Appealed From. No. 95-SU-5325-08. Common Pleas Court of the County of York. Judge HORN.
Before: Honorable James Gardner Colins, President Judge, Honorable James R. Kelley, Judge (p.), Honorable Charles A. Lord, Senior Judge. Opinion BY President Judge Colins.
The opinion of the court was delivered by: Colins
OPINION BY PRESIDENT JUDGE COLINS
The Housing Authority of the City of York (Housing Authority) appeals from the July 12, 1996 order of the Court of Common Pleas of York County (trial court) which reversed the Housing Authority's decision to terminate federally subsidized housing benefits to Queen E. Ismond (Ismond). *fn1 We affirm.
Ismond resides in an apartment, located within the City of York, with her five minor sons. On September 1, 1994, Ismond entered into a Section 8 Housing Assistance Payments Agreement with the Housing Authority. Under this agreement, Ismond's rental amount was fully subsidized. Under federal regulations, Section 8 assistance can be terminated if a participant or any member of the participant's household engages in drug-related criminal activity. 24 C.F.R. § 882.118(b)(4).
Regulations under the Section 8 program require participants to complete and submit an annual Personal Declaration Statement (statement). In Ismond's June 7, 1995, statement she revealed that her eldest son, Sedrick Lawrence (Sedrick), age 15, was arrested for possession of cocaine on April 26, 1995. Sedrick subsequently pleaded guilty to charges of possession of cocaine with intent to deliver and was sentenced to probation. *fn2
On September 29, 1995, the Housing Authority notified Ismond that her Section 8 housing assistance benefits would be terminated as of October 31, 1995, because of Sedrick's drug-related activity. Ismond requested, and was granted, an informal hearing before the deputy executive director of the Housing Authority. After this hearing, the Housing Authority affirmed its original decision to terminate Ismond's Section 8 benefits.
Ismond appealed to the trial court. The trial court found that the Housing Authority's internal policy of only considering mitigating factors in cases where the drug offender is an adult member of the household, but not the head of the household or spouse/co-tenant, conflicted with the federal regulations. On July 12, 1996, the trial court issued its order reversing the Housing Authority's decision to terminate benefits and remanding to the Housing Authority to consider the mitigating factors outlined in 24 C.F.R. § 882.216(c)(2).
The Housing Authority originally appealed to this Court on August 8, 1996. That appeal was quashed as interlocutory on September 17, 1996. The Housing Authority filed a petition for reconsideration, averring that the appeal was an interlocutory appeal as of right. This Court ordered the appeal reinstated on October 18, 1996, with instructions that the parties argue the interlocutory nature of the appeal in their briefs.
The issues on appeal are whether the trial court's July 12, 1996 order is an interlocutory order appealable as of right, whether the Housing Authority's appeal is timely and whether the mitigating factors set forth in 24 C.F.R. § 882.216(c)(2) are mandatory or discretionary. *fn3
Initially, we note that Ismond concedes that the trial court's July 12, 1996 order is an interlocutory order appealable as of right. Indeed, under Pa. R.A.P. 311(f):
An appeal may be taken as of right from: (1) an order of a common pleas or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a common pleas or government unit remanding a matter to an administrative agency or hearing officer that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.
Ismond asserts however, that the Housing Authority's appeal should be quashed as untimely filed. Under Pa. R.A.P. 903(a), the general rule is that an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." However, the notes after this rule state in part "where an appeal is taken under Rule 311 (interlocutory appeals as of right), unless an extension to plead is obtained it will as a practical matter continue to be necessary to take the appeal within the 20 day pleading period specified in Pa. R.C.P. 1026." Ismond argues that the Housing Authority's appeal had ...