              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Belinda Davis,                           :
                   Petitioner            :
                                         :   No. 691 C.D. 2018
            v.                           :
                                         :   Submitted: January 11, 2019
Department of Human Services,            :
                 Respondent              :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: March 18, 2019


            Belinda Davis petitions for review, pro se, of the March 15, 2018 final
administrative action order of the Pennsylvania Department of Human Services
(Department), Bureau of Hearings and Appeals (BHA), affirming a decision of an
administrative law judge (ALJ), which ruled that the Child Care Information Services
of Delaware County (CCIS) had correctly calculated an overpayment in child care
benefits received by Davis.
            In February 2008, Davis was deemed eligible for and began receiving
child care subsidy benefits through CCIS. (ALJ Finding of Fact (F.F.) No. 1.) In April
2010, CCIS sent mail to Davis at her address of record, which was “return[ed] to
sender.” (F.F. No. 2.) On October 21, 2010, CCIS submitted a referral to the Office
of Inspector General (OIG) requesting that the OIG investigate Davis’s current address
and household income. (F.F. No. 3.) The OIG investigation revealed that Davis’s
household was receiving unreported income from the following sources: supplemental
security income for Davis’s child, unemployment compensation for Davis’s husband,
and self-employment income. (F.F. No. 4.) The OIG investigation also revealed that
Davis had not been living at her reported Pennsylvania address since 2007. (Certified
Record (C.R.) Item No. 3.C-2.) On December 23, 2010, CCIS terminated Davis’s
subsidized child care benefits. (F.F. No. 5.)
             Thereafter, based on the results of the OIG investigation, CCIS sent a
confirmation notice advising Davis that she owed an overpayment amount of
$18,625.00 for the period of time from February 7, 2008, through December 23, 2010,
due to her failure to report income from self-employment and social security benefits.
(C.R. Item No. 3.C-2.) Davis filed an appeal. Id. (F.F. No. 6.)
             An ALJ conducted a hearing. Following the hearing, the ALJ concluded
that although CCIS correctly established an overpayment of child care benefits, the
overpayment was incorrectly calculated.         (F.F. No. 6; C.R. Item No. 3.C-2.)
Specifically, the ALJ determined that CCIS’s overpayment was based on its erroneous
belief that Davis was still residing in Delaware County, Pennsylvania and, therefore,
was eligible to receive some child care subsidy benefits, and its misconception that the
overpayment resulted from the fact that Davis’s co-payment would have increased
because of her higher, unreported income. (C.R. Item No. 3.C-2.) However, in
actuality, because Davis had been living in New Jersey as of November 28, 2008, she
was not eligible to receive any child care benefits from November 28, 2008, until
December 23, 2010. Id. Thus, the ALJ determined that for this time period, “the
overpayment should have been calculated as a full overpayment of benefits received,
rather than an overpayment based upon an increase in copayment.” Id. The ALJ
denied, in part, Davis’s appeal because it determined CCIS was correct in establishing



                                           2
an overpayment, but sustained, in part, the appeal because the overpayment was
incorrectly calculated. Id. The ALJ directed CCIS to reassess Davis’s overpayment
amount and issue a new confirmation notice. (F.F. No. 7.) On March 22, 2017, BHA
issued a final administrative action order affirming the ALJ’s decision.
             On March 30, 2017, CCIS issued Davis a new confirmation notice with
an overpayment amount of $27,865.94 in child care benefits from February 7, 2008, to
December 23, 2010. (F.F. No. 8.) On April 12, 2017, Davis appealed the BHA March
22, 2017 final administrative action order to this Court. Moreover, on April 25, 2017,
Davis appealed CCIS’s March 30, 2017 confirmation notice to BHA. However,
Davis’s appeal of the March 22, 2017 final administrative action order to this Court
stayed any further action on Davis’s appeal of the March 30, 2017 confirmation notice.
             On appeal to this Court, Davis argued that CCIS failed to follow
applicable regulations and that she should not be responsible for any claims of
overpayment. Davis v. Department of Human Services (Davis I) (Pa. Cmwlth., No.
604 C.D. 2017, filed January 18, 2018), slip op. at 5. We explained that under the
Department’s applicable regulations, a parent may be required to repay an overpayment
resulting from the following: fraud; failure to comply with regulations concerning
subsidized child care eligibility; and a subsidy continuation pending an appeal when
the parent or caretaker did not win the appeal. Id., slip op. at 6 (citing 55 Pa. Code
§3041.181). We also noted that the Department’s regulations require CCIS to consider
the income of family members to determine eligibility for subsidized child care, and
that the family receiving subsidized child care must reside in the Commonwealth. Id.
(citing 55 Pa. Code §§3041.32, 3041.42(a)).
             Ultimately, this Court concluded that there was substantial evidence in the
record to support BHA’s findings that Davis received household income that had not



                                           3
been reported and that Davis was not residing at her address of record in Pennsylvania,
but instead, lived in New Jersey. Id., slip op. at 7. Thus, we held that “[t]he fact that
Davis was receiving subsidized child care for a period of time in which she had
unreported income and for a period of time in which she did not reside in Pennsylvania
support[ed] the finding of an overpayment.” Id. We also held that “Davis’s failure to
reside in Pennsylvania and to verify her address, as well as her failure to report income,
all constitute[d] violations of [the Department’s regulations], thereby serving as
grounds for CCIS to seek reimbursement of an overpayment.” Id. Finally, we noted
that “to the extent Davis raises any issues concerning the calculation and the amount
of the overpayment, those issues [were] not before us. The BHA ordered CCIS to
recalculate the overpayment and issue a new notice with a new overpayment amount.”
Id., slip op. at 9. Thus, we affirmed the March 22, 2017 order. Id.
             Following our decision, an ALJ convened a new hearing on February 8,
2018, regarding the overpayment calculation as determined in the March 30, 2017
confirmation notice. (F.F. No. 14.) The ALJ found that from February 7, 2008, to
December 23, 2010, Davis was undercharged for co-payments in the amount of
$505.00 and received $27,360.94 in unreimbursed child care benefits for her children,
which resulted in a total child care subsidy overpayment of $27,865.94. (F.F. Nos. 15-
23.) The ALJ found there was no evidence in the record to demonstrate that the
overpayment calculations were incorrect. (F.F. No. 24.)
             The ALJ concluded that “CCIS correctly calculated [Davis]’s
overpayment of CCIS benefits” and that Davis “at no point in her submissions or
testimony addressed the issue of the calculation of the overpayment,” which was the
sole issue before the ALJ. (ALJ adjudication, 3/15/18, at 5.) The ALJ also explained
that Davis “focused solely on the issue of residence,” but that it had “been found as



                                            4
fact in prior proceedings that [Davis] did not reside at her claimed Pennsylvania
addresses and instead lived in New Jersey, rendering her ineligible for Pennsylvania
CCIS child care benefits.” Id. at 5-6. The ALJ determined that “CCIS correctly
calculated the overpayment of $27,865.94” and that “CCIS [had] provided substantial
evidence to support its calculations.” Id. at 6. Accordingly, the ALJ held that the
overpayment amount was correct and denied the appeal. Id. On March 15, 2018, BHA
issued a final administrative action order affirming the decision of the ALJ.
                 Davis sought to appeal the BHA order, by letter, rather than by petition
for review as required by the Pennsylvania Rules of Appellate Procedure.1 That same
day, this Court, in compliance with section 211 of this Court’s Internal Operating
Procedures, 210 Pa. Code §69.211,2 sent notice to Davis advising her how to perfect

       1
           See Rule 1511 of the Rules of Appellate Procedure, Pa.R.A.P. 1511. Rule 1511 provides, as
follows:

                 Review under this chapter shall be obtained by filing a petition for
                 review with the prothonotary of the appellate court within the time
                 allowed by Rule 1512 (time for petitioning for review). Failure of a
                 petitioner for review to take any step other than the timely filing of a
                 petition for review does not affect the validity of the review proceeding,
                 but is grounds only for such action as the appellate court deems
                 appropriate, which may include dismissal of the review proceeding.
Id.

       2
           Pursuant to section 211 of this Court’s Internal Operating Procedures,

                 When the chief clerk receives a written communication that evidences
                 an intention to appeal an adjudication of a state administrative agency
                 but does not conform to the rules for an appellate petition for review,
                 the chief clerk shall time-stamp the written communication with the
                 date of receipt. The chief clerk shall advise the party by letter (1) of
                 the procedures necessary to perfect the appeal and (2) that the date of
                 receipt of the communication will be preserved as the date of filing of
                 the appeal if that party files a fully conforming petition for review
                 within 30 days of the date of the chief clerk’s letter. If the party fails



                                                     5
her appeal. The notice instructed Davis that in order to perfect her appeal she was
required to file a petition for review with this Court “within 30 days of the date of
this notice.” (Letter from the Commonwealth Court to Davis, 4/16/18) (emphasis in
original). Davis did not file a petition for review with this Court within 30 days, but
instead, filed a petition for review on May 21, 2018. By order of this Court dated May
24, 2018, we directed the parties to address in their briefs on the merits whether Davis’s
appeal was untimely.
                 On appeal from the March 15, 2018 BHA order, Davis does not address
the question of timeliness,3 but essentially raises the following issues: (1) BHA erred
in recalculating the amount of the overpayment; (2) CCIS failed to demonstrate that an
overpayment occurred; (3) BHA erred in concluding Davis resided in New Jersey and
in not considering evidence presented by Davis demonstrating that her residency was
in Pennsylvania; and (4) CCIS never notified her that an overpayment existed.
However, before we can address the merits of this case we must first determine whether
Davis filed a timely petition for review.
                 Rule 1511 of the Rules of Appellate Procedure mandates that judicial
review of a governmental determination “shall be obtained by filing a petition for
review.” Pa.R.A.P. 1511. Petitions for review “shall be the exclusive procedure for
judicial review of a determination of a government unit.” Rule 1502 of the Rules of
Appellate Procedure, Pa.R.A.P. 1502. Under rule 1512 of the Rules of Appellate


                 to file a fully conforming petition for review within that period, the
                 chief clerk shall advise the party by letter that the court will take no
                 further action in the matter.

210 Pa. Code § 69.211.

       3
           The Department also does not address the question of timeliness, as instructed by this Court.



                                                    6
Procedure, “[a] petition for review of a quasijudicial order, or an order appealable under
42 Pa.C.S. §763(b) (awards of arbitrators) or under any other provision of law, shall be
filed with the prothonotary of the appellate court within 30 days after the entry of the
order.”4 Pa.R.A.P. 1512(a)(1). Additionally, under Rule 121(a) of the Rules of
Appellate Procedure, required papers “shall be filed with the prothonotary. Filing may
be accomplished by mail addressed to the prothonotary, but except as otherwise
provided by these rules, filing shall not be timely unless the papers are received by the
prothonotary within the time fixed for filing.” Pa.R.A.P. 121(a).
               Moreover, pursuant to section 211 of this Court’s Internal Operating
Procedures, where a petitioner files a written communication evidencing an intention
to appeal, which does not conform to the rules for a petition for review, the petitioner
may preserve his appeal as long as he “files a fully conforming petition for review
within 30 days of the date” of the notice from this Court. 210 Pa. Code §69.211.
However, if the petitioner “fails to file a fully conforming petition for review within
that period . . . . th[is] court will take no further action in the matter.” Id. Untimeliness
“is a jurisdictional defect, and the time for taking an appeal cannot be extended as a
matter of grace or mere indulgence.” Constantini v. Unemployment Compensation
Board of Review, 173 A.3d 838, 844 (Pa. Cmwlth. 2017). Therefore, where a petitioner
fails to comply with section 211 of our Internal Operating Procedures by filing a fully


       4
          Rule 1513 of the Rules of Appellate Procedure requires that the petition for review contain,
inter alia, (1) a statement of the basis for this Court’s jurisdiction; (2) the name of the person seeking
review; (3) the name of the governmental unit that made the order sought to be reviewed; (4) reference
to the order sought to be reviewed; (5) a general statement of the objections to the order or other
determination; (6) a short statement of the relief sought; (7) a copy of the order to be reviewed; and
(8) a certificate of compliance. Pa.R.A.P. 1513(d). Further, petitions for review must be divided into
consecutively numbered paragraphs and each paragraph shall contain only a single allegation of fact
or other statement. Pa.R.A.P. 1513(c).



                                                    7
conforming petition for review within 30 days of our notice, we are without jurisdiction
and must quash the appeal. See Turner v. Pennsylvania Housing Finance Agency (Pa.
Cmwlth., No. 572 C.D. 2018, filed November 16, 2018), slip op. at 6-7 (quashing
appeal as untimely where petitioner did not file petition for review within 30 days of
the notice from the Commonwealth Court).5
              Here, within 30 days of BHA issuing its order, Davis notified this Court,
by letter, of her intent to appeal.6 Davis’s letter did not comply with the rules governing
petitions for review. Notably, the letter did not include, inter alia, a general statement
of Davis’s objections to the BHA order or a statement of the relief sought. On April
16, 2018, this Court issued Davis a notice instructing her how to perfect her appeal, the
30-day deadline for filing a petition for review, and the consequences of not complying
with the deadline. Specifically, the notice advised her that if she did not file her
perfected petition for review “within 30 days of the date of this notice, the Court
[would] take no further action in this matter.” (Letter from the Commonwealth
Court, 4/16/18) (emphasis in original). At the end of the notice, we provided a checklist
regarding the petition for review requirements and again explained that “[t]his is what
you must file with this Court at the address below within 30 days of the date of
this notice to perfect your appeal.” Id. (emphasis in original).

       5
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

       6
          While appeals of governmental orders must be filed within 30 days after entry, see Rule
1512 of the Rules of Appellate Procedure, Pa.R.A.P. 1512, and Davis did not submit her appeal letter
until April 16, 2018, more than 30 days after BHA issued its March 15, 2018 order, Davis’s appeal
letter was timely because April 14, 2018, the 30th day, was a Saturday, see Section 1908 of the
Statutory Construction Act of 1972, 1 Pa.C.S. §1908 (“Whenever the last day of any such period shall
fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or
of the United States, such day shall be omitted from the computation.”).




                                                 8
               Thus, in accordance with the notice issued by this Court, Davis had 30
days from April 16, 2018, in which to file her petition for review and perfect her appeal.
Yet, Davis did not file her petition for review until May 21, 2018, more than 30 days
after the notice. Accordingly, because Davis’s appeal is untimely pursuant to section
211 of our Internal Operating Procedures, we are without jurisdiction and must quash
the appeal.7


                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       7
          Nevertheless, even if Davis’s appeal were timely, reversal of the order of BHA would not
be warranted. Davis argues that BHA erred in finding that she was a resident of New Jersey, not
considering evidence related to her residency, and concluding that an overpayment occurred.
However, these issues were already fully litigated and decided by this Court in Davis I, slip op. at 8-
9, and may not be disrupted on appeal in this action. Davis also argues that BHA erred in calculating
the overpayment and that the evidence presented by CCIS regarding the amount of the overpayment
was false and/or not credible. In determining whether a finding of fact is supported by substantial
evidence, the Court is required to give the party in whose favor the decision was rendered “the benefit
of all reasonable and logical inferences that may be drawn from the evidence of record.” S.T. v.
Department of Public Welfare, Lackawanna County Office, Children, Youth and Family Services,
681 A.2d 853, 856 (Pa. Cmwlth. 1996). Further, because determinations regarding credibility and
weight of the evidence are for the factfinder, we will not disturb those determinations absent an abuse
of discretion. R.J.W. v. Department of Human Services, 139 A.3d 270, 285 (Pa. Cmwlth. 2016). The
ALJ based his finding of an overpayment of $27,865.94 on payment report documents introduced by
CCIS that show Davis was undercharged for co-payments in the amount of $505.00 and received
$27,360.94 in unreimbursed child care benefits, thus, resulting in a total overpayment of $27,865.94.
(F.F. Nos. 15-24; C.R. Items No. 3.C-6, 3.C-7.) These documents provide substantial evidence for
the ALJ’s overpayment calculation. Davis has also not provided any indication or evidence that the
ALJ abused his discretion in relying on these documents to calculate the overpayment amount.
Accordingly, even if we were not quashing Davis’s appeal as untimely, we would not find in Davis’s
favor.


                                                  9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Belinda Davis,                         :
                  Petitioner           :
                                       :    No. 691 C.D. 2018
            v.                         :
                                       :
Department of Human Services,          :
                 Respondent            :


                                    ORDER


            AND NOW, this 18th day of March, 2019, Belinda Davis’s appeal from
the order of the Pennsylvania Department of Human Services, Bureau of Hearings
and Appeals, dated March 15, 2018, is hereby quashed as untimely.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
