          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

April A. Goode,                             :
                            Appellant       :
                                            :
             v.                             :   No. 1623 C.D. 2016
                                            :   Submitted: March 10, 2017
Housing Authority of The                    :
City of Shamokin                            :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                            FILED: June 13, 2017

             In this appeal, April A. Goode (Goode) asks whether the Court of
Common Pleas of Northumberland County (trial court) erred in affirming a
decision of the Housing Authority of the City of Shamokin (Authority) that
terminated Goode’s assistance under the Section 8 Housing Choice Voucher
Program, commonly known as the Housing and Urban Development (HUD)
Section 8 program (Program).1 Primarily, Goode argues the Authority did not
afford her adequate notice of the hearing regarding termination of her assistance.
She also asserts the trial court abused its discretion by denying her request for a de
novo hearing. Upon review, we vacate and remand.




      1
          The Program provides housing at reduced costs to low-income families. See Section
8(a) of the Housing and Community Development Act of 1974 (Act), 42 U.S.C. §1437f(a). The
Program is funded by the federal government, but it is administered by local public housing
authorities. 42 U.S.C. §1437f(o).
                                   I. Background
             Relevant here, in January 2016, the Authority sent Goode a letter in
which it notified her that it was terminating her assistance under the Program
because Goode did not provide certain documents to the Authority, as required
after a prior informal hearing in November 2015. The Authority’s letter indicated
Goode’s failure to produce the requested documents rendered her non-compliant
with the Authority’s administrative plan for the Program. The letter stated Goode
had a right to appeal the termination of her assistance and obtain a hearing. Goode
filed an appeal and requested a hearing.


             By letter dated January 13, 2016, the Authority notified Goode that it
scheduled a hearing for 9:00 a.m. on January 20, 2016 with the Authority’s
Executive Director. The letter informed Goode that if she were unable to attend
the hearing, she was required to contact the Authority 24 hours prior to the hearing.
The letter further stated that if Goode did not contact the Authority or appear at the
hearing, she would not be permitted to reschedule and the decision terminating her
Program assistance would stand.


             Goode did not appear at the scheduled hearing. Additionally, she did
not timely request a continuance of the hearing. As a result, the Authority upheld
the determination set forth in its January 6, 2016 letter.


             The Authority’s final determination, set forth in a letter dated January
22, 2016, explained that the reason for Goode’s termination of assistance under the
Program was that the Authority upheld its findings set forth in its earlier



                                           2
termination notice based on Goode’s failure to appear at the hearing and her failure
to timely request a continuance of that hearing. Goode appealed to the trial court.


              The trial court held a hearing at which Goode, the Authority’s
executive director, Ronald Miller, and the Authority’s rental manager for the
Program, Kathleen Shevitski, testified. Shortly thereafter, the trial court issued an
order denying Goode’s appeal.


              The trial court subsequently issued an opinion in which it determined
that, because a complete record was made before the Authority, it was not required
to conduct a de novo hearing. The trial court explained that the certified record
revealed the Authority’s actions were fully compliant with its administrative plan
developed pursuant to HUD guidelines.


              In addition, the trial court stated, the form, notice and hearing
requirements were all set forth in the Authority’s administrative plan. The trial
court explained Goode did not challenge the requirements or the legality of the
Authority’s administrative plan. The Authority’s final determination indicated that
the reason for Goode’s termination of assistance was that the Authority upheld the
findings in its prior termination notice based on Goode’s failure to appear at the
January 20 hearing she requested as well as her failure to timely request a
continuance. This matter is now before us for disposition.2



       2
         After Goode filed her appeal to this Court, she filed an application seeking a stay
pending the appeal. A single judge of this Court denied Goode’s application.



                                             3
                                      II. Issues
             On appeal, Goode argues the Authority did not afford her adequate
notice of the hearing regarding termination of her assistance. She also asserts the
trial court abused its discretion by denying her request for a de novo hearing.
Additionally, Goode contends the trial court abused its discretion when it granted,
ex parte, the Authority’s motion to lift a previously granted stay that required the
Authority to provide Goode with assistance under the Program pending her appeal
of the Authority’s decision.


                                   III. Discussion
             Goode first asserts the trial court erred by failing to find the Authority
abused its discretion, under these circumstances, in refusing to schedule a due
process hearing for Goode in response to her in-person request for same on the
afternoon of January 20, 2016. In the absence of a due process hearing, Goode
contends, the Authority took action that divested Goode of her right to ongoing
participation in the Program. Goode maintains she did not fail to perform her
participant obligations such as paying rent and utilities; she believes she did meet
all substantive production requirements placed on her by the Authority by January
12, 2016. To the extent there is any record for review, Goode argues, that record
does not reflect otherwise.


             Goode further asserts the Authority never found she violated any
substantive obligation; the Authority never articulated what was lacking in the
production made by Goode on January 12, 2016. Also, the Authority did not
ensure Goode actually received notice in advance of the scheduled hearing. Goode
contends the Authority’s action is based entirely on: (1) Goode’s failure to meet


                                          4
the Authority’s unauthorized demands for production within its arbitrary
production deadlines; and, (2) Goode’s failure to request, prior to January 20,
2016, a rescheduling of the hearing listed for 9:00 a.m. that day, even though no
facts exist to dispute Goode’s claim that she did not actually receive and have the
benefit of that notice until after the scheduled hearing time.


             Regardless of the Authority’s failure to provide Goode timely notice,
which the Authority was promptly made aware of on the day of the scheduled
hearing, Goode maintains the Authority abused its discretion by failing to
articulate in its notice of January 13, after Goode’s production of documents on
January 12, what more, if anything, was required of Goode to preserve
participation. Goode contends that, in light of the Authority’s failure to reschedule
the hearing with clear notice to her of a proper basis for its proposed termination,
the trial court erred in dismissing her appeal.


             Goode further argues the trial court erred and abused its discretion by
proceeding on an incomplete record and refusing to permit the development of a
complete record, concluding that, under the circumstances, the only operative fact
it needed to consider was Goode’s failure on January 20, 2016 to appear at 9:00
a.m. on that date. Goode asserts the trial court arrived at this conclusion even
though the notice the Authority provided to Goode lacked sufficient detail
regarding whether and if so, how, Goode’s submission of documents was
inadequate, and despite the fact that there was no refutation of facts alleged by
Goode that she did not have actual notice of the hearing until well after its
scheduled start time.



                                           5
            At the outset, we note,

                   In an administrative proceeding, the essential
            elements of due process are notice and an opportunity to
            be heard. Notice, the most basic requirement of due
            process, must be reasonably calculated to inform
            interested parties of the pending action, and the
            information necessary to provide an opportunity to
            present objections ….

                  Due process of law requires notice to be given to
            the respondent so that she may adequately prepare her
            defense in such cases.

J.P. v. Dep’t of Human Servs., 150 A.3d 173, 176 (Pa. Cmwlth. 2016) (citations
and quotations omitted).


            Here, by letter dated January 6, 2016, the Authority informed Goode
that she failed to submit previously requested documents to the Authority and, as a
result, she was in violation of the Authority’s administrative plan for the Program.
Certified Record (C.R.), Item #1, Ex. E. The letter informed Goode that the
Authority would terminate her from the Program effective January 31, 2016. Id.
The letter further stated that Goode could appeal the decision by requesting an
informal hearing. Id. In response, Goode submitted a letter to the Authority, and
she attached what she believed were the documents the Authority previously
requested. C.R., Item #1, Ex. F. Goode further indicated that if the documents
were not sufficient to meet the Authority’s request, she wished to have a hearing.
Id.


            In response, by letter dated January 13, 2016, the Authority informed
Goode that it would hold a hearing on its decision to terminate her assistance under

                                         6
the Program at 9:00 a.m. on January 20, 2016. C.R., Item #1, Ex. G. Because
Goode did not appear at the scheduled hearing, the Authority terminated her
assistance under the Program. C.R., Item #1, Ex. J.


             Goode appealed to the trial court, asserting, among other things, she
did not receive the Authority’s notice dated January 13 scheduling the hearing for
9:00 a.m. on January 20 until the afternoon of January 20. C.R., Item #1 at 4.
Further, at a hearing before the trial court, Goode offered testimony to corroborate
this averment. C.R., Item #34, Tr. Ct. Hr’g, Notes of Testimony, 8/29/16, at 35.


             Nevertheless, the trial court made no finding as to whether Goode
received notice of the January 20, 2016 hearing prior to that date so as to allow her
to attend the hearing or seek a continuance at least 24 hours prior to it as explained
in the January 13 hearing notice.         C.R., Item #1, Ex. G.         Under these
circumstances, a remand is necessary for the trial court to make such a finding.
See, e.g., Miller v. Unemployment Comp. Bd. of Review, 131 A.3d 110 (Pa.
Cmwlth. 2015) (where tribunal fails to make necessary findings and credibility
determinations, a remand is necessary).


             If the trial court determines Goode did not receive notice of the
January 20, 2016 hearing prior to that date so as to allow her to attend the hearing
or seek a continuance at least 24 hours prior to the hearing, the trial court shall
remand the matter to the Authority for a hearing regarding Goode’s termination of
assistance under the Program.




                                          7
             A different procedure would follow if the trial court determines
Goode did, in fact, receive timely notice of the January 20, 2016 hearing. Because
the trial court received additional evidence, it should issue a decision containing
findings of fact and conclusions of law regarding whether the Authority properly
terminated Goode’s right to assistance under the Program. Bd. of Pensions & Ret.
of City of Phila. v. Einhorn, 442 A.2d 21, 23 (Pa. Cmwlth. 1982) (“Where a
hearing de novo has been granted … the court of common pleas must … [weigh]
the evidence and mak[e] its own findings of fact and conclusions of law which we
can then review.”). We leave to the trial court’s thoughtful discretion whether to
proceed based on the existing record or to conduct an additional hearing given that
the trial court placed some restrictions on the presentation of the evidence based on
its erroneous belief that it was not conducting de novo review here.


             To that end, the trial court here incorrectly indicated it did not conduct
de novo review. A de novo review entails, as the term suggests, full consideration
of the case another time. McLaughlin v. Centre Cnty. Hous. Auth., 616 A.2d 1073
(Pa. Cmwlth. 1992); see also E.N. v. M. School Dist., 928 A.2d 453, 462 (Pa.
Cmwlth. 2007) (quoting BLACK’S LAW DICTIONARY 852 (8th ed. 2004)) (The term
“de novo judicial review” means a “nondeferential review of administrative
decision, usually through a review of the administrative record plus any additional
evidence the parties present.”). “If the trial court is conducting a de novo hearing
the court must act as a nisi prius court, weighing the evidence and making its own
findings of fact and conclusions of law.” McLaughlin, 616 A.2d at 1074-75.




                                          8
              Here, the trial court issued an order precluding Goode from presenting
testimony outside of the record presented by the Authority.              C.R., Item #26.
Nevertheless, the trial court subsequently held a hearing during which Goode and
two Authority representatives testified, in addition to the record it received from
the Authority (which did not hold a hearing based on Goode’s failure to appear).3
Thus, the trial court here conducted de novo review. McLaughlin (where both
parties were afforded an opportunity to present evidence, which trial court
considered, trial court heard appeal de novo).


              As a final point, Goode argues that, after granting her request for a
stay (or an injunction) requiring the Authority to make subsidy payments to her
landlord on her behalf during the pendency of her appeal from the Authority’s
decision, the trial court erred in granting the Authority’s motion to amend the order
regarding the stay. More particularly, Goode contends the trial court granted the
Authority’s motion essentially lifting the stay (or dissolving the injunction) without
issuing a rule to show cause or holding a hearing, and it did so on the same day the
motion was filed.


              Unfortunately, the trial court did not address this issue in its opinion
or otherwise explain its decision granting the Authority’s motion to lift the stay (or



       3
          The fact that the trial court held a hearing at which three witnesses testified
distinguishes this case from Kuziak v. Borough of Danville, 125 A.3d 470 (Pa. Cmwlth. 2015)
and Piatek v. Pulaski Township, 828 A.2d 1164 (Pa. Cmwlth. 2003), referenced by the trial
court. Neither the Kuziak nor Piatek decision indicates that the common pleas courts held
evidentiary hearings following the appeals from the local agency decisions at issue in those
cases.



                                             9
dissolve the injunction). Thus, on remand, the trial court shall explain its decision
granting the Authority’s motion to lift the stay (or dissolve the injunction).


             Based on the foregoing, we vacate the trial court’s order denying
Goode’s appeal, and we remand for proceedings consistent with the foregoing
opinion.




                                        ROBERT SIMPSON, Judge




                                          10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

April A. Goode,                            :
                        Appellant          :
                                           :
           v.                              :   No. 1623 C.D. 2016
                                           :
Housing Authority of The                   :
City of Shamokin                           :

                                    ORDER

           AND NOW, this 13th day of June, 2017, the order of the Court of
Common Pleas of Northumberland County is VACATED and this matter is
REMANDED for proceedings consistent with the foregoing opinion.


           Jurisdiction is relinquished.




                                      ROBERT SIMPSON, Judge
