Cox v. Johnstown Hous. Auth.

Decision Date05 June 2019
Docket NumberNo. 1329 C.D. 2018,1329 C.D. 2018
Citation212 A.3d 572
Parties Arthur R. COX, Jr., Appellant v. JOHNSTOWN HOUSING AUTHORITY
CourtPennsylvania Commonwealth Court

Charles Himmelreich, Johnstown, for appellant.

Jeffrey Miller, Johnstown, for appellee.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE ANNE E. COVEY

Arthur R. Cox, Jr. (Cox) appeals from the Cambria County Common Pleas Court's (trial court) August 8, 2018 order affirming the Johnstown Housing Authority's (Authority) decision terminating his housing assistance and dismissing his appeal. Essentially, the issue for this Court's review is whether substantial record evidence supported the trial court's decision.1

In 2013, Cox applied to participate in the federally funded, tenant-based2 Housing Choice Voucher Program pursuant to Section 8 of the United States (U.S.) Housing Act of 1937, as amended , 42 U.S.C. § 1437f (Housing Act) (Section 8 Program),3 which is a U.S. Department of Housing and Urban Development (HUD) program the Authority operates in accordance with the Code of Federal Regulations (HUD Regulations).4 Because Cox is a veteran, he applied for the Section 8 Program through the Veteran's Administration Medical Center (VAMC), and the Veteran's Affairs Supportive Housing (VASH) Program screened and approved him. See Original Record (O.R.), Notes of Testimony, July 20, 2018 (N.T.) Authority Ex. 2.

Pursuant to the Housing Act, HUD Regulations restrain tenant participants' conduct. On October 1, 2013, Cox entered into a Housing Assistance Payment (HAP) Contract (HAP Contract) with a private landlord to lease 200 Southmont Boulevard, Apartment 4, Johnstown, Pennsylvania. See N.T. Authority Ex. 1. Under the Real Estate Lease Agreement portion of the HAP Contract, Cox agreed

not to permit or act or practice illegal or legal acts injurious to the building, or persons, or in the building, on the property, or which may be disturbing to other residents or neighbors. Any acts can and will result in immediate eviction and loss of rent and[/]or security deposit.

N.T. Authority Ex. 1 at 17 (emphasis added).

In the Tenancy Addendum to the HAP Contract, Cox further agreed that "[t]he [Authority] may terminate program assistance for the family for any grounds authorized in accordance with HUD requirements. If the [Authority] terminates program assistance for the family the lease terminates automatically." N.T. Authority Ex. 1 at 22. Section 4 of Cox's Section 8 Program voucher (Voucher), entitled "Obligations of the Family," further specified:

When the family's unit is approved and the HAP [C]ontract is executed, the family must follow the rules listed below in order to continue participating in the [Section 8 P]rogram.
....
D. The family (including each family member) must not :
....
4. Engage in ... criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises .
....
9. Engage in abuse of alcohol in a way that threatens the health, safety or right to peaceful enjoyment of the other residents and persons residing in the immediate vicinity of the premises .

N.T. Authority Ex. 2 at 2-3 (emphasis added).

On September 2, 2017, the Johnstown Police Department received a report that Cox was asking sexually explicit questions and propositioning a 17-year-old girl at the Cambria County Transit Authority bus station (CamTran Station), located at 539 Main Street in Johnstown. While speaking with Cox, Johnstown Police Officers determined that Cox was intoxicated; he became disorderly with the officers, swore in front of children and resisted arrest. See N.T. Authority Ex. 4. On December 8, 2017, Cox was charged with disorderly conduct (unreasonable noise), public drunkenness and corruption of minors. See N.T. Authority Ex. 5. Cox was ultimately found guilty of the public drunkenness charge.5

On December 19, 2017, the Authority notified Cox that, due to his September 2, 2017 behavior, he was being dismissed from the Section 8 Program effective January 31, 2018.6 See N.T. at 37. Cox requested an informal hearing, which was held on January 10, 2018. See N.T. at 38. On January 12, 2018, the Authority sent Cox a Notification of Informal Hearing Decision terminating his participation in the Section 8 Program. See O.R. Item 1, Ex. A. The Authority concluded that Cox "violated the rules and regulations of the Section 8 [P]rogram by being involved in criminal activity which threatens the health, safety and peaceful enjoyment of other residents." O.R. Item 1, Ex. A at 2.

Cox appealed to the trial court, which conducted a de novo hearing on July 20, 2018.7 At the hearing, Cox acknowledged that, under the HAP Contract, criminal activity or alcohol use that interferes with the property or the neighbors jeopardizes his Section 8 Program eligibility. See O.R. at 20-23. Cox admitted that he had alcohol in his system at the time of the September 2, 2017 CamTran Station incident. See N.T. at 13, 15, 23-24. Cox disputed that his conduct on September 2, 2017 violated his Section 8 Program obligations.

The trial court admitted into evidence the Google maps page reflecting that the CamTran Station is located 1.9 miles from Cox's residence. See N.T. at 23, 26; see also N.T. Cox Ex. 1. The trial court also admitted into evidence Cox's Cambria County Court Summary that reflected Cox's June 1994 guilty pleas to charges of theft by unlawful taking and receiving stolen property, a March 1995 guilty plea for terroristic threats, a September 1997 guilty plea for receiving stolen property, and a November 2012 no contest plea for defiant trespass. See N.T. Authority Ex. 6.

The Authority's Section 8 Program Supervisor Yvette Penrod (Penrod) testified that VASH screened and approved Cox for the Section 8 Program before he applied to the Authority.8 See N.T. at 34-35. Regarding his Section 8 Program termination, Penrod recalled that it was based on Cox's charges relative to the September 2, 2017 CamTran Station incident, which involved alcohol abuse. See N.T. at 28, 32.

Penrod explained that, as directed by HUD Regulations, the Authority enacted guidelines and regulations (Administrative Plan) relating to Section 8 Program terminations. See N.T. at 29-30, 33; see also Section 982.54 of HUD Regulations, 24 C.F.R. § 982.54 (relating to authority administrative plans). Penrod clarified that the Authority withdrew Cox's assistance, but Cox could remain at his residence and pay the landlord full rent.9 See N.T. at 35-36.

Based upon the evidence, on August 8, 2018, the trial court affirmed the Authority's decision to terminate Cox's Section 8 Program benefits and dismissed his appeal. The trial court made the following findings of fact (FOF):

1. [The Authority] presented credible evidence that Cox's abuse or pattern of abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of other residents.
2. [The Authority] exercised its discretion to permissibly terminate Cox's benefits pursuant to its [Administrative Plan] mandated by [HUD]. [N.T. Authority Ex. 3].
3. The [trial c]ourt did not find the testimony of Cox to be credible.
4. The issue of whether the incident at the [CamTran Station] was in the immediate vicinity of Cox's residence is not relevant to whether [the Authority] produced evidence of abuse or a pattern of abuse of alcohol by Cox that may threaten the health, safety or right to peaceful enjoyment of other residents.

Trial Ct. Op. at 2. The trial court concluded that "[the Authority] had the authority and discretion to terminate benefits in this case and the [trial c]ourt will not substitute its discretion [for] that of [the Authority]." Trial Ct. Op. at 3. On September 7, 2018, Cox appealed to this Court.10

Cox argues that the trial court erred and misapplied the law in affirming the Authority's decision to terminate his Section 8 Program assistance. He specifically contends that substantial evidence did not support the trial court's conclusion that Cox's behavior on September 2, 2017 at the CamTran Station violated his HAP Contract, and the trial court's conclusion was overbroad since the incident did not occur at or near his leased premises, it did not impact other residents' health, safety or right to peaceful enjoyment of the premises, and he was properly vetted before receiving his Voucher.

The Authority rejoins that "[t]he only requirement for termination of benefits is that the pattern of alcohol abuse threatens the health, safety and right to peaceful enjoyment of the premises by other residents[,]" Authority Br. at 10, and that "HUD [R]egulations also allow [the Authority] to terminate Section 8 [Program] assistance if a family member has engaged in criminal activity, 24 C.F.R. [§] 982.553(c) [,]" which the Authority proved. Authority Br. at 10-11.

This Court has recognized:

The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority's decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority's discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht ], 64 A.3d [39,] 63 [ (Pa. Cmwlth. 2013) ].

Bray v. McKeesport Hous. Auth. , 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc).

The credible evidence presented...

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