Frasconi v. Commonwealth

106 A.3d 816, 2014 WL 7496317, 2014 Pa. Commw. LEXIS 594
CourtCommonwealth Court of Pennsylvania
DecidedOctober 14, 2014
StatusPublished
Cited by4 cases

This text of 106 A.3d 816 (Frasconi v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frasconi v. Commonwealth, 106 A.3d 816, 2014 WL 7496317, 2014 Pa. Commw. LEXIS 594 (Pa. Ct. App. 2014).

Opinion

[818]*818OPINION BY

Senior Judge QUIGLEY.

Currently pending in this Court is a dual jurisdiction petition for review in the nature of mandamus and an answer and new matter thereto. The new matter asserts that this action should be dismissed.

On July 9, 2014, Robert J. Frasconi (petitioner) filed the aforementioned pleading. The petition for review alleges that on May 6, 2014, pursuant to Section 1626(c) of the Election Code;1 petitioner made an official e-mail voucher request to Trisha Malehorn (Malehorn), Manager, Division of Campaign Finance & Lobbying Disclosure, Department of State, Bureau of Commissions, Elections and Legislation (respondent). Specifically, petitioner sought the following: “The Friends of Tim Mahoney, 2013 Cycle 7; Date:. 09/11/2013; Amount $2,652.56; Recipient: Grogan Graffam, P.C., Description of Expenditure: Professional Fees.” (Exhibit A to petitioner’s petition for review). That same date, Malehorn responded with a letter indicating that the request was received and that respondent anticipated a response from the committee within the next thirty days.

After thirty days passed, petitioner contacted Malehorn’s assistant, via email, inquiring about the status of his voucher request. On June 10, 2014, petitioner received an e-mail response to his request. The response included two items: a copy of a cancelled check dated September 11, 2013 from the Friends of Tim Mahoney to Grogan Graffam, P.C. in the amount of $2,652.56; and an invoice from Grogan Graffam, P.C. to Friends of Tim Mahoney dated August 14, 2013 in the amount of $2,652.56. The response also included correspondence from Malehorn which stated:

Per your recent voucher request, please find the enclosed documentation given to us from the Friends of Tim Mahoney committee. This matter is now considered closed. Should you have any questions or need further assistance, you may contact Kristine Ream of my staff....

(Exhibit G to petitioner’s petition for review).

Petitioner asserts that neither of the documents provided by the campaign committee is responsive to his request in that they are not a voucher. (Petitioner’s petition for review, page 5). Citing Section 1626(c) of the Election Code, petitioner asks this Court to issue a writ of mandamus directing Malehorn to direct the candidate or political committee to promptly deliver the vouchers or copies thereof to the supervisory office for purposes of inspection and copying.

[819]*819With regard to this Court’s appellate jurisdiction, petitioner asserts that Male-horn’s “closure letter” of June 10, 2014 constitutes a final order of an administrative agency. Because he was aggrieved by this purported final order, petitioner requests that the “closure decision” be reversed. (Petitioner’s petition for review at page 11).

Respondent filed an answer and new matter, asserting that both portions of petitioner’s petition for review should be dismissed. In this regard, respondent contends: (1) the June 10, 2014 letter from Malehorn to petitioner is not an appealable adjudication; and (2) this Court considered and rejected a virtually identical mandamus request in In re Closure Decision of Marks, (Pa.Cmwlth. No. 215 M.D.2013, filed July 1, 2013).

APPELLATE JURISDICTION PETITION FOR REVIEW

Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702, provides that “[a]ny person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101, defines and “adjudication” as “[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.” Where no right, privilege or immunity of a person is in jeopardy, an agency’s action does not constitute an adjudication. DeSivo v. Pennsylvania State Police, 919 A.2d 361 (Pa.Cmwlth.2007). A letter can constitute an adjudication, requiring notice and a hearing, if a two-prong test is met: 1) the letter must be an agency’s final order, decree, decision, determination or ruling; and 2) it must impact on a party’s personal or property rights, privileges, immunities, duties, liabilities or obligations. NHS Human Services of PA v. Department of Public Welfare, 985 A.2d 992 (Pa.Cmwlth.2009).

A personal right or a privilege impacted by an adjudication pursuant to Section 101 of the Administrative Agency Law will arise if the party claiming a privilege can establish some right or privilege created by statute and characterized as such or some constitutionally protected privilege. Morningstar v. Mifflin County School District, 760 A.2d 1221 (Pa.Cmwlth.2000). As this Court recognized in DeSivo, “[n]ot every determination made by a commonwealth employee or board is a decision of a commonwealth agency.” Id. at 364. To have a property interest in a benefit or a privilege that is protected by procedural due process, one must clearly have more than an abstract need or desire for it or a unilateral expectation of it; rather, he must have a legitimate claim of entitlement to it. Keeley v. State Real Estate Commission, 93 Pa.Cmwlth. 291, 501 A.2d 1155 (1985). See also Presbyterian Medical Center v. Department of Public Welfare, 792 A.2d 23 (Pa.Cmwlth.2002), petition for allowance of appeal denied, 576 Pa. 717, 839 A.2d 354 (2003)(in order to have a constitutionally protected property right, a party must have more than a unilateral expectation, but rather a legitimate and enforceable claim under the law).

Based on our review of this action, it is apparent that Malehorn’s June 10, 2014 correspondence meets neither of the criteria set forth in NHS. First, although the letter states that the matter is closed (presumably because the cancelled check and [820]*820invoice was provided to petitioner), it is clearly not a final determination. Indeed, the letter invites further questions or inquiries and offers petitioner additional assistance if it is desired. Moreover, it does not appear that the letter impacts petitioner’s personal or property rights. There is no indication in the Election Code that the delivery procedures set forth in Section 1626(c) somehow create an appealable event. Furthermore, as this Court recognized in Marks, the correspondence does not appear to affect the personal or property rights of any party, but only the rights of the public in general. As such, it does not appear that the correspondence is an adjudication under the Administrative Agency Law from which an appeal may lie. See LaFarge Corp. v. Ins. Dep’t,

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Cite This Page — Counsel Stack

Bluebook (online)
106 A.3d 816, 2014 WL 7496317, 2014 Pa. Commw. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frasconi-v-commonwealth-pacommwct-2014.