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BARBARA J. KEITH v. COMMONWEALTH PENNSYLVANIA (12/02/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 2, 1988.

BARBARA J. KEITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Order of the Executive Secretary of the Department of Public Welfare, in case of Appeal of: Barbara J. Keith, Case # 360036459.

COUNSEL

Richard A. Katz, for petitioner.

Cynthia White Williams, Assistant Counsel, for respondent.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 121 Pa. Commw. Page 407]

Barbara J. Keith (Petitioner) appeals from a decision of the executive secretary of the Department of Public Welfare (DPW) denying her request for reconsideration of a decision of DPW's Office of Hearings and Appeals (OHA) affirming a hearing officer's decision that Petitioner had received an overissuance of food stamps. We affirm the denial of reconsideration.

The Lancaster County Assistance Office (CAO) determined that Petitioner had received an overissuance of food stamps for the period of March 1 to June 30, 1987 because a member of her household, her granddaughter, had received wages from a part-time job which Petitioner had not reported to the CAO. The overissuance was to be recouped by decreasing Petitioner's food stamp allotment. Petitioner appealed this decision. After a fair hearing, the hearing officer concluded that the CAO decision was correct. Petitioner sought review of this determination by DPW's Office of Hearings and Appeals (OHA).

On November 24, 1987, OHA issued a final administrative order affirming the hearing officer's decision. The OHA order also informed Petitioner that she could seek reconsideration of the order from DPW's executive secretary within 15 days of the date of the order and could appeal the decision to this court within 30 days of the date of the order. Petitioner sought reconsideration of the order on December 6, 1987, which was within 15 days. Petitioner filed no appeal from the November 24, 1987 decision with this court. DPW denied Petitioner's request for reconsideration on December 30, 1987.

Petitioner filed an appeal of the December 30, 1987 order to this court on January 29, 1988. Petitioner requests that this court reverse the decision that she received an overissuance of food stamps and order that all food stamps allotments which have been recouped from

[ 121 Pa. Commw. Page 408]

    her be returned. As explained below, we may not grant this relief because our scope of review in this case is limited to determining whether DPW's executive secretary abused his discretion when he denied Petitioner's request for reconsideration. The only relief which we could grant would be a reversal of the denial of the request for reconsideration.

When DPW's OHA issues a final order, four scenarios are possible. First, the aggrieved party could do nothing. Second, the aggrieved party could appeal the final order to this court within 30 days. Third, the aggrieved party could seek reconsideration of the final order from DPW's executive secretary within 15 days. Fourth, the aggrieved party could seek reconsideration of the final order from DPW's executive secretary within 15 days and appeal the final order to this court within 30 days. The third and fourth scenarios have played a major role in a number of appeals to this court involving DPW. This opinion will attempt to put those two scenarios in perspective.

If a request for reconsideration of a final order is made within 15 days of the order, but no appeal of that order is filed with this court, DPW's executive secretary has 30 days from the date of the request in which to act on the request. 1 Pa. Code § 35.241(d).*fn1 Failure to act within 30 days results in the request being deemed denied. Id. The effect of 1 Pa. Code § 35.241(d) is to give DPW's executive secretary a maximum of 45 days from the date of a final order in which to act on a request for reconsideration. However, when both a request to

[ 121 Pa. Commw. Page 409]

DPW's executive secretary for reconsideration of a final order and an appeal of that final order is filed with this court, DPW's executive secretary has 30 days from the date of the final order in which to act on the request. Pa. R.A.P. 1701(b);*fn2 see Monsour Medical Center v. Department of Public Welfare, 111 Pa. Commonwealth Ct. 359, 533 A.2d 1114 (1987); Ormes v. Department of Public Welfare, 98 Pa. Commonwealth Ct. 588, 512 A.2d 87 (1986).*fn3

The difference between the two scenarios with respect to the time in which DPW's executive secretary

[ 121 Pa. Commw. Page 410]

    has to act on a request for reconsideration is 15 days. When no appeal of a final order is filed with this court, DPW's executive secretary retains jurisdiction to act on a request for reconsideration of a final order for a maximum of 15 days longer than when an appeal of that final order has been filed with this court.*fn4 In the instant case, no appeal of OHA's final order was filed with this court. DPW's denial of Petitioner's reconsideration request was within 30 days of the request.

The more significant difference between scenarios three and four is that by filing no appeal of the final order with this court, the aggrieved party in scenario three loses the right to have this court review the merits of the final order should DPW's executive secretary deny the request for reconsideration of the final order more than 30 days after the date of the final order. Such is the situation present in this case. The final order was issued on November 24, 1987; DPW's executive secretary denied reconsideration on December 30, 1987 -- 6 days after the expiration of time in which to file an appeal from the final order. Petitioner filed a timely appeal of the December 30, 1987 denial of reconsideration with this court.

A governmental unit's denial of reconsideration, unlike a trial court's denial of reconsideration,*fn5 is an appealable order. Southwest Pennsylvania Natural Resources, Inc. v. Department of Environmental Resources, 77 Pa. Commonwealth Ct. 114, 465 A.2d 108

[ 121 Pa. Commw. Page 411]

(1983); Muehleisen v. State Civil Service Comm'n, 66 Pa. Commonwealth Ct. 95, 98 n.5, 443 A.2d 867, 869 n.5 (1982), aff'd, 501 Pa. 331, 461 A.2d 615 (1983).*fn6 The decision to grant or deny a request for reconsideration is a matter of administrative discretion and will be reversed only for an abuse of that discretion. Modzelewski v. Department of Public Welfare, 109 Pa. Commonwealth Ct. 519, 531 A.2d 585 (1987). In deciding if an abuse of administrative discretion has occurred, we are mindful of the caution that:

Courts will not review the actions of administrative tribunals involving acts of discretion in the absence of evidence of bad faith, fraud, capricious action or abuse of power.

Columbia Gas of Pennsylvania v. Pennsylvania Public Utility Comm'n, 112 Pa. Commonwealth Ct. 611, 614, 535 A.2d 1246, 1248 (1977) (quoting Pennsylvania State Ass'n of Township Supervisors v. State Ethics Comm'n, 92 Pa. Commonwealth Ct. 544, 547, 499 A.2d 735, 737 (1985)).

Petitioner contends that (1) CAO did not produce substantial, competent evidence to show that she received an overissuance of food stamps and (2) any overissuance was due to administrative error which either

[ 121 Pa. Commw. Page 412]

    totally prohibits recoupment or requires less recoupment. Petitioner raised these issues before the hearing officer and DPW's executive secretary, and she made the same arguments in support of them as she makes to us. The hearing officer's decision addressed Petitioner's arguments. DPW's executive secretary specifically affirmed the hearing officer's resolution of each issue. Petitioner offered no new evidence*fn7 nor any overlooked law in her request to DPW's executive secretary for reconsideration, and she brings none to our attention.

We have carefully reviewed the record in this case and find nothing in it nor in Petitioner's brief which even suggests that DPW's secretary in any way acted in bad faith, fraudulently, capriciously or abused his power in denying Petitioner's request for reconsideration.*fn8 We conclude that there was no abuse of administrative discretion. Accordingly, we affirm.

[ 121 Pa. Commw. Page 413]

Order

And Now, December 2, 1988, the decision of the Department of Public Welfare in the above-captioned matter is affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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