C. Brown v. Pittsburgh City Council Member R.V. Burgess in his official capacity as Councilman of the City of Pittsburgh

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmen Brown, : Appellant : : v. : No. 1279 C.D. 2020 : Submitted: November 19, 2021 Pittsburgh City Council Member : Ricky V. Burgess in his official : capacity as Councilman of the : City of Pittsburgh :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1 HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: February 16, 2022

Appellant Carmen Brown (Appellant) asks this Court to review the December 3, 2020 Order of the Court of Common Pleas of Allegheny County (Trial Court) dismissing her Complaint in Equity against Appellee, Pittsburgh City Council (Council) Member Ricky V. Burgess (Appellee). In her complaint, Appellant alleges that Appellee is prohibited from holding his City Council seat while simultaneously working as a professor at the Community College of Allegheny County (CCAC) and that Appellee must therefore forfeit his Council seat. After review, we vacate the Trial Court’s order.

Appellee has been a tenured professor at CCAC since 1991. Reproduced Record (R.R.) at 59. In 2007, while teaching at CCAC, Appellee was elected to represent Pittsburgh’s ninth council district. He is currently serving his fourth term

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.

on City Council. Id. Appellant is a private citizen and a resident of the ninth district. Id. at 41. On December 11, 2019, she filed a Complaint in Equity against Appellee in the Trial Court alleging that, by simultaneously holding the Council seat and his professorship, Appellee violated a Charter provision which prohibits Council members from holding other government employment while in office. Id. at 14. Appellant requested that the court enforce the Charter by “ordering” that Appellee “immediately forfeit the office.” Id. at 16-20.

On October 14, 2020, Appellee submitted a brief to the Trial Court. In it, he made several objections to Appellant’s allegation that he had violated the Charter. Id. at 62-67. In a section titled “Standard of Review,” he also explained the standard by which trial courts are to consider motions for judgment on the pleadings under Pa. R.Civ.P. 1034. Id. at 61. Yet, Appellee’s brief was not accompanied by a motion or application for judgment on the pleadings. In fact, no motion for such judgment appears to have been filed in the case.

Notwithstanding the absence of a motion, the Trial Court issued an opinion and order on December 3, 2020, which granted “Councilman Burgess’ Motion for Judgment on the Pleadings” and dismissed Appellant’s Complaint. Trial Ct. Op. at 10-11. Appellant timely filed an appeal from the order to this Court.

It is well settled that a trial court is without power under Pa. R.Civ.P. 1037(c) or 1034 to enter judgment on its own motion. Paulish v. Bakaitis, 275 A.2d 318, 322 (Pa. 1971) (reversing trial court’s judgment in favor of defendant “who had filed no motion for judgment”). Rather, it must at least be presented with a motion by one of the parties before it can consider the sufficiency of the pleadings. Bensalem Twp. Sch. Dist. v. Commonwealth, 544 A.2d 1318, 1321 n.2 (Pa. 1988). The Trial Court in this case erred as a matter of law when it granted a purported motion for judgment

on the pleadings which, in fact, did not exist. We therefore vacate the Trial Court’s December 3, 2020 order and remand to the Trial Court to take action it deems necessary consistent with this opinion.

Jurisdiction is relinquished.

___________________________ ELLEN CEISLER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmen Brown, : Appellant : : v. : No. 1279 C.D. 2020 : Pittsburgh City Council Member : Ricky V. Burgess in his official : capacity as Councilman of the : City of Pittsburgh :

ORDER

AND NOW, this 16th day of February, 2022, the December 3, 2020 order of the Court of Common Pleas of Allegheny County in the above matter is VACATED and this matter is remanded to the Trial Court. Jurisdiction is relinquished.

__________________________________ ELLEN CEISLER, Judge