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PARAGO v. DEPARTMENT PUBLIC WELFARE (06/16/72)

decided: June 16, 1972.

PARAGO
v.
DEPARTMENT OF PUBLIC WELFARE



Appeal from the Order of the Department of Public Welfare in case of Appeal of Mrs. Helen Parago, No. 108599-C.

COUNSEL

Eugene F. Smith, with him Joseph P. Brennan, for appellant.

Sidney V. Blecker, Assistant Attorney General, with him Marx S. Leopold, General Counsel, and J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by Judge Crumlish, Jr.

Author: Blatt

[ 6 Pa. Commw. Page 17]

This is an appeal from an order of the Department of Public Welfare withholding the payment of public assistance benefits. The Department claimed a violation of departmental regulations in the appellant's failure to report receipt of a resource and in her subsequent transfer of a resource without departmental knowledge and approval.

It appeared from testimony at the Departmental hearing that the appellant, the mother of four children, had been receiving public assistance for approximately two years. One Clarence Fisher had been a boarder in her home at various intervals over a considerable period of time, and had made a number of purchases for the household, some on credit. Because he was unable to obtain credit himself, however, he used the credit of the appellant's ex-husband, with the ex-husband's permission. He made regular payments on these debts, the appellant said, but he also took out a life insurance policy with the appellant named as beneficiary, so as to provide for the payment of whatever debts might still remain if he should die. When Clarence

[ 6 Pa. Commw. Page 18]

Fisher died, she received the $8,000 proceeds of the life insurance policy.

The appellant testified that neither she nor Clarence Fisher ever intended the insurance policy proceeds to be her own money, but that she had promised him to use it to pay off his debts and then to pay over any remainder to his brother, Elmer Fisher. Her testimony was that she spent approximately $2,000 to clear up the decedent's debts and with the consent of Elmer Fisher, the brother, also spent some of the money on personal items needed by herself and her children. She testified that she then gave Elmer Fisher a check for the rest, in the amount of approximately $6,000. She did not notify the Department either as to receiving the insurance money or as to the disposition she made of it. When an acquaintance of the appellant informed the Lackawanna County Board of Assistance of the appellant's receipt of the insurance money, she freely admitted that she had received it, but stated that she had not reported it because she did not believe that it belonged to her. She was subsequently notified that her assistance payments were being terminated because she had transferred an asset of $6,000, and she requested a hearing.

At the County Board hearing, the appellant said that she had merely carried out the express wishes of the decedent, Clarence Fisher. She testified that she had never treated the $8,000 as her own property and that she never had any intention of retaining any of it. In effect, her argument was that she was merely the trustee of an oral trust. The County Board's Hearing Officer approved the termination of assistance, holding that the $8,000 proceeds of the policy were available for the appellant's unrestricted use, and that she should have reported both the receipt and the transfer of the money to the Board. The testimony of the

[ 6 Pa. Commw. Page 19]

    appellant and of other witnesses was found to be insufficient to establish an oral trust. And, although the evidence presented on the issue of the payment over to Elmer Fisher was in the form of a notarized statement from Elmer Fisher that he had received the money from the appellant, the Officer specifically found that she had "not presented sufficient evidence that . . . [she] actually gave the $6,000 to Elmer Fisher." The Officer's adjudication was confusing in that, while noting that the County Board had terminated assistance because appellant had transferred an ...


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