the Plan: no money and no benefits. Accordingly, the denial
prejudiced Hite, but not the Board. See id.
IV. CONCLUSION
For the foregoing reasons, we conclude that the hearing officer abused
his discretion when he refused to grant Hite’s request for a continuance in order to
cross-examine Dr. Tucker. See Replogle, 430 A.2d at 1222; Phillips-Farmer, 369
A.2d at 1340. Therefore, we vacate and remand for further proceedings at which
Hite may subpoena Dr. Tucker to the hearing.
LORI A. DUMAS, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nathaniel Hite,
Appellant :
:
v. : No. 180 C.D. 2023
:
City of McKeesport and City of :
McKeesport Firefighters Pension :
Plan Board :
ORDER
AND NOW, this 11th day of March, 2024, the order entered by the Allegheny
County Court of Common Pleas on February 6, 2023, is VACATED and the matter
is REMANDED for further proceedings consistent with this decision.
Jurisdiction relinquished.
LORI A. DUMAS, Judge