M. Madden v. PSERB

             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Madden,                              :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Public School Employees’                  :
Retirement Board,                         :   No. 28 C.D. 2020
                  Respondent              :   Argued: September 15, 2020


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                   FILED: October 15, 2020

             Mark Madden (Claimant) petitions this Court for review of the Public
School Employees’ Retirement Board’s (Board) December 12, 2019 order granting the
Public School Employees’ Retirement System’s (PSERS) Motion to Dismiss with
Prejudice. Claimant presents two issues for this Court’s review: (1) whether the Board
abused its discretion by dismissing Claimant’s appeals; and (2) whether the Board
violated Claimant’s constitutional rights by failing to provide adequate notice that the
request for continuance had been denied. After review, we reverse and remand.
             On July 18, 2017, Claimant filed an appeal from a PSERS’ decision
denying his application to reapply for renewal of disability benefits. Thereafter,
PSERS filed its Answer to Claimant’s appeal. By May 2, 2018 letter, the Board
appointed Christopher K. McNally (Hearing Examiner McNally) as the hearing officer
for Claimant’s administrative hearing. See Reproduced Record (R.R.) at 13a-14a. By
May 2, 2018 letter, the Board’s Appeal Docket Clerk (Docket Clerk) notified Claimant
that the administrative hearing on his appeal was scheduled for August 16, 2018, in
Harrisburg, Pennsylvania. See Supplemental Reproduced Record (S.R.R.) at 126a.1
By June 27, 2018 order, Hearing Examiner McNally granted PSERS’ request and
scheduled a telephonic prehearing conference for July 10, 2018, and required the
parties to file prehearing statements by July 6, 2018. See S.R.R. at 132a-133a. PSERS
filed its prehearing statement on July 6, 2018. On July 9, 2018, at 4:35p.m., Claimant
filed his prehearing statement pro se, see S.R.R. at 140a-141a, and requested that the
prehearing conference be rescheduled for July 17, 2018. See S.R.R. at 140a. On July
10, 2018, Hearing Examiner McNally initiated the prehearing conference, but Claimant
failed to attend.
               At the parties’ mutual request, by July 17, 2018 order, Hearing Examiner
McNally rescheduled the hearing for August 15, 2018. See S.R.R. at 144a. By July
31, 2018 order, Hearing Examiner McNally rescheduled the prehearing conference for
August 8, 2018, and directed the parties to file amended prehearing statements by
August 6, 2018, to address Claimant’s burden of proof and whether he could sustain
that burden without expert testimony. See S.R.R. at 146a. PSERS filed its amended
prehearing statement on August l, 2018. Claimant did not file an amended prehearing
statement.
               On August 13, 2018, Claimant requested a continuance of the August 15,
2018 hearing.       By August 14, 2018 order, Hearing Examiner McNally granted
Claimant’s continuance request and directed that, by October 12, 2018, an attorney
must enter an appearance on Claimant’s behalf and propose dates in December or
January when Claimant, counsel and necessary witnesses would be available for a
hearing. See R.R. at 19a. Hearing Examiner McNally further directed that if Claimant


       1
         Pennsylvania Rule of Appellate Procedure 2173 (Rule) states, in pertinent part: “[A]ny
supplemental reproduced record shall be numbered separately in Arabic figures . . . thus 1, 2, 3, etc.,
followed . . . by a small b, thus 1b, 2b, 3b, etc.” In the present matter, the Supplemental Reproduced
Record does not follow the Rule. Instead, it follows the numbering scheme for a reproduced record.
The opinion cites the Supplemental Reproduced Record as it is labeled therein.
                                                  2
was unable to retain counsel by October 12, 2018, Hearing Examiner McNally would
reschedule the hearing and no further continuances would be granted. See

id. No attorney entered

an appearance on Claimant’s behalf. On October 1, 2018, the Board
appointed Thomas A. Blackburn (Hearing Examiner Blackburn) to preside over the
hearing. See S.R.R. at 156a-157a.
            On September 21, 2018, Claimant filed an appeal challenging PSERS’
determination that Claimant could not change his retirement options because his
request was untimely. See R.R. at 21a-23a. On October 5, 2018, PSERS filed an
answer to this appeal. By October 26, 2018 order, the Board consolidated the two
matters for hearing. See R.R. at 33a-35a. On November 16, 2018, the Board appointed
Hearing Examiner Blackburn to hear the consolidated matters. See R.R. at 36a-37a.
By November 16, 2018 letter, the Docket Clerk notified Claimant that the hearing on
his consolidated appeals was scheduled for March 5, 2019, in Harrisburg,
Pennsylvania. See R.R. at 38a-41a. The notice instructed that any continuance request
must be made in writing and filed with the Docket Clerk, copies must be provided to
the hearing examiner and PSERS’ counsel and, if the hearing examiner denies the
continuance request and Claimant does not appear at the hearing, upon a motion, the
hearing examiner could recommend to the Board that the appeal be dismissed with
prejudice. See

id. On February 26,

2019, Claimant’s counsel (Counsel) faxed Hearing
Examiner Blackburn a letter of appearance and a continuance request stating that he
had just been engaged to represent Claimant and required a continuance because he
would not be available on March 5, 2019, because he would be caring for his wife after
her February 27, 2019 hip replacement surgery, and he needed time to investigate and
prepare for the hearing. See R.R. at 43a-44a. On February 26, 2019, PSERS opposed
the continuance request. By February 27, 2019 order, Hearing Examiner Blackburn
denied the continuance request, finding that Claimant had been given more than ample
                                          3
opportunity to timely retain counsel and prepare for the hearing. See R.R. at 50a-52a.
Hearing Examiner Blackburn expressly noted that, in August 2018, Claimant was
directed to retain counsel and provide available dates for a hearing by October 2018,
but did not do so; and, in November 2018, Claimant was given almost four months’
advance notice of the hearing date and waited until almost the last week to take any
action. See

id. On March 1,

2019, Claimant faxed Hearing Examiner Blackburn a request
to reconsider the denial of his continuance request. See R.R. at 53a-54a. Therein,
Claimant described his efforts from September through October and into November to
find a lawyer, and then located and retained Counsel who requested the continuance on
February 26, 2019. See

id. In addition, Claimant

communicated that Counsel,
unfortunately, was not available for the March 5, 2019 hearing date. See

id. Claimant also advised

Hearing Examiner Blackburn that he is the caretaker for his elderly mother
whose open-heart surgery, scheduled for March 13, 2019, at the Cleveland Clinic,
Heart and Vascular Institute (Cleveland Clinic), was changed to March 5, 2019, due to
“emergent circumstances, i.e., severe valve leakage and trouble breathing.” R.R. at
54a. Claimant’s request was neither filed with the Docket Clerk nor served on PSERS’
counsel, although Hearing Examiner Blackburn forwarded it to both. On March 4,
2019, PSERS opposed Claimant’s reconsideration request. See R.R. at 55a-56a.
              By March 4, 2019 order, Hearing Examiner Blackburn denied Claimant’s
reconsideration request because Claimant had not explained his efforts to obtain legal
representation in November or December 2018, or in January or early February 2019,
or otherwise explain why he was unable to retain Counsel sooner than one week before
the hearing.2 See R.R. at 58a. Hearing Examiner Blackburn’s denial was also based


       2
         This Court notes that the denial of Claimant’s continuance reconsideration request was
mailed to Counsel on the day of the hearing; therefore, Claimant was not aware that his request had
been denied.
                                                4
on Claimant’s failure to assert his mother’s medical condition when he made his
continuance request, and because Claimant did not provide any documentation of the
urgent nature of the rescheduling. See

id. Hearing Examiner Blackburn

held the hearing as scheduled on March 5,
2019. Claimant did not attend the hearing, nor did Counsel on his behalf. PSERS
presented the testimony of the Docket Clerk to establish that Claimant had not
contacted her that day or the prior day or week. PSERS moved to dismiss the appeals
based upon Claimant’s failure to appear. PSERS did not ask to file a brief. Claimant
did not subsequently file a request to reopen the record or make any other filing. In the
absence of briefs, Hearing Examiner Blackburn closed the record on March 13, 2019,
with the filing of the hearing transcript. On March 29, 2019, Hearing Examiner
Blackburn recommended to the Board that Claimant’s appeals be dismissed with
prejudice.    On April 25, 2019, Counsel filed Claimant’s Exceptions to Hearing
Examiner Blackburn’s recommendation. On May 13, 2019, PSERS filed a brief in
opposition to Claimant’s exceptions. On December 6, 2019, the Board dismissed
Claimant’s appeals without prejudice. Claimant appealed to this Court.3
               Claimant first argues that the Board abused its discretion by dismissing
his appeals. Specifically, Claimant contends that he had good cause to miss the March
5, 2019 hearing because he cares for his elderly mother whose open-heart surgery was
unexpectedly rescheduled to March 5, 2019, due to her failing health, and because


       3

                This Court’s scope of review involves determining whether the
                necessary findings of fact are supported by substantial evidence,
                whether an error of law was committed or whether constitutional rights
                were violated. Hopkins v. Pub[.] Sch[.] Emp[s.’] Ret[.] [Bd.], 

674 A.2d 1197

, 1198 n. 1 (Pa. Cmwlth. 1996). The [] Board’s legal conclusions
                are subject to the plenary review of this Court. Section 704 of the
                Administrative Agency Law, 2 Pa.C.S. § 704.
Baillie v. Pub. Sch. Emps.’ Ret. Bd., 

993 A.2d 944

, 948 n.3 (Pa. Cmwlth. 2010).
                                                  5
Counsel was unable to attend because of an unexpected hospitalization.4 Further,
Claimant asserts that rescheduling the hearing would not have prejudiced PSERS’
case.5
               Initially, Section 201.8(a) of the Board’s Regulations provides:
“Whenever a claimant fails to appear, either in person or through counsel, for a
scheduled hearing without good cause, the hearing examiner will issue a
recommendation to dismiss the case, without considering the merits of the claim.” 22
Pa. Code § 201.8(a) (emphasis added).
               The Board’s Regulations do not define good cause. However, this Court
has explained:

               Although the term ‘good cause[]’ has not been interpreted
               within the context of [] [Section 201.8(a) of the Board’s
               Regulations], courts of this Commonwealth have defined the
               term with regard to its placement in other statutes and rules
               of procedure. In Trexler v. Unemployment Compensation
               Board of Review, . . . 

365 A.2d 1341

, 1344 ([Pa. Cmwlth.]
               1976), we stated that ‘good cause’ as used in Section 402(a)
               of the Unemployment Compensation [(UC)] Law[6] ‘being
               undefined in the [UC Law], is a flexible term and therefore
               not amenable to general rules or rigid formulas.’ We
               reasoned that ‘its meaning must be deduc[ed] from the facts
               of each case in a manner that is consistent with the [UC
               Law’s] fundamental purpose. . . . ”

Id. Similarly, the Superior

Court, in State Farm Insurance Companies v.
               Swantner, . . . 

594 A.2d 316

, 320 ([Pa. Super.] 1991), was
               confronted with the term ‘good cause shown’ in the context

         4
           Claimant stated in his Exceptions that unforeseen by Counsel, Counsel was hospitalized in
Pinnacle Hospital “on the evening of February 27, 2019[,] where he remained hospitalized until
Monday afternoon March 3, 2019[,] and remained hampered for several days thereafter.” R.R. at
77a.
         5
           PSERS’ counsel admitted at the hearing that PSERS would not be prejudiced by the
continuance. Specifically, Hearing Examiner Blackburn asked: “Is there any concern about losing
evidence if it’s not presented timely?” R.R. at 70a. PSERS’ counsel responded: “The evidence I was
more concerned about losing is [C]laimant’s cross-examination. Our evidence isn’t growing more
[sic] stale. What I was concerned about was [C]laimant’s.”

Id. (emphasis added). 6

           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a).
                                                 6
               of requiring a plaintiff to submit to a medical examination
               under Section 1796(a) of the Motor Vehicle Financial
               Responsibility Law.[7] The Superior Court held that ‘good
               cause shown’ is a factual-based inquiry and noted that
                   [w]e sometimes become enamored with tests, steps
                   and guidelines to the point where they interfere with
                   the judicial function.
                   Looking to the definition of ‘good cause shown,’
                   Black’s Law Dictionary, 5th Edition, defines it as
                   ‘substantial reason, one that affords a legal excuse[.
                   L]egally sufficient ground or reason. [P]hrase ‘good
                   cause’ depends upon circumstances of individual
                   case, and finding of its existence lies largely in
                   discretion of officer or court to which decision is
                   committed. Wilson v. Morris, . . . 

369 S.W.2d 402

,
                   407 [(Mo. 1963)].’

Id. (quoting Black’s Law

Dictionary (5th ed. 1979))
               (emphasis in original). More recently, in Smith v. Borough
               of Morrisville (Pa. Cmwlth., No. 550 C.D. 2015, filed
               October 23, 2015),[8] slip op. at 6, . . . this Court utilized the
               same definition of ‘good cause’ used by the Superior Court
               above when interpreting the term in the context of a court of
               common pleas’ decision to reinstate an appeal pursuant to
               Rule 1006 of the Pennsylvania Rules of Civil Procedure for
               Magisterial District Judges, Pa. R.C.P.M.D.J. 1006. There,
               we stated, ‘the determination of whether good cause has been
               demonstrated is trusted to the trial court’s sound discretion.’
               Smith, slip op. at 7 (quoting Anderson v. Centennial Homes,
               Inc., . . . 

594 A.2d 737

, 739 ([Pa. Super.] 1991)); see also Uhl
               v. C.H. Shoemaker & Son, Inc., . . . 

637 A.2d 1358

, 1360
               ([Pa. Super.] 1994) (holding that, in the context of
               establishing good cause to have the mental or physical
               condition of a party be independently examined under
               Pennsylvania Rule of Civil Procedure [No.] 4010(a),
               ‘[w]hether good cause exists is a determination within the
               discretion of the trial court’) (citing John M. v. Paula T., . . .
               

571 A.2d 1380

, 1383 ([Pa.] 1990)).

       7
          75 Pa.C.S. § 1796(a).
       8
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent.
                                                 7
In re Consol. Reports & Return by the Tax Claims Bureau of Northumberland Cty. of
Props., 

132 A.3d 637

, 649 (Pa. Cmwlth. 2016) (footnotes omitted). Accordingly,
“[c]onsistent with case law, we focus our inquiry on whether the [Board] abused its
discretion by granting [PSERS’ Motion to Dismiss] and by considering the facts
of this case in light of the fundamental purposes of the [Board’s Regulations].”9

Id. (emphasis added). Here,

in the February 26, 2019 continuance request, Counsel stated he
“ha[d] just been engaged” and was unavailable because “[his] wife [wa]s scheduled for
hip replacement surgery [the following] morning, . . . [a]nd in all candor, . . . [he
needed] sufficient time to investigate and prepare for the hearing.” R.R. at 43a. This
Court recognizes that, in response to a continuance request Claimant faxed at 3:04 p.m.
on August 13, 2018, to reschedule the August 15, 2018 hearing so that he could retain
counsel, Hearing Examiner McNally ordered:

               On or before October 12, 2018, an attorney must enter an
               appearance on behalf of Claimant and propose, in writing,
               six or more hearing dates in December 2018 and January
               2019 when Claimant, his counsel and any necessary
               witnesses will be available to attend and participate in a
               hearing. . . . The Hearing Examiner will select a date on
               which all parties are available.
               If Claimant is unable to retain entry of appearance by counsel
               by October 12, 2018, the Hearing Examiner will re-schedule
               the hearing. No further continuances will be granted.

R.R. at 19a.
               However, Claimant contends that, because the above-referenced matter
was consolidated with a later-filed appeal and a new hearing examiner was appointed,

       9
          “An abuse of discretion is not merely an error of judgment, but occurs only where the law is
overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will, as shown by the evidence or the record.” Lomas v. Kravitz, 

170 A.3d 380

, 389 (Pa. 2017) (quoting Zappala v. Brandolini Prop. Mgmt., Inc., 

909 A.2d 1272

, 1284
(Pa. 2006)).
                                                  8
the August 14, 2018 order no longer applied. Given that Claimant was acting pro se at
that time, it is understandable that he would believe the clock started again upon the
consolidation of his two appeals. Notwithstanding, Claimant stated in his continuance
reconsideration request:

            I wanted to be represented by an attorney at my hearing
            and I wanted to take this opportunity to describe the measures
            I have taken to become represented in time for this hearing,
            as follows:
                • On July 12, 2018[,] PSERS’ attorneys requested a
                  continuance on [sic] August 16, 2018. They cancelled
                  more times than this for various reasons.
                • At that time I talked to Hearing Examiner [] McNally
                  personally and he convinced me that I needed an
                  attorney for this matter even though this would be a
                  burden financially. He informed me that this would be
                  too complicated to handle myself.           [Hearing
                  Examiner] McNally said to start with your [l]ocal
                  County Bar Association.
                • I contacted the Mercer County Bar Association in
                  September. They [sic] informed me that they [sic]
                  didn’t know of an attorney off hand that could help me
                  with this. They [sic] would get back to me. After a
                  couple of weeks and several phone calls back and forth
                  to them [sic], Mercer County [Bar Association]
                  couldn’t recommend a person experienced in
                  PSERS matters.
                • I called Wallace and Dibble attorneys in Greenville,
                  PA in or about mid-September. Mr. Dibble said he
                  didn’t have experience in matters similar to this
                  and referred me to the Eckard Law Firm in
                  Hermitage[,] PA.
                • I talked to their [sic] office manager in October. He
                  said their firm could probably help me or at least refer
                  me to someone else. The office manager went on
                  vacation then for a week. A week after that and after
                  more phone calls, he got one of their [sic] attorneys
                  to talk with me.

                                          9
               • This attorney said he [sic] take the case and work
                 through it with me but he didn’t really have any
                 experience in cases like this and the price would be
                 significantly higher because of travel and possible
                 stay[s] in Harrisburg[,] PA. I looked elsewhere again
                 because of inexperience and a price which this
                 attorney said could exceed $10,000.00. I couldn’t
                 afford this.
               • I decided to search outside my local area in far
                 northwestern PA by necessity.
               • I called Dauphin County Bar Association in
                 October, and they [sic] said they [sic] would get back
                 to me, but didn’t.
               • I was also researching other profiles of attorneys
                 and their practices including the Pond and
                 Lehockey Group[,] which seemed like a very large
                 national group or chain.
               • I researched the Quinn, Busck and To[o]hey group
                 in Erie[,] PA but they [sic] seemed to do mainly
                 harassment cases.
               • September through October and into November I
                 searched for an attorney I thought would be well suited
                 for me and my situation.
               • I located Elliott Strokoff and retained him [o]n
                 February 26. Unfortunately, he was not available on
                 the day scheduled.
            ....
            As set out above, my inability to proceed on March 5, 2019
            was not for my lack of attention to the matters at hand. I wish
            to exercise my right to counsel at this hearing. He is not
            available. . . .

R.R. at 53a-54a (text emphasis added). This Court cannot overlook Claimant’s efforts
and difficulties in finding an attorney who specialized in public employee retirement
matters. Given the lengths he went through to find Counsel, Claimant most certainly



                                          10
could not have retained substitute counsel when his attorney was not available to appear
at the March 5, 2019 hearing.10
               In addition, with respect to Counsel’s hospitalization, that unexpected
circumstance was completely out of Claimant’s and his attorney’s control. Moreover,
because it was unexpected, it was impossible to give the Board advance notice thereof.
Finally, Claimant raised his mother’s surgery in his pro se request for reconsideration
of the denial of his February 26, 2019 continuance request. Claimant stated therein:

               In addition to the efforts I have undertaken to be represented,
               I am the caretaker of my elderly mother. She is scheduled
               to have open[-]heart surgery at The Cleveland Clinic on
               March 5[th], the same day as the hearing. The operation
               was supposed to be March 13[th], but it was moved up to
               March 5[th] due to emergent circumstances, i.e., severe
               valve leakage and trouble breathing. I must take her to
               the hospital, stay with her, and transport her home when
               discharged. She will need some care at home then and won’t
               be able to drive or make important decisions for at least 2
               weeks.

R.R. at 54a (emphasis added). In his Exceptions, Claimant included a letter dated
March 5, 2019, from the Cleveland Clinic Intensive Care Unit Registered Nurse
Coordinator, on Cleveland Clinic letterhead, verifying that Claimant’s mother had
“vascular surgery” on March 5, 2019, and Claimant was “[t]here during this time.”
R.R. at 89a.

       10
          This Court notes the importance of extending professional courtesies between lawyers, as
they are a valued cornerstone to the legal profession.
               The ethical considerations accompanying the practice of law require at
               least a modicum of ‘good faith, mutual respect and courtesy normally
               expected in the legal community.’ Jung v. St. Paul’s Parish, . . . 

560 A.2d 1356

, 1359 ([Pa.] 1989). Without the rudimentary amount of
               courtesy or accession to reasonable requests, the legal profession is
               demeaned and its procedures reduced to a ‘vulgar scramble.’
               Silverman v. Polis, . . . 326 A.2d [452,] 454-55 [(Pa. Super. 1974)].
Duckson v. Wee Wheelers, Inc., 

620 A.2d 1206

, 1212 (Pa. Super. 1993).


                                                11
             Significantly, the November 16, 2018 letter advising Claimant that the
hearing was scheduled for March 5, 2019, expressly provided: “If you do not appear at
the hearing on the date and time scheduled without good cause, the Hearing Examiner,
upon motion, will recommend to the Board that your appeal be dismissed with
prejudice.” R.R. at 39a (emphasis added). Thus, the Board communicated to Claimant
that, if he had good cause for not appearing at the scheduled hearing, Hearing Examiner
Blackburn would not recommend dismissal of his appeals. Notwithstanding, Hearing
Examiner Blackburn recommended that Claimant’s appeals be dismissed with
prejudice.
             The Board stated in its decision that “[t]he issue before this Board, again,
is whether [Hearing Examiner Blackburn] properly concluded that Claimant failed to
meet his burden to prove that his failure to appear at the March 5, 2019 hearing was
for good cause. This Board concludes that [] Hearing Examiner [Blackburn] correctly
recommended dismissing Claimant’s appeals.” Board Decision at 2. The Board’s
conclusion is without support because the Board’s statement that neither “Claimant nor
[Counsel] explained [his] absence to [Hearing Examiner Blackburn]” is contrary to the
record evidence. Board Decision at 2.
             Claimant had explained to Hearing Examiner Blackburn that, on the day
of the hearing, he needed to be with his elderly mother at the Cleveland Clinic for open-
heart surgery because his mother’s surgeon had moved up the date of the surgery due
to emergent circumstances. Counsel also made Hearing Examiner Blackburn aware
that he would be caring for his wife who was scheduled for hip replacement surgery
six days before the hearing.
             Considering the facts of this case, this Court cannot conclude that it was
unreasonable for Claimant to believe that Counsel’s unavailability, coupled with the
emergent change to his mother’s open-heart surgery, was good cause not to attend the
hearing. “‘Good cause’ is established when a claimant’s actions are justified or
                                           12
reasonable under the circumstances.”             Klampfer v. Unemployment Comp. Bd. of
Review, 

182 A.3d 495

, 502 (Pa. Cmwlth. 2018).                   Consequently, because it was
“manifestly unreasonable” for the Board to grant PSERS’ Motion to Dismiss
Claimant’s appeals with prejudice, we hold that the Board abused its discretion in doing
so. Lomas v. Kravitz, 

170 A.3d 380

, 389 (Pa. 2017) (quoting Zappala v. Brandolini
Prop. Mgmt., Inc., 

909 A.2d 1272

, 1284 (Pa. 2006)). Accordingly, the Board’s order
is reversed.11
               For all of the above reasons, the Board’s order is reversed, and the matter
is remanded to the Board for a hearing on the merits of Claimant’s appeals.




                                             ___________________________
                                             ANNE E. COVEY, Judge




       11
          Claimant also argues that the Board violated his constitutional rights by failing to provide
adequate notice that his continuance request had been denied. PSERS rejoins that this issue is waived
because Claimant did not raise it before the Board.
       Section 35.213 of the General Rules of Administrative Practice and Procedure instructs, in
relevant part: “Objections to any part of a proposed report which is not the subject of exceptions may
not thereafter be raised before the agency head in oral argument, or in an application for agency
rehearing or reconsideration, and shall be deemed to have been waived.” 1 Pa. Code § 35.213. Here,
Claimant’s Exceptions did not contain an objection to the timing of the continuance request denial.
“Thus, because Claimant chose not to pursue this issue at the appropriate time, [he] is now precluded
from raising it for the first time on appeal.” Hairston-Brown v. Pub. Sch. Emps.’ Ret. Bd., 

78 A.3d 720

, 731 (Pa. Cmwlth. 2013).


                                                 13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Madden,                               :
                 Petitioner                :
                                           :
           v.                              :
                                           :
Public School Employees’                   :
Retirement Board,                          :   No. 28 C.D. 2020
                  Respondent               :


                                     ORDER

           AND NOW, this 15th day of October, 2020, the Public School Employees’
Retirement Board’s (Board) December 12, 2019 order is REVERSED, and the matter
is REMANDED to the Board for a hearing on the merits.
           Jurisdiction is relinquished.



                                      ___________________________
                                      ANNE E. COVEY, Judge

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