HomeMy WebLinkAbout2010-2688 Civil
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
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
1
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
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activity when terminated, as purportedly required in a policy adopted by the agency
and/or (b) the circumstances in her case were not sufficiently egregious as to reasonably
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justify the result.
A hearing was held on the appeal on May 18, 2010. For the reasons stated in this
opinion, Appellee’s determination will be affirmed.
1
Appellant’s Responsive Trial Brief, submitted June 23, 2010, at 1.
2
Appellant’s Responsive Trial Brief, submitted June 23, 2010, at 3-5.
3
Appellant’s Responsive Trial Brief, submitted June 23, 2010, at 7.
STATEMENT OF FACTS
The facts pertinent to this appeal are not substantially in dispute and may be
summarized 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
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Housing Act of 1937, as amended. Appellee is a Public Housing Agency (PHA) under
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the law, with offices at 114 North Hanover Street, Carlisle, Cumberland County,
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Pennsylvania.
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
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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-
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related criminal activity.
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
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in drug related activity . . . .” Under the act, “drug related activity” includes “the
4
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.
7
Powell v. Housing Authority of City of Pittsburgh, 571 Pa. 552, 555-56, 812 A.2d 1201, 1203 (2002).
8
24 C.F.R. 982.553(b)(1)(iii).
9
24 C.F.R. 982.551(l).
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
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during participation in the HCV program.
* * * *
Criminals –
Assistance must be terminated if any household member is currently
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engaged in any . . . drug related criminal activity.
The plan also made mere use of an illegal drug, without more, by a household
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member a ground for termination, where the use was being “currently engaged in.”
“Currently engaged in” was defined as “any use of illegal drugs during the previous six
13
months.”
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
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result in denial or termination of rental assistance.
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
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to participate in the program in the future.”
10
Appellee’s Ex. 1, Hearing, May 18, 2010; N.T. 8-9.
11
Appellee’s Ex. 5, Hearing, May 18, 2010.
12
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.
14
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,
1617
Pennsylvania, with the intent to deliver it to her boyfriend, an inmate, who according
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to her had “some mental health issues.” She was arrested before the delivery could be
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accomplished, pled guilty to a felony charge of possession of a Schedule I Controlled
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Substance with intent to deliver on January 14, 2010, and was sentenced to a period of
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probation on February 16, 2010. Appellee learned of the incident through a newspaper
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article on the sentencing, and by notice dated March 4, 2010, advised Appellant of her
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termination from the program effective April 30, 2010.
Appellant exercised her right to a counseled administrative review of the
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termination, with an unsuccessful result dated April 12, 2010. She filed an appeal to this
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court on April 22, 2010. 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.
17
N.T. 5.
18
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.
21
Appellee’s Ex. 6, Hearing, May 18, 2010.
22
N.T. 13-14.
23
Appellee’s Ex. 3, Hearing, May 18, 2010.
24
Appellee’s Ex. 7, Hearing, May 18, 2010; N.T. 24.
25
Appeal 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, Dep’t 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
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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
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overturned in consideration of the circumstances surrounding her arrest.” 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
st
AND NOW, this 21 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.
26
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
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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 HOUSING CHOICE VOUCHER PROGRAM
BEFORE OLER, J.
ORDER OF COURT
st
AND NOW, this 21 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,
_________________
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