Opinion
No. 868 C.D. 2013
05-12-2014
Gborlu Hamadu, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Gborlu Hamadu (Hamadu) petitions for review of the April 17, 2013 final order of the Acting Secretary of the Department of Public Welfare (Department) upholding a final administrative action order of the Chief Administrative Law Judge (ALJ) of the Department's Bureau of Hearings and Appeals (Bureau). In the final administrative action order, the Chief ALJ affirmed an ALJ adjudication and order dismissing as untimely Hamadu's appeal of a determination of the Child Care Information Services of Delaware County (CCIS) that found Hamadu liable for overpayment of child care subsidies. For the reasons that follow, we affirm.
From 2005 through 2009, Hamadu received child care subsidy payments from the Department's subsidized child care program, which was administered by CCIS. (Certified Record Item (R. Item) 4, February 13, 2012 Adjudication and Order, Finding of Fact (F.F.) ¶¶1, 3.) CCIS terminated the subsidies in November 2009, following an investigation by the Office of Inspector General that determined that Hamadu was ineligible for payments because her husband, and father of her children, was living in her home. (Id., F.F. ¶2; R. Item 3, Exhibit C-5, Office of Inspector General Report.)
On February 17, 2011, CCIS sent Hamadu a confirmation notice informing her that she had received an overpayment of child care subsidies of $53,790.97 for the period of July 20, 2005 through November 9, 2009. (R. Item 4, February 13, 2012 Adjudication and Order, F.F. ¶3.) The confirmation notice informed Hamadu that she had a right to appeal and request a fair hearing within 30 days of the mailing date of the letter, and that if her request was not postmarked or received within 30 days of the date of the notice, her appeal would be dismissed without a hearing. (R. Item 3, Exhibit C-3, February 17, 2011 Confirmation Notice at 3-4.)
CCIS also included in the same envelope as the confirmation notice an overpayment collection letter, bearing the same date of February 17, 2011. (R. Item 3, Exhibit C-2, February 17, 2011 Overpayment Collection Letter.) The overpayment collection letter informed Hamadu that she was obliged to repay the full amount of the overpayment and that she should contact CCIS by February 28, 2011 to discuss a repayment plan. (Id.) The overpayment letter did not include language informing Hamadu of a right to appeal the overpayment determination. On March 1, 2011, CCIS sent Hamadu a second overpayment collection letter, which also did not inform Hamadu of her right to appeal. (R. Item 3, Exhibit C-2, March 1, 2011 Overpayment Collection Letter.) Hamadu mailed her request for a fair hearing on March 23, 2011 via first class mail, and this request was received by CCIS on March 24, 2011. (R. Item 2, March 23, 2011 Fair Hearing Request.)
A hearing was held on January 20, 2012 at which both parties presented evidence concerning the timeliness of the appeal and the merits of the underlying claim for overpayment of child care subsidies. Following the hearing, the ALJ issued an adjudication and order on February 13, 2012 dismissing Hamadu's appeal of the confirmation notice of the overpayment on the grounds that her appeal was untimely and she had not established non-negligent circumstances or fraud to justify the late filing of the appeal. The dismissal of the appeal by the ALJ was affirmed by the Bureau on February 13, 2012 and upheld by the Acting Secretary of the Department on April 17, 2013.
On appeal, Hamadu does not dispute that her appeal of the February 17, 2011 CCIS confirmation notice was untimely. An appeal of a determination of CCIS, as the agency authorized to determine eligibility in the Department's subsidized child care program, must be filed within 30 days, see 55 Pa. Code §§ 275.3(b)(1), 3041.176(b), and Hamadu's appeal was postmarked 34 days after the mailing date of the confirmation notice. Hamadu contends that she should have been entitled to file her appeal nunc pro tunc because CCIS mailed the confirmation notice, which informed Hamadu of her right to appeal, in the same envelope as the overpayment collection letter, which did not indicate a right to appeal.
Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Beaver County Children & Youth Services v. Department of Public Welfare, 68 A.3d 44, 47 n.4 (Pa. Cmwlth. 2013). --------
It is well-established that the failure to file a timely appeal of an administrative agency action is a jurisdictional defect and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998). An appeal may be permitted nunc pro tunc only where delay in the filing of the appeal was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process or non-negligent circumstances related to the appellant, her counsel or a third party. Beaver County Children & Youth Services v. Department of Public Welfare, 68 A.3d 44, 48 (Pa. Cmwlth. 2013); J.C., 720 A.2d at 197. The question of whether the appellant is entitled to an appeal nunc pro tunc is a legal conclusion to be drawn from the evidence in the record and is fully reviewable by this court. H.D., 751 A.2d at 1219.
Hamadu argues that the decision by CCIS to include the confirmation notice and the overpayment collection letter in the same envelope constituted a breakdown in the administrative process and that she therefore should have been entitled to an appeal nunc pro tunc. Hamadu asserts that she initially only read the overpayment collection letter and did not realize that she had to file an appeal to challenge the overpayment determination until she had a conversation with CCIS on March 23, 2011, after the time for filing the appeal had lapsed. Hamadu contends that there was no legitimate reason to send the two documents in the same envelope when the confirmation notice advised her of her appeal rights and the overpayment collection letter simply asked her to contact CCIS to make repayment arrangements.
Initially, we note the record does not support Hamadu's assertion on appeal that the mailing of the confirmation notice and overpayment collection letter together caused her to overlook the confirmation notice. Rather, Hamadu testified at the hearing that she called her CCIS caseworker shortly after receiving the confirmation notice but her caseworker only discussed arrangements for repaying the overpayment of the child care subsidy and not the procedure for requesting a hearing to challenge the overpayment determination. (R. Item 10, Transcript of January 20, 2012 Hearing at 49.) Hamadu testified that she was unaware of how the appeals process worked until she spoke to her CCIS caseworker again on March 23, 2011 and only then did she learn that she had to file an appeal to challenge the overpayment determination. (Id. at 49-50.) This version of events is consistent with the testimony of Hamadu's CCIS caseworker, except that the caseworker testified that she reminded Hamadu of her right to appeal the confirmation notice within 30 days during both of the telephone conversations. (Id. at 30-34.) In her request for a fair hearing mailed on March 23, 2011, Hamadu explained that the request was sent beyond the 30 days provided because she did not have a "clear understanding of the appeal date." (R. Item 2, March 23, 2011 Fair Hearing Request.) Nowhere in the record is there any evidence that Hamadu failed to read the confirmation notice because the two documents were mailed in the same envelope. Rather, the record supports the conclusion only that Hamadu, who was not represented at that stage of the proceedings, was unaware of the requirement an appeal must be filed within 30 days of a determination until a conversation with CCIS on March 23, 2011. The failure of a party, even an unrepresented party, to read or adequately comprehend notice of a right to appeal is not sufficient to permit the filing of an appeal nunc pro tunc. See Hinds v. Department of Transportation, Bureau of Motor Vehicles, 740 A.2d 1217, 1219 (Pa. Cmwlth. 1999).
Even accepting as true that Hamadu overlooked the confirmation notice and was unaware of her right to appeal until March 23, 2011, we cannot conclude that the mailing by CCIS of the confirmation notice and the overpayment collection letter in one envelope constituted a breakdown in the administrative process which would justify an appeal nunc pro tunc. A breakdown in the administrative process occurs where the agency is negligent, acts improperly or unintentionally misleads a party. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000); Carson Helicopters, Inc. v. Unemployment Compensation Board of Review, 960 A.2d 524, 527 (Pa. Cmwlth. 2008). The mailing of the confirmation notice and overpayment collection letter in one envelope was not negligent or improper: including the two documents together saved on postage fees, benefitting the public fisc, and served the function of alerting Hamadu that the two documents are related and should be read together.
Mailing the two documents together was also not misleading: the notice and letter amounted to six pages in total and the format and typeface of the documents clearly indicated that they were distinct and separate documents. Friends Hospital v. Department of Public Welfare, 551 A.2d 640, 643 (Pa. Cmwlth. 1988) (holding that the appellant's "failure to discern the difference between two letters from separate offices, with distinctively separate letterheads and formats and containing separate subject matter" did not justify an untimely appeal). Further confirming the separateness of the documents, both the confirmation notice and overpayment collection letter referenced that Hamadu would receive the other document. (R. Item 3, Exhibit C-3, February 17, 2011 Confirmation Notice at 1 ("You will receive a letter indicating your options regarding repayment."); R. Item 3, Exhibit C-2, February 17, 2011 Overpayment Collection Letter ("This letter is a follow-up to the Confirmation Notice you received regarding the identification of an overpayment....")
Because Hamadu did not show any circumstances which would warrant a nunc pro tunc appeal, the final order of the Acting Secretary of the Department dismissing her appeal of the overpayment determination is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 12th day of May, 2014, the final Order of the Acting Secretary of the Department of Public Welfare in the above-captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge