            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Milton Sloan,                              :
                     Petitioner            :
                                           :
       v.                                  : No. 1167 C.D. 2017
                                           : SUBMITTED: April 6, 2018
Department of Human Services,              :
                 Respondent                :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: June 4, 2018

       Milton Sloan (Claimant) petitions pro se for review of the July 3, 2017 final
Order of the Secretary of Human Services (Secretary) that denied Claimant’s
Request for Reconsideration as untimely and upheld the June 2, 2017 Final
Administrative Action Order of the Department of Human Services (DHS), Bureau
of Hearings and Appeals (BHA). The BHA affirmed the decision of the
Administrative Law Judge (ALJ) denying Claimant’s appeal from a decision of
Community Legal Services (CLS) of Philadelphia that denied his application for
Title XX legal services.1 Stated simply, Claimant petitions pro se for review of the




       1
         The operation of Community Legal Services (CLS) is funded pursuant to Title XX of the
Social Security Act, 42 U.S.C. § 1397.
July 3, 2017 final order of the Secretary of DHS that ultimately denied Claimant’s
application for Title XX legal services.2
                                       I. Background
       On an unspecified date in 2015, Claimant’s employer, the Kimmel Center for
the Performing Arts (Employer), terminated him for willful misconduct. Certified
Record (C.R.), Item No. 4, Finding of Fact (F.F.) No. 1. In February 2016, Claimant
went to CLS to apply for Title XX free legal services. C.R., Item No. 4, F.F. No. 2.
Claimant requested that CLS represent him in a lawsuit against his former Employer.
Id.
       On March 2, 2016, CLS denied Claimant’s application for free legal services
regarding his job termination. C.R., Item No. 4, F.F. No. 3; C.R., Item No. 3, Ex.
C-1. The notice from CLS explained that it would not be able to represent Claimant
due to limited staffing and resources. C.R., Item No. 4, F.F. Nos. 4-7; C.R., Item
No. 3, Ex. C-1. Claimant did not appeal this notice.
       Almost a year later, on February 24, 2017, Claimant again sought
representation from CLS for the same employment matter. C.R., Item No. 4, F.F.
No. 8; C.R., Item No. 7, at 11. On March 1, 2017, CLS again denied Claimant’s
application for free legal services due to the type of case as well as the untimeliness
of his claims (Notice). C.R., Item No. 4, F.F. No. 9; C.R. Item No. 3, Ex. C-2.
Claimant timely appealed the Notice and a hearing was held before an ALJ of the
BHA.



       2
          Claimant also argues in his petition that DHS “erred in concluding that ‘[C]laimant is
eligible for [unemployment compensation] benefits under the provisions of Section 402(b) of the
Pennsylvania Unemployment [Compensation] Law [Act of December 5, 1936, Second Ex. Sess.,
P.L. (1937) 2897, as amended, 43 P.S. § 802(b).]’” Pet’r’s Br. at 5. DHS does not have jurisdiction
over matters related to the grant or denial of unemployment compensation benefits. As such, this
argument of Claimant is not properly before this Court.
                                                2
        At that BHA hearing, the Litigation Director of CLS, Sharon Dietrich, Esquire
testified that for the last 20 years, she managed the Employment Unit at CLS. In
that capacity, she assesses the cases for possible representation by the Employment
Unit.     Attorney Dietrich testified that CLS does not accept employment
discrimination matters such as the type presented by Claimant because employment
discrimination cases, particularly those that involve federal court litigation such as
Claimant’s, are very time consuming and resource intensive. C.R., Item No. 4, at 4-
5; C.R., Item No. 7, ALJ’s Hr’g, Notes of Testimony (N.T.), 5/23/17, at 17-20. On
May 30, 2017, an ALJ of the BHA denied Claimant’s appeal. The ALJ’s order
concluded that CLS appropriately denied Claimant’s application for Title XX legal
services based on the evidence of limited funds and staff of CLS, the lack of merit
on Claimant’s case, his pursuit of a federal filing, and the fact that CLS does not
represent individuals in employment discrimination matters. C.R., Item No. 4, at 2,
6-7. Claimant timely appealed the ALJ’s decision.
        On June 2, 2017, the Chief ALJ of the BHA issued her Final Administrative
Action Order that affirmed the ALJ’s decision. C.R., Item No. 4. Thereafter, on
June 26, 2017, Claimant untimely requested reconsideration of that Final
Administrative Action Order to the Secretary. C.R., Item No. 5.
        On July 3, 2017, the Secretary denied Claimant’s request for reconsideration
as untimely filed and for the reasons stated by the BHA in its Final Administrative
Action Order. Thereafter, Claimant filed his petition for review with this Court.
                                      II. Issue
        In essence, Claimant argues the ALJ erred in ruling that the evidence
supported the denial of Claimant’s application for Title XX legal services.




                                          3
                                   III. Discussion
      Before reaching the merits of this appeal, we first address the Secretary’s
jurisdiction over Claimant’s reconsideration petition and the validity of the
Secretary’s July 3, 2017 order, from which Claimant appealed.
      Subject matter jurisdiction relates to the competency of a court or agency to
hear and decide the type of controversy presented. Commonwealth v. Bethea, 828
A.2d 1066, 1074 (Pa. 2003).        It is a well-established principle that an issue
concerning subject matter jurisdiction may be raised and determined at any stage of
a proceeding, even by an appellate court sua sponte.               Commonwealth v.
Scarborough, 64 A.3d 602, 607 n.10 (Pa. 2013); Commonwealth v. Little, 314 A.2d
270, 272 (Pa. 1974).
      The Secretary’s decision to deny a request for reconsideration is a matter of
administrative discretion and will be reversed only for an abuse of discretion.
Hudson v. Dep’t of Pub. Welfare, 508 A.2d 383, 387 (Pa. Cmwlth. 1986). A
reviewing court may not overturn an agency’s exercise of its discretion absent a
violation of constitutional law, error of law or failure to support the facts by
substantial evidence. Karpinski v. Dep’t of Pub. Welfare, 13 A.3d 1050, 1052 (Pa.
Cmwlth. 2011); see also Morrison v. Dep’t of Pub. Welfare, 646 A.2d 565, 571-72
(Pa. 1994) (defining scope and standard of review).             Pa.R.A.P. 1551(a)(3)
(pertaining to scope of review) states in relevant part:

             Review of quasi-judicial orders shall be conducted by the court
             on the record made before the government unit. No question
             shall be heard or considered by the court which was not raised
             before the government unit except:
             ....
             (3) Questions which the court is satisfied that the petitioner could
             not by the exercise of due diligence have raised before the
             government unit. If, upon hearing before the court, the court is
             satisfied that any such additional question within the scope of
                                         4
               this paragraph should be so raised, it shall remand the record to
               the government unit for further consideration of the additional
               question.

Pa.R.A.P. 1551(a)(3); See also Wicker v. State Civil Serv. Comm’n, 460 A.2d 407,
408 (Pa. Cmwlth. 1983) (when issues are not properly raised and developed in briefs,
an appellate court will not consider them).
       In addition, Section 35.241(a) of the General Rules of Administrative Practice
and Procedure (GRAPP)3 provides that an application for reconsideration may be
filed by a party to a proceeding “within 15 days, or another period as may be
expressly provided by statute applicable to the proceeding, after the issuance of an
adjudication or other final order by the agency.” 1 Pa. Code § 35.241(a).
       In Ciavarra v. Commonwealth, 970 A.2d 500, 503 (Pa. Cmwlth. 2009), this
Court, citing Fleeher v. Department of Transportation, Bureau of Driver Licensing,
850 A.2d 34, 36 (Pa. Cmwlth. 2004), held that “the timeliness of a request for
reconsideration is jurisdictional” and that the failure to file a timely request for
reconsideration under 1 Pa. Code § 35.241(a) within the 15-day time period
“deprives an agency of jurisdiction to consider the request.” Ciavarra, 970 A.2d at
503.
       In A.P. v. Department of Public Welfare, 884 A.2d 974, 976 (Pa. Cmwlth.
2005), this Court dismissed an appeal where the petitioner’s request for
reconsideration filed with the Department of Public Welfare (DPW)4 was untimely.


       3
          GRAPP governs practice and procedure before Commonwealth agencies, except where
an applicable statute provides inconsistent rules or an agency promulgates regulations setting forth
rules that are inconsistent with the GRAPP. 1 Pa. Code § 31.1; G.L. v. State Ethics Comm’n, 17
A.3d 445, 448 (Pa. Cmwlth.), appeal denied, 32 A.3d 1279 (Pa. 2011).

       4
         DPW became known as the DHS on November 24, 2014. Section 103(a) of the Human
Services Code (formerly the Public Welfare Code), Act of June 13, 1967, P.L. 31, added by the
Act of September 24, 2014, P.L. 2458, 62 P.S. § 103(a).
                                                 5
We explained: “Because Petitioner’s request for reconsideration was not filed
within the mandatory time limit imposed by 1 Pa. Code § 35.241(a), [DPW] was
without jurisdiction to consider Petitioner’s request for reconsideration.” A.P., 884
A.2d at 976. We concluded that DPW’s last order, which upheld a prior order
dismissing petitioner’s appeal, was not a valid order from which the petitioner could
appeal. Id. Thus, we dismissed the petitioner’s appeal. Id.
      In the case before us, on June 2, 2017, the Chief ALJ of the BHA issued her
Final Administrative Action Order affirming the ALJ’s decision that denied
Claimant’s appeal of CLS’s denial of Claimant’s application for Title XX legal
services.
      Claimant filed his petition for reconsideration on June 26, 2017, which is nine
days past the mandatory 15-day limit imposed by 1 Pa. Code § 35.241(a)
(application for rehearing or reconsideration), which states in pertinent part, “An
application for rehearing or reconsideration may be filed by a party to a proceeding
within 15 days, or another period as may be expressly provided by statute applicable
to the proceeding, after the issuance of an adjudication or other final order by the
agency.” 1 Pa. Code § 35.241(a). Thus, Claimant’s request for reconsideration
was untimely, and the Secretary lacked jurisdiction to consider it. Ciavarra; A.P.;
Fleeher.    Consequently, the Secretary’s Order of July 3, 2017 denying
reconsideration was invalid for lack of jurisdiction.
      Although Claimant timely filed his petition for review from the Secretary’s
July 3, 2017 Order in this Court, for the reasons just explained, the Secretary’s Order
was not a valid order from which Claimant could appeal. See A.P. Claimant did not
timely appeal the June 2, 2017 Final Administrative Action Order of the Chief ALJ
of the BHA on the merits. Thus, we are constrained to conclude that there is no valid
final order before us to review. We emphasize that “the prudent approach in these

                                          6
matters would have been to file an appeal concurrent with the request for
reconsideration.” Strobhar v. Dep’t of Pub. Welfare, 557 A.2d 440, 442 n.3 (Pa.
Cmwlth. 1989).
      However, even assuming there was a valid final order before us, the Secretary
did not abuse his discretion in denying Claimant’s Request for Reconsideration
because CLS correctly refused Claimant’s application for Title XX legal services.
      Eligibility for Title XX-funded legal services is set forth in regulations
promulgated by DHS on June 26, 1982, in the Pennsylvania Bulletin. See C.R., Item
No. 2, Ex. 2, unnumbered p. 12. Regulation 3-1-42 provides in pertinent part:
“[l]egal [s]ervice is provided if: (1) the provision of services is consistent with the
American Bar Association Code of Professional Responsibility and/or the
Disciplinary Rules of the Supreme Court of Pennsylvania . . . .” 12 Pa.B. 2004 (June
26, 1982).
      Rule 1.3 of the Pennsylvania Rules of Professional Conduct regarding
diligence provides that a lawyer shall act with reasonable diligence and promptness
in representing a client. Pa. R.P.C. 1.3. Comment 2 to Rule 1.3 provides that a
lawyer must control her workload so that “each matter can be handled competently.”
Pa. R.P.C. 1.3 cmt 2.
      This Court has recognized CLS’s legitimate need to refuse to take cases for
merit and resource reasons:

             It is clear that agencies with limited funding, such as CLS, must
             have some discretion in assessing the merit of hundreds of
             potential cases that walk through their portals. Criteria such as
             the likelihood of success on the merits, prior experience with the
             same clients, assessment of a client’s credibility and a
             responsibility to adhere to ethical considerations must come into
             play when CLS is forced by limited funding to make reasonable
             judgment calls. See Wetzel v. Commonwealth of Pennsylvania,
             Department of Welfare, … 451 A.2d 1067 ([Pa. Cmwlth.] 1982)
                                           7
             (holding that, due to the availability of county resources and
             needs, legal services agencies must be accorded a certain amount
             of latitude to develop systems of case priorities and exclusions).

Miller-Turner v. Dep’t of Pub. Welfare, 629 A.2d 308, 311-12 (Pa. Cmwlth. 1993).
      Similarly, as far back as 2006, DHS has stated: “[d]ue to limited funding,
legal services agencies must have discretion in assessing merit in the high volume
… of cases that it reviews. Appellate courts have concluded that legal services
agencies must be accorded latitude in developing case priorities and exclusions.”
Appeal of Irving C. Jones, No. 511689336-006M (final order, July 31, 2006). C.R.,
Item No. 2, Ex. 2, unnumbered p. 14.
      Here, CLS determined that providing services to Claimant was not consistent
with Rule 1.3 of the Pennsylvania Rules of Professional Conduct because Claimant’s
case involved a complex and time-consuming matter beyond the scope of
representation that CLS normally provides. By February 24, 2017, when Claimant
approached CLS the second time for the same matter, his discrimination claims were
untimely for litigation. For these reasons, CLS appropriately denied Claimant’s
request for free legal services under Title XX.
                                  IV. Conclusion
      Accordingly, we vacate the Secretary’s July 3, 2017 Order as a nullity. The
BHA’s Final Administrative Action Order of June 2, 2017 is the final, valid
adjudication in this matter.



                                       __________________________________
                                       ELLEN CEISLER, Judge




                                          8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Milton Sloan,                                  :
                       Petitioner              :
                                               :
       v.                                      : No. 1167 C.D. 2017
                                               :
Department of Human Services,                  :
                 Respondent                    :

                                           ORDER

       AND NOW, this 4th day of June, 2018, the Order of the Secretary of Human
Services, dated July 3, 2017, is VACATED.5




                                               ________________________________
                                               ELLEN CEISLER, Judge




       5
         In vacating the July 3, 2017 order, the final adjudication in this matter is the June 2, 2017
Final Administrative Action Order of the Department of Human Services, Bureau of Hearings and
Appeals, which affirmed the decision of the Administrative Law Judge denying Claimant’s appeal
from a decision of Community Legal Services of Philadelphia that denied his application for Title
XX legal services.
