Julia Ribaudo Senior Services v. Department of Public Welfare

Justice SAYLOR,

dissenting.

A threshold consideration in this case is whether the appeal period under Section 1102(b)(1)(ii)(B) commences on the date of a notice’s preparation or on the date the notice is actually mailed. See 67 Pa.C.S. § 1102(b)(1)(ii)(B). The majority quotes Section 1102(b)(1)(ii)(B), but it does not appear to specifically resolve such question in the text of its opinion. See Majority Opinion, at 655, 969 A.2d at 1192 (explaining that the information contained in DPW’s letter “comported with the relevant statute specifying that appeals must be filed within 33 days ‘of the date of the notice of the departmental action.’ ”). From the statute, it seems apparent to me that the General Assembly contemplated the date of mailing, since it provided three days for mail delivery. Compare 67 Pa.C.S. § 1102(b)(1)(ii)(A) (prescribing a thirty day appeal period upon a direct provision of the notice), with 67 Pa.C.S. § 1102(b)(1)(ii)(B) (specifying a thirty-three day appeal period upon the provision of mailed notice).

In a footnote responsive to the above, the majority clarifies that its position is that the “date of the notice of the departmental action,” 67 Pa.C.S. § 1102(b)(1)(ii)(B) (emphasis added), is the “ ‘date’ on [the written] ‘notice.’ ” Majority Opinion, at 655-56 n. 8, 969 A.2d at 1192-93 n. 8 (emphasis added). It is only by construing the word “of’ to mean “on,” and notice to mean “the written notice form” that the majority is able to solidify this position. However, “of’ simply does not unambiguously mean “on”; and notice does not always mean a written notice form. Indeed, the term “notice” is inherently ambiguous-it can mean actual notification in some form; receipt of a *658formal written notice; the condition of being notified whether or not actual awareness exists; or a written or printed announcement. See Black’s Law Dictionary 1090 (8th ed.1999). Accordingly, scriveners of statutes, rules of court, and contracts frequently provide specific and sometimes extensive clarification concerning the form and effective date of required notices, particularly as they relate to time periods provided for required actions. See, e.g., Pa.R.A.P. 121(c), (e) (allowing for service of papers by mail and allowing an extra three days for response as compared to personal service).

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 process 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, see 1 Pa.C.S. § 1922,1 believe the General Assembly’s references to “the date of the notice of the departmental action” in Section 1102(b)(1)(ii) are to an effective date (or to the date notice is in some way given or conveyed). In this regard, I have difficulty envisioning that the Legislature would have so little regard for personal rights and interests that it would provide that any and all potential laxness in administrative procedures in the giving of notice should inure to the detriment of persons and entities affected by agency action. See 1 Pa.C.S. § 1922(1) (reflecting the presumption in statutory interpretation that the General Assembly does not intend results that are absurd or unreasonable).1

*659The Department appears to apprehend its obligations under the statute, at least as reflected in its standing practice order. Rule 13 of that order, entitled “Notice of agency actions,” provides as follows:

(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 notice 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). See 67 Pa.C.S. § 1102(b)(1)(ii)(B) (“[I]f no*660tice was given by mail, [an appeal must be filed] within 33 days of the date of the notice of the departmental action.” (emphasis added)). At a very minimum, the tension between the Department’s own reasonable interpretation of the statute, as reflected in its standing practice order, and the majority’s construction militates strongly against the majority’s position that the statute unambiguously keys notice to a pro forma date stamp, regardless of the date of conveyance. Finally, the similarity between a notification-based reading of Section 1102(b)(1)(ii) and other conventional procedures for providing notice, see, e.g., Pa.R.A.P. 121(c), (e), seems too close to overlook.

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.”); see also Sheets v. DPW, 84 Pa.Cmwlth. 388, 390-91, 479 A.2d 80, 82 (1984) (describing differences between the date of execution of administrative determinations and the date of mailing as “a fact of public office life”). For this reason, the Schmidt Court placed a premium on “formal notification” of the specific mailing date of administrative decisions, since an appreciation of this date is key to a full understanding of appeal rights. Id. at 242, 433 A.2d at 458 (explaining that “[k]nowledge of a decision’s mailing date is essential to the taxpayer” and indicating that the administrative agency had a duty to advise the taxpayer of the date of mailing (emphasis in original)); accord Sheets, 84 Pa.Cmwlth. at 390-91, 479 A.2d at 82 (comparing Schmidt’s requirement “that an administrative notice reveal the date of entry by way of an explicit notation of the mailing *661date as such” with the directive of the Rules of Appellate Procedure that the commencement date for an appeal is the date the clerk makes an entry on the docket that notice has been given); In re Appeal of Federated Department Stores, Inc., 78 Pa.Cmwlth. 346, 351, 467 A.2d 908, 910 (1983) (“A disembodied date on the notice, as in this case, without any indication that it is the mailing date, is no more informative than a date appearing on a transmittal letter.”).2 It seems clear the Court was requiring a directed act, the specific indication of a mailing date, as a particular check on the administrative process. Thus, while the majority suggests its adherence to Schmidt, it seems to me that it is, in fact, departing from Schmidt.

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 appellate 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

*662For the above reasons, I would affirm the order of the Commonwealth Court.

. Under the majority's construction, it would appear that the appeal period would run from the date stamped on a written notice, irrespective of whether the written notice was sent one day, one week, or one month after the stamped date. In my view, such result is not reasonable, particularly where timely and meaningful notice is not provided.

. It should be noted, however, that the administrative decision subject to the appeal in Schmidt was dated. See Schmidt, 495 Pa. at 241, 433 A.2d at 458. Therefore, at a minimum, the taxpayer had been afforded a frame of reference to make a conservative calculation as to the appeal period.

. The majority indicates that DPW technically complied with its standing practice order in this case, because, factually, the date of the notice *662and the date of mailing are the same. See Majority Opinion, at 655-56 n. 8, 969 A.2d at 1192-93 n. 8. Consistent with Schmidt, however, DPW's standing practice order clearly distinguishes the effective date of the action from the date of mailing and requires specification of both. Particularly read against Schmidt, reliance on a "disembodied” date to serve both functions appears to me to be hollow compliance at best.