City & County of Philadelphia Ex Rel. Philadelphia Department of Human Services v. Department of Public Welfare

DISSENTING OINION BY

Senior Judge FLAHERTY.

Respectfully, I dissent. I acknowledge, as pointed out by the majority, pursuant to Morris Manor, Inc., v. Department of Public Welfare, 127 Pa.Cmwlth. 483, 561 A.2d 1342, 1344 (1989), that the Department’s interpretation of its own regulations is entitled to judicial deference unless it is plainly erroneous, inconsistent with regulations, or contrary to the enabling statute. I believe, however, the Department’s interpretation of 55 Pa.Code § 3140.17 is plainly erroneous and that the February 28, 2006 letter advising DHS of the proposed budget submitted to the Governor is subject to appeal.

Because it is crux of this appeal, I shall reiterate the full text of 55 Pa.Code § 3140.17(e) that states:

The county may appeal the Department’s determination reached in accordance with subsection (c) under 2 Pa. C.S. §§ 501-508 and 701-704 (relating to Administrative Agency Law) and Chapters 30 and 275 (relating to appeal and fair hearing; and appeal and fair hearing and administrative disqualification hearings). (Emphasis added).

Pursuant to the Department’s own regulation, appeals may be taken from its “determination.” The question becomes, what is its determination?

The majority Opinion fully sets forth the full text of the applicable statutes, 709.1 and 709.2 of the Public Welfare Code, as well as 55 Pa.Code § 3140.17. Section 709.1 indicates that following a county’s submission of its needs-based budget, representatives of the Department should meet with county officials to discuss the submissions. Following these discussions and an internal review, that Section specifically states the Department “shall” make “its determination” of the county’s costs *776and reimbursable costs. Thereafter, a county’s child welfare needs-based budget “as determined by the [Department,” shall be submitted to the governor for further submission to the Appropriations Committees of the Senate and the House of Representatives.

Section 709.2 lists certain criteria that should be considered in arriving at its “determination” including projected cost increases, the number of children served in each county, service level trends, and other projected sources of revenue. That Section also specifies what “determinations” may permit concerning staffing and payment standards. Section 709.2 also directs that the Department may promulgate guidelines for reviewing and determining county need-based budgets. In response to this directive, the Department promulgated 55 Pa.Code § 3140.17 that reiterates that “[pjrior to submitting its determination of a counties’ needs-based budget to the governor and General Assembly, representatives will meet with each county to discuss the proposal.” (Emphasis added)

Subsection (c) of that same section lists certain further criteria that should be considered in arriving at its “determination.” These include caseworker to family ratios, staff to supervisor ratios, requests for specialized programs, and the percentage increase in budgeted expenditures in the county’s proposed plan over the Departmentally determined needs-based budget of the prior year.

A review of this legal framework reveals that the Department arrives at a “determination” following a county’s submission of its needs-based budget after meeting with county officials to discuss the submissions and considering numerous criteria. This determination is finalized prior to submission to the governor, and further submission to the General Assembly. The Department’s finding that DHS had to wait until after the State Budget was approved by the General Assembly and that it may only appeal a final allocation letter based on the approved budget is an unreasonable interpretation of 55 Pa.Code § 3140.17(e). To say that the Department will arrive at a “determination” to be submitted to the governor and that a county can appeal that “determination” on one hand and then say an appeal cannot be taken until a condition subsequent on the other hand is contradictory by its terms. The Department’s interpretation defies the plain meaning of language contained in the aforementioned statutes and the supporting regulation. Consequently, I believe the Secretary erred in finding DHS’ appeal was appropriately dismissed.

I further disagree that review of the General Assembly’s final allocation, in the context of an appeal of a final allocation letter, is permissible. As noted by the majority, the political question doctrine originates from the principle of separation of powers and the executive, legislative and judiciary branches are independent, co-equal branches. Moreover, per Marrero v. Commonwealth, 559 Pa. 14, 739 A.2d 110 (1999), a challenge to the Legislature’s exercise of a power which the Constitution commits exclusively to the Legislature presents a non-justiciable “political question.”

Article III, Section 11 of the Constitution of the Commonwealth of Pennsylvania confers on the Legislature the authority to enact appropriations bills. Any appeal taken by DHS from a “final allocation letter” sent to the county after the signing of the State Budget would be nothing less than an appeal of an appropriation made by the General Assembly. Hence, it would be an attack on the exercise of a power that the Constitution commits exclusively to the Legislature. Such an appeal would present a non-justiciable politi*777cal question.1 This further supports my determination that the Department’s interpretation of 55 Pa.Code § 3140.17(e) is unreasonable.

The majority suggests that DHS does have the right to appeal a final allocation letter and references the July 28, 2006 letter issued after the General Assembly enacted the budget for fiscal year 2006-07 that read DHS “may appeal this final allocation in accordance with 55 Pa.Code Ch. 275.”2 It further explains that DHS did, indeed, appeal this document. Nonetheless, I suggest that my research has not uncovered any decisional law by this Court or the Pennsylvania Supreme Court ruling upon whether such an appeal can be taken. The document issued by the Department is not controlling authority and regardless of whether the Department entertains DHS’ latter appeal is not determinative of the legality of the same.3

In reviewing the majority’s Opinion, I recognize that great weight is given the fact that the February 28, 2006 letter is a tentative allocation and confers no personal or property rights in and of itself. Consequently, the majority reasons that until the General Assembly approves a budget and awards a finite amount of money to fund mandated child welfare services, and the Department sends out its final allocation letter, DHS cannot be aggrieved and, as such, cannot appeal. In lieu of the political question doctrine, however, a county agency such as DHS cannot take an appeal of a budgetary appropriation because the power to appropriate is a power conferred on the Legislature. Moreover, as previously explained, 55 Pa.Code § 3140.17(e) provides that an appeal may be taken from a “determination” and the language contained throughout the entire regulation and the relevant statutes indicate the “determination” referred to is the *778one submitted to the governor prior to ever being received by the General Assembly. As such, I disagree with the majority’s analysis.4

I believe 55 Pa.Code § 3140.17(e) mandates that DHS is entitled to appeal from the Department’s February 28, 2006 letter. Therefore, I would reverse the Order of the Secretary of the Department and remand this matter to the ALJ for her to consider DHS’ appeal on the merits. If it is ultimately determined that there was a shortfall in the Department’s original determination, a proposal for additional funds may be submitted to the Governor in addition to the needs-based budget for a future fiscal year for further submission to the General Assembly and such proposals should be considered as part of the traditional budgeting process.

.In asserting that an appeal from a final allocation letter issued by the Department following approval of the budget is precluded, I rely on language contained in Thornburgh v. Lewis, 504 Pa. 206, 470 A.2d 952 (1983). The issue in that case was whether the executive branch may, at the request of the Minority Chairman of the Senate Appropriations Committee, be required to supply certain budgetary information. In addressing appellants’ argument that the underlying issue was a non-justiciable political question, the Court stated:

It is the province of the Judiciary to determine whether the Constitution or laws of the Commonwealth require or prohibit the performance of certain acts. That our role may not extend to the ultimate carrying out of those acts does not reflect upon our capacity to determine the requirements of the law. The Appellee asks the Court to direct the Governor to supply him with certain budgetary data. A decision that the Governor is required, or is not required, to do so would in no way involve the Judiciary in the role assigned to the General Assembly of enacting a budget, or in the role assigned to the Governor of preparing and approving a budget. It would merely determine the meaning of Constitutional and statutory provisions, precisely the role of the Judiciary in our tri-partite system of government.

Thornburgh, 504 Pa. at 212, 470 A.2d at 955.

Unlike in Thornburgh, a ruling permitting a hearing, and presumably subsequent appeals, of a final allocation by the General Assembly would involve the Judiciary in the role assigned to it by Article III of the Constitution. The General Assembly has the role of enacting appropriations bills. A post-budget enactment review of the budget allocations would cause interference with a function properly delegated to a separate branch of government.

. 55 Pa.Code Ch. 275 deals with a party’s rights and obligations in filing an appeal of a Departmental action.

. Reference is also made to a County’s right to lobby the General Assembly alone or combined with other counties, for an increase in appropriations. Nonetheless, this is not dis-positive of DHS’s right to appeal a "determination” of the Department.

. Citation is made to the Supreme Court's Adams County decision in support of the proposition that the February 28, 2006 letter was merely a tentative allocation that does not create a concrete right subject to review. That case does not mention or analyze a county’s right to appeal a "determination” as contemplated in 55 Pa.Code § 3140.17(e). Rather, it discusses the issue of whether the Department is required to reimburse counties for a percentage of expenditures actually made for child welfare programs as opposed to estimated costs. Thus, Adams County is inapplicable.