IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti , :

Petitioner :

: No. 2129 C.D. 201 6
v. : : Submitted: September 1 , 201 7 Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge H ONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: November 22, 2017

On August 4 , 2016 , the Department of Human Services (Department), Bureau of Hearings and Appeals (Bureau), issued a final order denying the application
of Luke Bussoletti (Petitioner) for door

- to

- door transportation services to an adult training facility. On August 8, 201 6, Petitioner filed a timely motion for
reconsideration

. 1 However, the Secretary of the Department of Human Services (Secretary) did not rule on this motion until months later, denying it by order dated December 1, 2016. Petitioner then filed a pro se petition for review in this Court o n December 30, 2016 , purporting to appeal from the December 1, 2016 order denying
reconsideration

. For the reasons that follow, w e dismiss the appeal.

1 In its final order, the Bureau informed Petitioner that if he filed a motion for recons ideration, the motion would “ not s top the time within which an appeal must be filed to the Commonwealth Court.” (Bur eau’s Final Order at 1.)2

Pursuant to regulation at 1 Pa. Code § 35.241, where, as here, a mo tion for
reconsideration of a fi nal order is made within 15 days of that ord er, but no appeal of
the final order is filed with this Court, the Secretary has 30 days to rule upon the motion
for reconsideration. See 1 Pa. Code §35.241 (d)

- (e). “Unless the [ Secretary] acts upon the application for

. . . reconsideration within 30 days after it is filed, or within the lesser time as may be provided or prescribed by law, the application shall be deemed to have been denied.” 1 Pa. Code § 35.241(d).

If the Secr etary issues an order denying reconsideration of a final order
after the 30

- day period expires, the order denying reconsideration , already having been denied by operation of law, is “null and void” a nd is not one from which an appeal may
lie. See Strobhar v. Department of Public Welfare , 557 A.2d 440 , 441

- 43 (Pa. Cmwlth. 1989); Monsour Medical Center v. Department of Public Welfare , 533 A.2d 1114 , 1116 ( Pa. Cmwlth. 1987); see also Ciavarra v. Commonwealth , 970 A.2d 500 , 503

- 04 (Pa. Cmwlth. 2009); Colonial Manor Personal Care Boarding Home v. Department of Public Welfare , 551 A.2d 347 , 350 (Pa. Cmwlth. 1988). In this situation, where the Secretary issues a reconsideration order beyond the time provided in 1 Pa. Code § 35.241(d), in order to obtain appellate review in this Court, the petitioner must file a timely appeal within 30 days of the unde rlying final order

. Ciavarra , 970 A.2d at 503

- 04 ; Monsour , 533 A.2d at 1116

. Notably, t he filing of a petition for r econsideration
does n ot operate to extend the 30

- day p eriod to appeal a final order , and the time for filing an appeal will run as if the motion for reconsideration had never been filed.
Monsour , 5 33 A.2d at 1116.

In Monsour , the p etitioner submitted an application for reimbursement of hospital ser vices , which the Office of Hearing s and Appeals (OHA) denied in a final order dated August 14, 1986. The p etitioner then filed a timely request for3

reconsideration of the OHA ’s order

. Approximately three months later, on November 19, 1986, the Executive Deputy Secretary (Deputy Secretary ) entered an order denying reconsideration. The petitioner then filed a petition for review with this Court on December 19, 1986.

We dismissed the appeal. In doing so, we noted that because the Deputy Secretary denie d reconsideration 30 days after the August 14, 1986 final order of the OHA, the reconsideration order of the Deputy Secretary was “null and void ” and
, consequently, the petitioner could not appeal that order. Monsour , 533 A.2d at 1116. We elaborated that, in this context, the only way in which the petitioner could obtain review in this Court of the proceedings below was to file an appeal within 30 days of
OHA’s August 14, 1986 order. Since the petitioner did not file his petition for review until December 19, 1986, his appeal was untimely. Accordingly, this Court in Monsour declined to address the petitioner’s appellate arguments, concluding that we lacked jurisdiction over the appeal. 2

Here, a lthough Petitioner filed an appeal wit hin 30 days of the Secretary’s December 1, 2016 order denying reconsideration, the Secretary entered that order well beyond the 30

- day time limit in which to rule upon reconsideration. As a result, the Secretary’s December 1, 2016 order was a nullity, and Petitioner cannot appeal an order
that does not exist as a matter of law . Moreover, o n August 4, 2016 , the Bureau entered

a final order on the merits , and Petitioner was required to file an appeal within 30 days
of such order . Petitioner, however, did n ot file his petition for review until December

2 Realizing the potential dilemma faced by petitioners seeking reconsideration , we have cautioned that “the prudent approach in these matters is to file an appeal concurrent with the request for reco nsideration. ” Strobhar , 557 A.2d at 442 n.3. When followed, t his procedural measure will

ensure that “if reconsideration is denied, the original adjudication or other order will be subject to judicial review upon the previously filed petition for review.” 1 Pa. Code §35.241(f )(1). We reiterate that advice.4

30, 2016 , and his appeal is patently untimely

. Therefore, pursuant to Monsour , we are constrained to dismiss Petitioner’s appeal

.

Regardless, even if Petitioner’s appeal from the Secretary’s order denying
reconsideration were properly before this Court under a nunc pro tunc theory or otherwise, cf. also Commonwealth v. Perry , 820 A.2d 734, 735 (Pa. Super. 2003), this
Court would not be able to revie w the merits of the Bureau’s final order. Instead, our review would be limited to deciding whether the Secretary abused his discretion in denying reconsideration. Muehleisen v. State Civil Service Commission , 443 A.2d 867, 869 (Pa. Cmwlth. 1982). Pursua nt to this standard, an abuse of discretion will be found only where there is “evidence of bad faith, fraud, capricious action or abuse of power.” Keith v. Department of Public Welfare , 551 A.2d 333, 336 (Pa. Cmwlth. 1988).

Here, Petitioner is a mental ly disadvantaged individual who has received home and community

- based services through Medicaid. In 2011, Petitioner’s transportation services to an adult training facility were discontinued because his transportation provider, Pathways of Southwestern Pe nnsylvania, Inc., was no longer willing to provide service to him. In Bussoletti v. Department of Public Welfare , 59 A.3d 682 (Pa. Cmwlth. 2012), this Court held that Petitioner did not have either a statutory right, or a right conferred by administrative regulations, to obtain services from an unwilling provider. Following our decision in Bussoletti , the Department has been unable to find Petitioner another provider of transportation services, who is both willing and qualified to provide such services, in large part because Petitioner lives in a rural area and access roads to his house are not paved. (Bureau’s Findings of Fact
Nos. 8

- 10; Decision at 11.) In his present brief, Petitioner devotes a substantial amount of pages taking issue with our decisi on in Bussoletti , and devotes the remainder to5

cursorily accusing the Department of engaging in unethical behavior, fraud, and
retaliation. Upon our review of the record, we are unable to find anything to support the notion that the Secretary acted in ba d faith, fraudulently, capriciously, or abused his power in denying Petitioner’s request for reconsideration. Because Bussoletti is binding precedent, we find no merit in Petitioner’s arguments to the extent they seek to overrule that case, impugn its val idity, or suggest that it was the result of fraudulent or other inappropriate behavior. We note that another transportation provider, Green Arc, has been, and continued to be at the date of the hearing, a willing and qualified provider. Petitioner, howeve r, has declined to utilize the services of this entity.
Bussoletti , 59 A.3d at 685 and 689; Bureau’s Findings of Fact No. 10. Therefore, even if Petitioner’s appeal were cognizable in this Court, we would conclude that the Secretary did not err in denying reconsideration ; therefore, there would be no basis upon which to disturb the Secretary’s order.

With all of this being stated, we dismiss Petitioner’s appeal.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti, :

Petitioner :

: No. 2129 C.D. 2016
v. : : Department of Human Services, :

Respondent :

ORDER

AND NOW, this 22 nd day of November , 201 7 , the petition for review filed by Luke Bussoletti is hereby dismissed.

________________________________ PATRICIA A. McCULLOUGH, Judge