           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Herbert F. Madara,                      :
                          Petitioner    :
                                        :
                     v.                 :   No. 415 C.D. 2018
                                        :   Submitted: November 9, 2018
Department of Human Services,           :
                      Respondent        :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: February 7, 2019


      Herbert F. Madara (Madara), proceeding pro se, petitions for review of a
February 22, 2018 Order (Reconsideration Order) of the Secretary of Human
Services (Secretary) denying Madara’s request for reconsideration of the
Department of Human Services (DHS), Bureau of Hearings and Appeals’ (Bureau)
January 26, 2018 final administrative action order (Final Order). The Final Order
affirmed an administrative law judge’s (ALJ) decision denying Madara’s appeal
related to the calculation of his Supplemental Nutrition Assistance Program
(SNAP) benefits. Upon review, we affirm.
      On September 11, 2017, Madara received a notice from the Montgomery
County Assistance Office (CAO) informing him that based upon a change in his
income,1 his monthly SNAP benefits were increasing from $107.00 per month to
$109.00. (Record (R.) Item 2.) Madara filed a timely appeal challenging the
amount of SNAP benefits, asserting they should be higher, and an administrative
fair hearing was conducted by telephone on January 11, 2018, before an ALJ for
the Bureau.
       At the hearing, an income maintenance worker testified as follows regarding
the calculation of Madara’s SNAP benefits. Madara’s gross income is $871.00. A
standard deduction in the amount of $160.00 is subtracted from this figure to equal
$711.00. This subtotal is then divided in half, totaling $355.50, which is then
subtracted from Madara’s total shelter cost, which is $793.00.2 The resulting
$437.50 represents Madara’s excess shelter expense, which is then deducted from
the $711.00 income subtotal to yield $273.50 in net income. Based upon this
income, Madara would be entitled to $109.00 per month in SNAP benefits. (R.
Item 7, Hr’g Tr. at 11-12.)
       Madara did not dispute the amount of his gross income, standard deduction,
or total shelter costs. What he did dispute was the calculation of the excess shelter
deduction. Madara testified that because he is considered elderly and disabled, he
is entitled to deduct the total amount of his shelter costs, $793.00. According to
Madara, this would reduce his net income to $0.00 and entitle him to greater SNAP
benefits. (Id. at 18, 21-25.) In support of his calculation, he pointed to a February
6, 2017 Order by this Court remanding his appeal of a SNAP benefit decision from



       1
          The change in income was attributable to an increase in the permitted deductions, which
resulted in a decrease in Madara’s net income. (ALJ Adjudication at 8.)
        2
          The total shelter cost is calculated by adding Madara’s monthly rent, which is $213.00,
to the standard utility deduction, which is $580.00.



                                               2
Philadelphia County (Remand Order)3 and the subsequent decision by another ALJ
in the other case, which appeared to deduct the total amount of his shelter costs
from his income.
       The ALJ in the present case denied Madara’s appeal, stating that Madara
was “misinterpreting the[] regulations” and “equating total shelter expense with
excess shelter expense.” (ALJ Adjudication at 9 (emphasis in original).) The ALJ
explained that the regulations permit the deduction of excess shelter expenses
“exceeding 50 percent of the net income” for the household, not the full amount, as
Madara contends. (Id. (emphasis omitted).)                The ALJ found that the CAO’s
calculation was in accordance with the applicable regulations. As for Madara’s
argument that Philadelphia County correctly calculated his benefits, the ALJ noted
she “is not bound by nor does [she] have jurisdiction over any prior adjudication or
prior incorrect calculation.” (Id.) Based upon the testimony and applicable law,
the ALJ denied Madara’s appeal.
       The Final Order issued January 26, 2018, affirmed the decision of the ALJ.
The Final Order further provided that either party could seek reconsideration by
the Secretary within 15 days or file an appeal with this Court within 30 days. The
Final Order explained that filing for reconsideration “does not stop the time within
which an appeal must be filed to Commonwealth Court.” (R. Item 4, Final Order.)
Madara filed a timely application for reconsideration, claiming the ALJ erred in

       3
         Madara v. Dep’t of Human Servs. (Pa. Cmwlth., No. 2695 C.D. 2015, filed Feb. 6,
2017) (Madara I). As an unreported panel decision of this Court, Madara may cite this opinion
“for its persuasive value, but not as binding precedent,” pursuant to Section 414(a) of this
Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a). The remand in that matter
was the result of the Court finding that the appeal and fair hearing procedures were not followed.
Madara I, slip op. at 3-4. We did not reach the merits of whether Madara’s benefits were
properly calculated.



                                                3
calculating his excess shelter deduction. Importantly, Madara did not file an
appeal from the January 26, 2018 Final Order with this Court.
      On February 22, 2018, the Secretary issued the Reconsideration Order
denying Madara’s request for reconsideration “for the reasons stated” in the
Bureau’s Final Order. (R. Item 6, Reconsideration Order.) The Reconsideration
Order stated that “Madara may take issue with this Order Denying Reconsideration
by appealing to the Commonwealth Court of Pennsylvania within thirty (30) days
from the date of this Order.” (Id. (emphasis omitted).) Madara filed his Petition
for Review on March 23, 2018.
      In his Petition for Review and supporting brief, Madara once again contests
the calculation of his SNAP benefits, specifically the calculation of his excess
shelter deduction. Madara argues that the regulations do not apply to him because
he is elderly, disabled, and categorically eligible since his income is less than 200
percent of the poverty level. Accordingly, Madara asserts that he was entitled to a
full deduction of his total shelter costs, which would have reduced his net monthly
income to $0.00 and entitled him to a full allotment of $194.00 in SNAP benefits
for a one-person household. He further claims the ALJs in the Philadelphia case
and this case from Montgomery County made conflicting decisions, which should
be consistent. He seeks reversal of the Final Order and retroactive reinstatement of
his benefits at the full allotment from November 2016 to present.
      The Department argues Madara timely appealed the Reconsideration Order
but not the Final Order; as a result, our review is limited to the Reconsideration
Order. Because Madara does not assert any basis upon which the Secretary abused
her discretion in denying reconsideration, the Department claims Madara waived
this argument.   Even if the Court were to consider the merits, it asserts the



                                         4
Secretary was correct in her determination because Madara’s SNAP benefits were
properly calculated. Like the ALJ, the Department contends Madara is confusing
total shelter costs with the excess shelter deduction, which are separate and
distinct.
       Before we can reach the issue of whether the calculation was correct, we
must first address the issue of which order is properly before us.4 Madara’s
Petition for Review identifies the Reconsideration Order as the order he is
challenging, although his arguments focus on the merits of the Final Order.
Madara, though, did not file an appeal of the Final Order within 30 days, which
rendered it final. Instead he sought reconsideration with the Secretary, who denied
the request. While Madara did timely appeal the Reconsideration Order, that does
not preserve Madara’s ability to challenge the merits of the Final Order.5 The
filing of a reconsideration petition does not extend the 30-day appeal period to
appeal the merits decision. Modzelewski v. Dep’t of Pub. Welfare, 531 A.2d 585,
587 (Pa. Cmwlth. 1987).
       The scope of review of an order denying reconsideration is limited to
determining whether the Secretary abused her discretion, and not the merits of the
decision. K.G. v. Dep’t of Human Servs., 187 A.3d 276, 279 (Pa. Cmwlth. 2018);
Keith v. Dep’t of Pub. Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988);
Modzelewski, 531 A.2d at 587.             Because Madara sought review of only the

       4
          On April 10, 2018, the Court issued an order directing the parties to address the
timeliness of the Petition for Review in their principal briefs on the merits. The Department did
so, but Madara did not.
        5
          Madara could have filed for reconsideration with the Secretary within 15 days and still
have filed his Petition for Review with this Court of the Final Order within 30 days, which would
have preserved his appeal of the merits. Keith v. Dep’t of Pub. Welfare, 551 A.2d 333, 335 (Pa.
Cmwlth. 1988).



                                               5
Reconsideration Order, our scope of review is, therefore, limited to determining
whether the Secretary abused her discretion when she denied Madara’s request for
reconsideration. “An abuse of discretion will only be found where the evidence
shows there was fraud, bad faith, capricious action or abuse of power.” K.G., 187
A.3d at 279.
      Madara does not address how the Secretary abused her discretion aside from
reasserting that the calculation of his excess shelter deduction was incorrect, which
affects his net monthly income and the amount of SNAP benefits he receives.
This, however, goes to the merits of the Final Order, which was not appealed.
Because Madara does not address how the Secretary’s Reconsideration Order
involved fraud, bad faith, capricious action, or an abuse of power, any challenge to
the validity of the Reconsideration Order is waived. Id.
      Even if we were to consider Madara’s arguments as alleging an abuse of
discretion by the Secretary, he would not prevail on his claim because, contrary to
Madara’s assertions, the calculations were in accordance with the applicable
regulations. According to the regulations, a number of deductions are permitted
from income, including, relevant here, the excess shelter deduction. The excess
shelter deduction is defined as “[m]onthly shelter expenses in excess of 50 percent
of the household’s income after all other deductions . . . have been allowed.” 7
C.F.R. § 273.9(d)(6)(ii) (emphasis added). The regulation further provides, “[i]f
the household does not contain an elderly or disabled member, . . . the shelter
deduction cannot exceed the maximum shelter deduction limit established for the
area.” Id. Madara points to this language as supporting his claim that he is entitled
to a deduction of the full amount of his monthly shelter expenses without regard to
any imposed limit. However, this language does not mean that Madara is entitled



                                         6
to a deduction of his full shelter costs; it means if his calculated excess shelter
deduction exceeds the established limit, which for the 2018 Fiscal Year was
$535.00,6 he shall be entitled to the full amount of the excess shelter deduction.
See 7 C.F.R. § 273.10(d)(7) (“Households which contain a member who is a
disabled [supplemental security income (SSI)] recipient . . . or households which
contain a member who is a recipient of SSI benefits and the household is
determined . . . to be categorically eligible . . . shall be entitled to . . . the uncapped
excess shelter expense deduction . . . .”). It is still necessary to calculate Madara’s
excess shelter deduction in accordance with the regulations to determine which
figure to use. The regulations direct the CAO to:

       (H) Total the allowable shelter expenses to determine shelter costs
       . . . . Subtract from total shelter costs 50 percent of the
       household’s monthly income after all the above deductions have
       been subtracted. The remaining amount, if any, is the excess
       shelter cost . . . .

       (I) Subtract the excess shelter cost up to the maximum amount
       allowed for the area (unless the household is entitled to the full
       amount of its excess shelter expenses) from the household’s monthly
       income after all other applicable deductions. Households not subject
       to the capped shelter expense shall have the full amount exceeding
       50 percent of their net income subtracted. The household’s net
       monthly income has been determined.

7 C.F.R. § 273.10(e)(1)(i)(H), (I) (emphasis added).
       That is what was done here. The ALJ, in her Adjudication, calculated
Madara’s excess shelter deduction and net monthly income as follows:


       6
          United States Department of Agriculture, FY 2018 Allotments and Deduction
Information, available at https://fns-prod.azureedge.net/sites/default/files/snap/FY18-Maximum-
Allotments-Deductions.pdf (last visited Feb. 1, 2019).



                                              7
      Excess Shelter Deduction Computation

      $ 213.00 Rent
      $ 580.00 Heating Standard Utility Allowance
      $ 793.00 Total Shelter Costs
      - 356.00 50% of Income Subtotal ($711 divided by 2=$355.5
      rounded[7])
      $ 437.00 Excess Shelter Deduction

      SNAP Computation and Deductions
      $ 871.00 Total gross monthly income
      - 160.00 Standard Deduction
      []$711.00 Income Subtotal
      - 437.00 Excess Shelter Costs/Maximum Shelter Deduction
      $ 274.00 Net SNAP Monthly Income

(ALJ Adjudication at 9.)       Had Madara’s calculated excess shelter deduction
exceeded the limit amount, he would have been entitled to use the full amount of
whatever the calculated amount was because he is disabled and elderly. He would
not have been limited to the $535.00 limit, but instead would have used whatever
the amount calculated according to the regulations equaled. However, because
Madara’s calculated excess shelter deduction ($437.00) was less than the limit
($535.00), the calculated excess shelter deduction is the proper figure to use,
pursuant to the regulations. Accordingly, we discern no abuse of discretion by the
Secretary in denying Madara’s request to reconsider those calculations.
      Finally, to the extent another ALJ deducted the full amount of Madara’s
shelter costs instead of the excess shelter deduction when calculating Madara’s
SNAP benefits in Philadelphia County, that decision has no impact on our
determination here. The decision in Philadelphia County, following our remand, is


      7
         Under the regulations, amounts ending in 50 through 99 are rounded up. 7 C.F.R.
§ 273.10(e)(1)(ii)(A).



                                           8
a separate matter from the one before us. This case involves a new calculation of
Madara’s SNAP benefits based on different income and deductions. Our review is
limited to the matter before us.
      While sympathetic to Madara’s situation, we are constrained by the law,
which dictates that we affirm the Secretary’s Reconsideration Order.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Herbert F. Madara,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 415 C.D. 2018
                                          :
Department of Human Services,             :
                      Respondent          :


                                       ORDER


      NOW, February 7, 2019, the Order the Secretary of Human Services dated
February 22, 2018, is AFFIRMED.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
