JULIA RIBAUDO SENIOR SERVICES, Appellee v. DEPARTMENT OF PUBLIC WELFARE, Appellant.
No. 20 WAP 2008.
Supreme Court of Pennsylvania.
Argued Sept. 10, 2008. Decided April 29, 2009.
969 A.2d 1184
the property in question causes the plaintiff‘s injuries, or does it suffice that plaintiff‘s injuries are caused by the Commonwealth‘s care, custody, or control of the property?
- (2) Whether genuine issues of material fact exist which would preclude the entry of summary judgment?
- (3) Whether the State Police breached an implied contract for bailment of evidence which was Petitioners’ personal property, thus subjecting the State Police to liability if the evidence was subsequently negligently destroyed?
- (4) Whether Pennsylvania recognizes, and if so whether Petitioners have alleged, a cause of action for negligent spoliation of evidence?
Steven T. Hanford, Esq., West Chester, for Julia Ribaudo Senior Services.
BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.
OPINION
Justice TODD.
In this appeal, we are asked to determine whether a Department of Public Welfare (“DPW“) notice of adjudication that clearly advised the recipient, Julia Ribaudo Senior Services (“JRSS“), of the starting and ending dates of the applica-ble appeal period, but did not specifically designate the date stamped on the notice as the notice‘s mailing date, was sufficient to trigger the start of the appeal period. For the following reasons, we reverse the Commonwealth Court‘s determination that the notice was inadequate in this regard.
The underlying facts and procedural history of this case are as follows. JRSS is a nursing facility enrolled as a provider in DPW‘s Medicаl Assistance Program, and periodically submits cost reports to the department for auditing. The audit determines the allowable costs of care under the program, and may either be accepted by the provider or appealed. This case concerns the cover letter and audit report DPW mailed to JRSS on March 31, 2004, informing the facility of its audit results for 2002. The letter was date-stamped “MAR 31, 2004,”1 and stated in pertinent part:
If you disagree with the findings contained in the enclosed audit report, you have the right to appeal by filing a written request for a hearing with the Department‘s Bureau of Hearings and Appeals [the “Bureau“] within 33 days of the date of this letter....
[The Bureau] has published Rules that relate to your appeal rights. You should review those Rules carefully. The Rules speсify, among other things, what information you must include in your written request for hearing (Rule 18(B)) and how the Bureau of Hearings and Appeals will determine whether your request for hearing was filed on time (Rule 19). The Rules are posted on the Department‘s website at http://www.dpw.state.pa.us/oa/pdf/FinalSPO pdf.
DPW Letter, 3/31/04. Of particular relevance to the present appeal, while the letter was date-stamped, nowhere was the date of mailing specifically designated. JRSS ultimately filed its appeal from the audit report on December 14, 2004, over eight and a half months after the date-stamp.
On December 30, 2004, JRSS filed with the Bureau a motion for leave to file an appeal nunc pro tunc, contending it was never properly served with notice of the 2002 audit results, and that, in any event, the notice sent by DPW was defective for
For its part at the hearing, DPW presented the testimony of Elizabeth Penaranda, the employee who was directly involved with mailing the department‘s audit reports. She indicated that in accordance with the department‘s practice and custom, the 2002 audit report would have been mailed out on March 31, 2004. She did not recall DPW experiencing any problems at the time with mailing any of the reports, and noted the report in question was never returned as undelivered. DPW also presented the testimony of its Chief Rate Analyst, Ian Cohen, who testified that the audit report was properly mailed on March 31, 2004, and that it was the department‘s standard practice to stamp the mailing date on the notices the same day they were mailed. Cohen further testified that he personally provided a copy of the report to Sobanski on October 27, 2004, at which time Sobanski represented he was acting on JRSS‘s behalf.
Finding Penaranda‘s testimony credible, ALJ Zanotto determined DPW established a rebuttable presumption that JRSS received а copy of the March 31, 2004 notice, thus shifting the burden to JRSS to demonstrate that it did not receive the notice. ALJ Zanotto then noted that while JRSS offered testimony reflecting it did not receive the notice, testimony alone on this point was insufficient to rebut the presumption. As JRSS offered nothing more than testimony, the judge indicated she could not grant its motion to proceed nunc pro tunc. ALJ Zanotto further found that JRSS failed to act promptly after its agent (Sobanski) obtained a copy of the report on October 27, 2004. For these reasons, the judge concluded JRSS failed to demonstrate it was entitled to a nunc pro tunc appeal, and recommended the appeal be dismissed.
On August 15, 2005, the Bureau‘s Chief ALJ issued an order adopting ALJ Zanotto‘s recommendations in their entirety. JRSS then filed a petition for reconsideration with the Secretary of DPW, who uphеld the Bureau‘s decision. JRSS appealed to the Commonwealth Court, arguing that while the notice of adjudication was stamped with the March 31, 2004 date, it was defective because it did not comply with DPW‘s Standing Practice Order (“SPO“)2 Rule 13 requiring the notice to
A three-judge pаnel of the Commonwealth Court reversed, concluding that because DPW‘s letter did not specifically designate a mailing date, it did not trigger the start of the appeal period. The majority reasoned that “[w]hen an administrative agency makes service by mail, the date of
mailing is required to be listed on the notice of adjudication because that date is ‘deemed to be the date of entry of the order . . .’ and the date from which the time for appeal begins to run.” Julia Ribaudo Senior Serv. v. Dep‘t of Pub. Welfare, 915 A.2d 700, 703 (Pa.Cmwlth.2007) (citing SPO Rule 13 and
Whether the Commonwealth Court erred in concluding that an administrative agency‘s notice that clearly advises the recipient of the effective date of the agency‘s action, but that does not specifically designate a “date of mailing,” is insufficient to begin the appeal period? If the notice is sufficient, is the recipient entitled to an appeal nunc pro tunc?
Julia Ribaudo Senior Serv. v. Dep‘t of Pub. Welfare, 596 Pa. 498, 946 A.2d 638 (2008).3
We begin our review by noting that, to perfect an appeal, “parties must strictly adhere to the statutory provisions for filing an appeal.” Criss v. Wise, 566 Pa. 437, 441, 781 A.2d 1156, 1159 (2001). Where an act of assembly fixes the time within which an appeal may be taken, courts have no
power to extend it, or to allow the act to be done at a later day, as a matter of indulgence. Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971).
Moreover, while it is the legislature‘s prerogative to set appeal periods, where the appeal period is triggered by administrative action, the involved administrative agency has a duty to provide to the reсipient information essential to calculating the appeal period. See Schmidt, 495 Pa. at 241, 433 A.2d at 458 (noting that while it was “reasonable” for the legislature to specify the appeal period commenced on the date of mailing, this implied a duty on the part of the Department of
The relevant appeal period here is set forth in
the provider.”4 There is no comparable statutory provision specifying the content of the notice.
Thus, in Section 1102, the legislature established a 33-day appeal period for administrative appeals of DPW audits, and specified that the period was to start running from “the date of the notice” of the action. Furthermore, pursuant to Schmidt, DPW had a duty to provide that information to JRSS. See Schmidt, 495 Pa. at 241, 433 A.2d at 458. Accordingly, we must determine whether DPW‘s notice sufficiently advised JRSS of “the date of the notice” of the action to trigger the 33-day appeal period. If the notice was defective, then the appeal period did not start and JRSS‘s appeal to the Bureau was not untimely.
As noted above, in addition to SPO 13, the Commonwealth Court also relied on several of its own decisions5 in finding DPW‘s notice insufficient to begin the appeal period. Because most of those cases are, in turn, premised on this Court‘s decision in Schmidt, we now examine our holding in that case. In Schmidt, which involved a tax reassessment, the Department of Revenue first mailed its decision, along with an undated transmittal letter, to the taxpayer on the date of the decision. The department also mailed a notice of its decision three days later. The applicable statute provided that the 60-day appeal period began on “the date of mailing of notice.” Schmidt, 495 Pa. at 240, 433 A.2d at 457
notice, but 59 days after the second notice, argued the first notice was ineffectual to trigger the appeal period. We fоund that, under the applicable statute, the Department of Revenue had a duty to inform the taxpayer of the mailing date of the reassessment decision because, without such information, the taxpayer had no way of knowing how much time he had to file an appeal. Id. at 458. We agreed with the taxpayer that the first notice was inadequate to trigger the appeal period, and found the appeal to be timely since the Department of Revenue‘s failure to provide the requisite notice of the decision‘s mailing date justified the taxpayer‘s reliance on the date of the second notice of reassessment as the commencement of the period for appeal. Id. In reaching this decision, we rejected the contention that a postmark on an envelope carrying an agency decision could serve as the date of mailing.
DPW asserts the Commonwealth Court erred in applying Schmidt to this case, as it claims Schmidt is readily distinguishable. DPW notes that in contrast to
DPW further asserts the other decisions relied on by the Commonwealth Court, including its most recent decision in Neyhart, supra, are equally distinguishable from the instant matter. In Neyhart, the Department of Corrections sought to dismiss as untimely an appeal filed by an inmate from a department action denying the inmate‘s request to inspect and copy certain urinalysis reports. The Department of Corrections argued that the appeal was untimely under Pa.R.A.P. 1512(a)(1), which required the inmate to file his petition for review “within 30 days after the entry of the order.” Pa.R.A.P. 1512(a)(1). Based upon its decision in Sheets, supra, wherein the Commonwealth Court extended our holding in Schmidt to appeals governed by Rule 1512(a)(1),6 the court held that although the department‘s letter announcing the action was dated, it did not designate that date as the mailing date. The court found there was no way of knowing when the letter actually was mailed and, as such, the appeal was not untimely filed. DPW contends there is nothing in Neyhart, or in any of the other decisions relied on by the Commonwealth Court, suggesting the agency notices at issue therein provided all the information needed to file a timely appeal.
JRSS counters that DPW‘s internal SPO Rule 13 clearly requires a notice of agency action to include the mailing date. See SPO Rule 13 (providing that the notice must include, inter alia, the date the notice was deposited in the mail or otherwise served). JRSS notes this rule merely continued the prior practice embodiеd in
similarly required the inclusion of a mailing date in a notice of agency action. JRSS argues the notice here violated the express terms of Rule 13 by including only a stamped date, without any indication as to whether it was the date of the agency action or the mailing date.
JRSS next posits that Schmidt is controlling, characterizing the decision as holding that where agency notices are required by the legislature—and, in this case, by DPW‘s own internal regulation—to contain a mailing date, then they must clearly designate that mailing date in order to begin the appeal period. JRSS argues that absent strict compliance with this rule, DPW‘s notice, regardless of how much information it contains about the appeal period, was defective, the appeal period did not сommence, and its appeal was timely.
JRSS further asserts the Commonwealth Court‘s decision in this case is consistent with other Commonwealth Court decisions, particularly Walzer, supra. In Walzer, the court found that a notice of a license suspension reinstatement was inadequate to begin the appeal period because, although there was a date listed in the notice, nothing in the notice identified that date as the mailing date.7 The Walzer court reasoned that without a designated mailing date, there was nothing to establish the starting date for the appeal period. 625 A.2d at 1348.
JRSS also points to the Commonwealth Court‘s decision in West View, supra, as bolstering its position. That case concerned an appeal filed by a school district from a decision issued by a property assessment board reducing a real estate tax assessment. The board informed the school district of its decision in a form dated December 23, 1981 and entitled “Disposition of Appeal from Real Estate Assessment.” 501 A.2d at 707. The only other date on the form was the stamped date on which it was received by the school district. The appeal, which was filed on February 1, 1982, was quashed by the trial court as untimely because it was not filed within the applicable 30-day appeal period. The Commonwealth
Court reversed, holding that under Schmidt, the form notice was inadequate to begin the appeal period because the date listed on the notice was not designated as the mailing date. According to the court, “[a] disembodied date on the notice . . . without any indication that it is the mailing date, is not sufficiently informative.” Id. The court reiterated our oft-cited determination in Schmidt that
JRSS lastly attempts to distinguish Wilkes-Barre Holiday Inn, supra, the decision DPW argues is most analogous. JRSS maintains this latter case is, as the Commonwealth Court found below, at variance with Schmidt and inferentially reversed by the subsequent Commonwealth Court decision in Neyhart, supra.
The linchpin in this matter is our decision in Schmidt. As noted previously, that case addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer‘s appeal based on somе internal departmental mailing date where the taxpayer was never informed of the mailing date. Even so, and as JRSS concedes, we did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency‘s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights.
We conclude DPW complied with Schmidt. It notified JRSS of the starting date of the appeal period. DPW‘s March 31, 2004 letter advised JRSS that if it disagreed with the findings contained in the audit report, it had “the right to appeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter‘s content and the date-stamp was sufficient to put JRSS on notice that the appeal had to be filed within 33 days of March 31, 2004—“the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action.”
start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, JRSS‘s appeal to the Bureau was untimely.9
With respect to JRSS‘s alternative claim that even if we find DPW‘s notice legally sufficient, JRSS still is entitled to an appeal nunc pro tunc because it never received the notice, we agree with DPW that JRSS waived this argument.10 JRSS did not raise the issue in either its petition for review, or in its request for reconsideration of the Bureau‘s decision. The Bureau found that DPW mailed its March 31, 2004 notice, and more importantly, that JRSS received the notice. JRSS failed to contest these findings before the Commonwealth Court, instead limiting its arguments to the legal sufficiency of the noticе and Sobanski‘s authority to accept service of the notice. This argument regarding JRSS‘s entitlement to an appeal nunc pro tunc is therefore waived. See Pa.R.A.P. 302(a); Commonwealth v. Piper, 458 Pa. 307, 314 n. 5, 328 A.2d 845, 847 n. 5 (1974).
For the foregoing reasons, we conclude the Commonwealth Court erred in finding DPW‘s notice to be defective and JRSS‘s appeal to be timely. Accordingly, we reverse.
Order reversed.
Chief Justice CASTILLE, and Justice EAKIN, BAER and McCAFFERY and Justice GREENSPAN join the opinion.
Justice SAYLOR files a dissenting opinion.
Justice SAYLOR, dissenting.
A threshold consideration in this case is whether the appeal period under Section
In a footnote responsive to the above, the majority clarifies that its position is that the “date of the notice of the departmental action,”
For these reasons, I respectfully differ with the majority‘s perspective that Section 1102 unambiguously keys an appeal period to a date stamped on a notice form, irrespective of when the form is conveyed to the recipient. Rather, I find the statute to be poorly framed, in that it does not closely define the appeal period in terms of effective notice, or specifically eschew the concept of effective notice. Since, however, meaningful notice is a basic requirement of due рrocess in administrative proceedings, see Pennsylvania Bankers Ass‘n v. Pennsylvania Department of Banking, 598 Pa. 313, 327-28, 956 A.2d 956, 965 (2008), and it is to be presumed that the Legislature does not intend to violate the Constitution,
(a) In the absence of a Department regulation specifying the method in which notice of an agency action is given, the Department or a program office may give notice of an agency action by any of the following methods:
(1) Mailing a written notice of the action to a provider at the provider‘s most recent business address on file with the Department.
(2) Serving notice of the action in the manner provided in Pa.R.C.P. 400-441.
(3) By publication in the Pennsylvania Bulletin if the agency action applies to a class of providers or makes system-wide changes affecting more than a single provider.
(b) In the absence of a Department regulation specifying the content of a notice of an agency action, notice of an agency action must include the following:
(1) The effective date of the agency action.
(2) The basis for the agency action.
(3) The date the notice was deposited in the mail or otherwise served on the provider.
See 33 Pa. Bull. 3053, Annex A (2003) (emphasis added). Under the Department‘s own practice, “notice” (i.e., notification) is different from a “written notice form” (since the Department is authorized to “give notice” through the act of mailing “a written notice“). Furthermore, the standing order reflects a recognition that the mere act of date-stamping a nоtice form does not furnish notice, but that notice is given by affirmative acts of conveyance (mailing, service, or publication). The standing order wholly conforms to the perspective that the “date of the notice” is the date notification is given (or the effective date of the notice).
Indeed, the Department‘s parlance referencing the “giv[ing]” of notice mirrors the verbiage of Section 1102(b)(1)(ii)(B).
Clarifying the above threshold issue is important to the application of Schmidt v. Commonwealth, 495 Pa. 238, 433 A.2d 456 (1981), where this Court had under consideration another statute that more specifically prescribed an appeal period commencing with the date of mailing of a notice of an administrative action. Significantly, the Schmidt Court manifested material doubts as to administrative efficiency in prompt mailing. See id. at 241, 433 A.2d at 458 (“Indeed, a taxpayer acquainted with the pace of bureaucratic action might reasonably assume that a governmental department would rarely so hasten to mail a decision that the mailing date would be the same as the decision date.“);
I have no objection to moving away from Schmidt on a prospective basis, as I believe the Court can reasonably apply a rebuttable presumption of regularity to administrative action. Since the Department specified in its letter that the appeal period commenced on the date of its notice, and the Department appears to apprehend that the date that notice is provided for purposes of Section 1102(b)(1)(ii)(B) is the date of mailing, I have no objection to presuming the Department mailed the notice on the date it was prepared, as it says it did. Nevertheless, consistent with the Commonwealth Court‘s decision, I believe the law prevailing at the time of the agency‘s notice was clear, and I cannot fault the intermediate аppellate court for applying Schmidt in its decision in this case. Indeed, DPW appears to have recognized the prevailing requirements in its Standing Practice Order Rule 13, which requires notice of an agency action to contain the effective date of the action, the basis for the decision, and the date the notice was deposited in the mail or otherwise served on the provider. See 33 Pa. Bull. 3053, Annex A.3
For the above reasons, I would affirm the order of the Commonwealth Court.
Notes
(b) In the absence of a Department regulation specifying the content of a notice of an agency action, notice of an agency action must include the following:
- (1) The effective date of the agency action.
- (2) The basis for the agency action.
- (3) The date the notice was deposited in the mail or otherwise served on the provider.
Justice Saylor further opines in his dissent that the material doubts expressed by the Schmidt Court regarding administrative efficiency in prompt mailing suggest the Court therein was “requiring a directed act, the specific indication of a mailing date, as a particular check on the administrative process.” Dissenting Opinion at 661, 969 A.2d at 1196. As the parties concede, however, Schmidt does not mandate all agency notices contain a designated mailing date. Rather, it simply requires that an agency notice inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise his or her appellate rights. DPW‘s notice in this case fulfilled that requirement. As to a check on the administrative process and ensuring the prompt mailing of notices, whatever concerns the Schmidt Court expressed in this regard are not implicated here. JRSS does not claim it was deprived of the statutorily-prescribed 33-day period to appeal; indeed, JRSS failed to contest the Bureau‘s finding that DPW mailed its notice on the same day it was date-stamped. See infra note 9.