IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas M. Boyle, Jr., : Petitioner :

:

v. : No. 1221 C.D. 2018

: Submitted: January 18, 2019 Department of Human Services, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: February 21 , 2019

Thomas M. Boyle, Jr. (Boyle) , representing himself, petitions for

review from an order of the Depa rtment of Human Services (DHS), Bureau of

Hearings and Appeals (BHA)

, which affirmed the decision of an Administrative

Law Judge (ALJ) den ying Boyle’s request for home and community

- based

services (HCBS)

. T he Secretary of DHS (Secretary) denied Boyle’s su bsequent

request for reconsideration of the BHA’s order

.

As a threshold matter, we note that Boyle’s petition for review to this

Court is untimely as to both the BHA’s decision on the merits and the Secretary’s

denial of reconsideration. D espite our prior order directing the parties to brief the

issue of whether Boyle’s petition for review was untimely , Boyle advances no

argument as to timeliness. Upon review, we are constrained to quash Boyle’s

petition for review as untimely

.2 In January 2017, Boy le applied for HCBS to address various medical

conditions arising from a traumatic brain injury he suffered 30 years earlier. After

performing an assessment, DHS, through Montgomery County Aging and Adult

Services (County Agency), denied Boyle’s request b ecause he did not meet the

program criteria. Boyle did not appeal this denial. Instead, he made a second

request for HCBS. After a second assessment, t he County Agency again

determined Boyle was not entitled to HCBS because he did not meet the program

c riteria. Boyle filed an appeal. A hearing ensued before BHA. 1

After the hearing, the ALJ issu ed a decision den ying Boyle’s appeal

on the ground that DHS correctly denied Boyle’s request for HCBS

. O n June 19,

2018, the BHA’s Chief ALJ issued a Final Ad ministrative Action O rder affirming

the ALJ’s decision. The Final Administrative Action Order notified Boyle that he

had 15 days from the date of the order to seek reconsideration by the Secretary or

30 days to file an appeal to this Court. It further st ated that the filing of a request

for reconsideration does not stop the time within which an appeal must be filed to

this Court. Boyle filed a request for reconsideration with the Secretary.

On July 10, 2018, the Secretary issued an order denying Boyle’s

request for reconsideration for the reasons stated in the BHA’s Final

Administrative Action Order

. The order notified Boyle that he had 30 days to

appeal the denial of reconsideration to this Court.

1 At the time of the hearing, Boyle was incarcerated in the Montgomery County

Correct ional Facility.3 By letter received on August 10, 2018 ( 31 days after the Secretary’s

order denying reconsideration ) , Boyle expressed his intent to appeal the BHA’s

order. Upon receipt of Boyle’s correspondence, this Court sent Boyle a form

advising him how to file a petition for review. This Court preserved August 10,

2018 as the filing date of Boyle’s appeal. Boyle subsequently filed a petition for

review to this Court.

Thereafter, t his Cour t issued an order indicating that Boyle’s appeal

may be untimely

, and it direct ed the parties to address whether the appeal was

untimely in their principal briefs on the merits.

In his brief , Boyle presents no argument as to the timeliness of his

app eal. Instead

, he challenges the merits of the BHA’s denial of his appeal

.

DHS counters that Boyle’s appeal of the Secretary’ s order denying

reconsideration is untimely; th us , this Court should dismiss Boyle’s appeal for lack

of jurisdiction. In any event, DHS argues, the Secretary did not abuse her

discretion in denying Boyl e’s request for reconsideration, and Boyle offers no

argument to the contrary.

Subject to certain exceptions not applicable here, a petition for review

of a n agency order must be filed with the prothonotary of the appellate court within

30 days after entry of the order. Pa. R.A.P. 1512(a)(1). Failure to timely appeal an

administrative agency’ s action is a jurisdictional defect; therefore, the time for

taking an appeal cannot be extended as a matter of grace or mere indulgence. H.D.4

v. Dep ’ t of Pub

. Welfare , 751 A.2d 1216 (Pa. Cmwlth. 2000). “ Where the

jurisdiction of the court has been lost because of the staleness of the complaint, the

attractiveness of an argument on the merits is of no moment because the tribunal is

without the power to grant the requested relief.” Robinson v. Pa. Bd. of P rob. &

Parole , 582 A.2d 857, 860 ( Pa. 1990) (citation omitted) . Therefore, an appeal filed

one day after the expiration of the requisite appeal period must be dismissed as

untimely. Moss v. Unemployment Comp. Bd. of Review , 557 A.2d 839 (Pa.

Cmwlth. 1989 )

. 2

Here, Boyle filed his petition for review on August 10, 2018, 5 2 days

after the BHA’s June 19, 2018 Final Administrative Action Order

. See Pa. R.A.P.

108(a) (“Date of Entry of Orders”). Thus, his appeal of the BHA’s Final

Administrative Action Orde r was untimely. Pa. R.A.P. 1512(a)(1).

In addition , although Boyle filed a request for reconsideration with the

Secretary, he did not file his petition for review within 30 days of the Secretary’s

order denying reconsideration . Rather, he filed his pet ition for review on August

10, 2018, 31 days after the Secretary issued her order denying reconsideration

. 3

2 As we noted in Keith v. Department of Public Welfare , 551 A.2d 333 (Pa. Cmwlth.
1988), a party aggrieved by a BHA order has four options: (1) do nothing; (2) appeal that order
to this Court within 30 days; (3) seek reconsideration from th e Secretary within 15 days; or (4)
seek reconsideration from the Secretary within 15 days and appeal the final order to this Court
within 30 days. Those seeking review of the merits of a BHA adjudication must file a timely
petition for review wi th this Court. Boyle did not do so, rendering an appeal of the merits order
untimely.

3 A petition for review is filed when it is received by the prothonotary of the appellate

court. Pa. R.A.P. 1514(a)(1); see 20A G. Ronald Darlington et al., P ENNSYLVANIA A PPEL LATE

P RACTICE §1514:3 (2018

- 19 ed.). However, i f a petition for review is accompanied by a
properly executed U .S. Postal Service Form 3817, Certificate of Mailing or other similar U.S. (Footnote continued on next page...)5

See Pa. R.A.P. 108(a). Thus, his appeal of the Secretary’s order denying

reconsideration is untimely. Pa. R.A.P. 1512(a)(1).

Moreover , in his brief to this Court, Boyle offers no argument

concerning the untimeliness of his appeal. Rather, he only presents argument

regarding the merits. Because Boyle did not timely file a petition for review from

either the BHA’s order on the merits or the Secretary’s order denying

reconsideration, and because he does not address the untimeliness of his petition

for review in his brief, Boyle failed to preserve any issues for our review.

Accordingly, we are compelled to quash the petition for review

.

ROBERT SIMPSON, Judge

(continued...)

Postal Service form from which the d ate of deposit can be verified, th at date, rather than the date
of actual receipt, constitutes the date of filing of the petition for review. Pa. R.A.P. 1514(a); see 20A G. Ronald Darlington et al., P ENNSYLVANIA A PPELLATE P RACTICE §1514:3 (2018

- 19 ed.).

Here, there is no indication that Boyle’s petition for review was accompanied by a properly

executed U .S. Postal Service Form 3817, Certificate of Mailing or other similar U.S. Postal

Service form from which the d ate of deposit could be verified. As indicated above, Boyle offers

no argume nt regarding the untimeliness of his appeal. Therefore, Boyle’s petition for review
was filed on August 10, 2018, the date it was received by the Chief Clerk of this Court.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas M. Boyle, Jr., : Petitioner :

:

v. : No. 1221 C.D. 2018

: Department of Human Services, : Respondent :

O R D E R

AND NOW , this 21 st

, day of February , 2019, the petition for review

filed by Thomas M. Boyle, Jr. is QUASHED as untimely

.

ROBERT SIMPSON, Judge