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June 22, 1971

Marilyn GROFF, individually and on behalf of her minor child, Ruth Groff, and Florence Emerson, on behalf of themselves and all others similarly situated, Plaintiffs,
Helene WOHLGEMUTH, individually and as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, and Clarence P. Jenkins, individually and as Executive Director of the Philadelphia County Board of Assistance, Defendants

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.


 We are called upon to measure against the equal protection clause of the Fourteenth Amendment, regulations of the Pennsylvania Department of Public Welfare which determine allowances for shelter and utilities to recipients of public assistance. *fn1" A three-judge court has been convened because the case involves a federal constitutional attack upon welfare regulations of statewide applicability. *fn2" The case arises upon the complaint of two welfare recipients who assert that the shelter and utilities regulations are invidiously discriminatory against a class composed of: (1) tenants who make payment for utilities' service directly, instead of making a lump sum payment to their landlord covering utilities and rent; and (2) homeowners who naturally pay their own utility bills.

 Plaintiff Groff was a tenant. Plaintiff Emerson is a homeowner. By the time of trial, Mrs. Groff was apparently no longer on the assistance rolls, and counsel for plaintiffs could not find her. However, the bulk of the facts affecting Mrs. Groff had already been stipulated to and incorporated in the Court's pretrial order; moreover, facts affecting a tenant's claim were adduced at the trial. The state Attorney General has not asked us to dismiss the Groff claim as moot or to refrain from consideration of it. Counsel for the plaintiffs, citing to us the rule that questions of public importance "capable of repetition yet evading review" are not readily mooted, *fn3" have asked us to consider the Groff claim. Neither side has requested that we amend our class action determination, made pursuant to agreement of counsel.

 In view of the foregoing, as well as our analysis of the case and of the disposition we make, we will consider both the tenant (Groff) and the homeowner (Emerson) claims.


 The Pennsylvania Manual ("Manual") lists five "common items" as being needed by all welfare recipients. These items are food, clothing, incidentals, utilities and shelter.

 The shelter allowance as defined in the Manual is the actual monthly cost, depending on the kind of living arrangement the welfare client has, for certain component items. In the case of a tenant, the items consist of the actual rental payment plus small additional sums for water, sewerage and garbage and refuse disposal. In the case of a homeowner, the sums included are mortgage interest and amortization payments, property taxes, house insurance, major repairs or replacements, and small sums for water, sewerage, garbage disposal and minor upkeep and repairs. The regulations set forth a maximum shelter allowance, which provides a ceiling, stated in dollar terms, regardless of the actual monthly cost to the welfare client. *fn4"

 The utilities allowance, on the other hand, is not stated by the Manual in terms of actual cost, but in terms of a fixed monthly dollar allowance for utilities, depending upon the number in the family unit. In welfare parlance, this type of allowance is known as a "standard". Food, clothing and incidentals are also stated in the Manual in terms of a standard.

  According to the testimony, a "standard" is a formula for measuring the component elements of a particular assistance category. It results from an analytical study of the component elements measured against economic and physical conditions prevailing in various parts of the state. *fn5" The standard is "costed out" for the region in question, and the figure thus arrived at is the assistance allowance for the item in question. The standards are submitted to and approved by the Department of Health, Education and Welfare from time to time and are also re-evaluated cost-wise on a periodic basis. That a standard may not approximate to actual costs in a given case is plain, in view of the wide variance in life styles among individuals. However, the very concept of a standard is that it is intended to approximate actual cost in a given case per assistance recipient because the standard is costed out at 90 to 100% of today's costs, subject to some variation because of the level of legislative appropriations.

 The testimony further established that the reason that shelter is set forth in terms of actual cost rather than in terms of a standard is that there is a wide variation in housing costs in different areas of the state, and, in fact, even within different areas of the same county. Hence, it is impossible to develop a standard for shelter. In this respect, therefore, shelter is unique in the allowance scheme. While under the fundamental structure of the Manual, a welfare recipient receives his actual shelter cost as the shelter allowance, and receives the amount of the applicable utility standard, there is an exception to this scheme. It is found in the following section, from which the issues raised in this case emanate:

3211.2 Utilities
"a. If payment for all utilities is included in the payment for shelter, the U[utilities] allowance is combined with the shelter allowance and the sum is the maximum allowance for shelter and utilities." ...

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