In Re: Appeal of M. Murawski ~ Appeal of: M. Murawski (majority)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Appeal of Michael Murawski Appeal of: Michael Murawski BEFORE: : : : No. 349 C.D. 2021 Submitted: March 18, 2022 HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ELLEN CEISLER, Judge HONORABLE STACY WALLACE, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COHN JUBELIRER FILED: June 2, 2023 Appellant Michael Murawski (Murawski) appeals from the Order entered in the Court of Common Pleas of Philadelphia County (common pleas) on March 16, 2021, affirming the decision of the Board of License and Inspection Review (the Board) upholding the City of Philadelphia, Department of Licenses and Inspections’ (the Department) revocation of Murawski’s Contractor’s License (License) after the Board had denied his request for a continuance of a previously scheduled hearing regarding the revocation of his License. Following our review, we affirm. The procedural history of this matter is not in dispute. By letter, dated April 23, 2019, the Department notified Murawski that his License had been revoked due to the repeated violations of the License at six construction sites in the City of Philadelphia (City) in which he and various individuals under his direction and control had repeatedly engaged. Specifically, the revocation stemmed from violations of the following sections of the Philadelphia Building Construction and Occupancy Code, Title 4 of the Philadelphia Code, City of Philia. Pa., Building Construction and Occupancy Code (2018) (Code): Section 9-1004(9)(a)(6) for repeated failure to secure required permits; 9-1004(9)(a)(8) for repeated failure to comply with violations issued by the Department; 9-1004(9)(a)(9) for repeated removal or destruction of a stop work order; and 9-1004(7)(a) for repeated failure to obtain all required permits. Phila. Code § 9-1004(9)(a)(6), (8), (9), and (7)(a); (Notice of Revocation at 2, Reproduced Record (R.R.) at A-151.1) In the Notice of Revocation, the Department detailed the behavior leading to the violations, which occurred in 2018 and 2019. Such behavior included Murawski’s performance of construction work without having first obtained the proper zoning and building permits or performance of work exceeding the scope of issued permits, as well as his failure to halt construction despite stop work orders issued by the Department and common pleas’ orders directing him to cease all work until he obtained the proper permits. (Notice of Revocation at 2-6, R.R. at A-151–A-155.) On May 7, 2019, Murawski’s initial counsel, John Raimondi, Esq., filed a timely appeal of the revocation to the Board. The Board scheduled a hearing for June 11, 2019, and both parties and their witnesses appeared at that time. Due to other matters scheduled to be heard by the Board that day, the hearing did not occur, and it was continued to July 9, 2019. On July 9, 2019, once again, the parties and their witnesses appeared, but due to the numerous cases on the hearing list, the Board again ran out of time to hear Murawski’s appeal. (11/12/19 Notes of Testimony (N.T.) at 5, R.R. at A-36;2 3/16/21 N.T. at 18-19, R.R. at A-67–A-68.) On July 9, 1 The Reproduced Record does not comport with Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P. 2173 (requiring that the pagination of reproduced records be in the form of an Arabic number followed by a small “a”). For ease, the Court will utilize the method used by the Reproduced Record. 2 The Notes of Testimony from the November 12, 2019, hearing appear twice in the reproduced record. (See R.R. at A-34–A-49; A-120–A-137.) We will cite to the earlier reproduction. 2 2019, the Department requested that the matter be scheduled for a special session to occur outside of the Board’s normal hearing hours to allow for the significant time the hearing was expected to require and for witnesses, including the code administrator, a supervisor, and possibly other inspectors, to arrange their schedules accordingly. (R.R. at A-116; 11/12/19 N.T. at 5-7, R.R. at A-36–A-38.) An email thread commenced on July 9, 2019, and the Board and Murawski’s then-new counsel, Shawn Ward, Esq., ultimately agreed that a special session hearing would be held on November 12, 2019. (R.R. at A-111–A-116.) On November 11, 2019, which was Veteran’s Day and a federal holiday, Attorney Ward informed the Board that Murawski had obtained new counsel, Samuel C. Stretton, Esq., and Attorney Stretton would be requesting a continuance due to a conflict. (Common pleas’ [Pa. R.A.P.] 1925(a) Opinion (Rule 1925(a) Op.) at 3; 11/12/19 N.T. at 4, 8, R.R. at A-35, A-39.) On the morning of November 12, 2019, Attorney Stretton formally requested the continuance via a letter emailed to the Board’s Administrator. (R.R. at A-119.) On the afternoon of November 12, 2019, at which time Attorney Ward appeared for the hearing with Murawski, the Board called the case as scheduled and heard from the parties on the continuance request prior to determining whether to proceed. Attorney Ward advised the Board that although he no longer represented Murawski, he was appearing as a professional courtesy in an effort to obtain a continuance, and he placed argument in support thereof on the record. (11/12/19 N.T. at 4-10, R.R. at A-35–A-41.) When the Board inquired of Murawski as to the status of representation, Murawski responded “I’m no longer using [Attorney] Ward. I’m using [Attorney] Stretton.” (11/12/19 N.T. at 7, R.R. at A-38.) Murawski was then asked whether Attorney Ward was representing him for the continuance 3 request, and Murawski responded “Yes.” (Id.) The Department opposed the continuance request claiming it had received inadequate notice and that due to the complexity of the matter, several inspectors and supervisors had to modify their schedules and be taken from their other, official duties to be present. (Id. at 7-8, R.R. at A-38–A-39.) Following a brief deliberation, the Board denied Murawski’s continuance request after which Attorney Ward reminded the Board he no longer represented Murawski and, therefore, was not prepared to proceed with the hearing on the merits. (Id. at 10-11, R.R. at A-41–A-42.) Murawski was given the opportunity to represent himself, but he said, “I’m not able to represent myself” and “[y]ou can have your show. I have no say.” (Id. at 12-13, R.R. at A-43–A-44.) The Board then voted to affirm the Department’s revocation of Murawski’s License. (Id. at 14, R.R. at A-45.) Murawski filed a timely appeal of the Board’s decision with common pleas. On March 16, 2021, common pleas held oral argument. Without taking additional evidence and following its review of the certified record, common pleas affirmed the Board’s decision in its Order entered that same day. Murawski appealed common pleas’ Order to this Court, and on March 25, 2021, common pleas directed him to file and serve a concise statement of the errors complained of on appeal. Murawski complied, and common pleas filed its Rule 1925(a) Opinion. Therein, common pleas explained its reasoning behind the Order. Common pleas determined the Board did not abuse its discretion in denying Murawski’s continuance request because the special session was scheduled to accommodate schedules, Attorney Stretton entered his appearance late and requested the continuance just hours before the hearing, the City would have been prejudiced by the continuance, and Murawski had the opportunity to present his case but chose 4 not to do so. (Rule 1925(a) Op. at 5-6.) Common pleas also determined there was substantial evidence to support the Board’s decision. It reasoned a presumption arose that the violations occurred, based on the issuance of the Notice of Violation, and it was Murawski’s burden to rebut the presumption, although he did not do. (Id. at 6-7.) Common pleas further concluded Murawski had notice and an opportunity to be heard, which is all due process required. (Id. at 7-8.) To the extent Murawski argued he was entitled to counsel of his choice, common pleas disagreed, stating Murawski had three different attorneys represent him before the Board and there is no constitutionally protected right to counsel in civil proceedings. (Id. at 8.) Lastly, common pleas explained the Board was within its discretion to dismiss Murawski’s appeal for failure to prosecute when he did not present any evidence. (Id. at 9.) On appeal,3 Murawski raises two issues.4 First, Murawski asserts common pleas abused its discretion in upholding the Board’s decision denying his continuance request and requiring him to proceed with the November 12, 2019, hearing pro se.5 Murawski avers that there would have been “no true inconvenience “Where [common pleas] takes no additional evidence subsequent to the board’s determination, our scope of review is limited to determining whether the board committed a manifest abuse of discretion or an error of law.” Levin v. Bd. of Supervisors of Benner Twp., Centre Cnty., 669 A.2d 1063, 1068 (Pa. Cmwlth. 1995) (citations omitted) aff’d, 689 A.2d 224 (Pa. 1997). 4 In his statement of issues, Murawski identifies multiple issues, which the Court has consolidated. 5 In his brief, Murawski describes an agreement Attorney Stretton allegedly had with Attorney Ward who “does not know appellate work and does not really enjoy trials,” whereby the latter, nevertheless, promised he would represent Murawski if the continuance request was denied, but instead indicated he had been “fired” and “walked out on” Murawski leaving him unrepresented and costing him his livelihood. (Murawski’s Br. at 35-45, 47). There is no evidence pertaining to this alleged agreement between counsel in the notes of testimony from November 12, 2019, or anywhere else in the original record. As an appellate court, this Court’s review is limited to the contents of the original record. Pa.R.A.P. 1921. Moreover, the assertion that Attorney Ward abandoned Murawski is belied by the record which evinces he argued in support of Murawski’s (Footnote continued on next page…) 3 5 to the [Department]” had the Board granted his first request for a continuance, especially because the hearing had been unreasonably delayed due to the Department’s actions. (Murawski’s Brief (Br.) at 48-54.) Second, Murawski argues that the revocation of his License summarily without a hearing and without requiring the Department to produce “one iota” of supporting evidence or testimony constituted a violation of his due process rights (Id. at 31.) Murawski admits that there is “case law that seems to support this very odd position that a license can be revoked without any evidence based on a presumption,” but nonetheless posits a presumption should not “carry the day in a post[-]deprivation hearing.” (Id. at 5758; see also id. at 18, 43, 55-58, 61, 66-68.) Murawski further argues he had good cause for not proceeding because he wanted counsel, which he was being denied. (Id. at 67.) Therefore, he asserts this matter is distinguishable from Fountain Capital Fund, Inc. v. Pennsylvania Securities Commission, 948 A.2d 208, 214 (Pa. Cmwlth. 2008), in which this Court held dismissing a proceeding for failure to prosecute or appear at a hearing without good cause did not violate due process. (Murawski’s Br. at 67.)6 continuance request and was present at least until the Board’s brief pause for deliberation. Furthermore, when the Board asked Murawski who was representing him, he indicated he was “no longer using [Attorney] Ward,” except as to the continuance request, and was instead “using [Attorney] Stretton.” (11/12/19 N.T. at 7, R.R. at A-38.) 6 We are compelled to make several observations regarding Murawski’s filings. This Court has stressed the Rules of Appellate Procedure were promulgated to govern practice and procedure before the appellate courts, and a party’s noncompliance with those Rules “only makes this [C]ourt’s review of appeals more difficult.” Levin, 669 A.2d at 1068 n.3. Murawski’s concise statement of errors complained of on appeal exceeds four pages in length, consists of six paragraphs several of which contain subparts, and presents legal argument and case citations. (See Murawski Br. “Exhibit ‘E’.”) As the Superior Court recently stressed, “[t]he fact Appellant filed a timely 1925(b) statement does not automatically equate with issue preservation[,]” for a Rule 1925(b) statement “is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the party plans to raise on appeal. . . . A concise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional (Footnote continued on next page…) 6 equivalent to no Concise Statement at all.” Commonwealth v. Juray, 275 A.3d 1037, 1041 n.4 (Pa. Super. 2022) (citations omitted). Despite its deficient construction, Murawski’s Rule 1925(b) statement identifies the issues he presents on appeal to this Court; therefore, we will not find the issues he presents for our review to be waived due to his lengthy concise statement. Notwithstanding, we also emphasize this Court repeatedly has held that substantial omissions, defects, and/or failures to conform to the minimal requirements for writing an appellate brief set forth in Chapter 21 of the Pa.R.A.P. will result in the quashing or dismissal of the appeal. Lal v. Department of Transportation, 755 A.2d 48, 49 (Pa. Cmwlth. 2000). Further, Pa.R.A.P. 2101 underscores the seriousness with which appellate courts take deviations from procedural rules, as it permits this Court to quash or dismiss an appeal for procedural noncompliance. Pa.R.A.P. 2101 (stating “[b]riefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed[.]”) To assess whether this Court can reach the merits of a claim, we must consider whether the defects are so substantial that they preclude “meaningful appellate review.” Tewell v. Unemployment Comp. Bd. of Rev., 279 A.3d 644, 652 n.9 (Pa. Cmwlth. 2022). Although presented as only two questions, Murawski’s Statement of the Questions Involved in his brief contains multiple questions combined in each numbered paragraph and fills two pages. Pa.R.A.P. 2116 states: (a) General rule. The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. Each question shall be followed by an answer stating simply whether the court or government unit agreed, disagreed, did not answer, or did not address the question. If a qualified answer was given to the question, appellant shall indicate the nature of the qualification, or if the question was not answered or addressed and the record shows the reason for such failure, the reason shall be stated briefly in each instance without quoting the court or government unit below. Pa.R.A.P. 2116(a). Moreover, although Murawski’s 73-page brief purports to be divided into two sections to correspond with the questions raised on appeal, the text is disorganized and repetitive. The result of the overlapping arguments is that the “Statement of the Questions Involved” bears little relation to the argument section of his brief. Pa.R.A.P. 2119 provides that an “argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). “The purpose of this rule is to facilitate the reader’s comprehension of the arguments being made.” Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999). Despite these briefing defects, we have not been prevented from properly reviewing this case; therefore, we decline to quash or dismiss the instant appeal. See Pa.R.A.P. 2101. 7 Having reviewed the record, the arguments of the parties, and the relevant case law, we conclude common pleas ably resolved the issues raised by Murawski in the thorough and well-reasoned opinion of the Honorable Joshua Roberts. In re: Appeal of Michael Murawski (C.C.P. Philadelphia Cnty., Nov. Term 2019 No. 02760, filed June 24, 2021). Accordingly, following our careful review, we adopt common pleas’ opinion and affirm. __________________________________________ RENÉE COHN JUBELIRER, President Judge Judge McCullough did not participate in the decision in this case. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Appeal of Michael Murawski Appeal of: Michael Murawski : : : No. 349 C.D. 2021 ORDER NOW, June 2, 2023, the Order of Court of Common Pleas of Philadelphia County, entered on March 16, 2021, is AFFIRMED. __________________________________________ RENÉE COHN JUBELIRER, President Judge

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