L. Bussoletti v. Dept. of Human Services
2129 C.D. 2016
| Pa. Commw. Ct. | Nov 22, 2017Background
- Petitioner Luke Bussoletti sought door-to-door Medicaid transportation to an adult training facility; the Department’s Bureau of Hearings and Appeals denied the request by final order dated August 4, 2016.
- Petitioner filed a timely motion for reconsideration on August 8, 2016; the Secretary did not issue a ruling within the 30-day period required by 1 Pa. Code §35.241(d).
- The Secretary issued a written denial of reconsideration on December 1, 2016, well after the 30-day window expired.
- Petitioner filed a pro se petition for review in this Court on December 30, 2016, appealing from the December 1, 2016 order denying reconsideration.
- The Court treated the Secretary’s late denial as a nullity under precedent and held that Petitioner’s timely remedy would have been to appeal the Bureau’s August 4 final order within 30 days; because he did not, the appeal was dismissed as untimely.
- The Court additionally stated that, even if it had jurisdiction, review would be limited to whether the Secretary abused his discretion in denying reconsideration and found no evidence of bad faith, fraud, caprice, or abuse of power.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Secretary’s late denial of reconsideration is appealable | Bussoletti appealed the December 1 denial and treated it as appealable | Department argued the December 1 order was issued after the 30-day statutory period and thus a nullity | Held: A late denial is null and not appealable; appeal must be from the underlying final order within 30 days |
| Whether Petitioner’s appeal was timely | Bussoletti contended his post-reconsideration appeal was timely | Department contended Petitioner should have appealed the August 4 final order within 30 days, not the late December order | Held: Petition filed Dec. 30 was untimely as to the Aug. 4 final order; dismissal for lack of jurisdiction |
| Standard of review if late denial treated nunc pro tunc | Bussoletti argued merits warrant review and sought to challenge prior precedent | Department argued review would be limited to abuse of discretion in denying reconsideration | Held: Even if cognizable, review limited to abuse of discretion standard; no abuse found |
| Whether prior precedent (Bussoletti v. DPW) barred relief | Petitioner challenged or attacked prior decision | Department relied on binding precedent that no right exists to services from an unwilling provider | Held: Court declined to overrule or ignore precedent; prior decision controls, and no relief granted |
Key Cases Cited
- Monsour Medical Center v. Department of Public Welfare, 533 A.2d 1114 (Pa. Cmwlth. 1987) (late denial of reconsideration is null; appeal must be from original final order)
- Strobhar v. Department of Public Welfare, 557 A.2d 440 (Pa. Cmwlth. 1989) (advises filing appeal concurrent with reconsideration motion)
- Ciavarra v. Commonwealth, 970 A.2d 500 (Pa. Cmwlth. 2009) (late reconsideration denial treated as nullity; appeal timing rules reiterated)
- Bussoletti v. Department of Public Welfare, 59 A.3d 682 (Pa. Cmwlth. 2012) (holding no statutory or regulatory right to services from an unwilling provider)
- Muehleisen v. State Civil Service Commission, 443 A.2d 867 (Pa. Cmwlth. 1982) (standard of review for denial of reconsideration is abuse of discretion)
- Keith v. Department of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988) (defines abuse of discretion as bad faith, fraud, caprice, or abuse of power)