OPINION BY
Judge LEAVITT.
The Pennsylvania State Troopers Association and Thomas R. Scales (Scales) petition for review of an adjudication of the Lost and Damaged Property Board of Appeal (Board) of the Pennsylvania State Police, holding that funds were properly withheld from Scales’ final salary payment to cover damages to a State Police vehicle resulting from an accident in which Scales was the driver.1 Because Scales was [45]*45speeding and under the influence of alcohol when the accident occurred, the Board concluded that he should be held financially responsible for the loss. Finding no error in the Board’s determination, we affirm.
The background to this case is as follows. Scales, who was Acting Station Commander for Troop R, in Honesdale, Pennsylvania, was assigned the use of an unmarked Ford sedan owned by the State Police. On December 2, 1999, while off duty, Scales was involved in a single-car accident that caused extensive damage to the vehicle. When state troopers arrived at the scene, they noticed that Scales smelled of alcohol, his eyes were red and glassy and his speech was slurred. They placed him under arrest for driving under the influence of alcohol.
Shortly after the accident, the Bureau of Professional Responsibility (Bureau) assigned Internal Affairs Division-East2 to investigate and determine whether Scales should be held liable for the damages to Commonwealth property that resulted from the accident. Under the State Police employment policy, set forth in Field Regulation FR 4-1.03(A)(2), employees may be required to pay for damages to, or loss of, Commonwealth property.3 Generally, employees are not responsible for damage to vehicles, unless an internal investigation determines otherwise.4 The internal investigation is followed by a final determination at the request of the employee.
Prior to the accident, Scales had made known his intention to retire from the State Police on January 7, 2000. When the paperwork on that retirement was received, Lieutenant Colonel Thomas Coury, then Deputy Commissioner of Administration, instructed the payroll department to delay payout of Scales’ accumulated sick and annual leave. In addition, Coury reviewed the accident report and determined that Scales should be held responsible for damages in the amount of $19,381.32, i.e., $18,800 for damages to the vehicle and $581.32 for damage to property of the Department of Transportation. On April 6, 2000, Coury notified Scales that the Bureau of Professional Responsibility recommended that Scales pay for the vehicle he destroyed because police reports showed that Scales had been driving the vehicle under the influence of alcohol, at a high rate of speed and was responsible for the accident. As a result of this recommendation, Scales was advised that funds for this reimbursement were being withheld from Scales’ final paycheck. On May [46]*4612, 2000, Scales filed a grievance under the collective bargaining agreement.
On July 7, 2000, Corporal Casey M. McCormick, on behalf of Internal Affairs Division East, issued a five-page report detailing the incident of December 2, 1999. The report noted that while operating the State Police vehicle, Scales left the roadway, striking a concrete culvert and causing extensive damage to the vehicle. Scales refused to submit to a blood test, but he was arrested for DUI because he appeared obviously intoxicated and admitted to drinking before the accident. Scales’ claims of mechanical difficulties were not confirmed in post-accident tests conducted by the State Police. The report made no recommendation with respect to Scales’ responsibility to pay for the damages.
Thereafter, on July 20, 2000, Captain Joseph R. Marut of Troop R, Dunmore station, issued another internal investigation report supplementing McCormick’s report. Marut’s report found that Scales’ negligence caused the accident and stated if Scales had not retired on January 7, 2000, he would have been disciplined. However, Marut concluded that “[d]ue to the fact that retired Sgt. Scales has left the Department, I consider this matter closed.” R.R. 290a. On July 21, 2000, Major Francis E. Koscelnak, the Area II Commander, reviewed Marut’s investigation report, agreed with its conclusion and recommended that the investigation be closed. These reports effectively ratified Coury’s decision to withhold funds from Scales’ final pay by recommending that the matter be closed.
On September 25, 2000, Coury, in his new position as Deputy Commissioner of Operations, filed another investigation report following up on Marut’s report. He agreed with Marut’s determination that Scales’ misconduct was serious and stated, “If Sergeant Scales had not retired prior to this determination he would have most certainly been subjected to severe Department discipline.” R.R. 287a. He concluded that “it is my determination that Sergeant Scales should be held financially liable for the loss suffered by the Commonwealth in the amount of $19,381.32.” Id.
On June 26, 2001, the arbitrator denied Scales’ grievance and transferred the matter to the Board. Thereafter, on August 1, 2001, Scales requested a hearing from the Board.5 The Board did not conduct an evidentiary hearing; rather, the Board convened on August 6, 2001, reviewed the investigative reports and concluded that Scales would not be reimbursed the $19,381.32 that had been withheld from his final salary payment. Scales appealed that decision to this Court, which, by order dated May 31, 2002, vacated the Board’s decision and remanded the case for a formal evidentiary proceeding that complied with the procedural requirements for Commonwealth agency adjudications set forth in the Administrative Agency Law.6 See Pennsylvania State Troopers Association [47]*47v. Pennsylvania State Police, 800 A.2d 995 (Pa.Cmwlth.2002).
On March 23, 2005, approximately three years after this Court issued its remand order, the Board conducted the remand hearing. At this hearing, no evidence concerning the damage to the property of the Department of Transportation was presented; however, the State Police presented both witnesses and exhibits to attest to the amount of damage caused to the State Police vehicle and to Scales’ negligence. Based on this evidence, the Board held that (1) Scales was entitled to a return of $581.32 withheld for the alleged damages to the property of the Department of Transportation; (2) Scales was not entitled to a return of the $18,800 withheld for damages to the State Police Vehicle; and (3) Scales was entitled to ownership of the damaged vehicle. Scales now petitions this Court for review.7
Seales presents three issues for our consideration, which have been reordered for our analysis. He argues, first, that the Board erred because the State Police violated FR 4-1.04 by withholding funds from his final salary payment prior to completion of an internal investigation concluding that Scales should be held financially responsible for damages to Commonwealth property. Second, Scales argues that the Board’s decision effected an illegal garnishment of Scales’ wages. Third, Scales argues that the Board’s three-year delay in holding a hearing directed by this Court upon remand violated due process.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION BY
Judge LEAVITT.
The Pennsylvania State Troopers Association and Thomas R. Scales (Scales) petition for review of an adjudication of the Lost and Damaged Property Board of Appeal (Board) of the Pennsylvania State Police, holding that funds were properly withheld from Scales’ final salary payment to cover damages to a State Police vehicle resulting from an accident in which Scales was the driver.1 Because Scales was [45]*45speeding and under the influence of alcohol when the accident occurred, the Board concluded that he should be held financially responsible for the loss. Finding no error in the Board’s determination, we affirm.
The background to this case is as follows. Scales, who was Acting Station Commander for Troop R, in Honesdale, Pennsylvania, was assigned the use of an unmarked Ford sedan owned by the State Police. On December 2, 1999, while off duty, Scales was involved in a single-car accident that caused extensive damage to the vehicle. When state troopers arrived at the scene, they noticed that Scales smelled of alcohol, his eyes were red and glassy and his speech was slurred. They placed him under arrest for driving under the influence of alcohol.
Shortly after the accident, the Bureau of Professional Responsibility (Bureau) assigned Internal Affairs Division-East2 to investigate and determine whether Scales should be held liable for the damages to Commonwealth property that resulted from the accident. Under the State Police employment policy, set forth in Field Regulation FR 4-1.03(A)(2), employees may be required to pay for damages to, or loss of, Commonwealth property.3 Generally, employees are not responsible for damage to vehicles, unless an internal investigation determines otherwise.4 The internal investigation is followed by a final determination at the request of the employee.
Prior to the accident, Scales had made known his intention to retire from the State Police on January 7, 2000. When the paperwork on that retirement was received, Lieutenant Colonel Thomas Coury, then Deputy Commissioner of Administration, instructed the payroll department to delay payout of Scales’ accumulated sick and annual leave. In addition, Coury reviewed the accident report and determined that Scales should be held responsible for damages in the amount of $19,381.32, i.e., $18,800 for damages to the vehicle and $581.32 for damage to property of the Department of Transportation. On April 6, 2000, Coury notified Scales that the Bureau of Professional Responsibility recommended that Scales pay for the vehicle he destroyed because police reports showed that Scales had been driving the vehicle under the influence of alcohol, at a high rate of speed and was responsible for the accident. As a result of this recommendation, Scales was advised that funds for this reimbursement were being withheld from Scales’ final paycheck. On May [46]*4612, 2000, Scales filed a grievance under the collective bargaining agreement.
On July 7, 2000, Corporal Casey M. McCormick, on behalf of Internal Affairs Division East, issued a five-page report detailing the incident of December 2, 1999. The report noted that while operating the State Police vehicle, Scales left the roadway, striking a concrete culvert and causing extensive damage to the vehicle. Scales refused to submit to a blood test, but he was arrested for DUI because he appeared obviously intoxicated and admitted to drinking before the accident. Scales’ claims of mechanical difficulties were not confirmed in post-accident tests conducted by the State Police. The report made no recommendation with respect to Scales’ responsibility to pay for the damages.
Thereafter, on July 20, 2000, Captain Joseph R. Marut of Troop R, Dunmore station, issued another internal investigation report supplementing McCormick’s report. Marut’s report found that Scales’ negligence caused the accident and stated if Scales had not retired on January 7, 2000, he would have been disciplined. However, Marut concluded that “[d]ue to the fact that retired Sgt. Scales has left the Department, I consider this matter closed.” R.R. 290a. On July 21, 2000, Major Francis E. Koscelnak, the Area II Commander, reviewed Marut’s investigation report, agreed with its conclusion and recommended that the investigation be closed. These reports effectively ratified Coury’s decision to withhold funds from Scales’ final pay by recommending that the matter be closed.
On September 25, 2000, Coury, in his new position as Deputy Commissioner of Operations, filed another investigation report following up on Marut’s report. He agreed with Marut’s determination that Scales’ misconduct was serious and stated, “If Sergeant Scales had not retired prior to this determination he would have most certainly been subjected to severe Department discipline.” R.R. 287a. He concluded that “it is my determination that Sergeant Scales should be held financially liable for the loss suffered by the Commonwealth in the amount of $19,381.32.” Id.
On June 26, 2001, the arbitrator denied Scales’ grievance and transferred the matter to the Board. Thereafter, on August 1, 2001, Scales requested a hearing from the Board.5 The Board did not conduct an evidentiary hearing; rather, the Board convened on August 6, 2001, reviewed the investigative reports and concluded that Scales would not be reimbursed the $19,381.32 that had been withheld from his final salary payment. Scales appealed that decision to this Court, which, by order dated May 31, 2002, vacated the Board’s decision and remanded the case for a formal evidentiary proceeding that complied with the procedural requirements for Commonwealth agency adjudications set forth in the Administrative Agency Law.6 See Pennsylvania State Troopers Association [47]*47v. Pennsylvania State Police, 800 A.2d 995 (Pa.Cmwlth.2002).
On March 23, 2005, approximately three years after this Court issued its remand order, the Board conducted the remand hearing. At this hearing, no evidence concerning the damage to the property of the Department of Transportation was presented; however, the State Police presented both witnesses and exhibits to attest to the amount of damage caused to the State Police vehicle and to Scales’ negligence. Based on this evidence, the Board held that (1) Scales was entitled to a return of $581.32 withheld for the alleged damages to the property of the Department of Transportation; (2) Scales was not entitled to a return of the $18,800 withheld for damages to the State Police Vehicle; and (3) Scales was entitled to ownership of the damaged vehicle. Scales now petitions this Court for review.7
Seales presents three issues for our consideration, which have been reordered for our analysis. He argues, first, that the Board erred because the State Police violated FR 4-1.04 by withholding funds from his final salary payment prior to completion of an internal investigation concluding that Scales should be held financially responsible for damages to Commonwealth property. Second, Scales argues that the Board’s decision effected an illegal garnishment of Scales’ wages. Third, Scales argues that the Board’s three-year delay in holding a hearing directed by this Court upon remand violated due process.
We consider, first Scales’ claim that the State Police violated its own employment policy, set forth in FR 4-1.04, by withholding funds from his final salary payment before completing its investigation. As noted, it is the general rule of the State Police not to hold employees hable for damage to Commonwealth vehicles. However, FR 4-1.04 provides an exception for the situation when an internal investigation includes a finding that an employee should be held responsible for the loss. In relevant part, the policy states that
if the situation warrants an [internal] investigation ..., separate from the accident investigation, any finding in the internal administrative investigation that personnel should be required to reimburse the Commonwealth for the cost of damage or repair shall enact the provisions of this regulation for an eventual final determination regarding reimbursement.
F.R. 4-1.04 (emphasis added); R.R. 494a. Stated otherwise, a finding in an internal investigation that the employee should pay for a loss entitles the employee to a “final determination” on the finding of liability. Scales reads this provision to mean that the State Police cannot withhold sick and annual leave payouts unless and until the internal investigation has gone to the “final determination.” We disagree.
FR 4-1.04 does not say what Scales would like it to say. It does not impose any requirement upon the State Police to complete the internal investigation before taking steps to protect its ability to collect reimbursement for damage to Commonwealth property. It says nothing with respect to how or when the reimbursement liability will be imposed or collected. In this case, the internal investigative reports determined the matter “closed” by ratifying Coury’s recommendation of April 6, [48]*482000. Unfortunately for Scales, the internal investigation did not exonerate him but, rather, found that he was responsible for the destruction of the vehicle and, therefore, he could not expect a return of the funds withheld from his final paycheck. FR 4-1.04 did not forbid the State Police from withholding funds from Scales’ final payout as security for his obligation to pay for the destroyed police vehicle while it completed its internal investigation.8
Next, Scales argues that the Board effected an illegal garnishment of his wages by allowing the State Police to withhold $18,000 from his salary while it investigated the circumstances of the accident. The State Police counters that withholding was not a garnishment because it did not involve a third party creditor of Scales. We agree with the State Police.
Garnishment is a “proceeding through which a creditor collects his debt out of property of the debtor in the hands of a third party, ... and may be used to determine whether the garnishee owes a debt to the judgment debtor, or has property of the judgment debtor.” Garden State Standardbred Sales Co., Inc. v. Seese, 417 Pa.Super. 15, 611 A.2d 1239, 1241 (1992) (citations omitted). As has been explained,
Garnishment is a remedy created to enable a judgment creditor to reach assets of his or her debtor held by a stranger and is a means by which the creditor collects his or her debt out of property of the debtor in the hands of a third party.
STANDARD PENNSYLVANIA PRACTICE 2d § 77:1 (emphasis added). The State Police was not a “stranger” to Scales’ debt but, rather, a direct and interested party. This is not a garnishment.
Under its employment policy set forth in FR 4-1.04, the State Police was authorized to be reimbursed for the losses caused by Scales, and it is commonplace for employers to hold employees responsible for loss or damage to company equipment. See Apple v. Unemployment Compensation Board of Review, 126 Pa.Cmwlth. 195, 559 A.2d 87 (1989) (concluding that employee’s unemployment benefits could be modified to account for employer’s financial loss when employee negligently lost company equipment because of its policy requiring employees to reimburse employer for loss or damage to company equipment). Scales would have us read FR 4-1.04 as forbidding the State Police from doing what is routine, i.e., deducting amounts owed to an employer from the employee’s salary. FR 4-1.04 simply does not dictate the result suggested by Scales.
In his final issue, Scales contends that his due process rights were violated by the Board’s unjustified delay in conducting a hearing on Scales’ request for a final determination. One seeking to establish that his or her due process rights have been violated as a result of an unjustified delay in a post-deprivation proceeding has the burden of establishing that some harm or prejudice to his or her interests has [49]*49been caused by the delay. Ullo v. State Board of Nurse Examiners, 41 Pa. Cmwlth. 204, 398 A.2d 764, 766 (1979). Scales did not meet this burden.
Scales argues that the hearing delay resulted in certain gaps in the memories of the witnesses and, thus, he was prejudiced. Our review of the testimony at the March 23, 2005, hearing does not support this claim. It is true that certain witnesses could not recall minor details about the accident, but those lapses did not affect the outcome of the case. The officers at the scene of the accident were very certain in their testimony about Scales’ drunkenness; certain in their conclusion that Scales’ negligence was the cause of the damage to the vehicle; and certain that Seales was not authorized to use the vehicle for personal trips as he was doing on the night of the accident. Simply put, had the witnesses recalled every minor detail of the accident, the outcome would not change. The Board is owed no praise for acting upon this Court’s remand in such a dilatory manner; however, it was not in itself in error. Scales has not established that he was prejudiced by the delay in the remand hearing or that the outcome would have been different three years earner.
Accordingly, the decision of the Board is affirmed.
ORDER
AND NOW, this 27th day of April, 2006, the order of the Pennsylvania State Police, Lost and Damaged Property Board of Appeal, dated May 25, 2005, in the above-captioned matter is hereby affirmed.