D. Becirovic v. Dept. of Human Services ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Becirovic, :
: No. 2139 C.D. 2015
Petitioner : Submitted: May 13, 2016
:
v. :
:
Department of Human Services, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 9, 2016
David Becirovic (Petitioner) petitions pro se for review of the
September 23, 2015 order of the Secretary of the Department of Human Services
(DHS) denying his request for reconsideration of the July 9, 2015 final
administrative action order issued by the Bureau of Hearings and Appeals (BHA).
The BHA’s order affirmed the order of an Administrative Law Judge (ALJ)
denying in part and sustaining in part Petitioner’s appeal of a decision of the
Cumberland County Assistance Office (CAO). More specifically, the ALJ denied
Petitioner’s appeal from the denial of cash benefits under the Low Income Home
Energy Assistance Program (LIHEAP) and the discontinuance of Petitioner’s
Medical Assistance (MA) benefits, but sustained his appeal from the
discontinuance of his benefits under the Supplemental Nutrition Assistance
Program (SNAP). We affirm.
Petitioner is 58 years old and disabled. In December 2014, he was
receiving SNAP and MA benefits, and in December 2014 and January 2015, he
applied for LIHEAP cash benefits. On January 9, 2015, Petitioner received a
notice from the CAO indicating that he was ineligible for SNAP, MA, and
LIHEAP because his income exceeded the programs’ eligibility limits.
On January 13, 2015, Petitioner appealed his SNAP, MA, and
LIHEAP ineligibility notice. At a June 23, 2015 hearing before the ALJ, Petitioner
testified that he believed the CAO was discriminating against him because of his
disability and erred in concluding that his income exceeded the programs’ income
limits.
The ALJ affirmed the CAO’s determinations that Petitioner is
ineligible for LIHEAP and MA benefits but concluded that the CAO incorrectly
discontinued Petitioner’s SNAP benefits. Petitioner appealed, and the BHA
affirmed the ALJ’s decision on July 9, 2015. On August 6, 2015, Petitioner
requested reconsideration of the final administrative action order, which the
Secretary denied by order dated September 23, 2015. Petitioner now seeks review
of the Secretary’s denial of reconsideration.1
Our scope of review of an agency’s decision on a reconsideration
request is limited to determining whether the secretary has abused his or her
discretion. Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa.
1
Petitioner filed a petition for review on September 21, 2015, before the order denying
reconsideration was issued. Consequently, by order issued October 14, 2015, this Court quashed
the appeal as an untimely appeal from the July 9, 2015 order. Petitioner filed a timely request for
reconsideration of our October 14, 2015 order and, ultimately, we accepted Petitioner’s petition
for review of the September 23, 2015 order denying reconsideration. See Becirovic v.
Department of Human Services, 1783 C.D. 2015.
2
Cmwlth. 1988). An abuse of discretion will only be found where the record shows
there was fraud, bad faith, capricious action, or an abuse of power. Id.
On appeal to this Court, the issues and arguments Petitioner raises in
his petition for review and appellate brief allege errors on the part of the BHA and
CAO in finding that, even though he is a person with a disability, his income
exceeds the eligibility limits for MA, LIHEAP, and SNAP. However, these
arguments pertain to the BHA’s July 9, 2015 order, from which Petitioner failed to
timely appeal, and we are precluded from considering these issues. Id.
The only issue presently before the Court is whether the Secretary
abused his discretion in denying Petitioner’s request for reconsideration of the
BHA’s order. The Secretary’s order states that Petitioner’s request for
reconsideration is denied for the reasons stated in the BHA’s final administrative
action order. Petitioner has not offered any argument to the effect that the
Secretary abused his discretion in denying the request for reconsideration.
Accordingly, any issue relating to reconsideration has been waived. See City of
Philadelphia v. Workers’ Compensation Appeal Board (Ford-Tilghman), 996 A.2d
569, 572 (Pa. Cmwlth. 2010) (noting that issues that are not raised in a party’s
petition for review and brief are deemed waived). Moreover, our careful review of
the record reveals nothing to suggest that the Secretary acted in bad faith,
fraudulently, or capriciously, or abused his power in denying Petitioner’s request
for reconsideration.2
2
Even if Petitioner had perfected an appeal from the BHA’s order affirming the finding
that he is ineligible for LIHEAP and MA benefits, it does not appear that the BHA erred in
affirming the ALJ and we would be constrained to affirm the BHA had that order been properly
before us.
3
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Becirovic, :
: No. 2139 C.D. 2015
Petitioner :
:
v. :
:
Department of Human Services, :
:
Respondent :
ORDER
AND NOW, this 9th day of September, 2016, the order of the
Secretary of the Department of Human Services, dated September 23, 2015, is
affirmed.
__________________________________
MICHAEL H. WOJCIK, Judge