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Home My WebLink About10-2688THERESA SMEE, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYL VAI ?UA C; v. : No. 10- L48'K CIVIL TERM ? Cl T= ? CUMBERLAND/PERRY HOUSING : N AND COMMUNITY PARTNERSHIP APPEAL FROM LOCAL AGENCY Appellee DETERMINATION APPEAL FROM DETERMINATION OF THE CUMBERLAND/PERRY HOUSING w AND COMMUNITY PARTNERSHIP TERMINATING APPELLANT'S PARTICIPATION IN THE SECTION 8 HOUSING CHOICE VOUCHER PROGRAM Appellant, Theresa Smee, pursuant to 2 Pa.C.S.A. §752, appeals from a determination of the Cumberland/Perry Housing And Community Partnership's termination of her participation in the Section 8 Housing Choice Voucher Program, on the following grounds: 1. Appellant, Theresa Smee (hereinafter "Ms.Smee "), is an adult individual, who lives with her two children in housing subsidized by the Appellee at 48 North East Street, in Carlisle, Cumberland County. 2. Respondent, Cumberland/Perry Housing And Community Partnership, (hereinafter "the Housing Authority"), is a "local agency" within the meaning of the "Local Agency Law," 2 Pa.C.S.A.§§551-555, 751-754, with offices located at 114 N. Hanover Street, Carlisle, Cumberland County, PA 17013. 3. Christopher Gulotta is the Executive Director of the Housing Authority. He is responsible for seeing that the Housing Authority complies with applicable laws and regulations. His office is located at 114 N. Hanover Street, Carlisle, Cumberland County, PA. 17013. 4. Cathy S. Graver is the Director of Operations for the Housing Authority. She is responsible for seeing that the Housing Authority complies with applicable laws and regulations. Her office is located at 114 N. Hanover Street, Carlisle, Cumberland County, PA 17013. 5. Carolyn Bair is the Rental Assistance Program Supervisor for the Housing Authority. She is responsible for seeing that the Housing Authority complies with applicable laws and regulations. Her office is located at 114 N. Hanover Street, Carlisle, Cumberland County, PA 17013. 6. Ms. Smee has received Section 8 rental assistance to make her rent affordable for herself and her two children at her current address for at least six years. 7. By letter dated April 12, 2010, Cathy S. Graver notified Ms. Smee that her Section 8 rental assistance was being terminated, (Letter attached hereto as Appellant's Ex. "A"), due to a guilty plea for a drug violation off the premises. 8. This termination arose after an Informal Client Review Hearing on March 26, 2010 with the Appellee. 9. At this hearing, it is believed that a "full and complete record" as contemplated by 2 Pa.C.S.A.§754 was not made. 10. Without Section 8 rental assistance or public housing, Appellant will become homeless or "near-homeless," and will be at risk for all of the health and safety problems attendant with that condition, and may be separated from her children. 11. Appellant believes that she will be able to establish that she did not violate any lease, regulations, or family obligations and that she remains eligible for rental assistance and/or public housing administered by the Housing Authority or that, due to her conduct, she is not "currently engaged" in drug activity or a threat to the Appellee or its other tenants so as to warrant a permanent exclusion from the Program. 12. Appellant believes that the Housing Authority abused their discretion in terminating her rental assistance. WHEREFORE, Appellant requests that this Honorable Court grant the following relief: A. Pursuant to 2 Pa.C.S.A.§754, schedule a de novo hearing before this Court and, at the conclusion of the hearing, enter an Order reversing the Housing Authority's decision terminating Appellant's Section 8 Rental Assistance Program or, in the alternative, remand the proceedings to the Housing Authority for the making of a full and complete record; B. Order Appellee to continue paying Appellant's subsidy until further Order of this Court C. Award Appellant such other and further relief as this Court may deem reasonable and just. Respectfully submitted, MIDPENN LEGAL SERVICES By: Geoffrey M. iringer 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 Sup. Ct. ID#18040 - ____ CUMBERLAND/FERRY HOUSING AND COMMUNITY PARTNERSHIP Redevelopment Authority of the County of Cumberland April 12, 2010 Theresa Smee 48 North East Street Carlisle, PA 17013 Dear Ms. Smee: 4Housing Authority of the County of Cumberland (717) 249-1315 or 1-866-683-5907 FAX: (717) 249-5988 On Friday, March 26, 2010 I conducted your Informal Client Review Hearing. This Hearing was scheduled at your request because you received a notice from your housing representative that your rental assistance was being terminated because you plead guilty to Manuf/Del/Poss with Intent to Manufacture or Deliver. Upon review of your file and receipt of you and your attorney's testimony I have decided to agree with the decision of the Housing Authority and terminate your rental assistance effective April 30, 2010. Beginning May 1, 2010 you will be responsible for the entire rent to your landlord. This decision does not come lightly. You violated a policy that was established by the President of the United States as a "One Strike You are Out Policy". You knew where you could buy drugs, you bought them and then you entered a County Prison with them with the intent to give them to an inmate. You were not looking out for the welfare of your child just the personal satisfaction of assisting a convicted inmate. This action can not be tolerated. As I have noted in the above paragraph your assistance will be terminated as of April 30, 2010 and your file will be noted as a permanent denial from any programs that are administered through the Housing Authority of the County of Cumberland. This closes the grievance procedure. Sincerely, THE HOUSING AUTHORITY OF THE COUNTY OF CUMBERLAND Z?%Y- Z,,??? Cathy . Graver Director of Operations /csg cc: Sandy Smith Exhibit "A" BETTER PLACES, BETTER LIVES... THROUGH INNOVATION AND DEDICATION 114 N. HANOVER ST.-STE 104 . CARLISLE, PA 17013-2445 WWW.CCHRA.COM VERIFICATION I, Theresa Smee, make this verification that the facts set forth in the foregoing APPEAL FROM DETERMINATION OF THE CUMBERLAND/PERRY HOUSING AND COMMUNITY PARTNERSHIP TERMINATING APPELLANT'S PARTICIPATION IN THE SECTION 8 HOUSING CHOICE VOUCHER PROGRAM are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. 4 !??, x S1 3?1 N-2hn Date: Theresa Smee CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, hereby certify that I am thisday of April 2010, serving a copy of the foregoing APPEAL FROM DETERMINATION OF THE CUMBERLAND/PERRY HOUSING AND COMMUNITY PARTNERSHIP TEMIANTING APPELLANT'S SECTION 8 RENTAL ASSISTANCE upon the Executive Director of the Housing Authority, Christopher Gulotta, by mailing a true and correct copy of the same to him at the following address by first-class U.S. mail, postage prepaid: Christopher Gulotta, Executive Director Housing Authority of the County of Cumberland 114 N. Hanover Street, Suite 104 Carlisle, PA 17013-2445 'Y'A' A.". ,, IF r eoffrey M. ringer MidPenn Legal Services 8 Irvine Row Carlisle, PA 17013 (717)243-9400 THERESA SMEE, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNS YLVANIA V. : No. 10- d& h CIVIL TERM CUMBERLAND/PERRY HOUSING : Q AND COMMUNITY PARTNERSHIP APPEAL FROM LOCAL AGENCY Appellee DETERMINATION -- .' N PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: w < Kindly allow THERESA SMEE to proceed in forma pauperis. I, Geoffrey M. Biringer, the attorney for the party proceeding in forma pauperis, certify that I believe the party is unable to pay the costs and that I am providing free legal service to the party. Date: 4/22/2010 Geoffrey M. Biringer MIDPENN LEGAL SERVICE 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Sup. Ct. ID# 18040 JUN 1 12010 THERESA SMEE, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW CUMBERLAND/PERRY . HOUSING AND COMMUNITY PARTNERSHIP, Appellee N0.2010 - 2688 CIVIL TERM ORDER FOR EXTENSION OF TIME TO FILE BRIEF IN SUPPORT OF LEGAL ARGUMENT AND NOW, this day of June, 2010, upon consideration of the attached Motion, Appellant is granted t ~ days from the date of this Order to submit to this Court, a brief containing a legal argument in support of her position. By the Court, C~/ "c~ J. esley Oler, J: Nick Matash, Esquire MidPenn Legal Services 401 E. Louther Street, Suite 103 r„ Carlisle, PA 17013 c -° ~ d ~, For Appellant ~ ~ ~ :r /'Tricia Naylor, Esquire ~ n'. ._- ~ m s~~ -~ 104 S. Hanover Street " ~' = -' ``==~' Carlisle, PA 17013 =~ ,'t ='~ `f~,` For Appellee ~ `' ~ '`~ =' `~ ~ f~ :~ ~ ~: =~ ~ ~s' rn.~-i w G~~ l d ~' THERESA SMEE, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION CUMBERLAND/PERRY HOUSING AND COMMUNITY PARTNERSHIP, Appellee NO. 10-2688 CIVIL TERM IN RE: APPELLANT'S APPEAL FROM DETERMINATION OF THE CUMBERLAND/PERRY HOUSING AND COMMUNITY PARTNERSHIP TERMINATING APPELLANT'S PARTICIPATION ON A SECTION 8 HOiJSING CHOICE VOUCHER PROGRAM BEFORE OLER, J. ORDER OF COURT AND NOW, this 21S` day of July, 2010, upon consideration of Appellant's Appeal from Determination of Cumberland/Perry Housing and Community Partnership Terminating Appellant's Participation in the Section 8 Housing Choice Voucher Program, and following a hearing held on May 18, 2010, Appellant's appeal is denied, and Appellee's determination is affirmed. BY THE COURT, / Geoffre M. Birin er Es . Y g ~ q MidPenn Legal Services 401 East Louther Street Carlisle, PA 17013 Attorney for Appellant /Tricia Naylor, Esq. 104 South Hanover Street Carlisle, PA 17013 /Attorney for Appellee. 7 ~.~1~~ ~''' ~ - F V ` Y~ ~yVesley Oler -, ~;` ~- ,,J ~+ ~"i _~., _~:. ~./ _ , ,-.-. ;`:~ `~ ~g_ ,. . _' i_ . ; =~? o ~ ~f~ c THERESA SMEE, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION CUMBERLAND/PERRY HOUSING AND COl~~IlVIUNITY PARTNERSHIP, Appellee NO. 10-2688 CIVIL TERM IN RE: APPELLANT'S APPEAL FROM DETERMINATION OF THE CUMBERLAND/PERRY HOUSING AND COMMUNITY PARTNERSHIP TERMINATING APPELLANT'S PARTICIPATION IN THE SECTION 8 HOUSING CHOICE VOUCHER PROGRAM BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 21, 2010. In this case involving an appeal from a local agency determination, Theresa Smee (Appellant) challenges a termination of her participation in a federal "Section Eight" rental assistance program administered by the Cumberland/Perry Housing and Community Partnership (Appellee). The termination resulted from her felony conviction for unlawful possession with intent to deliver a Schedule I Controlled Substance (marijuana). While not contesting that in appropriate circumstances the commission of such a crime can result in a termination,' Appellant contends that such a result was not warranted in her case because (a) she was not "currently engaged" in the unlawful activity when terminated, as purportedly required in a policy adopted by the agency2 and/or (b) the circumstances in her case were not sufficiently egregious as to reasonably justify the result.3 A hearing was held on the appeal on May 18, 2010. For the reasons stated in this opinion, Appellee's determination will be affirmed. ' Appellant's Responsive Trial Brief, submitted June 23, 2010, at 1. i Appellant's Responsive Trial Brief, submitted June 23, 2010, at 3-5. s Appellant's Responsive Trial Brief, submitted June 23, 2010, at 7. STATEMENT OF FACTS The facts pertinent to this appeal aze not substantially in dispute and may be summazized as follows: Appellant is an adult individual who became a participant about six years ago in the "Section Eight" Housing Choice Voucher Program provided for in the United States Housing Act of 1937, as amended.4 Appellee is a Public Housing Agency (PHA) under the laws with offices at 114 North Hanover Street, Carlisle, Cumberland County, Pennsylvania.6 In the Housing Act, Congress declared that it is this nation's policy to employ its funds to "remedy the unsafe housing conditions and the acute shortage of decent, safe and affordable dwellings for low income families", and to vest responsibility, flexibility and accountability in the PHAs, the entities that administer the programs which provide federal housing assistance.... Section 8 assistance is provided to those who lease a dwelling in the private sector.' The United States Department of Housing and Urban Development is authorized pursuant to the act to promulgate regulations with respect to the termination of such assistance. See Powell v. Housing Authority of City of Pittsburgh, 571 Pa. 552, 812 A.2d 1201 (2002). Among the regulations promulgated by the Department is the following: Terminating assistance-{1) Terminating assistance for drug criminals ... The PHA must establish standards that allow the PHA to terminate assistance under the program for a family if the PHA determines that any family member has violated the family's obligation under [24 C.F.R.] §982.551 not to engage in any drug- related criminal activity.8 One of the "family[] obligation[s]" under the regulations relates to "[c]rime by household members" and provides that "[t]he members of the household may not engage in drug related activity ...."9 Under the act, "drug related activity" includes "the a Notes of Testimony, 5, Hearing, May 18, 2010 (hereinafter N.T. ~, 5 35 P.S. § 1541; see 24 C.F.R. 982.4 (1998) 6 Appeal from Determination of the Cumberland/Perry Housing and Community Partnership Terminating Appellant's Participation in the Section 8 Housing Choice Voucher Program, ¶2, Ex. A; see Appellee's Ex. 7, Hearing, May 18, 2010. Powell v. Housing Authority of City of Pittsburgh, 571 Pa. 552, 555-56, 812 A.2d 1201, 1203 (2002), a 24 C.F.R. 982.553(b)(1)(iii). 9 24 C.F.R. 982.551(1). 2 illegal ...possession with intent to ...distribute ... a controlled substance ...." 42 U.S.C. 1437f(f). Pursuant to the HUD mandate, Appellee adopted an administrative plan which included the following standards relating to termination of assistance for drug-related activity: The PHA will terminate a family's assistance if any household member has violated the family's obligation not to engage in any drug related ...activity during participation in the HCV program.10 **** Criminals -Assistance must be terminated if any household member is currently engaged in any ...drug related criminal activity." The plan also made mere use of an illegal drug, without more, by a household member a ground for termination, where the use was being "currently engaged in."iz "Currently engaged in" was defined as "any use of illegal drugs during the previous six months."i3 Finally, a Notice of Obligations Form utilized by Appellee advised applicants for tenant-based assistance as follows: THE FAMILY (INCLUDING EACH FAMILY MEMBER) MUST NOT ...[p]articipate in illegal drug ...activity. Such illegal participation may result in denial or termination of rental assistance.'a At the time of her admission into the program, Appellant signed a copy of the Notice of Obligations, expressly acknowledging her understanding "that failure of the family to meet the conditions contained in this statement will be a basis for termination of rental assistance under the program, and may be a basis for denying the family the right to participate in the program in the future."15 10 Appellee's Ex. 1, Hearing, May 18, 2010; N.T. 8-9. '' Appellee's Ex. 5, Hearing, May 18, 2010. 'Z Appellee's Ex. 5, Hearing, May 18, 2010; Appellee's Ex. 3, Hearing May 18, 2010. 13 Appellee's Ex. 1, Hearing, May 18, 2010; Appellee's Ex. 5, Hearing May 18, 2010. 'a Appellee's Ex. 2, Hearing, May 18, 2010. 15 Appellee's Ex. 2, Hearing, May 18, 2010, N.T. 13. 3 While participating with her two minor children in the tenant-based rental assistance program administered by Appellee, on August 6, 2009, Appellant took marijuana to the state correctional institution in Camp Hill, Cumberland County, Pennsylvania,16 with the intent to deliver it to her boyfriend, an inmate,l~ who according to her had "some mental health issues."18 She was arrested before the delivery could be accomplished,19 pled guilty to a felony charge of possession of a Schedule I Controlled Substance with intent to deliver on January 14, 2010,20 and was sentenced to a period of probation on February 16, 2010.21 Appellee learned of the incident through a newspaper article on the sentencing,22 and by notice dated March 4, 2010, advised Appellant of her termination from the program effective Apri130, 2010.23 Appellant exercised her right to a counseled administrative review of the termination, with an unsuccessful result dated April 12, 2010.24 She filed an appeal to this court on April 22, 2010.25 An evidentiary hearing was held on the appeal on May 18, 2010. DISCUSSION Statement of law. The standard of review involving agency adjudications is limited to a determination of whether constitutional rights have been violated, errors of law have been committed, and the agency's necessary findings of fact are supported by substantial 16 This state prison, while in Cumberland County, is not in the immediate vicinity of Appellant's residence. N.T. 17. "N.T. 5. '$ N.T. 7. The court did not find credible Defendant's claim that she had changed her mind about delivering the controlled substance prior to her arrest at the prison. See N.T. 7.9. 19 N.T. 6. 20 Appellee's Ex. 4, Hearing, May 18, 2010. Z' Appellee's Ex. 6, Hearing, May 18, 2010. zz N.T. 13-14. zs Appellee's Ex. 3, Hearing, May 18, 2010. as Appellee's Ex. 7, Hearing, May 18, 2010; N.T. 24. zsAppeal from Determination of the Cumberland/Perry Housing and Community Partnership Terminating Appellant's Participation in the Section 8 Housing Choice Voucher Program, filed Apr. 22, 2010. 4 evidence. Bethenergy Mines, Inc. v. Workers' Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992); Ins. Fed'n of Pennsylvania, Inc. v. Commonwealth, Dept of Ins., 585 Pa. 630, 889 A.2d 550 (2005); see Act of April 28, 1978, P.L. 202, §5, 2 Pa. C.S. §704. In this context, substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Peak v. Commonwealth, Unemployment Comp. Bd. of Review, 509 Pa. 267, 275 501 A.2d 1383, 1387 (1985) (citations omitted). Furthermore, where an action of the agency is discretionary, the fact that the reviewing court might reach an opinion or judgment other than the one reached by the agency is not a sufficient ground for interference with the agency's determination; judicial discretion may not be substituted for administrative discretion. Norfolk and W. Ry. Co. v. Pennsylvania Pub. Util. Comm'n, 489 Pa. 109, 128, 413 A.2d 1037, 1047 (1980), citing Blumenschein v. Housing Auth. of Pittsburgh, 379 Pa. 566, 573, 109 A.2d 331, 334-35 (1954). Finally, it is well settled that an administrative agency is particularly suited to interpret the meaning of its own policies. See Norfolk & W. Ry. Co. v. Pennsylvania Pub. Util. Comm'n, 489 Pa. 109, 413 A.2d 1037 (1980); Commonwealth v. Beck Elec. Constr., Inc., 485 Pa. 604, 403 A.2d 553 (1979); W.J. Dillner Transfer Co. v. Pennsylvania Pub. Util. Comm'n, 175 Pa. Super. 461, 107 A.2d 159 (1954); Application of law to facts. In the present case, although the administrative policy of Appellee with respect to termination of rental assistance for drug related criminal activity may not be a model of clarity it seems clear at least (a) that under the policy the agency reserved to itself the authority, inter alia, to terminate a person's rental assistance where a household member engaged in drug related criminal activity in the form of possession with intent to deliver a controlled substance at any time during the course of his or her participation in the program, (b) that such a reservation of authority was not only permitted but mandated under regulations promulgated by the Department of Housing and Urban Development, (c) that such regulations by HUD were authorized 5 pursuant to the federal statute in question, and (d) that Appellant was apprised of this reservation of authority at the time she was admitted into the program. Under these circumstances, the court can not say that the action of Appellee in terminating Appellant's participation in the federal tenant-based rental assistance program as a result of her drug related criminal activity while receiving the benefits of the program was without legal foundation. In challenging the agency's determination as an abuse of discretion, Appellant argues that the offense represented a "momentary lapse in judgment," "does not foreshadow any further problems with drug-related criminal activity," and "should be overturned in consideration of the circumstances surrounding her arrest."26 However, as noted above, the offense unquestionably represented drug related criminal activity, was a felony of a fairly serious nature in terms of the risk it posed to public order, and was arguably much less deserving of leniency in terms of a continuation of taxpayer support than would have been the mere use of marijuana off-premises by Appellant for a personal recreational purpose on one occasion. Under these circumstances, a substitution of the court's judgment for that of Appellee would, in the court's view, be inconsistent with the principle of judicial deference in such matters to the sound discretion of agencies. For the foregoing reasons, the court is constrained to enter the following order: ORDER OF COURT AND NOW, this 21St day of July, 2010, upon consideration of Appellant's Appeal from Determination of CumberlandlPerry Housing and Community Partnership Terminating Appellant's Participation in the Section 8 Housing Choice Voucher Program, and following a hearing held on May 18, 2010, Appellant's appeal is denied, and Appellee's determination is affirmed. s6 Appellant's Responsive Trial Brief, submitted June 23, 2010, at 8. 6 BY THE COURT, s/ J. Wesley Oler Jr J. Wesley Oler, Jr., J. Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 East Louther Street Carlisle, PA 17013 Attorney for Appellant Tricia Naylor, Esq. 104 South Hanover Street Carlisle, PA 17013 Attorney for Appellee 7