         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David W. Breyan,                        :
                   Petitioner           :
                                        :
            v.                          :
                                        :
Department of Conservation              :
and Natural Resources,                  :   No. 34 C.D. 2018
                  Respondent            :   Argued: December 11, 2018



BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION
BY JUDGE FIZZANO CANNON                     FILED: January 8, 2019


            David W. Breyan (Breyan) petitions this Court for review of a
December 20, 2017 letter issued by the Department of Conservation and Natural
Resources (DCNR) refusing to grant him a hearing to contest DCNR’s refusal to
provide him benefits pursuant to the law commonly known as the Heart and Lung
Act (HLA), Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638. Upon
review, we conclude that DCNR’s December 20th letter is not an appealable
adjudication because Breyan does not have a personal or property right that DCNR
affected when it informed him that he is not entitled to benefits under the HLA.
Accordingly, we dismiss Breyan’s petition for review.
              DCNR is an administrative agency1 of the Commonwealth of
Pennsylvania which employed Breyan as a ranger. Petition ¶¶ 2-3. On March 9,
2017, Breyan was injured in the performance of his duties as a ranger and
temporarily disabled from performing his duties. Petition ¶ 10. On September 29,
2017, Breyan submitted a request to DCNR requesting that he be compensated in
accordance with the HLA during his period of disability or, alternatively, requesting
that a hearing be held on his claim. Petition ¶ 11. By letter dated October 11, 2017,
Breyan was informed that he is not eligible for HLA benefits but, as a ranger, is
eligible for “work-related disability leave” under the Pennsylvania State Rangers
Association contract. See 10/11/17 letter from Work-Related Injury Specialist with
the Office of Administration, Judy K. Watterson. In response, Breyan, through
counsel, by letter dated October 17, 2017, requested a hearing pursuant to the
Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704. See 10/17/17 letter
by Attorney Sean T. Welby to Secretary of DCNR, Cindy Adams Dunn. DCNR
responded to Breyan’s request advising him that the HLA “does not identify DCNR
[r]anger as a position eligible” for benefits and, therefore, he was not entitled to
benefits or a hearing on the matter. See 12/20/17 letter by Deputy Secretary of
DCNR, Michael A. Walsh.
              Breyan petitioned this Court for review. DCNR responded with an
application for relief seeking dismissal due to lack of jurisdiction. In its application,
DCNR argued that Breyan does not have a property interest in the benefits, and
therefore, the December 20th letter does not constitute an adjudication and,

       1
         Section 201 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as
amended, 71 P.S. § 61, provides “[t]he executive and administrative work of this Commonwealth
shall be performed . . . by the following administrative departments . . . Department of
Conservation and Natural Resources.”

                                             2
consequently, it is not appealable. See Application for Relief in the Form of a
Motion to Dismiss for Want of Jurisdiction ¶ 16. By order dated April 9, 2018, this
Court denied DCNR’s request to dismiss the matter, explaining that “DCNR’s
argument is inextricably intertwined with the merits of whether or not DCNR [p]ark
[r]angers are eligible for benefits under the Act.” Cmwlth. Ct. Order dated 4/9/18.
This Court ordered further briefing and asked the parties to address whether the
December 20th letter is an adjudication and to address the merits of Breyan’s claim
that he is entitled to benefits under the HLA.2 Id.
               In his brief, Breyan asserts that DCNR’s December 20th letter
constituted an “invalid adjudication under the Administrative Agency Law” because
DCNR refused to provide him with a hearing to determine his eligibility for HLA
benefits. Breyan’s Brief at 7. Breyan contends that he is eligible for HLA benefits
because, as a DCNR ranger, he has “all of the authority and all of the rights of a
member of a police force of a city of the first class.” Id. DCNR responds that Breyan
is not entitled to HLA benefits because “only those classes of employees specifically
enumerated in the HLA are entitled to HLA benefits” and rangers are not one of
those classes of employees. DCNR’s Brief at 6. DCNR asserts that because Breyan
is not entitled to HLA benefits, he lacks a property interest in the benefits and
“[a]bsent an affected property interest,” DCNR’s December 20th letter does not
constitute an “appealable adjudication,” and therefore, the petition for review must
be dismissed.3 Id. Upon review, we agree.



       2
         When reviewing a question of law, this Court’s scope of review is plenary and our review
is de novo. Soppick v. Borough of West Conshohocken, 6 A.3d 22, 24 n.5 (Pa. Cmwlth. 2010).
       3
         At oral argument, the parties agreed that this Court must first decide whether Breyan has
an affected property right, and thereafter decide whether there was an adjudication.
                                                3
             The Administrative Agency Law requires that an administrative agency
provide an aggrieved party with an opportunity to be heard at a hearing before
issuing an adjudication or final order. 2 Pa. C.S. § 504 (providing, “no adjudication
of a Commonwealth agency shall be valid as to any party unless he shall have been
afforded reasonable notice of a hearing and an opportunity to be heard”); see also
Callahan v. Pa. State Police, 431 A.2d 946, 948 (Pa. 1981) (explaining that an
adjudication by an agency is not valid except upon a hearing wherein each party has
an opportunity to know of the claims of his opponent, to hear the evidence introduced
against him, to cross-examine witnesses, to introduce evidence on his behalf, and to
make argument). “Any person aggrieved by an adjudication of a Commonwealth
agency who has a direct interest in such adjudication shall have the right to appeal
therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title
42 (relating to judiciary and judicial procedure).” 2 Pa. C.S. § 702; see Malehorn
v. Dep’t of State, Bureau of Commissions, Elections, and Legislation, 106 A.3d 816,
820 (Pa. Cmwlth. 2015) (noting correspondence is not an adjudication).             An
“adjudication” is defined as:

             [a]ny final order, decree, decision, determination or ruling
             by an agency affecting personal or property rights,
             privileges, immunities, duties, liabilities or obligations of
             any or all of the parties to the proceeding in which the
             adjudication is made.

2 Pa. C.S. § 101 (emphasis added). As plainly stated, for the action of an agency to
be deemed an “adjudication,” a two-prong test must be met. First, the agency must
have issued a “final order, decree, decision, determination or ruling” and, second,
that “final order, decree, decision, determination or ruling” must affect the “personal



                                          4
or property rights” of a party. 2 Pa. C.S. § 101; NHS Human Servs. of Pa. v. Dep’t
of Pub. Welfare, 985 A.2d 992, 995 (Pa. Cmwlth. 2009).
               We conclude that the December 20th letter was not an “adjudication”
because DCNR did not render a decision “affecting [Breyan’s] personal or property
rights” when it refused to provide Breyan with a hearing because, as a matter of law,
Breyan is not entitled to HLA benefits. See Malehorn, 106 A.3d at 819 (stating,
“[t]o have a property interest in a benefit or a privilege that is protected by procedural
due process,” one must have more than a unilateral expectation, but rather “a
legitimate claim of entitlement to it”); Greenstein v. Dep’t of Health, 512 A.2d 739,
742-43 (Pa. Cmwlth. 1986) (explaining that property interests are created by and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law). There is no legitimate basis in the law to
equate a Commonwealth ranger with a policeman of a county, city, borough, town
or township.
               The HLA expressly enumerates 13 types of employees that are entitled
to a “full rate of salary” while temporarily incapacitated until the disability arising
from a work-related injury has ceased. 53 P.S. § 637.4 Of the employees listed,

      4
          Specifically, the HLA provides:

               (1) any member of the State Police Force;
               (2) any enforcement officer or investigator employed by the
                   Pennsylvania Liquor Control Board;
               (3) the parole agents, enforcement officers and investigators of the
                   Pennsylvania Board of Probation and Parole;
               (4) Capitol Police officers;
               (5) correction employes employed by the Department of
                   Corrections, whose principal duty is the care, custody and
                   control of inmates;
               (6) psychiatric security aides employed by the Department of
                   Human Services and the Department of Corrections, whose

                                                5
Breyan asserts that, as a ranger, he is a “policeman” as that term is used in Section
1(a)(10) of the HLA. 53 P.S. § 637(a)(10). Breyan argues that Section 303(a)(7)(ii)
of the Conservation and Natural Resources Act, Act of June 28, 1995, P.L. 89, as
amended, provides DCNR rangers with “all the powers and prerogatives conferred
by law upon members of the police force of cities of the first class.” 71 P.S. §
1340.303(a)(7)(ii).5 Breyan argues that the Conservation and Natural Resources Act


                   principal duty is the care, custody, and control of the criminally
                   insane;
               (7) drug enforcement agents of Office of Attorney General whose
                   principal duty is the enforcement of the drug laws of the
                   Commonwealth;
               (8) special agents of the Office of the Attorney General whose
                   principal duty is the enforcement of the criminal laws of the
                   Commonwealth;
               (9) any member of the Delaware River Port Authority Police;
               (10) any policeman, fireman or park guard of any county, city,
                     borough, town or township;
               (10.1) firemen employed by the Commonwealth;
               (11) any sheriff or deputy sheriff; or
               (12) any enforcement officer or investigator of the Pennsylvania
                     Game Commission or the Pennsylvania Fish and Boat
                     Commission;

                    who is injured in the performance of his duties including, in
                    the case of firemen, duty as special fire police, and by reason
                    thereof is temporarily incapacitated from performing his
                    duties, shall be paid by the Commonwealth of Pennsylvania if
                    an employe identified under paragraph (1), (2), (3), (4), (5),
                    (6), (7), (8) or (12) by the Delaware River Port Authority if a
                    member of the Delaware River Port Authority Police or by the
                    county, township or municipality, by which he is employed,
                    his full rate of salary, as fixed by ordinance or resolution, until
                    the disability arising therefrom has ceased.

Section 1 of the HLA, 53 P.S. § 637(a) (emphasis added).
       5
         Section 303(a)(7)(ii) provides: “[t]he department shall have the following powers and
duties with respect to parks . . . (7) To appoint and commission persons to preserve order in the
State parks, which persons shall have all of the following powers . . . (ii) To have all the powers

                                                 6
therefore extends the benefits of the HLA “as a universal protection for hazardous
public safety employees to those it appoints as police.” Breyan’s Brief at 12.
               The provision of the HLA upon which Breyan relies applies only to
“any policeman” of “any county, city, borough, town or township.” 53 P.S. §
637(a)(10) (emphasis added). Its plain language does not include DCNR rangers.
See 53 P.S. § 637(a)(10); 1 Pa. C.S. § 1921(b) (stating, “[w]hen the words of a statute
are clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit”); Jones v. County of Washington, 725 A.2d 255
(Pa. Cmwlth. 1999) (applying strict construction to HLA and holding that a deputy
sheriff was not entitled to benefits because his position was not among the
enumerated class of employees). Further, the HLA specifically provides that a
policeman “shall be paid . . . by the county, township or municipality, by which he is
employed, his full rate of salary.” 53 P.S. § 637(a) (emphasis added). Breyan, by his
own assertion, is employed by DCNR, which is a Commonwealth administrative
agency, not a county, township or municipality. Petition ¶ 2. Regardless of the
nature of his duties and the powers he possesses as a DCNR ranger, Breyan cannot
claim benefits under the HLA because he is not employed by a “county, city,
borough, town or township.” A hearing to make findings of fact would not aid
DCNR or this Court in reaching an alternate conclusion given that the plain language
of the HLA does not entitle Breyan to the requested benefits as a matter of law.
               Because Breyan had no property right to be affected, we conclude that
DCNR did not issue an adjudication when it informed Breyan, through the
December 20th letter, that he had no legitimate claim or entitlement to the requested


and prerogatives conferred by law upon members of the police force of cities of the first class.”
Section 303(a)(7)(ii) of the Conservation and Natural Resources Act, 71 P.S. § 1340.303(a)(7)(ii).

                                                7
HLA benefits or to a hearing on the matter. Given that Breyan is not aggrieved by
an adjudication of DCNR, there is no basis upon which an appeal may lie. 2 Pa. C.S.
§ 702; Malehorn, 106 A.3d at 820.
            Accordingly, Breyan’s petition for review is hereby dismissed.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                        8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David W. Breyan,                     :
                   Petitioner        :
                                     :
           v.                        :
                                     :
Department of Conservation           :
and Natural Resources,               :   No. 34 C.D. 2018
                  Respondent         :



                                 ORDER


           AND NOW, this 8th day of January, 2019, the petition for review of
David W. Breyan in the above-captioned matter is DISMISSED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
