Argued November 12, 2014.
Appealed from No. SA 13-355. Common Pleas Court of the County of Allegheny. Friedman, J.
Eileen D. Yacknin, Pittsburgh, for appellant.
Walter F. Baczkowski, McKeesport, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY JUDGE COHN JUBELIRER.
RENÉ E COHN JUBELIRER, Judge.
Danella Bray appeals from the Order of the Court of Common Pleas of Allegheny County dismissing Ms. Bray's appeal from the McKeesport Housing Authority's (Authority) decision denying Ms. Bray's application for federally-subsidized public housing
(Authority Decision). The trial court dismissed the appeal pursuant to this Court's holdings in Cope v. Bethlehem Housing Authority, 95 Pa.Cmwlth. 99, 514 A.2d 295, 297 (Pa. Cmwlth. 1986), and McKinley v. Housing Authority of the City of Pittsburgh, 58 A.3d 142, 144-45 (Pa. Cmwlth. 2012), which held that a housing authority's decision was not an " adjudication" under Section 101 of the Administrative Agency Law, 2 Pa. C.S. § 101, because applicants for public housing do not have a personal or property interest in those benefits and, therefore, are not subject to judicial review. On appeal, Ms. Bray argues that an aggrieved applicant for public housing should be entitled to judicial review. Because we conclude that public housing applicants have a protected property interest in their eligibility for those benefits being determined in accordance with the applicable law and regulations, we agree.
Ms. Bray, a previous tenant of the Authority, applied for public housing with the Authority on January 22, 2013. The Authority denied Ms. Bray's application on February 1, 2013 but, in accordance with federal law, provided Ms. Bray with an opportunity to appeal that denial and request an informal administrative hearing before a hearing officer. At the February 14, 2013 hearing, Ms. Bray and two Authority witnesses testified. (Informal Appeal Hearing Transcript (Hr'g Tr.), February 14, 2013, R. Item 3.) The Authority's Tenant Selector stated that she denied Ms. Bray's application because, after reviewing Ms. Bray's rental history with the Authority, she concluded that Ms. Bray owed the Authority $1,002.68 from her prior tenancy and any outstanding debt had to be satisfied. (Hr'g Tr. at 1-2.) Ms. Bray acknowledged owing the fees and stated that she would pay them within the week because she was expecting her income tax refund check on February 18, 2013. (Hr'g Tr. at 6-7.) The hearing officer indicated that she would wait to decide Ms. Bray's appeal to see if Ms. Bray paid the Authority the outstanding amount. (Hr'g Tr. at 10.) Ms. Bray received her tax refund and paid the Authority $1,002.68 on February 21, 2013. (Authority Decision, Finding of Fact (FOF) ¶ 4.)
Thereafter, on March 15, 2013, the hearing officer issued the Authority Decision, upholding the Authority's denial of Ms. Bray's application, in which she made findings of fact and conclusions. (Authority Decision, Conclusion ¶ 2.) The hearing officer concluded that Ms. Bray had a history of habitually paying her rent late and did not establish by substantial evidence that her rental payments would improve. (Authority Decision, Conclusion ¶ 1.) The Authority
Decision stated that " [y]ou may appeal this decision to the Court of Common Pleas of Allegheny County within thirty (30) days of the date of this Decision." (Authority Decision at 2.)
Ms. Bray appealed the Authority Decision to the trial court, arguing, inter alia, that the hearing officer considered evidence that was adverse to Ms. Bray that had not been submitted into evidence at the informal hearing. (Notice of Statutory Appeal at ¶ 15, R. Item 2.) However, the trial court issued an Order on July 11, 2013 dismissing Ms. Bray's appeal pursuant to Cope. (Trial Ct. Order, July 11, 2013.) Ms. Bray appealed to this Court, and the trial court directed her to file a Concise Statement of the Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), Pa. R.A.P. 1925(b). (Trial Ct. Order, Sept. 11, 2013.) In its opinion, pursuant to Pa. R.A.P. 1925(a), the trial court, respectfully, expressed its disagreement with this Court's holdings in Cope and McKinley. (Trial Ct. 1925(a) Op. at 1-2.) The trial court observed that, pursuant to Cope and McKinley, " employees of housing authorities, when reviewing applications for housing benefits, are free to interpret [the] federal regulations however their fancy strikes them and regardless of the actual purpose or intent of those regulations." (Trial Ct. 1925(a) Op. at 2.) The trial court stated that this matter raises an issue of first impression regarding the Pennsylvania Constitution and this Court now has the opportunity to consider whether Cope infringes upon an applicant's right to judicial review as guaranteed by the Pennsylvania Constitution and to equal protection under the Fourteenth Amendment of the United States Constitution. (Trial Ct. 1925(a) Op. at 3.) This matter is now ready for our Court's review.
Ms. Bray raises numerous challenges to this Court's conclusion in Cope, and repeated in McKinley, that a housing authority's determination denying an application for public housing is not an appealable adjudication. Ms. Bray asks that we revisit the Court's decisions in Cope and McKinley, which she asserts are inconsistent with numerous federal court decisions holding that applicants for public housing do have a property interest in an eligibility determination for public housing that is protected by due process. Although acknowledging that this Court is not bound by those federal cases, Ms. Bray asserts that the federal decisions offer guidance and following such decisions will avoid having litigants " 'walk across the street'" to get a different result in federal court than in state court. (Bray's Br. at 55 (quoting Werner v. Plater-Zyberk, 2002 PA Super 42, 799 A.2d 776, 782 (Pa. Super. 2002) (citations omitted).) The Authority contends that the federal case law Ms. Bray cites is distinguishable and does not support the conclusion that Ms. Bray has a protected property interest, particularly where there is no explicit mandatory language indicating that housing benefits will be granted if the substantive predicates of the regulations are met. (Authority's Br. at 17 (citing Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)).)
Section 752 of the Local Agency Law states, in pertinent part, that " [a]ny
person aggrieved by an adjudication of a local agency who has a direct interest in the adjudication shall have the right to appeal therefrom."  2 Pa. C.S. § 752. There is no question that Ms. Bray is aggrieved by and has a direct interest in the result of the Authority Decision; thus, if she is able to establish that the Authority Decision is an " adjudication" as defined by Section 101 of the Administrative Agency Law, she would be ...