A. Conte v. PA Commission on Crime and Delinquency

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alex Conte, :
Petitioner :
:
v. : No. 1866 C.D. 2017
: Submitted: April 13, 2018
Pennsylvania Commission on Crime :
and Delinquency, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: July 23, 2018
Alex Conte (Conte), proceeding pro se, petitions for review of the November
9, 2017 Decision of the Victims Compensation Assistance Program (VCAP), which
is administered by the Office of Victim Services (OVS).1 The Decision denied
Conte’s Request for Reconsideration (Request) of VCAP’s determination that Conte
did not establish a claim for compensation under the Crime Victims Act (Act),2 for
injuries Conte alleges he sustained as a result of a crime that occurred on November
1
VCAP and OVS are both a part of the Pennsylvania Commission on Crime and
Delinquency (Commission). Conte named the Commission as Respondent in his petition for
review before this Court.
2
Act of November 24, 1998, P.L. 882, as amended, 18 P.S. §§ 11.101-11.1304, 11.5101-
11.5102. The primary purpose of the Act is for “victims of crime to fully and voluntarily cooperate
with law enforcement” and to make sure crime victims are “treated with dignity, respect, courtesy
and sensitivity.” Section 102(1) of the Act, 18 P.S. § 11.102(1).
6, 2016. The OVS concluded that Conte’s Request was not timely filed, and,
therefore, VCAP’s determination was final. Conte has appealed the denial of his
Request. Unfortunately, because the Request was untimely, and Conte provided no
explanation to OVS for the untimeliness, nor has he presented any argument before
this Court on the issue of untimeliness, we must affirm.
From the record, we discern the following facts. On June 27, 2017, Conte
filed a claim with VCAP asserting that on November 6, 2016, he was the victim of
a crime in the nature of a hit-and-run accident between Berks Street and 10th Street
in Philadelphia, Pennsylvania. (Reproduced Record (R.R.) at 2e-4e.) As a result of
the collision, Conte suffered severe injuries, including skull fractures, a leg injury,
and loss of vision in his left eye. Conte sought reimbursement of $7,121.29 from
VCAP for out-of-pocket medical expenses he incurred as a result of the accident.
On June 28, 2017, Conte supplied additional documentation to VCAP, including a
Police Crash Report, a Patient Care Report, and medical bills related to his injuries.
(Id. at 8e-41e.) Conte did not attach any other information or assert any other facts
related to his claim for VCAP to review.
The Police Crash Report described the November 6, 2016 incident as a
collision between Conte (Unit 1) and a motor vehicle (Unit 2). (Id. at 9e-15e.) The
Police Crash Report set forth that Unit 1 “[h]it [U]nit 02,” and that Unit 1’s
“[e]ntering or crossing at specified location” was the “Prime Factor” of the crash.
(Id. at 9e.) The Police Crash Report also indicated that Conte was “conscious and
alert upon police arrival,” and that Conte stated “he was on his skateboard[,] eating
food” and “was not focused[,]” when “he crossed into the right of way . . . [and]
struck the back passenger side of the vehicle.” (Id. at 13e.) The vehicle did not stop,
but Conte “c[ould] not specify” if the driver of the passing vehicle was aware of the
2
impact. (Id.) After the collision, Conte was transported to Hahnemann University
Hospital (Hospital) emergency room for observation and treatment.3 (Id.)
On August 4, 2017, the VCAP claim reviewer assigned to Conte’s claim
requested an internal review of the claim and sent a follow-up questionnaire to the
police department. (Id. at 43e.) Also on August 4, 2017, VCAP sent Conte a letter,
informing him that it had begun to process his claim.
In a letter dated September 20, 2017, VCAP informed Conte that his claim
was denied because a preponderance of the evidence did not support a finding that a
crime had occurred (VCAP Claim Denial). (Id. at 50e.)4 The VCAP Claim Denial
stated that for him to be eligible for compensation, the Act requires that a crime had
to have been committed against him. Section 707(a) of the Act, 18 P.S. § 11.707(a).
Finding insufficient evidence to establish, by a preponderance of the evidence, that
a crime against Conte had occurred, VCAP determined that Conte was ineligible for
compensation under the Act. The VCAP Claim Denial further stated:
PLEASE NOTE: If you do not agree with the Program’s decision, and
you want the Program to change its decision, you must complete and
return the enclosed Rejection of Decision and Request for
Reconsideration form. List on that form each decision you think the
Program made in error.
3
The Patient Care Report indicated that upon Emergency Medical Service’s arrival at the
scene, Conte had abnormal leg bruising, a forehead laceration, and a nosebleed, and that his left
eye was non-reactive. (R.R. at 16e-17e.) The Hospital billed Conte in the amount of $7,121.29
for services rendered, after insurance and adjustments had been deducted. (Id. at 18e.)
4
Under the Act, the OVS, which administers VCAP, reviews “all supporting documents,”
investigates the validity of a VCAP claim, and then makes a determination on whether to grant an
award. Sections 311(a) and 704(b), (c) of the Act, 18 P.S. §§ 11.311(a), 11.704(b), (c). A person
is not eligible for an award unless he is a direct victim or intervenor. Section 707(a)(2) of the Act,
18 P.S. § 11.707(a)(2). A “[d]irect victim” is defined as a person “against whom a crime has been
committed . . . and . . . shall not include the alleged offender.” Section 103 of the Act, 18 P.S. §
11.103.
3
IMPORTANT: FAILURE TO FILE A REQUEST FOR
RECONSIDERATION WITHIN 30 DAYS FROM THE DATE OF
THE DECISION WILL CAUSE THE DECISION TO BECOME
FINAL AND YOU WILL HAVE NO FURTHER RIGHT OF
APPEAL.
(R.R. at 50e.) This gave Conte until October 20, 2017, to file a request for
reconsideration before the VCAP Claim Denial became final. However, Conte did
not file the Request until November 8, 2017, 20 days beyond the 30-day period.
In his Request, Conte argued that there was enough evidence to prove that a
crime had occurred against him on November 6, 2016. Therefore, Conte contended,
he had been improperly denied compensation. Specifically, Conte claimed that he
had attempted to contact VCAP multiple times but received no response.
Additionally, he alleged that there were multiple witnesses to the crime, that a video
of the accident existed, and that he had confirmation from a captain of the Temple
University Police Department supporting his claim that he was the victim of a hit-
and-run crime. (Id.) Conte did not attach any additional documentation to the
Request to support these claims, indicating instead that he would provide further
evidence if required. (Id.) Importantly, Conte did not offer any explanation as to
why he submitted his Request 20 days late.
On November 9, 2017, VCAP notified Conte that, because he did not file the
Request within 30 days, the VCAP Claim Denial had become final, he had “no
further right of appeal,” and his Request would not be considered. (Id. at 53e.) The
November 9, 2017 Decision indicated it was “a final decision” pursuant to Section
705 of the Act, 18 P.S § 11.705, and could be appealed to the Commonwealth Court
within 30 days. (R.R. at 53e (citing Rule 1512(a) of the Pennsylvania Rules of
4
Appellate Procedure, Pa.R.A.P. 1512(a)).)5 Conte timely filed with this Court his
Petition for Review of the November 9, 2017 Decision.
On appeal, Conte argues that, on the merits, this Court must overturn the
VCAP Claim Denial. The essence of Conte’s argument is that he was improperly
denied compensation under the Act because there is sufficient evidence to prove that
a felony hit-and-run occurred.6 (Conte’s Brief (Br.) at 8.) Conte disputes the
accuracy of the statements attributed to him in the Police Crash Report, contends
that the vehicle hit him, and the driver was aware that it hit him 7 and asserts that a
crime occurred on November 6, 2016. However, Conte does not, in either his brief
or in his reply brief, explain or address why he filed his Request 20 days late.
In response, the Pennsylvania Commission on Crime and Delinquency
(Commission) asserts that Conte’s claim was appropriately denied and that Conte’s
Request was filed 20 days late with no reason. The Commission further contends
that even if Conte’s allegation about attempting to contact VCAP set forth in the
5
Rule 1512(a)(1) provides: “A petition for review of a quasijudicial order, or an order
appealable under 42 Pa.[]C.S. § 763(b) (awards of arbitrators) or under any other provision of law,
shall be filed with the prothonotary of the appellate court within 30 days after the entry of the
order.” Pa.R.A.P. 1512(a)(1).
6
Conte points to Section 3742 of the Vehicle Code, 75 Pa. C.S. § 3742, which subjects the
drivers of fleeing automobiles involved in an accident resulting in injury or death to felony
penalties for failing to stop and render aid to injured persons. Section 3742(b) of the Vehicle Code
provides a range of penalties, including mandatory minimum fines and jail time for hit-and-run
offenders who fail to stop and render aid to accident victims. 75 Pa. C.S. § 3742(b).
7
Conte attached to his Petition for Review and briefs filed with this Court, among other
things, signed statements from four individuals who stated that Conte’s recollection of the accident
is true and a modified version of a traffic diagram contained within the Police Crash Report, which
Conte contends supports the merits of his claim. However, we cannot consider these attachments
because they were not part of the certified record. B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649,
657 (Pa. Cmwlth. 2012) (citing Stabler Dev. Co. v. Bd. of Supervisors of Lower Mt. Bethel Twp.,
695 A.2d 882, 887 n.5 (Pa. Cmwlth. 1997)).
5
Request is true, it still does not change the 30-day time requirement. (Commission’s
Br. at 8.) It therefore contends that it “did not commit an error of law, disregard
competent evidence or violate [Conte’s] constitutional rights when it denied
[Conte’s] Request. . . .” (Id. at 7.)8 Moreover, the Commission notes that Conte has
not addressed before this Court the untimeliness of the filing of his Request.
There is no question that Conte filed his Request untimely. Moreover, the
VCAP Claim Denial advised Conte of his right to challenge the denial of his claim
by filing a Request within 30 days and provided Conte with the necessary form for
doing so. This was in accord with Section 411.31(a) of the Commission’s
regulations, 37 Pa. Code § 411.31(a), which provides:
A claimant may contest OVS’s determination by submitting a written
request for reconsideration no later than 30 days from the date of the
determination. If a request for reconsideration is not filed within the
time required, the determination becomes a final decision of OVS.
The only exceptions to this 30-day rule are set forth in Section 411.31(b), which
states: “OVS may consider a delay past the prescribed time period to be justified
when one of the following circumstances exist: (1) The direct victim, intervenor or
the claimant is mentally or physically incapacitated. (2) Other circumstances when
good cause is shown by the claimant.” 37 Pa. Code § 411.31(b).
Conte did not follow the instructions in the VCAP Claim Denial, instead filing
his Request 20 days after the 30-day period for requesting reconsideration had
expired. Thus, in order to have his Request considered by OVS, Conte had to
establish that one of the circumstances set forth in Section 411.31(b) existed to
justify his delay in filing his Request. These circumstances include that he was
8
We agree that this is the correct standard of review, notwithstanding that the document
Conte filed was titled a “Request for Reconsideration.”
6
incapacitated during the relevant time period or other circumstances when good
cause is shown.
However, in his Request, Conte did not mention the untimeliness of his filing
and provided no explanation or evidence of circumstances that might constitute good
cause for the untimely filing of that request. At most, he indicated he had attempted
to contact VCAP, but these contacts did not alter that he had 30 days to file the
Request. Thus, he did not provide OVS with the opportunity to consider whether
the delay in filing his Request was justified. OVS therefore did not consider the
untimely filed Request, and the VCAP Claim Denial became final pursuant to
Section 411.31(a).
We note that, in the briefs filed with this Court on appeal, Conte similarly
does not address the untimeliness of his Request or otherwise explain the
circumstances for his late filing. “A party’s failure to develop an issue in the
argument section of its brief constitutes waiver of the issue.” In re Tax Claim Bureau
of Lehigh Cty. 2012 Judicial Tax Sale, 107 A.3d 853, 857 n.5 (Pa. Cmwlth. 2015)
(citing Pennsylvania Rule of Appellate Procedure 2119(a), Pa.R.A.P. 2119(a)).
Thus, Conte has waived any arguments to this Court regarding why the November
9, 2017 Decision’s determination that the VCAP Claim Denial was final and
unreviewable due to his late filing of the Request should be reversed by failing to
address them in his briefs.
Because Conte did not file his Request within the time period prescribed by
the Commission’s regulations and did not establish that one of the exceptions to the
regulatory time limit applied, the Commission did not err in denying his Request.
We therefore cannot reach the arguments that Conte makes regarding the merits of
the VCAP Claim Denial.
7
Accordingly, we must affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alex Conte, :
Petitioner :
:
v. : No. 1866 C.D. 2017
:
Pennsylvania Commission on Crime :
and Delinquency, :
Respondent :
ORDER
NOW, July 23, 2018, the Decision of the Victims Compensation Assistance
Program is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge