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April 16, 1970

Cleora COOPER, individually and on behalf of her minor children, Julius Williams and Darryl Cooper, Marie Hicks, individually and on behalf of her minor children, Eric Hicks and Tramel Hicks, Hazel Chance, individually and on behalf of her minor children, Benita Chance, Benjamin Chance, Ronne Chance, and Anthony Chance, Nancy Bullett, individually and on behalf of her minor children, Caroline Denise Bullett, Paul Bullett, Ave Marie Bullett, Andre Bullett, and Machael Bullett, on behalf of themselves and all others similarly situated, Plaintiffs,
Alfred J. LAUPHEIMER, Sr., et al., Defendants

The opinion of the court was delivered by: WRIGHT


This is a class action for declaratory and injunctive relief under the Civil Rights Act, 42 U.S.C. § 1983. *fn1" Plaintiffs attack the constitutionality of statewide regulations *fn2" of the Pennsylvania Department of Public Welfare, thereby invoking the provisions of 28 U.S.C. §§ 2281, 2284, and this three-judge court was convened. Jurisdiction for declaratory relief is proper under 28 U.S.C. §§ 2201, 2202, as it is for violation of the Civil Rights Act under 28 U.S.C. § 1343(3), (4).

 Plaintiffs are mothers of minor children receiving grants under the AFDC program. The action is brought individdually, on behalf of the children, and as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all others similarly situated. Defendants, who are sued in both individual and official capacities, are the Philadelphia Board of Assistance, its members and Executive Director, the Secretary of the Department of Public Welfare, the Director of the Bureau of Investigation of the Office of the State Treasurer, the State Treasurer, and the State Attorney General.

 This court need not determine whether plaintiffs have exhausted administrative remedies prior to filing this action because the constitutional challenge under 42 U.S.C. § 1983 is sufficiently substantial to require the convening of a three-judge court. King v. Smith, 392 U.S. 309, 312 n. 4, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1967); Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967).

 By stipulation of the parties filed with the clerk of this court, this action was submitted on depositions, documents, exhibits and arguments by the parties.


 The Commonwealth of Pennsylvania participates, on a matching fund basis, in the federal AFDC program, established by the Social Security Act of 1935, 42 U.S.C. § 601 et seq. In order to receive federal funds, a state is required to submit for approval by the Secretary of Health, Education and Welfare ("HEW") a "State plan" which complies with the requirements of the Social Security Act and HEW regulations. 42 U.S.C. §§ 601-604. Under the Pennsylvania Public Welfare Code, the Department of Public Welfare ("Department") is charged with the duty of receiving and supervising the disbursement of federal funds. 62 Purd. Stat § 406(1).

 A duplicate payment is a form of overpayment which results when a recipient gets two assistance checks covering the same time period. This situation arises when a recipient reports the loss, theft or nonreceipt of a regular check, obtains an emergency check, subsequently finds or receives the regular check, and fails to return it. Manual, section 3214. The recipient may have acted from innocent mistake, or with fraudulent intent. In other cases, what may be mistaken for a duplicate payment occurs when the original check is stolen and the endorsement forged by the thief, who cashes the check.

 Prior to July 1, 1969, the Department sought restitution for duplicate assistance payments only in cases of suspected fraud, *fn5" pursuant to Manual, section 3810 et seq., and actual restitution was geared to the ability to pay, Manual, section 3816.11(b). A person currently receiving assistance was considered unable to pay and failure to make immediate restitution was not an eligibility factor for continued receipt of assistance. Manual, section 3816.11(c), (e). On July 1, 1969, the Department instituted a new regulation *fn6" which ordered that restitution of duplicate assistance payments, whether procured through fraud or mistake, be accomplished by reducing the current grant to the entire family by at least fifty percent of the semi-monthly grant. The regulation was amended, effective August 11, 1969, to provide that the full amount subject to restitution must be taken from one month's checks, or if complete discontinuance of aid would result, from two consecutive month's checks. *fn7" If the full amount is still not recovered, the Department resorts to the regular methods outlined above.

 Plaintiffs are duly qualified and eligible recipients of AFDC grants and were receiving semi-monthly payments from the Department at the time in issue. After they failed to receive their regular checks on time, they obtained emergency replacement checks by signing a form which authorized investigation of the unreceived checks by the Treasurer's Office. *fn8" Several months later plaintiffs were summoned to the Treasurer's Office under penalty of suspension of assistance for failure to appear and were shown endorsed, duplicate checks.

 Plaintiff Chance swore that she never received the regular check for which she obtained the replacement and denied that the endorsement of the original check was hers. Plaintiff Bullett avers that she never remembers getting the original check or any extra check. Plaintiffs Cooper and Hicks swore that they had not received their regular checks when they applied for replacements and never intended to defraud the Department, although they conceded that the endorsements appeared to be theirs. Plaintiffs signed forms withdrawing their claims of nonreceipt of the proceeds, after they were threatened with suspension of all assistance if they refused to sign. Subsequently, plaintiff Bullett's semi-monthly ...

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