Bray v. McKeesport Hous. Auth.

114 A.3d 442

Danella BRAY, Appellant

v.McKEESPORT HOUSING AUTHORITY.

No. 1515 C.D. 2013

Commonwealth Court of Pennsylvania.

Argued Nov. 12, 2014.

Decided April 21, 2015.

Eileen D. Yacknin, Pittsburgh, for appellant.

Walter F. Baczkowski, McKeesport, for appellee.

BEFORE: DAN PELLEGRINI, President Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge.

Opinion

OPINION BY Judge RENÉE COHN JUBELIRER.

Danella Bray appeals from the Order of the Court of Common Pleas of Allegheny County dismissing Ms. Bray's appeal from the McKeesport Housing Authority's (Authority) decision denying Ms. Bray's application for federally-subsidized public housing (Authority Decision). The trial court dismissed the appeal pursuant to this Court's holdings in Cope v. Bethlehem Housing Authority, 95 Pa.Cmwlth. 99, 514 A.2d 295, 297 (1986), and McKinley v. Housing Authority of the City of Pittsburgh, 58 A.3d 142, 144–45 (Pa.Cmwlth.2012), which held that a housing authority's decision was not an “adjudication” under Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101, because applicants for public housing do not have a personal or property interest in those benefits and, therefore, are not subject to judicial review. On appeal, Ms. Bray argues that an aggrieved applicant for public housing should be entitled to judicial review. Because we conclude that public housing applicants have a protected property interest in their eligibility for those benefits being determined in accordance with the applicable law and regulations, we agree.

Ms. Bray, a previous tenant of the Authority, applied for public housing with the Authority on January 22, 2013. The Authority denied Ms. Bray's application on February 1, 2013 but, in accordance with federal law,¹ provided Ms. Bray with an opportunity to appeal that denial and request an informal administrative hearing before a hearing officer. At the February 14, 2013 hearing, Ms. Bray and two Authority witnesses testified. (Informal Appeal Hearing Transcript (Hr'g Tr.), February 14, 2013, R. Item 3.) The Authority's Tenant Selector stated that she denied Ms. Bray's application because, after reviewing Ms. Bray's rental history with the Authority, she concluded that Ms. Bray owed the Authority $1,002.68 from her prior tenancy and any outstanding debt had to be satisfied.² (Hr'g Tr. at 1–2.) Ms. Bray acknowledged owing the fees and stated that she would pay them within the week because she was expecting her income tax refund check on February 18, 2013. (Hr'g Tr. at 6–7.) The hearing officer indicated that she would wait to decide Ms. Bray's appeal to see if Ms. Bray paid the Authority the outstanding amount. (Hr'g Tr. at 10.) Ms. Bray received her tax refund and paid the Authority $1,002.68 on February 21, 2013. (Authority Decision, Finding of Fact (FOF) ¶ 4.)

Thereafter, on March 15, 2013, the hearing officer issued the Authority Decision, upholding the Authority's denial of Ms. Bray's application, in which she made findings of fact and conclusions. (Authority Decision, Conclusion ¶ 2.) The hearing officer concluded that Ms. Bray had a history of habitually paying her rent late and did not establish by substantial evidence that her rental payments would improve. (Authority Decision, Conclusion ¶ 1.) The Authority Decision stated that “[y]ou may appeal this decision to the Court of Common Pleas of Allegheny County within thirty (30) days of the date of this Decision.” (Authority Decision at 2.)

Ms. Bray appealed the Authority Decision to the trial court, arguing, inter alia, that the hearing officer considered evidence that was adverse to Ms. Bray that had not been submitted into evidence at the informal hearing. (Notice of Statutory Appeal at ¶ 15, R. Item 2.) However, the trial court issued an Order on July 11, 2013 dismissing Ms. Bray's appeal pursuant to Cope. (Trial Ct. Order, July 11, 2013.) Ms. Bray appealed to this Court, and the trial court directed her to file a Concise Statement of the Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), Pa. R.A.P. 1925(b). (Trial Ct. Order, Sept. 11, 2013.) In its opinion, pursuant to Pa. R.A.P. 1925(a), the trial court, respectfully, expressed its disagreement with this Court's holdings in Cope and McKinley. (Trial Ct. 1925(a) Op. at 1–2.) The trial court observed that, pursuant to Cope and McKinley, “employees of housing authorities, when reviewing applications for housing benefits, are free to interpret [the] federal regulations however their fancy strikes them and regardless of the actual purpose or intent of those regulations.” (Trial Ct. 1925(a) Op. at 2.) The trial court stated that this matter raises an issue of first impression regarding the Pennsylvania Constitution and this Court now has the opportunity to consider whether Cope infringes upon an applicant's right to judicial review as guaranteed by the Pennsylvania Constitution and to equal protection under the Fourteenth Amendment of the United States Constitution. (Trial Ct. 1925(a) Op. at 3.) This matter is now ready for our Court's review.³

Ms. Bray raises numerous challenges to this Court's conclusion in Cope, and repeated in McKinley, that a housing authority's determination denying an application for public housing is not an appealable adjudication. Ms. Bray asks that we revisit the Court's decisions in Cope and McKinley, which she asserts are inconsistent with numerous federal court decisions holding that applicants for public housing do have a property interest in an eligibility determination for public housing that is protected by due process. Although acknowledging that this Court is not bound by those federal cases, Ms. Bray asserts that the federal decisions offer guidance and following such decisions will avoid having litigants “ ‘walk across the street’ ” to get a different result in federal court than in state court. (Bray's Br. at 55 (quoting Werner v. Plater–Zyberk, 799 A.2d 776, 782 (Pa.Super.2002) (citations omitted)).) The Authority contends that the federal case law Ms. Bray cites is distinguishable and does not support the conclusion that Ms. Bray has a protected property interest, particularly where there is no explicit mandatory language indicating that housing benefits will be granted if the substantive predicates of the regulations are met. (Authority's Br. at 17 (citing Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) ).)⁴

Section 752 of the Local Agency Law states, in pertinent part, that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in the adjudication shall have the right to appeal therefrom.”⁵ 2 Pa.C.S. § 752. There is no question that Ms. Bray is aggrieved by and has a direct interest in the result of the Authority Decision; thus, if she is able to establish that the Authority Decision is an “adjudication” as defined by Section 101 of the Administrative Agency Law, she would be entitled to judicial review of the Authority Decision pursuant to Section 752 of the Local Agency Law.

Section 101 of the Administrative Agency Law defines the term “adjudication,” in pertinent part, as:

Any 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. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions.

2 Pa.C.S. § 101. To be an adjudication, the action “must be an agency's final order, decree, decision, determination or ruling [first requirement] and ... it must impact on a person's personal or property rights, privileges, immunities, duties, liabilities or obligations [second requirement].” Guthrie v. Borough of Wilkinsburg, 505 Pa. 249, 478 A.2d 1279, 1281 (1984). There is no dispute that the Authority Decision was the Authority's final determination on Ms. Bray's application and, accordingly, the first requirement is satisfied. It is the second requirement which is the focus of this case.

This Court, sua sponte, addressed the issue of whether a public housing authority's denial of an application met the second requirement and, thus, constituted an adjudication in Cope. In Cope, the applicants, who previously had received public housing assistance, filed an application to re-enter public housing. Cope, 514 A.2d at 295. The housing authority denied the application “on the basis that they were not considered desirable applicants.” Id. at 295–96. The applicants appealed to the trial court, which first remanded to the housing authority for a hearing to make a record, and then affirmed. Id. at 296. The applicants appealed to this Court. Id. Our Court explained that, although the trial court and parties treated the matter as an adjudication, in order for the applicants “to be entitled to the benefits and protections of the Local Agency Law, [they] must have had a personal or property right in the matter which is the subject of the adjudication.” Id. The applicants asserted that they were entitled to have the housing authority consider their application in accordance with federal regulations; this Court found that the federal regulations only required an “informal hearing” and not the full hearing that those who are already public housing tenants are entitled to receive based on their possession of a property interest in their public housing. Id. at 296–97. We held that the applicants could not invoke the Local Agency Law because their “limited due process rights to be properly considered for public housing” were not the same as having “the requisite personal or property right to have public...