D. Becirovic v. Dept. of Human Services

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Becirovic, : : No. 2139 C.D. 2015 Petitioner : Submitted: May 13, 2016 : v. : : Department of Human Services, : : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: September 9, 2016

David Becirovic (Petitioner) petitions pro se for review of the September 23, 2015 order of the Secretary of the Department of Human Services (DHS) denying his request for reconsideration of the July 9, 2015 final administrative action order issued by the Bureau of Hearings and Appeals (BHA). The BHA’s order affirmed the order of an Administrative Law Judge (ALJ) denying in part and sustaining in part Petitioner’s appeal of a decision of the Cumberland County Assistance Office (CAO). More specifically, the ALJ denied Petitioner’s appeal from the denial of cash benefits under the Low Income Home Energy Assistance Program (LIHEAP) and the discontinuance of Petitioner’s Medical Assistance (MA) benefits, but sustained his appeal from the discontinuance of his benefits under the Supplemental Nutrition Assistance Program (SNAP). We affirm.

Petitioner is 58 years old and disabled. In December 2014, he was receiving SNAP and MA benefits, and in December 2014 and January 2015, he applied for LIHEAP cash benefits. On January 9, 2015, Petitioner received a notice from the CAO indicating that he was ineligible for SNAP, MA, and LIHEAP because his income exceeded the programs’ eligibility limits. On January 13, 2015, Petitioner appealed his SNAP, MA, and LIHEAP ineligibility notice. At a June 23, 2015 hearing before the ALJ, Petitioner testified that he believed the CAO was discriminating against him because of his disability and erred in concluding that his income exceeded the programs’ income limits. The ALJ affirmed the CAO’s determinations that Petitioner is ineligible for LIHEAP and MA benefits but concluded that the CAO incorrectly discontinued Petitioner’s SNAP benefits. Petitioner appealed, and the BHA affirmed the ALJ’s decision on July 9, 2015. On August 6, 2015, Petitioner requested reconsideration of the final administrative action order, which the Secretary denied by order dated September 23, 2015. Petitioner now seeks review of the Secretary’s denial of reconsideration.1 Our scope of review of an agency’s decision on a reconsideration request is limited to determining whether the secretary has abused his or her discretion. Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa.

1 Petitioner filed a petition for review on September 21, 2015, before the order denying reconsideration was issued. Consequently, by order issued October 14, 2015, this Court quashed the appeal as an untimely appeal from the July 9, 2015 order. Petitioner filed a timely request for reconsideration of our October 14, 2015 order and, ultimately, we accepted Petitioner’s petition for review of the September 23, 2015 order denying reconsideration. See Becirovic v. Department of Human Services, 1783 C.D. 2015.

Cmwlth. 1988). An abuse of discretion will only be found where the record shows there was fraud, bad faith, capricious action, or an abuse of power. Id. On appeal to this Court, the issues and arguments Petitioner raises in his petition for review and appellate brief allege errors on the part of the BHA and CAO in finding that, even though he is a person with a disability, his income exceeds the eligibility limits for MA, LIHEAP, and SNAP. However, these arguments pertain to the BHA’s July 9, 2015 order, from which Petitioner failed to timely appeal, and we are precluded from considering these issues. Id. The only issue presently before the Court is whether the Secretary abused his discretion in denying Petitioner’s request for reconsideration of the BHA’s order. The Secretary’s order states that Petitioner’s request for reconsideration is denied for the reasons stated in the BHA’s final administrative action order. Petitioner has not offered any argument to the effect that the Secretary abused his discretion in denying the request for reconsideration. Accordingly, any issue relating to reconsideration has been waived. See City of Philadelphia v. Workers’ Compensation Appeal Board (Ford-Tilghman), 996 A.2d 569, 572 (Pa. Cmwlth. 2010) (noting that issues that are not raised in a party’s petition for review and brief are deemed waived). Moreover, our careful review of the record reveals nothing to suggest that the Secretary acted in bad faith, fraudulently, or capriciously, or abused his power in denying Petitioner’s request for reconsideration.2

2 Even if Petitioner had perfected an appeal from the BHA’s order affirming the finding that he is ineligible for LIHEAP and MA benefits, it does not appear that the BHA erred in affirming the ALJ and we would be constrained to affirm the BHA had that order been properly before us.

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Becirovic, : : No. 2139 C.D. 2015 Petitioner : : v. : : Department of Human Services, : : Respondent :

ORDER

AND NOW, this 9th day of September, 2016, the order of the Secretary of the Department of Human Services, dated September 23, 2015, is affirmed.

__________________________________ MICHAEL H. WOJCIK, Judge