IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marchesa Carter, :
Petitioner :
:
v. : No. 2205 C.D. 2014
: Submitted: August 14, 2015
Department of Public Welfare, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: September 11, 2015
Petitioner Marchesa Carter (Carter) petitions for review of an order of
the Secretary (Secretary) of the Department of Public Welfare (DPW).1 The
Secretary denied Carter’s motion for reconsideration of the August 25, 2014 order
of DPW’s Bureau of Hearings and Appeals (BHA). The BHA’s order adopted the
recommendation of Administrative Law Judge (ALJ) F. Joseph Brady to dismiss
Carter’s administrative appeal of a March 21, 2013 letter-decision by the
Philadelphia Department of Human Services (DHS), which denied a “provider
code” to Carter and indicated that Carter would not be able to operate as a foster
family resource home. We affirm the Secretary’s order.
1
The General Assembly recently redesignated the Department of Public Welfare as the
Department of Human Services. Section 103 of the Act of June 13, 1967, P.L. 31, added by the
Act of September 24, 2014, P.L. 2458.
ALJ Brady, in his findings of fact, summarized the background of this
matter as follows. Carter had filed an application to operate as a foster family
resource home, which DHS denied on February 13, 2009. Carter appealed that
decision. On July 21, 2013, more than eighteen months after a hearing on the
appeal, a different ALJ (ALJ Hayburn) issued an adjudication affirming the denial.
Carter requested reconsideration of that decision, and on August 9, 2013, the
Secretary issued a decision denying reconsideration. Carter did not appeal the
denial of the application or the denial of reconsideration. Throughout this time
period, Carter apparently continued to submit additional applications to operate as
a foster family resource home. On March 21, 2013, DHS, in apparent response to
one such application, sent a letter to Carter indicating that, based upon her previous
DHS “involvement,” DHS would not issue a provider code, and Carter was not
eligible to operate a foster family resource home. The “involvement” to which the
letter referred related to “substantiated findings” DHS had made in 1993 in two
separate General Protective Service (GPS) reports.2
On October 10, 2013, Carter filed an appeal of the March 21, 2013
letter-decision. According to ALJ Brady, “[a] Rule was issued on January 6, 2014,
directing [Carter] to show cause why the appeal should not be dismissed for lack of
jurisdiction.” (Finding of Fact (FF) no. 13.) On May 1, 2014, ALJ Brady
conducted a pre-hearing conference. Based upon information ALJ Brady received
2
These GPS reports are not part of the certified record. A letter from the Philadelphia
Law Department indicates that Carter requested an opportunity to review records in DHS’s
possession that might relate to her. The Deputy City Solicitor who responded to that request
indicated that “any records that may have existed were destroyed some time ago. No records are
maintained beyond the period of time that the law permits and as such, all of the records
regarding your request are destroyed.” (Reproduced Record (R.R.) at 12A.)
2
during that conference, he determined that, in addition to challenging DHS’s
March 21, 2013 denial, Carter was also seeking to expunge the substantiated
findings DHS made in the 1993 GPS reports. ALJ Brady found that Carter
responded to the rule to show cause by “stating that she ‘is appealing the decision
to become a foster parent.’” (FF no. 14.)
In his recommendation, ALJ Brady noted that 23 Pa. C.S. § 6376
governs challenges to GPS reports and requires persons who want to expunge such
reports to file an appeal within forty-five days of the date of notice of a report.
(R.R. at 21A.) ALJ Brady noted that Carter’s challenge to the substantiated
findings contained in two 1993 GPS reports were untimely and that she failed to
offer a substantive reason why he should ignore the untimeliness of the request for
expungement. Thus, ALJ Brady reasoned that he lacked jurisdiction over the
expungement request. With regard to Carter’s challenge to the denial of her
request to operate as a foster family resource home, ALJ Brady concluded that the
earlier adjudication by ALJ Hayburn, dated June 21, 2013, had res judicata effect
with regard to Carter’s renewed application.
In its August 25, 2014 order adopting ALJ Brady’s recommendation,
the BHA also advised Carter that if she wanted to obtain reconsideration of the
order she must submit the application within such time as to ensure that BHA
received the application within fifteen days of the August 25, 2014 order.3 (Id.)
On September 15, 2014, Carter submitted a request for reconsideration, which
BHA received on September 23, 2014. Thus, the receipt by BHA of the
3
The decision also advised Carter of her right to and the period in which to appeal the
decision to this Court, but Carter never filed an appeal of that order.
3
reconsideration request was more than fifteen days from the date of the
August 25, 2014 order. The Secretary denied the reconsideration petition on
October 6, 2014. Carter then petitioned this Court for review.
In her petition for review, Carter appears to attack the Secretary’s
reconsideration order based upon her assertion that she never received a letter
advising her of the right to appeal the GPS reports that were issued in 1993. In her
brief, Carter challenges the Secretary’s denial of her request for reconsideration,
similarly claiming that she did not receive a notice advising her of her appeal
rights. Carter asserts that she has been a provider of foster care to children since
2000, and that she was unaware of any impediment to her continued right to
operate as a foster family resource home and that her “clearance always came back
clean.” (Carter’s Brief at 6.) In short, Carter objects to the reliance by DHS on the
1993 GPS reports, copies of which DHS could not provide to her, that previously
did not prevent her from operating a foster home.
DPW argues that the Secretary correctly denied Carter’s
reconsideration request because: (1) the request was untimely; and (2) our review
of the Secretary’s order is limited to considering whether the Secretary abused her
discretion and Carter has not argued that the Secretary abused her discretion in
denying reconsideration.
As noted above, Carter did not file her reconsideration request within
the fifteen-day period within which a party must seek reconsideration. In Ciavarra
v. Commonwealth, 970 A.2d 500 (Pa. Cmwlth. 2009), this Court, citing Fleeher v.
Department of Transportation, Bureau of Driver Licensing, 850 A.2d 34
(Pa. Cmwlth. 2004), held that “the timeliness of a request for reconsideration is
jurisdictional” and that the failure to file a timely request for reconsideration
4
under 1 Pa. Code § 35.241 within the fifteen-day time period “deprives an agency
of jurisdiction to consider the request.” Ciavarra, 970 A.2d at 503. Thus, Carter’s
request for reconsideration was untimely, and the Secretary lacked jurisdiction to
consider the request.
Even if the Secretary had jurisdiction to consider the reconsideration
request, our review of a grant or denial of reconsideration is limited. We may
reverse such a decision only if the Secretary abused her discretion in denying
reconsideration. Fleeher, 850 A.2d at 36. Carter has not argued that the
Secretary’s order constitutes an abuse of discretion.
Accordingly, we will affirm the Secretary’s order denying Carter’s
request for reconsideration.
P. KEVIN BROBSON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marchesa Carter, :
Petitioner :
:
v. : No. 2205 C.D. 2014
:
Department of Public Welfare, :
Respondent :
ORDER
AND NOW, this 11th day of September, 2015, the order of the
Secretary of the Department of Public Welfare is AFFIRMED.
P. KEVIN BROBSON, Judge