IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti, :

Petitioner :

: No. 2129 C.D. 2016

v. :

: Submitted: September 1, 2017

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE 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, 2016, 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 on 

December 30, 2016, purporting to appeal from the December 1, 2016 order denying 

reconsideration. For the reasons that follow, we dismiss the appeal. 

 

1

In its final order, the Bureau informed Petitioner that if he filed a motion for reconsideration, 

the motion would “not stop the time within which an appeal must be filed to the Commonwealth 

Court.” (Bureau’s Final Order at 1.)
2

Pursuant to regulation at 1 Pa. Code §35.241, where, as here, a motion for 

reconsideration of a final order is made within 15 days of that order, 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 Secretary 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” and 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 underlying final order. Ciavarra, 970 A.2d at 503-

04; Monsour, 533 A.2d at 1116. Notably, the filing of a petition for reconsideration 

does not operate to extend the 30-day period 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, 533 A.2d at 1116. 

In Monsour, the petitioner submitted an application for reimbursement of 

hospital services, which the Office of Hearings and Appeals (OHA) denied in a final

order dated August 14, 1986. The petitioner then filed a timely request for 
3

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 denied 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, although Petitioner filed an appeal within 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, on 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 not 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 reconsideration.” Strobhar, 557 A.2d at 442 n.3. When followed, this 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 review 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). Pursuant 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 mentally 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 Pennsylvania, 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 decision in Bussoletti, and devotes the remainder to 
5

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 bad 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 validity, 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, however, 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, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti, :

Petitioner :

: No. 2129 C.D. 2016

v. :

:

Department of Human Services, :

Respondent :

ORDER

AND NOW, this 22nd day of November, 2017, the petition for review 

filed by Luke Bussoletti is hereby dismissed. 

________________________________

PATRICIA A. McCULLOUGH, Judge