Opinion
No. 442 C.D. 2011
03-05-2012
Rosette Lanauze, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Rosette Lanauze, pro se, petitions for review of an adjudication of the Secretary of Public Welfare (Secretary) denying her request for reconsideration of a decision of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (Department). In that decision, the Department reduced the number of hours of personal assistant service available to Lanauze, and Lanauze appealed to the Bureau. When she failed to appear at the hearing, the Bureau dismissed Lanuaze's appeal. Discerning no error in the Secretary's refusal to grant reconsideration, we affirm.
Lanauze suffers from amyloid angiopathy. In 2009 she suffered two hemorrhagic strokes in quick succession, which rendered her unable to care for herself. She requires constant supervision and, accordingly, moved in with her daughter, Lisa Haqq. Lanauze attends an adult daycare program from 8:00 a.m. to 5:00 p.m. Monday through Friday, and receives personal assistant services when she is not at the daycare facility.
It is through Haqq that Lanauze files her appeals.
The Department reduced the hours of personal assistant service available to Lanauze from six hours to four hours per day, Monday through Friday, because of her time spent in adult daycare. Lanauze appealed the reduction in hours, and a telephone hearing was held by the Bureau on October 6, 2010. However, the Administrative Law Judge (ALJ) conducting the hearing could not reach Lanauze, or Haqq, at the number Haqq had provided. The ALJ recommended that Lanauze's appeal be dismissed, and the Bureau adopted the recommendation as its own on October 12, 2010. Certified Record, Item 3 (C.R., Item ___).
Haqq was unavailable to take the ALJ's call because she was teaching a class at that time and could not answer the phone.
Lanauze requested reconsideration from the Secretary, which the Bureau received on November 8, 2010. C.R., Item 4. This was followed by a letter and another application for reconsideration filed with the Bureau on November 23, 2010. In her letter, Lanauze stated that it was her second attempt to request reconsideration and that she filed her first application for reconsideration within 15 days of the Bureau's adjudication. Lanauze offered no proof showing her first application was mailed within 15 days, as required. On January 13, 2011, the Secretary denied Lanauze's application for reconsideration as untimely.
Lanauze filed a petition for review with this Court challenging the merits of the Bureau's dismissal of her appeal. The Department moved to dismiss Lanauze's petition for review for lack of jurisdiction because she had not filed it within 30 days of the Bureau's October 12, 2010, final order. On October 5, 2011, this Court denied the Department's motion to dismiss, noting that the sole issue before this Court is whether the Secretary properly denied Lanauze's request for reconsideration of the October 12, 2010, order as untimely. Lanauze v. Department of Public Welfare (No. 442 C.D. 2011, order filed October 5, 2011).
An agency's decision to grant or deny a request for reconsideration is a matter of discretion and will be reversed only where that discretion is abused. Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). Our scope of review of an agency's decision on a reconsideration request is limited to determining whether the secretary abused his or her discretion. J.B. Steven, Inc. v. Department of Transportation, 627 A.2d 278, 280 (Pa. Cmwlth. 1993). An abuse of discretion will only be found where the evidence shows there was fraud, bad faith, capricious action, or abuse of power. Id. (citing Keith, 551 A.2d at 336). A reversal requires a remand because we do not decide the merits of a reconsideration request.
On appeal to this Court, Lanauze argues that the Department erred in reducing her hours of personal assistant service. This argument pertains to the merits of the Bureau's October 12, 2010, adjudication, which this Court has already held it will not address. The only issue is whether the Secretary erred or abused his discretion in denying Lanauze reconsideration.
As this Court noted in Keith, a party aggrieved by a Bureau order has four options: (1) do nothing; (2) appeal that order to this Court within 30 days; (3) seek reconsideration from the 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. Keith, 551 A.2d at 335. Those seeking review of the merits of an adjudication of the Bureau must file a petition for review with this Court. Id. at 337 n.8. --------
Lanauze's petition for review and brief do not argue that the Secretary erred or abused his discretion in denying her request for reconsideration. Thus, 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 not raised in a party's petition for review and brief are deemed waived). Because Lanauze has not argued that the Secretary's denial of reconsideration was improper, she has failed to set forth any basis on which this Court can grant relief. Accordingly, we must affirm.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of March, 2012, the order of the Department of Public Welfare, dated January 13, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge