IN THE COMMONWEALTH COURT OF PENNSYLVANIA JoAnn Fonzone : a/k/a Judy McGrath, : Petitioner : : v. : No. 33 C.D. 2013 : Submitted: August 30, 2013 Victims Compensation Assistance : Program, : Respondent : OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: November 14, 2013 Petitioner JoAnn Fonzone a/k/a Judy McGrath (Fonzone) petitions for review of an order of the Pennsylvania Commission on Crime and Delinquency s Victims Compensation Assistance Program (VCAP). 1 VCAP rejected Fonzone s claim petition. Fonzone sought compensation for alleged injuries she claimed were the consequence of criminal conduct on the part of Citizens Bank Park security employees and law enforcement officers from the City of Philadelphia. We affirm VCAP s order. 1 This matter arises under the Crime Victims Act (Act), Act of November 24, 1998, P.L. 882, as amended, 18 P.S. 11.101-.5102. The Act created the Bureau of Victim Services (BVS) within the Pennsylvania Commission on Crime and Delinquency (Commission). BVS is responsible for administering Chapter 7 of the Act, 18 P.S. 11.701-.710, which establishes an administrative mechanism for compensating victims of crime. VCAP is the programmatic entity within BVS that considers claims for compensation and distributes compensation when a claim under Chapter 7 is approved.
On or about December 7, 2011, Fonzone filed a claim with VCAP, requesting compensation for medical expenses, loss of earnings, and transportation costs allegedly associated with an incident that occurred on October 6, 2010, during a Philadelphia Phillies ball game at Citizens Bank Park. By letter dated February 3, 2011, VCAP Claims Review Officer Meg Strader informed Fonzone that her claim was ineligible for payment. Ms. Strader noted that she reviewed documents Fonzone submitted in support of her claim and a police report, which indicated that Fonzone had been arrested for disorderly conduct. Ms. Strader also noted that there were no police reports indicating that Fonzone had been the victim of a crime. Fonzone requested reconsideration, which Ms. Strader denied for the same reasons she expressed in her initial denial letter. Fonzone then requested a hearing. The Commission, through the prothonotary of the Department of State, issued a notice of hearing and assigned Ruth D. Dunnewold as hearing examiner. The hearing examiner held a hearing on June 7, 2012, during which Fonzone represented herself. Fonzone testified on her own behalf and submitted various items of evidence. The Commission s counsel called three witnesses, two of which testified via telephone. The Commission s counsel submitted documents into the record, including a Philadelphia Police investigation report, Philadelphia Municipal Court docket sheets relating to the charges against Fonzone, and a report issued by the Internal Affairs Division of the Philadelphia Police Department, relating to Fonzone s Complaint against various police officers. On October 9, 2012, after the parties submitted post-hearing briefs, the hearing examiner issued a proposed adjudication and order, denying Fonzone s claim for victim compensation. The hearing examiner issued factual findings 2
based upon the testimony of the two police officers, Fonzone s testimony, Fonzone s VCAP claim form, the testimony of Ms. Strader, the Internal Affairs Report determining Fonzone s claims against police officers to be unfounded, the docket sheets of the Philadelphia Municipal Court where Fonzone was arraigned and charged for resisting arrest and disorderly conduct, and other miscellaneous documents. Fonzone filed a brief on exceptions, and on December 12, 2012, the Commission s Executive Director, Linda Rosenberg, issued a final order, affirming and adopting the hearing examiner s proposed adjudication and order. Fonzone appealed the Commission s final order. 2 We paraphrase Fonzone s statement of issues involved as follows: (1) whether the hearing examiner erred in failing to admit and/or consider some of the evidence Fonzone offered into the record; and (2) whether the hearing examiner erred in considering the telephone testimony of two police officers, because Fonzone did not receive notice of and an opportunity to challenge the Commission s request to offer telephone testimony. 3 In her brief, however, Fonzone raises issues that go beyond 2 This Court s review of a final order of an administrative agency is limited to considering whether necessary factual findings are supported by substantial evidence, and whether constitutional rights were violated or errors of law were committed. 2 Pa. C.S. 704. 3 We look with disfavor upon the failure of the hearing examiner, the Commission, and Commission counsel to address in any respect this issue. In this case, Fonzone objected to the telephone testimony at the time it was offered, indicating that she did not know that the Commission would present telephone testimony. During the course of the hearing, following her objection, the hearing examiner indicated that notice was provided and the request by the Commission was granted; however, there is no record of any such communications or order by the hearing examiner granting such a request. Fonzone continued to raise this issue in her post-hearing brief to the hearing examiner, her brief on exceptions to the proposed adjudication and order, in her statement of matters complained of on appeal, and in her brief to this Court, and in each instance she noted the hearing examiner s own rules of procedure (which are not included in the certified record), which appear to require notice and an opportunity to object to (Footnote continued on next page ) 3
the general issues she raises in her statement of issues. We will address such issues only to the degree that Fonzone has provided relevant and cogent discussion. Because of the scattershot approach of Fonzone s brief, we will begin with a discussion of the Act. We also note at the outset that some of the decisions upon which Fonzone relies involve appeals that arose under the former victim compensation provisions, which related to the now defunct Crime Victim s Compensation Board. Those decisions are irrelevant to our evaluation of the issues in this appeal. The Act reflects legislative reorganization of crime victim compensation. The Act created the BVS within the Commission and also created the Victim s Services Advisory Committee, which, contrary to Fonzone s arguments, is an entity that has no role in the review of claims for compensation by victims. Chapter 7 of the Act provides the substantive and procedural framework for the submission, review, and determination of claims. Section 701 of the Act, (continued ) telephone testimony. The only reference to testimony by telephone is in Commission counsel s letters to the two testifying police officers, indicating that they may participate via phone. Counsel has a duty to provide this Court with guidance regarding all issues a party raises and preserves. The lack of such information and the failure of a response by the hearing examiner and Commission counsel to Fonzone s claim hamstring the Court s ability to review this matter, and places the burden on the Court to reach a resolution of the issue. Nonetheless, Fonzone s objection during the hearing related solely to her claim that she was unaware of the rule and would have provided testimony of additional witnesses by telephone if she had known. Nowhere does Fonzone suggest that the use of telephone testimony of the two officers prejudiced her case by precluding her from engaging in meaningful cross-examination of the two officers. Thus, to the extent that there may have been error, the error was harmless. Consequently, we conclude that the hearing examiner did not err as a matter of law in considering that telephone testimony. 4
as amended by the Act of June 28, 2002, P.L. 496, 18 P.S. 11.701 addresses persons eligible for compensation. Section 701(a) of the Act provides that a direct victim is eligible for compensation under the Act. Section 701(b) of the Act, however, contains a key exception to the eligibility of an alleged direct victim, providing that [a] person who is criminally responsible for the crime upon which a claim is based... shall not be eligible to receive compensation with respect to the claim. The Act also precludes an award where the alleged victim, because of conduct, contributed to the infliction of the injury. Section 707(f)(1) of the Act. In seeking to define the types of preclusive contributory acts that negate eligibility for an award, the Commission has promulgated regulations defining the type of actions that constitute contributory conduct. Under the regulations, compensation is precluded when an alleged victim [w]as charged by law enforcement with criminal conduct as a result of the crime. 37 Pa. Code 411.15(a)(2). The regulations also provide that a claimant bears the burden to prove entitlement to compensation by a preponderance of the evidence. 37 Pa. Code 411.32(p). In this case, Fonzone s version of the facts is completely at odds with the facts suggested by the Commission. Where Fonzone claims to have been an innocent victim targeted by security and police officers, the Commission concluded that Fonzone s own behavior caused the police to arrest and charge her criminally. Fonzone, as the claimant, had the burden to prove by a preponderance of the evidence that she was a victim of a crime. See 37 Pa. Code 411.32(p). The hearing examiner found Fonzone s testimony completely lacking in credibility. In discussing Fonzone s credibility, the hearing examiner noted several 5
reasons for finding Fonzone not credible: (1) Fonzone testified that she sustained a grand mal seizure in the emergency room, but Fonzone s hospital records do not indicate that she had such an event; (2) Fonzone did not reveal in her initial claim form that her alleged injuries were the result of an alleged assault by police officers; and (3) Fonzone s (unsubstantiated) assertions regarding her personal life, suggesting that she is a former government informant, that she is a victim of identity theft, that the alleged crime was possibly related to domestic violence, and that she is married to and has a protection from abuse order against the VanHalen musical group s lead singer, David Lee Roth. The hearing examiner summed up her perception of these personal matters as suggesting that Fonzone believes that her injuries or as she referred to them, these kinds of vicarious abuse and unfounded arrests were perpetrated upon her as some sort of continuing retaliation by her purported estranged spouse, singer David Lee Roth, who allegedly has stolen her identity and continued to perpetrate abuse upon her. (Proposed Adjudication and Order at 24.) The hearing examiner concluded that Fonzone failed to sustain her burden to prove that she was the victim of a crime. Also key to the hearing examiner s conclusion is the fact that Fonzone was indeed charged as a result of the events at Citizens Bank Park, but which she alleges gave her status as a crime victim. 4 As noted above, Fonzone had the burden to prove every element of her case by a preponderance of the evidence, but she argues that the hearing 4 The record includes the Philadelphia Municipal Court docket sheets, indicating a charge of disorderly conduct and fighting. Furthermore, Fonzone testified herself regarding the charge. It appears that a trial on the charge has not yet taken place. 6
examiner capriciously disregarded evidence in reaching the conclusion that Fonzone was not a victim of a crime. In exercising our appellate review, we may review an adjudication for capricious disregard where the burdened party was the only party to present evidence and was unsuccessful before the adjudicator. Dep t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 826 (Pa. Cmwlth. 2010). In this case, Fonzone was not the only party to present evidence. Given the testimony of the police officers, which corroborates much of the hearsay in the Internal Affairs Investigative Report, which concluded that Fonzone s claims against the police were unfounded, the record is such that the capricious disregard standard is not applicable. Thus, we find no error in the hearing examiner s conclusion that Fonzone failed to carry her burden of proof. Consequently, we agree with the conclusion in the final adjudication that there is insufficient evidence to establish Fonzone s eligibility for compensation. Although we view Fonzone s remaining arguments as either lacking in merit or insufficiently developed to constitute reviewable issues, we will briefly address some of her arguments. First, on page sixteen of her brief, Fonzone asserts that a conflict of interest exists based upon her assumption that a staff attorney of the Commission appears before a hearing examiner who Fonzone believes is also an employee of the Commission. Fonzone has presented no evidence in support of such facts, and she has not demonstrated that the hearing examiner works for the Commission. Experience tends to inform the Court that when administrative agencies conduct hearings, and a hearing examiner is appointed, the examiner is not an employee of the agency, or the agency has created a sufficient operational separation of the adjudicatory functions such that no improper conflict arises. In this particular instance, the record tends to suggest that the prothonotary of the 7
Department of State receives filings, and it appears that the hearing examiner in this case was associated with that agency rather than the Commission. Moreover, the Department of State, not the Commission, assigned the hearing examiner here. Thus, this issue is without merit. Second, on page eighteen of her brief, Fonzone argues that it is improper to deem her ineligible for compensation based upon a charge, rather than a conviction, for disorderly conduct. As noted above and by the hearing examiner (Proposed Adjudication and Order at 25), the regulations render ineligible for compensation persons who have been charged with a crime as a result of the circumstances about which he or she complains. 37 Pa. Code 411(a)(5). Fonzone, however, presents no legal discussion regarding this issue, and we need not address it further. Moreover, in light of the conclusion that Fonzone failed to carry her burden of proof, such an error would be nothing more than harmless error. Third, on page 20 of her brief, Fonzone relies upon this Court s decision in Ortell v. Crime Victim s Compensation Board, 509 A.2d 1357 (Pa. Cmwlth. 1986), in arguing that, in this case, the hearing examiner s determination that Fonzone s testimony was not credible is insufficient to support the conclusion that she is ineligible. In Ortell, however, this Court reasoned that the essence of the then-board s credibility determination was not based on the alleged victim s testimony, but rather on the Board s improper assumption that the dismissal of the criminal charges against the alleged assailant meant that the alleged victim lacked credibility. Ortell, 509 A.2d at 1360. Thus, Ortell does not support Fonzone s position. 8
On page twenty-three of her brief, Fonzone argues that during and after the hearing she submitted various evidentiary items for the consideration of the hearing examiner. We need not address this issue, as there is no indication in the record that Fonzone requested that the record be reopened, and even if she had, the items she mentions appear to lack relevance to the substantive question of whether she established that she was a crime victim. On page twenty-seven of her brief, Fonzone objects to the admission of the Internal Affairs report, which she claims is privileged, confidential, and hearsay. While Fonzone did object to the admission of the report during the hearing, the objections she made were conflict of interest and relevancy. She now appears to argue that statements contained within the report constitute hearsay. She did not preserve such an objection during the hearing, however, and, regardless, much of the key information relating to her conduct included in the report is corroborated by the testimony of the two police officers. Thus, this argument is also meritless. On page thirty-two of her brief, Fonzone claims that the procedure employed for the review of her claim was improper, because she sent certain documents to the Commission s Executive Director, Ms. Rosenberg, who also issued the final order adopting the hearing examiner s proposed order. Fonzone first argues that the Victims Services Advisory Committee (Committee) has the duty to act on victim claims. Fonzone, however, misinterprets Sections 321 and 322 of the Act, 18 P.S. 11.321, 322. Section 322(3) of the Act specifically provides that the Committee has the power to review and comment on applications other than applications for claims for compensation under Sections 702 of the Act (emphasis added). Thus, the Committee has no role in the 9
resolution of applications for victim compensation. We also reject Fonzone s suggestion that her mailing of documents to the Executive Director resulted in the Executive Director having impermissible involvement in the matter. Fonzone relies upon 37 Pa. Code 411.33, which provides that the hearing officer must submit the proposed adjudication to a designated Commission official who has no previous involvement in the matter. Thus, Fonzone contends that Ms. Rosenberg was precluded from issuing the final order. We disagree. Fonzone asserts nothing more than that she sent documents to Ms. Rosenberg s office. Such a claim is insufficient to support Fonzone s argument that Ms. Rosenberg was involved previously in the matter. Accordingly we reject this argument. In closing, we observe that this case presents as complex. In reality, our analysis is relatively straightforward in terms of evaluating the Commission s adjudication. Even considering all of the documentary evidence, Fonzone s claim rose and fell on her own testimony regarding what transpired on October 6, 2010, which the Commission determined to be not credible in any regard. This Court may not alter the Commission s credibility determinations, as that is a matter solely within the province of the fact finder. See Kirkwood v. Unemployment Compensation Bd. of Rev., 525 A.2d 841, 844 (Pa. Cmwlth. 1987) (holding burdened party must satisfy burden of persuasion with credible evidence). Based upon the foregoing discussion, we affirm the Commission s order. 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA JoAnn Fonzone : a/k/a Judy McGrath, : Petitioner : : v. : No. 33 C.D. 2013 : Victims Compensation Assistance : Program, : Respondent : PER CURIAM O R D E R AND NOW, this 14 th day of November, 2013, the final order of the Pennsylvania Commission on Crime and Delinquency s Victims Compensation Assistance Program is AFFIRMED.