                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Luke Bussoletti,                                  :
                       Petitioner                 :
                                                  :   No. 2129 C.D. 2016
               v.                                 :
                                                  :   Submitted: September 1, 2017
Department of Human Services,                     :
                 Respondent                       :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: November 22, 2017


               On August 4, 2016, the Department of Human Services (Department),
Bureau of Hearings and Appeals (Bureau), issued a final order denying the application
of Luke Bussoletti (Petitioner) for door-to-door transportation services to an adult
training facility.       On August 8, 2016, Petitioner filed a timely motion for
reconsideration.1 However, the Secretary of the Department of Human Services
(Secretary) did not rule on this motion until months later, denying it by order dated
December 1, 2016. Petitioner then filed a pro se petition for review in this Court on
December 30, 2016, purporting to appeal from the December 1, 2016 order denying
reconsideration. For the reasons that follow, we dismiss the appeal.


       1
        In its final order, the Bureau informed Petitioner that if he filed a motion for reconsideration,
the motion would “not stop the time within which an appeal must be filed to the Commonwealth
Court.” (Bureau’s Final Order at 1.)
             Pursuant to regulation at 1 Pa. Code §35.241, where, as here, a motion for
reconsideration of a final order is made within 15 days of that order, but no appeal of
the final order is filed with this Court, the Secretary has 30 days to rule upon the motion
for reconsideration. See 1 Pa. Code §35.241(d)-(e). “Unless the [Secretary] acts upon
the application for . . . reconsideration within 30 days after it is filed, or within the
lesser time as may be provided or prescribed by law, the application shall be deemed
to have been denied.” 1 Pa. Code §35.241(d).
             If the Secretary issues an order denying reconsideration of a final order
after the 30-day period expires, the order denying reconsideration, already having been
denied by operation of law, is “null and void” and is not one from which an appeal may
lie. See Strobhar v. Department of Public Welfare, 557 A.2d 440, 441-43 (Pa. Cmwlth.
1989); Monsour Medical Center v. Department of Public Welfare, 533 A.2d 1114,
1116 (Pa. Cmwlth. 1987); see also Ciavarra v. Commonwealth, 970 A.2d 500, 503-04
(Pa. Cmwlth. 2009); Colonial Manor Personal Care Boarding Home v. Department of
Public Welfare, 551 A.2d 347, 350 (Pa. Cmwlth. 1988). In this situation, where the
Secretary issues a reconsideration order beyond the time provided in 1 Pa. Code
§35.241(d), in order to obtain appellate review in this Court, the petitioner must file a
timely appeal within 30 days of the underlying final order. Ciavarra, 970 A.2d at 503-
04; Monsour, 533 A.2d at 1116. Notably, the filing of a petition for reconsideration
does not operate to extend the 30-day period to appeal a final order, and the time for
filing an appeal will run as if the motion for reconsideration had never been filed.
Monsour, 533 A.2d at 1116.
             In Monsour, the petitioner submitted an application for reimbursement of
hospital services, which the Office of Hearings and Appeals (OHA) denied in a final
order dated August 14, 1986.         The petitioner then filed a timely request for



                                            2
reconsideration of the OHA’s order. Approximately three months later, on November
19, 1986, the Executive Deputy Secretary (Deputy Secretary) entered an order denying
reconsideration. The petitioner then filed a petition for review with this Court on
December 19, 1986.
               We dismissed the appeal. In doing so, we noted that because the Deputy
Secretary denied reconsideration 30 days after the August 14, 1986 final order of the
OHA, the reconsideration order of the Deputy Secretary was “null and void” and,
consequently, the petitioner could not appeal that order. Monsour, 533 A.2d at 1116.
We elaborated that, in this context, the only way in which the petitioner could obtain
review in this Court of the proceedings below was to file an appeal within 30 days of
OHA’s August 14, 1986 order. Since the petitioner did not file his petition for review
until December 19, 1986, his appeal was untimely. Accordingly, this Court in Monsour
declined to address the petitioner’s appellate arguments, concluding that we lacked
jurisdiction over the appeal.2
               Here, although Petitioner filed an appeal within 30 days of the Secretary’s
December 1, 2016 order denying reconsideration, the Secretary entered that order well
beyond the 30-day time limit in which to rule upon reconsideration. As a result, the
Secretary’s December 1, 2016 order was a nullity, and Petitioner cannot appeal an order
that does not exist as a matter of law. Moreover, on August 4, 2016, the Bureau entered
a final order on the merits, and Petitioner was required to file an appeal within 30 days
of such order. Petitioner, however, did not file his petition for review until December


       2
           Realizing the potential dilemma faced by petitioners seeking reconsideration, we have
cautioned that “the prudent approach in these matters is to file an appeal concurrent with the request
for reconsideration.” Strobhar, 557 A.2d at 442 n.3. When followed, this procedural measure will
ensure that “if reconsideration is denied, the original adjudication or other order will be subject to
judicial review upon the previously filed petition for review.” 1 Pa. Code §35.241(f)(1). We reiterate
that advice.


                                                  3
30, 2016, and his appeal is patently untimely. Therefore, pursuant to Monsour, we are
constrained to dismiss Petitioner’s appeal.
             Regardless, even if Petitioner’s appeal from the Secretary’s order denying
reconsideration were properly before this Court under a nunc pro tunc theory or
otherwise, cf. also Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003), this
Court would not be able to review the merits of the Bureau’s final order. Instead, our
review would be limited to deciding whether the Secretary abused his discretion in
denying reconsideration. Muehleisen v. State Civil Service Commission, 443 A.2d 867,
869 (Pa. Cmwlth. 1982). Pursuant to this standard, an abuse of discretion will be found
only where there is “evidence of bad faith, fraud, capricious action or abuse of power.”
Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988).
             Here, Petitioner is a mentally disadvantaged individual who has received
home and community-based services through Medicaid.              In 2011, Petitioner’s
transportation services to an adult training facility were discontinued because his
transportation provider, Pathways of Southwestern Pennsylvania, Inc., was no longer
willing to provide service to him. In Bussoletti v. Department of Public Welfare, 59
A.3d 682 (Pa. Cmwlth. 2012), this Court held that Petitioner did not have either a
statutory right, or a right conferred by administrative regulations, to obtain services
from an unwilling provider. Following our decision in Bussoletti, the Department has
been unable to find Petitioner another provider of transportation services, who is both
willing and qualified to provide such services, in large part because Petitioner lives in
a rural area and access roads to his house are not paved. (Bureau’s Findings of Fact
Nos. 8-10; Decision at 11.) In his present brief, Petitioner devotes a substantial amount
of pages taking issue with our decision in Bussoletti, and devotes the remainder to




                                              4
cursorily accusing the Department of engaging in unethical behavior, fraud, and
retaliation.
               Upon our review of the record, we are unable to find anything to support
the notion that the Secretary acted in bad faith, fraudulently, capriciously, or abused
his power in denying Petitioner’s request for reconsideration. Because Bussoletti is
binding precedent, we find no merit in Petitioner’s arguments to the extent they seek
to overrule that case, impugn its validity, or suggest that it was the result of fraudulent
or other inappropriate behavior. We note that another transportation provider, Green
Arc, has been, and continued to be at the date of the hearing, a willing and qualified
provider. Petitioner, however, has declined to utilize the services of this entity.
Bussoletti, 59 A.3d at 685 and 689; Bureau’s Findings of Fact No. 10. Therefore, even
if Petitioner’s appeal were cognizable in this Court, we would conclude that the
Secretary did not err in denying reconsideration; therefore, there would be no basis
upon which to disturb the Secretary’s order.
               With all of this being stated, we dismiss Petitioner’s appeal.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                             5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Luke Bussoletti,                         :
                   Petitioner            :
                                         :      No. 2129 C.D. 2016
            v.                           :
                                         :
Department of Human Services,            :
                 Respondent              :


                                     ORDER


            AND NOW, this 22nd day of November, 2017, the petition for review
filed by Luke Bussoletti is hereby dismissed.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
