September 5, 2017
By: Dennis Whitaker
As with most things, we tend to assume that the present status quo or something very similar has always existed. We rarely look beyond our immediate experience to understand how we arrived at the present circumstance. It’s 2017 and most of us have practiced under the rubric of the 1968 state constitution and the establishment of Commonwealth Court in 1970. Perhaps a few remember when the Dauphin County Court of Common Pleas oversaw the Commonwealth Docket, i.e. had jurisdiction over appeals from state agency decisions. However, before 1945 there was no consistently effective mechanism to ensure adequate review of those decisions. Even with the enactment of the Administrative Agency Law in 1945 judicial review of agency decisions often did not address the merits of those decisions. It was only after 1968 that the process we know today was established.
LIFE BEFORE 1945
Administrative agencies and the attendant promulgation of regulations mushroomed between 1900 and 1940; attempted challenges to agency actions also grew. However, challengers quickly discovered that the “great writs,” principally equity, were difficult to use and were not always an effective mechanism, and that there was no uniform method to challenge administrative procedures. This led in the late 1930’s and 1940’s to “study commissions” that laid the foundation for the development of federal and state laws by which agencies’ actions could be challenged.
The reform effort in Pennsylvania began in 1938 with the the Pennsylvania Bar Association’s formation of a Special Committee on Administrative Law to “analyze the present practices and procedures before the various state agencies.” The Committee issued several reports, including one in 1941 that began by opining that “Administrative tribunals are likely here to stay.” The General Assembly enacted the Administrative Agency Law of 1945 (AAL), the provisions of which largely remain in effect today. As noted by Mr. Justice Bell in Keystone Raceway Corp. v. State Harness Racing Comm., 173 A.2d 97, 99 (Pa. 1961), the administrative acts provided an important check on agencies:
Regardless of the admirable purpose for which these agencies are usually established, it is a matter of frequent complaint and common knowledge that the agencies at times act arbitrarily, or capriciously, and unintentionally ignore or violate rights which are ordained or guaranteed by the Federal or State Constitution, or established by law. For these reasons it is imperative that a checkrein be kept upon them.
Congress in 1946 established the framework by which federal rulemaking and adjudication occurs with the Administrative Procedure Act (APA). The APA remains the basic legislative and adjudicative standard even though more recent statutes have affected its processes.
INITIAL CHANGES IN ADMINISTRATIVE PRACTICE
No Appeal unless One of 48 Agencies.
Prior to the adoption of Article V, Section 9 of the Pennsylvania Constitution in 1968, the AAL at 71 P.S. § 1710.51(a) (repealed 1978) provided that no appeal was allowed from a state agency unless it was one of the 48 agencies listed therein. Decisions of bodies not listed could not be appealed as of right unless the agency enabling statute created a supplementary right of appeal. MEC Pennsylvania Racing v. Pennsylvania State Horse Racing Com’n, 827 A.2d 580, 586 (Pa. Cmwlth. 2003); see, e.g. Department of Labor and Industry v. Snelling & Snelling, 89 Dauph 51 (1968) (holding that AAL’s appeal procedures did not apply to a Labor department decision denying a partial refund of license fees because the department was not one of the listed agencies).
Supreme Court Rule 68½. State Agencies Not Listed in 71 P.S. §1710.51(a) and all Local Agencies.
For those state agencies as well as all local agencies, appeal was only by permission via writ of certiorari to the Supreme Court. If granted, review was governed either by narrow or broad certiorari.
Applied where the statute forbade judicial review. The writ of certiorari initially was limited to inspection of the record for jurisdiction below and for correction of errors appearing on the face of the record; neither the opinion of the court below nor the evidence in the case formed any part of the record, and the merits could not be inquired into on certiorari. This became known as “narrow certiorari” and only looked at the fairness of the proceeding, not the outcome.
Applied where the statute was silent regarding review. The Supreme Court later developed “broad certiorari” under which the appellate court looked beyond the jurisdiction of the court below and regularity of the proceedings to determine, by examining the testimony, whether the findings of the court below were supported by evidence or whether it was guilty of an abuse of discretion or an error of law. This practice was codified in Rule 68 1/2. For a more detailed explanation of the two types of certiorari see MEC, 827 A.2d at 586-588 (quoting Official Court Reporters of Court of Common Pleas of Philadelphia County v. Pennsylvania Labor Relations Bd., 467 A.2d 311, 316 (Pa. 1983)).
Constitutional Amendments of 1968. Article 5, Section 9 established a constitutional requirement of a right of appeal for all judicial and administrative decisions as follows:
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.
The right of appeal established in Article 5, Section 9 is not self-executing. Manheim Township School District v. State Board of Education, 276 A.2d 561, 563-65 (Pa. Cmwlth. 1971). The right of appeal from a state agency action is further provided by Section 702 of the AAL, 2 Pa. C.S. § 702. The right exists “notwithstanding prohibition on appeals set forth in other statutes . . . .” Maritime Management, Inc. v. Pennsylvania Liquor Control Bd., 611 A.2d 202, 203 (Pa. 1992).
Appeals from Agency Decisions–Commonwealth Court.
Under AAL Section 702, the court has jurisdiction over final orders and interlocutory appeals as of right and by permission. See also Pa. R.A.P. 341. The court’s jurisdiction over final orders is found in Section 763 of the Judicial Code, 42 Pa. C.S. § 763, and includes all agency appeals.
The Court’s jurisdiction takes two forms relevant here: appeals as of right from Commonwealth Court original jurisdiction matters (e.g., petitions for enforcement of administrative orders and pre-enforcement review actions such as petitions for declaratory relief), see 42 Pa. C.S. § 723; and, petitions for allowance of appeal (allocatur) seeking review of final orders involving appeals from agency adjudications, 42 Pa. C.S. § 725.
About the Author:
Dennis Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service. Focusing on government appellate and original jurisdiction practice, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating Pennsylvania’s appeals process.