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October 25, 1973

Marlene WILLIAMS, on behalf of the minor, Algeron Walker, and Charlene Robinson, a minor, by her next friend Louis Robinson and all other persons similarly situated
Helene WOHLGEMUTH, Individually and as Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, et al.

Aldisert, Circuit Judge, Miller, Senior District Judge, and Knox, District Judge. John L. Miller, Senior District Judge (dissenting).

The opinion of the court was delivered by: KNOX

This matter is before a three-judge statutory court duly convened pursuant to 28 U.S.C. §§ 2281 and 2284 by reason of an attack made by plaintiffs on certain Department of Public Welfare Regulations with respect to general public assistance of statewide application. Jurisdiction of the court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343 to enforce civil rights arising under 42 U.S.C. § 1983.

 The facts as developed are relatively simple but, as usual, do not lend themselves to an easy determination as to the applicable law. The original plaintiff, Marlene Williams, brought her suit on behalf of minor, Algeron Walker, who has resided with her for several years as his next friend. *fn1" Plaintiff sought to bring the action as a class action of Pennsylvania citizens similarly situated alleging the class to be composed of unemancipated minors who, because of the absence of natural parents and relatives, are cared for by unrelated substitute parents who do not receive public assistance.

 Algeron Walker was born August 11, 1957, and it appears that he was shortly afterwards abandoned by his natural mother. His father was unknown. Plaintiff, Marlene Williams, has cared for and assumed responsibility for him since he was at this early age. He received a public assistance grant until the summer of 1972 when he engaged in summer work through the Neighborhood Youth Corps. At the termination of his summer employment, he reapplied for and again began receiving assistance but, after one check was paid, it was discontinued for the reason that the substitute parent, Marlene Williams, was not receiving public assistance since she had an income of $500 per month which made her ineligible.

 The reason given for discontinuing assistance was Regulation 3131.12 contained in the Public Assistance Manual which is set forth in full in Appendix I. Specifically, insofar as we are concerned in this case, the section which operates to deny assistance to this unemancipated minor is subparagraph (b) which provides that he receives assistance if he is living with a person other than his parents and has lived with this person's family for a number of years "and this person receives assistance". In other words, if the substitute parent, in this case plaintiff Marlene Williams, is not on public assistance because ineligible, she is unable to receive any assistance for the minor who is living in her home and he is likewise ineligible for assistance. The only exception for this is where there has been a court order placing the child in the custody of an agent or institution and the child has been placed in the home by the agency.

 We also have the companion situation which has been joined with this involving Louis Robinson who cares for Charlene Robinson for whom his daughter was caring at the time of her death. She had received Charlene from her natural parents who, it is asserted, neglected her. Louis Robinson likewise is ineligible for assistance because of his social security and pension income. Again we have a situation where there is no relationship and no obligation to support on the part of the non-parent custodian.

 The plaintiffs seek a declaratory judgment and permanent injunction to restrain defendants from enforcing these welfare regulations claiming that they violate rights under the Fourteenth Amendment to the United States Constitution to equal protection of the laws and to due process of law. It is claimed that equal protection is violated because it creates two classes of recipients with no rational basis for the distinction: (1) a class consisting of unemancipated minors who live with relatives or unrelated adults who are receiving assistance and (2) unemancipated minors living with unrelated adults who are not receiving assistance. It is claimed that due process is violated because the regulation in question is asserted to establish a conclusive presumption that such persons are not eligible for general assistance, regardless of need.

 (A) Class Action

 The action is entitled as a class action and it is represented that the persons in the class are so numerous that joinder of all members is impractical. The complaint in paragraph five states that the plaintiff Walker is a member of a class composed of individuals who are otherwise eligible for benefits under the general assistance (GA) program administered by defendants. This class consists of all otherwise eligible GA recipients who have been or will be declared ineligible for assistance solely because an unrelated individual with whom they live does not receive assistance. On the motion for class action filed separately, it is stated that the class to be represented is composed of unemancipated minors otherwise eligible to receive general assistance from the Department of Public Welfare of the Commonwealth of Pennsylvania whose assistance has been or will be terminated under Pennsylvania Public Assistance Manual Section 3131.12 because they live with an unrelated adult who does not receive assistance. It is further represented that this class is so numerous that joinder of all members would be impractical.

 The trouble is that we are not given any figures to justify the assertion that the class is so numerous that joinder is impractical nor are we furnished any basis upon which to take judicial notice of the number involved.

 In Committee to Free the Fort Dix 38 v. Major General Collins, Commanding Officer, 429 F.2d 807 (3d Cir. 1970), the court said at page 812:

"The appellants have tried to establish the requisite certainty of effect by alleging a class action. The complaint states that suit is brought on behalf of 'all others who seek to exercise their constitutional right to protest certain practices at Fort Dix.' But this amorphous reference to persons not otherwise expressly named as plaintiffs is insufficient to state a class action under the requirements of Rule 23(a), Federal Rules of Civil Procedure which says:
'One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impractical * * *.'
Nowhere in the complaint are any persons other than the appellants themselves specified as being within the class affected."

 The evidence as presented in this case offers no light as to how many persons might constitute this class. As far as the record goes here, we have only two of them, to wit: Algeron Walker on whose behalf Marlene Williams brought suit and Charlene Robinson on whose behalf Louis Robinson brought suit. We are given no further indications as to how many people in the Western District of Pennsylvania or in the Commonwealth may have been or are likely to be deprived of public assistance as unemancipated minors living with an unrelated adult who is not on public assistance.

 In plaintiff's trial brief, page 19, it is stated: "while the exact size of the class is unknown, it consists of all children who have been or will be aggrieved by defendant's policy indicating that the number is likely to run into thousands and that the joinder of all members is impracticable." There is nothing in the record to support this assertion. For ought we know the two individuals mentioned may be the only ones in the Commonwealth affected by the policy or it may be that there are ten or fifteen others located around the state but we have nothing to support the assertion that the members of the class are so numerous that joinder is impracticable. The burden was on the plaintiffs to demonstrate this and since we are left completely in the dark as to how many are involved, we will deny the class action.

 In Stewart v. Wohlgemuth, 355 F. Supp. 1212 (W.D.Pa.1972), a class action was denied because the myraid of different circumstances existing in each individual case would unnecessarily complicate the action and a class action under Rule 23 of the Federal Rules of Civil Procedure would not be a superior method for fair and efficient adjudication of all these controversies. See Tindall v. Hardin, 337 F. Supp. 563 (W.D.Pa.1972), aff'd sub nom, Carter v. Butz, 479 F.2d 1084 (3d Cir. 1973.)

 The same is true here but since the decision of Stewart v. Wohlgemuth, supra, the court's confidence therein expressed that the Commonwealth would abide by a decision involving one or two individuals was shaken by the fact that the Commonwealth did not so abide and it was necessary for subsequent actions to be brought in this court in order to compel compliance with the decision in Stewart v. Wohlgemuth, supra.

 In addition to the decision of the Court of Appeals for the Third Circuit involving Fort Dix, supra, there are other decisions clearly holding that the burden is upon the plaintiff under Rule 23(a)(1) of the Rules of Civil Procedure to establish that the class is so numerous as to preclude joinder. See William Goldman Theatres, Inc. v. Paramount Film Distributing Corp., 49 F.R.D. 35 (E.D.Pa.1969); Kinzler v. New York Stock Exchange, 53 F.R.D. 75 (S.D.N.Y.1971); Minersville Coal Co. v. Anthracite Export Association, 55 F.R.D. 426 (M.D.Pa.1971).

 For these reasons, the motion for maintenance of the case as a class action which was deferred to the three-judge court will be denied.

 (B) Equal Protection of the Laws

 We have previously noted that the relevant state Regulation 3131.12(b) (see Appendix I) deprives an unemancipated minor of eligibility for general assistance if the unrelated person with whom he or she is living does not receive assistance. The regulations also make a difference with respect to children living with certain "specified relatives" as provided in 3122.22 *fn2" Here if the child is living with such a relative the resources considered in determining the child's eligibility for public assistance are his needs, what resource the child actually has, those that are his legally and those which he has a legal claim to. Ordinarily, a child would not have a legal claim to financial aid from any persons other than his parents under Pennsylvania Law (62 Purdon's P.S. § 1973) and in such circumstances, it would appear that under 3122.22 if the child is living with a specified relative other than one of his parents, he would be eligible for general assistance regardless of the status of the relatives and whether they are receiving assistance or not.

 The plaintiff is therefore correct in arguing that this welfare program contemplates that all children must look to other potential resources for maintenance before they are entitled to rely on the state for assistance and that a child's parents are considered a resource to the child to the extent that they are financially able to contribute pursuant to the Pennsylvania support laws (62 P.S. § 1973). As to those children who are not living with natural parents and must live with substitute parents, the effect of the program is to divide these children into two classes. One is a class which lives with and is cared for by non-parent relatives such as a grandmother or aunt. *fn3" The second class is composed of children who live with and are cared for by non-relatives as is the case with Algeron Walker and Charlene Robinson here. The second class is then divided into two sub-classes. One is where the custodian receives assistance and two is where he or she does not. These two classes and sub-classes are accorded substantially different treatment for general assistance. The first class living with a non-parent relative has the child's needs assessed and investigated and his own resources looked into; whether he has a legal claim for support on anyone or not and, if not, he may be found eligible for support under 3122.22. The same is true of class 2, sub-class 1.

 As to the second class, sub-class 2, however, the law provides no investigation as to need if the substitute parent is not receiving assistance and flatly declares that such children are not eligible for general assistance. This is what happened in the case of Algeron Walker here as shown by the findings of fact, discussion and conclusions of law of the hearing officer who held the fair hearing required by the Act. These findings, discussion and conclusions of law are set forth in Appendix II to this opinion. It will be noted from examining the adjudication as to Algeron Walker that assistance for him, an unemancipated minor, was refused to Marlene R. Williams with whom he was residing for the sole reason that she was not eligible to receive general assistance and therefore under the Regulation 3131.12(b) it was correct to discontinue assistance for the care and support of Algeron Walker.

 We agree with plaintiff's contention that this classification is irrational, invidious and in violation of equal protection of the laws as required by the ...

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