F. Kelly v. OGC, 842 C.D. 2017

Background

Frank Kelly, a Cheyney University campus police sergeant, was added as a respondent in a suit by former colleague Thomas Flagg; PSSHE/OGC initially agreed to represent him but reserved the right to withdraw.
OGC (via Chief Counsel Lehman) sent a letter on Sept. 28, 2016 withdrawing representation for conduct deemed outside scope of employment; that letter advised a 10-day appeal right.
Notices and subsequent correspondence were mailed to Kelly’s last known (Lardner Street) address; Kelly moved without notifying counsel and admits he received notice by Jan. 17, 2017 (and likely had constructive notice earlier).
Kelly’s private counsel (Ferguson) sought to withdraw; Kelly sought union representation on Nov. 27, 2016 and retained later counsel who filed an appeal on Feb. 2, 2017.
An OGC adjudicator found Kelly’s appeal untimely under 4 Pa. Code §39.13 because it was not filed within 10 days of notice and denied nunc pro tunc relief due to lack of reasonable diligence; Commonwealth Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kelly timely appealed OGC’s withdrawal of representation under 4 Pa. Code §39.13	Kelly: appeal period began Jan. 24, 2017 (when Lehman replied to Kelly’s inquiry), so Feb. 2, 2017 appeal was timely	OGC: appeal period ran from service of withdrawal notice (Sept/Nov 2016) or at latest Jan. 17, 2017 when Kelly admitted actual notice; appeal due within 10 days	Held: appeal was untimely; Kelly failed to file within 10 days of notice (latest date Jan.17)
Whether Kelly is entitled to nunc pro tunc relief excusing the late appeal	Kelly argued delayed receipt of notices and confusion about substitute counsel justified equitable relief	OGC: mailbox rule and Kelly’s failure to notify address change or act with diligence foreclose nunc pro tunc	Held: nunc pro tunc relief denied—Kelly lacked reasonable diligence and did not rebut presumption of receipt
Whether OGC denied due process by failing to ensure actual notice or by refusing replacement counsel	Kelly: lacked due process because he did not timely receive effective notice and was left without replacement counsel	OGC: statutory scheme governs representation decisions and timely mailed notice raises presumption of receipt; withdrawal and court counsel-withdrawal are separate processes	Held: no due process violation found; procedural rules and mailbox presumption control
Whether an evidentiary hearing was required on the merits	Kelly sought hearing on representation/indemnification merits	OGC: no hearing required when no disputed preliminary facts; adjudicator relied on stipulations	Held: no hearing required on jurisdictional/timeliness issue; adjudicator properly declined to reach merits due to untimely appeal

Key Cases Cited

Criss v. Wise, 781 A.2d 1156 (Pa. 2001) (equitable nunc pro tunc relief available only in extraordinary circumstances)
Stanton v. Department of Transportation, Bureau of Driver Licensing, 623 A.2d 925 (Pa. Cmwlth. 1993) (statutory appeal periods are mandatory; negligence does not justify nunc pro tunc)
Ercolani v. Department of Transportation, Bureau of Driver Licensing, 922 A.2d 1034 (Pa. Cmwlth. 2007) (requirement to proceed with reasonable diligence for nunc pro tunc relief)
C.E. v. Department of Public Welfare, 97 A.3d 828 (Pa. Cmwlth. 2014) (mailbox rule creates rebuttable presumption of receipt for properly mailed items)
Department of Transportation v. Brayman Construction Corp., 513 A.2d 562 (Pa. Cmwlth. 1986) (actual mailing evidence not required to invoke mailbox presumption)
Commonwealth v. Yorktowne Paper Mills, Inc., 214 A.2d 203 (Pa. 1965) (untimely filings divest tribunal of jurisdiction)
Independence Blue Cross v. Pennsylvania Insurance Department, 802 A.2d 715 (Pa. Cmwlth. 2002) (when no factual disputes exist, no evidentiary hearing is required)
Irizarry v. Office of General Counsel, 934 A.2d 143 (Pa. Cmwlth. 2007) (hearing not required where preliminary questions have no disputed facts)