Opinion
No. 753 C.D. 2010
01-04-2012
Estate of Dorothy R. Mouers, Deceased, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
The Estate of Dorothy R. Mouers (Estate) petitions for review of an order of the Department of Public Welfare, Bureau of Hearings and Appeals (BHA) affirming the decision of the Administrative Law Judge (ALJ) dismissing the Estate's appeal of the denial of medical assistance benefits because it was barred by res judicata. Because the timeliness of the appeal was previously litigated and the BHA committed no error in applying the doctrine of res judicata, we affirm.
In order to analyze this appeal, we must first set forth the facts surrounding the previous BHA decision. On August 7, 2007, Dorothy R. Mouers (Mouers) was admitted to the Church of God Home (nursing home), a skilled nursing facility, following a stroke which left her wheelchair bound. Ms. Mouers was 83 years-old at the time and was also visually impaired to the extent that she could no longer read or write without assistance. Mouers' daughter, Rita Shelman (Ms. Shelman), helped Mouers complete an application for Medical Assistance-Long Term Care (MA-LTC) benefits, and this application was submitted to the Cumberland County Assistance Office (CAO) on October 19, 2007. Mouers was the only person who signed the application, and it did not list contact information for anyone else. Mouers failed to provide information on the application which was necessary to verify her eligibility for MA-LTC benefits. As a result, the CAO issued a "pending letter" on October 29, 2007, requesting the additional information. Mouers did not provide the information requested to verify her eligibility, and the CAO issued a Denial Notice on November 20, 2007, rejecting Mouers' application for MA-LTC benefits. Because Mouers' application listed the nursing home as her current address, both the pending letter and denial notice were mailed to Mouers and the nursing home at the nursing home's address. None of these documents were returned as undeliverable. On February 12, 2008, Ms. Shelman became Mouers' Power of Attorney and Mouers passed away on June 29, 2008.
On August 12, 2008, Ms. Shelman filed an appeal of the denial notice requesting an administrative hearing and stating, "we did not receive notification of denial of benefits in November of 2007." (Reproduced Record (R.R.) at 16a). This appeal was filed 268 days after the date of the denial notice, well past the 30-day appeal period mandated by Departmental regulations. The BHA issued a Rule to Show Cause to Ms. Shelman requesting that she explain why Mouers' appeal was timely filed or why it should be treated as an appeal nunc pro tunc. Ms. Shelman responded, indicating "we never found out that the application was rejected until June of 2008," (R.R. at 19a), and that Mouers' extremely poor health and eventual death delayed the filing of the appeal.
After a hearing on the matter, the ALJ determined that the appeal was not timely filed. Departmental regulations state that an appeal must be filed within "[t]hirty days from the date of written notice of a decision or action by a County Assistance Office." 55 Pa. Code §275.3(b)(1). The CAO mailed the denial notice to Mouers on November 20, 2007, and the appeal was not filed until August 14, 2008, 238 days past the 30-day deadline. While Ms. Shelman testified that she relied upon the nursing home for information regarding Mouers' MA-LTC application, any failure to provide such information was not attributable to the CAO. The CAO was not aware of Ms. Shelman or any other family member available to assist in the application process because Ms. Shelman was not listed on the application and Mouers was the only person who signed the application. In addition, the CAO's representative testified that John Shelman (Mr. Shelman), Mouers' son-in-law, was informed in the spring of 2008 that the application had been denied and a copy of the denial notice was forwarded to him at that time. Therefore, the ALJ determined that the circumstances for allowing an appeal nunc pro tunc did not exist and the appeal was dismissed as not timely filed. This decision was affirmed by final order of the BHA on December 2, 2008, and Ms. Shelman did not appeal.
As to the facts giving rise to the present appeal, Jonathan M. Crist (Mr. Crist) was granted letters of administration pendent lite by the Register of Wills of Cumberland County on December 21, 2009, and an estate was opened for Mouers. The Estate then filed the instant appeal, again challenging the CAO's denial of Mouers' MA-LTC application.
Before the ALJ, Mr. Shelman testified that he was responsible for Mouers' mail while she was at the nursing home and that she did not receive the CAO's denial notice. The Estate argued that while Ms. Shelman was appointed Mouers' power of attorney, that appointment expired upon Mouers' death on June 29, 2008. According to the Estate, Ms. Shelman had no authority to file the previous appeal on August 12, 2008, and, in fact, no one had authority to file such an appeal until Mr. Crist was named administrator of the Estate. Therefore, the Estate argued that the previous decision of the BHA was not binding.
Because the present appeal involved the exact same issue as previously decided by final order of the BHA - the timeliness of the appeal of the CAO's denial of MA-LTC benefits - the ALJ determined that the Estate's appeal was barred by res judicata and the appeal was dismissed. The ALJ noted that any objection regarding Ms. Shelman's ability to file the initial appeal on Mouers' behalf should have been raised at the previous hearing. This decision was affirmed by final order of the BHA on April 16, 2010. The Estate filed a request for reconsideration which was denied, and this appeal followed.
Our review is limited to whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. McBride v. Department of Public Welfare, 960 A.2d 203, 205 n.3 (Pa. Cmwlth. 2008). --------
The Estate argues that Ms. Shelman's initial appeal of the CAO's denial notice was not binding because the power of attorney expired upon Mouers' death and, therefore, Ms. Shelman lacked legal authority to represent the Estate's interests and file the appeal. However, according to Departmental regulations, an MA-LTC applicant or "the person acting for him, such as his legal representative, relative or friend," 55 Pa. Code §275.2, may file a hearing request and during the hearing the applicant "may be represented by an attorney, relative, friend or other spokesman." 55 Pa. Code §275.4(a)(1)(iv). See also Beverly Healthcare-Murrysville v. Department of Public Welfare, 828 A.2d 491 (Pa. Cmwlth. 2003), abrogated on other grounds by In re Nomination Petition of deYoung, 588 Pa. 194, 200-01, 903 A.2d 1164, 1167-68 (2006). Because Ms. Shelman was Mouers' daughter, under the Departmental regulations she had the authority to file the appeal.
Next, the Estate argues that the BHA erred in dismissing the appeal because the elements of res judicata were not met. We disagree. Res judicata is a doctrine which prevents the relitigation of claims and issues presented, or which should have been presented, in previous litigation. PMA Insurance Group v. Workmen's Compensation Appeal Board (Kelley), 665 A.2d 538, 541 (Pa. Cmwlth. 1995). Res judicata encompasses two related principles - technical res judicata, sometimes referred to as claim preclusion, and collateral estoppel, also known as issue preclusion. Collateral estoppel bars the relitigation of an issue of law or fact when the following elements are established:
(1) an issue decided in a prior action is identical to one presented in a later action, (2) the prior action resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action, and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.Unified Sportsmen of Pennsylvania v. Pennsylvania Gaming Commission, 950 A.2d 1120, 1129 (Pa. Cmwlth. 2008).
The first element of collateral estoppel is clearly met because both actions involved the timeliness of the appeal from the CAO's denial notice. The second element is met because the BHA issued a final order on December 2, 2008, which was not appealed. The final element is clearly met because the issue of the timeliness of the appeal was fully litigated - a hearing was held, witnesses testified and evidence was presented. In fact, no real additional facts were introduced by the Estate during the second appeal. Rather, Mr. Shelman again testified that Mouers never received the CAO's denial notice.
The only element at issue is the third element. There is no requirement that the parties in both actions be identical in order for collateral estoppel to apply. Rather, the parties may be in privity, which "is broadly defined as mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right." Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131, 140 (Pa. Cmwlth. 2007) (citations omitted). Ms. Shelman clearly had an identification of interest with the Estate - that of Mouers' eligibility for MA-LTC benefits and proving that the appeal was timely filed. As the Department notes in its brief, the Estate's appeal is an attempt to gain a second bite of the apple.
Accordingly, the order of the BHA is affirmed.
/s/_________
DAN PELLEGRINI, Judge ORDER
AND NOW, this 4th day of January, 2012, the order of the Department of Public Welfare, Bureau of Hearings and Appeals dated April 16, 2010, is affirmed.
/s/_________
DAN PELLEGRINI, Judge