T. Romero v. PSSHE ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy Romero, :
Petitioner :
:
v. : No. 1386 C.D. 2016
: ARGUED: June 5, 2017
Pennsylvania State System of :
Higher Education, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: June 27, 2017
Petitioner Timothy Romero petitions for review from the order of the
Pennsylvania State System of Higher Education (PASSHE). The Chancellor of
PASSHE determined that Romero qualified for Pennsylvania domiciliary status for
the spring 2016 semester, but not for the fall 2015 semester. For the reasons set
forth herein, we quash the appeal.
Romero matriculated at East Stroudsburg University (University) in
the fall of 2015 as a freshman. Romero had resided at 17 Basswood Lane,
Smithtown, New York, from October 1, 2013 to July 1, 2015. He currently resides
at 509 Cherokee Street, Bethlehem, Pennsylvania, with his mother and sister.
Following his enrollment at the University, Romero submitted a request to
reclassify his domiciliary status from New York to Pennsylvania in order to obtain
an in-state tuition reduction from the University. On December 17, 2015, the
University issued a determination denying Romero’s request. On January 20,
2016, he filed an appeal to the Chancellor. On May 27, 2016, the Chancellor
issued an order granting Romero Pennsylvania domiciliary status for the spring
2016 semester, but not for the fall 2015 semester. On July 15, 2016, Romero faxed
a letter to PASSHE objecting to the legal determinations made in the Chancellor’s
order. The letter included both a request for reconsideration and a request for nunc
pro tunc relief. On July 21, 2016, PASSHE issued a letter to Romero reaffirming
the legal basis behind the Chancellor’s order. PASSHE’s letter also affirmed that
the Chancellor’s May 27, 2016 order was a final order, and that any appellate
recourse available to Romero would be with the Commonwealth Court. On
August 18, 2016, Romero appealed the Chancellor’s May 27, 2016 order to this
Court.1
On appeal, Romero argues that the Chancellor erred when he
determined that Romero was not a Pennsylvania domiciliary for the fall 2015
semester. He argues that his mother, contrary to the Chancellor’s determination,
moved to Pennsylvania in July 2015 with the immediate intent to remain and ended
1
The University is part of PASSHE. See Section 2002A of the Public School Code of
1949, Act of March 10, 1949, P.L. 30, added by the Act of November 12, 1982, P.L. 660, as
amended, 24 P.S. § 20–2002A. This Court has appellate jurisdiction from final orders of
government agencies under Section 763 of the Judicial Code, 42 Pa.C.S. § 763. Our review is
limited to determining whether constitutional rights were violated, whether an error of law was
committed, or whether necessary findings of fact are supported by substantial evidence. Section
704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Bumba v. Pennsylvania State System of
Higher Education, 734 A.2d 36, 37 n.1 (Pa. Cmwlth. 1999).
2
her New York domicile at that time. She leased a residence in Pennsylvania, filed
a tax return in Pennsylvania, and obtained temporary employment in Pennsylvania
until securing full-time permanent employment in December 2015.
PASSHE argues that Romero’s appeal is untimely because Romero
failed to file his petition for review within thirty days after the Chancellor’s final
order on May 27, 2016. Romero did not file his petition for review until August
18, 2016.
Pa.R.A.P. 903(a) requires that a notice of appeal be filed within thirty
days of entry of the final order from which the appeal is taken. A “final order” is
defined as any order that disposes of all claims and parties or is entered as a final
order pursuant to the determination by a trial court or other governmental unit. Pa.
R.A.P. 341(b). The Chancellor’s May 27, 2016 order was a final order. 22 Pa.
Code § 507.5(f)(“[w]ithin the State System of Higher Education the decision of the
Chancellor shall be final.”) Inasmuch as the Chancellor’s order was a final order,
Romero had until June 27, 2016 to file a timely petition for review.2 Romero failed
to file before the expiration of the appeal period.
However, Romero argues his appeal period should not have
commenced until July 21, 2016, when PASSHE responded to his correspondence
of July 15, 2015, in which he sought reconsideration of the Chancellor’s final
2
Although Sunday, June 26, 2016 was the thirtieth day after the Chancellor’s order was
filed, Romero would have been permitted to file a timely petition for review on Monday, June
27, 2016. 1 Pa.C.S. § 1908.
3
order. Romero does not cite to any legal authority to support an argument that
PASSHE’s response to his correspondence resurrects his ability to appeal an order
beyond the statutory appeal period. We note that Romero’s July 15, 2016 letter
was submitted to PASSHE 49 days after the Chancellor issued his final order on
May 27, 2016, i.e., beyond the expiration of the statutory appeal period.3
Moreover, submitting a request for reconsideration does not toll the
time to appeal from an underlying order. Columbia Gas of Pennsylvania, Inc. v.
Pennsylvania Public Utility Commission, 535 A.2d 1246, 1248 (Pa. Cmwlth.
1988). Consequently, Romero’s July 15, 2016 correspondence would not toll the
thirty day limit for appealing the Chancellor’s final order even if it was submitted
before the expiration of the 30-day statutory appeal period. His petition for review
to this Court was untimely.
Romero also argues that this Court should nonetheless consider his
appeal nunc pro tunc, citing a medical issue of a family member that hindered his
ability to timely file a request for reconsideration or petition for review. However,
to avoid unnecessary determinations on whether every untimely filing should be
excused, opportunities to appeal nunc pro tunc are limited to cases possessing
unique and compelling factual circumstances. Ho v. Unemployment Compensation
Board of Review, 525 A.2d 874, 875 (Pa. Cmwlth. 1987). In circumstances where
3
“An application for. . . reconsideration may be filed by a party to a proceeding within 15
days. . . after the issuance of an adjudication or other final order by the agency.” 1 Pa. Code. §
35.241(a). In this case, PASSHE did not have jurisdiction to grant reconsideration of the May
27, 2016 order because Romero’s request was filed more than 30 days after the order was
entered. See Sewickley Valley Hospital v. Department of Public Welfare, 550 A.2d 1351, 1353
(Pa. Cmwlth. 1988).
4
the filing of an appeal was delayed, an appeal may be permitted nunc pro tunc
when the delay is caused by “extraordinary circumstances involving fraud or some
breakdown of the court’s operation through a default of its officers.” Cook v.
Unemployment Compensation Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996)
(quotations omitted). In this case, Romero has not shown that his untimely appeal
was the result of an administrative breakdown or any other failure on the part of
PASSHE or this Court. There is no apparent basis here for permitting an appeal
nunc pro tunc.
Because Romero’s appeal was untimely, this Court lacks jurisdiction
to consider his appeal of the Chancellor’s determination of his domiciliary status.
Accordingly, this appeal is quashed.
__________________________________
JULIA K. HEARTHWAY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy Romero, :
Petitioner :
:
v. : No. 1386 C.D. 2016
:
Pennsylvania State System of :
Higher Education, :
Respondent :
ORDER
AND NOW, this 27th day of June, 2017, the petition for review of the
order of the Pennsylvania State System of Higher Education in the above-
captioned matter is quashed.
__________________________________
JULIA K. HEARTHWAY, Judge