December 22, 2009
ALLEGHENY COUNTY HOUSING AUTHORITY, APPELLANT
The opinion of the court was delivered by: Senior Judge Flaherty
Argued: October 13, 2009
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Allegheny County Housing Authority (ACHA) petitions for review of an order of the Court of Common Pleas of Allegheny County (trial court) that sustained the appeal of Kamala Cain (Tenant) from a determination of a hearing examiner upholding a termination of assistance payments. We affirm.
On May 13, 2008, Tenant was sent a Notice of Intention to Terminate Housing Authority Assistance Payments (Termination Notice). A hearing was held on July 21, 2008 whereupon Tenant testified she was told by her landlord that she had to move out due to nonpayment of plumbing bills and rent. According to Tenant, she was required to vacate by April 19, 2008 and did so. During testimony, the following dialogue took place:
Hearing Officer: 19th, okay. Did you notify anybody at the Housing Authority?
Cain: I think I came down here. Or either called or came down, I don't remember, with so much going on.
Hearing Officer: Do you recall who you talked to?
Cain: Just letting them know that you know that they- I think I talked to you, Ms. Chambers, or either operator. I had spoken to the operator, who gives you the information. Because I can't call direct to Ms. Chambers (sic) office, it always gives me someone to speak to before they connect me to the office. So I had spoke to someone here in this office to let them know what the situation was on those days whenever I got this letter.*fn1
Reproduced Record (R.R.), at 35a.
The hearing officer upheld the termination of assistance payments. In Finding of Fact No. 4, she indicated "Tenant testified that she called the Housing Authority switchboard to notify them of what was going on, but did not speak to any housing counselor regarding her vacating the subject unit nor has she ever given any written notification of the same." Dec. dated 7/25/08, p. 1. The hearing officer specified that a tenant vacating a unit without proper notice is a violation of "Section 982.552(7)(i)."*fn2 Id. at p. 2. The hearing officer determined Tenant offered "uncontradicted testimony that [she] had vacated the subject unit without obtaining approval from the Housing Authority." (Emphasis Added). Id.
The trial court sustained Tenant's appeal of the hearing officer's determination on December 15, 2008. The trial court explained that the hearing officer erroneously concluded that Tenant was required to receive "approval" before leaving the unit. Memorandum in Support of Order dated 12/15/08. Instead, it found Tenant only needed to give "notice" of leaving the unit and that it was undisputed that notice was provided when she left." Id. The trial court directed that Tenant's Section 8 eligibility be reinstated. This appeal followed.*fn3
ACHA argues on appeal that (1) the trial court erred in finding Tenant did not need to receive approval prior to moving to a new unit, (2) if only notice was required, notice is to be given prior to the move, and (3) there was insufficient evidence of record to support a determination that Tenant gave notice she was moving to a new unit.
The following federal regulations are referenced by both parties in this appeal - 24 C.F.R. §982.314, 24 §C.F.R. 982.551, and the aforementioned 24 C.F.R. §982.552.*fn4 ,*fn5 In interpreting a regulation, as in interpreting a statute, the plain language of the regulation is paramount. Schappell, D.C. v. Motorists Mutual Ins. Co., 594 Pa. 94, 934 A.2d 1184 (2007).
In support of its argument that Tenant needed to receive approval prior to her move, ACHA relies on 24 C.F.R. §982.314(e). That provision specifies that a PHA may deny permission to move if there is a basis to terminate assistance based on 24 C.F.R. §982.552, that is, in turn, based on a failure of a family obligation as set forth in § 982.551 or a serious violation of a lease resulting in an eviction. As there is authority to deny a move, per ACHA, there is concomitant authority to approve any move. Tenant disagrees that the federal regulations require approval of a move and relies primarily on caselaw of other jurisdictions.
Tenant cites Hill v. Richardson, 740 F.Supp. 1393 (SD Ind. 1990), vacated and remanded, 7 F.3d 656 (7th Cir. Ind. 1993)(granting the parties' Stipulation of Settlement as to All Issues Except Attorney's Fees but nonetheless setting forth that a state does not have the discretion to expand the reasons enumerated in the Code of Federal Regulations for denying or terminating Section 8 benefits), Holly v. Housing Authority of New Orleans, 684 F.Supp. 1363 (ED La. 1988)(holding a tenant does not violate any requirements of the Code of Federal Regulations by failing to notify the local housing authority of a short-lived marriage when marriage, by itself, does not make a spouse a member of the household), and Smith v. Hamilton County, 2007 Ohio 1725 (Ohio App. 1 Dist. 2007)(holding that federal regulations do not specifically define the meaning of a household member or family composition and that, therefore, a tenant did not act fraudulently in listing in her application her two children as household members when they spent weekends, holidays, and summers with her despite a lack of custody). Tenant cites these cases for the proposition that items not explicitly stated in the Code of Federal Regulations cannot serve as a basis for the termination of assistance.*fn6
It is acknowledged that 24 C.F.R. §982.314(e)(2) authorizes a PHA to deny permission to move. But, aside from instances where ACHA does not have sufficient funding for continued assistance, the grounds for denial of a move are the same grounds for denial or termination of assistance. Direct reference is made to 24 C.F.R. §982.552 for grounds for denial or termination of assistance. Thus, when a tenant desires to move, it may be that it is not approval that is required. Rather, what is required may simply be an administrative check to see if the tenant is still entitled to continued assistance. Regardless, the failure to obtain approval of a move is not an enumerated basis to terminate assistance. We agree with Tenant and the decisions of our sister courts that the ACHA cannot expand the basis for terminating assistance by stating that failure to obtain approval prior to a move can result in that consequence.
Whether a tenant needs to give prior notice to move to a new unit is a different matter. Both 24 C.F.R. §982.314(d)(2) and 24 C.F.R. §982.551(f) do state that if a family seeks to move to a new unit, it must notify the PHA and the owner before moving from the old unit. Federal Regulation §982.551(f) is a family obligation. Section 982.552(c)(1)(i) of the Code of Federal Regulations expressly provides assistance may be terminated when the tenant fails to comply with a family obligation. Thus, failure to notify ACHA before moving to a new unit may result in a termination of assistance.
Now that we have determined that notice must be given prior to a tenant moving to a new unit or risk the termination of assistance but that the failure to obtain prior approval from the ACHA cannot result in a termination, we must consider whether the trial court erred in sustaining Tenant's appeal of the hearing examiner's decision upholding termination of assistance payments. Although a full and complete record was made at the local agency hearing, the trial court will not affirm the hearing examiner's decision if it is not in accordance with law. 2 Pa.C.S. §754.*fn7
In ultimately disposing of the matter, the hearing officer, in her July 25, 2008 Decision, indicated assistance was properly terminated due to a failure to obtain "approval" for a move. Section 754 of the local agency law allows an adjudication to be reversed when it is not in "accordance with the law." It is evident that there was a genuine issue before the trial court as to whether federal regulations mandated that approval must be obtained prior to vacating a unit and moving to another and the failure to do so can result in termination. We have determined that federal regulations do not provide that failure to obtain approval prior to a move is a basis for the termination of assistance.
Inasmuch as prior approval was not a factor to be considered in terminating assistance, the trial court found that it was "undisputed that notice was given by the Tenant." Tenant's testimony is lacking specifics concerning the timeframe when she contacted the ACHA. Arguably, Tenant's contact with ACHA was made after she received her Termination Notice. No attempt was made, however, to flesh out the details as to when this notice was given. Even ACHA acknowledges that, assuming notice was given, there is no testimony clarifying when that occurred. Appellant's Brief, p. 5.
The hearing officer did indicate that Tenant committed a violation by leaving her old unit "without proper notice." Supra. The only support for this determination, however, is that when Tenant called the ACHA, she did not speak to a housing counselor, but rather an operator. Further, she specified that no written notification was provided. ACHA, however, makes no argument as to who is to receive the notice, nor does it contend that notice must be written. The hearing examiner placed a greater burden on Tenant than what is required by the Code of Federal Regulations. Considering the proper burden, we cannot say the trial court erred in any regard. There is a reasonable inference that Tenant orally provided notice of her intention to move to ACHA.*fn8 On appeal, the prevailing party below is entitled to all inferences that can be reasonably drawn from the evidence. Gentex Corp. v. Workers' Compensation Appeal Board (Morack), 975 A.2d 1214 (Pa. Cmwlth. 2009).
Consequently, the trial court's order is affirmed.
AND NOW, this 22nd day of December, 2009, the order of the Court of Common Pleas of Allegheny County is affirmed.
JIM FLAHERTY, Senior Judge