(which group constitutes plaintiffs and their class) are suffering irreparable harm because they and their children are presently without adequate funds to live and are being forced to live below minimal subsistence levels.
22. The defendants, Helene Wohlgemuth and Edward Kalberer, were aware of the terms of the temporary restraining order issued by this court on January 18, 1974, but have taken no steps to attempt to comply with that order.
CONCLUSIONS OF LAW
1. The court has jurisdiction of this action against the individual defendants, Helene Wohlgemuth and Edward Kalberer, by virtue of the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4). Johnson v. Harder, 438 F.2d 7, 11 (2d Cir. 1971).
2. Plaintiffs and their class represent duly qualified and eligible A.F.D.C. recipients who are entitled to procedural due process before their benefits are terminated. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
3. A pre-termination evidentiary hearing was necessary before benefits were terminated to plaintiffs and their class. Goldberg v. Kelly, supra.
4. Defendants violated the due process rights of plaintiffs and their class when they terminated their regularly scheduled January 15, 1974, payment without affording them an adequate notice or an opportunity for a due process hearing. Goldberg v. Kelly, supra.
5. Defendants' failure to dispatch notice at least ten days prior to the date of their action and their failure to include in the notice an explanation of the individual's right to a hearing violates federal requirements of timely and adequate notice in cases of intended action to discontinue, terminate, suspend or reduce assistance. 45 C.F.R. 205.-10(a) (4), Federal Register, Vol. 38, No. 157, August 15, 1973.
6. Plaintiffs' rights under the Fourteenth Amendment to the United States Constitution have been violated by the challenged conduct. Caldwell v. Laupheimer, 311 F. Supp. 853 (E.D. Pa. 1969); U.S.D.A. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973).
7. The A.F.D.C. program's purpose is the protection of needy, dependent children. King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1967). The misconduct of a parent or other direct recipient of A.F.D.C. funds is not grounds for terminating A.F.D.C. payments. Cooper v. Laupheimer, 316 F. Supp. 264, 268 (E.D. Pa. 1970).
8. The Social Security Act of 1935, 42 U.S.C. § 601 et seq. at § 602(a) requires "that aid to dependent children shall be furnished with reasonable promptness to all eligible individuals."
9. The State cannot withhold or suspend grants of aid to needy, dependent children in order to recoup prior duplicate assistance payments made in error by the State, even if the parent or other eligible recipient has fraudulently acquired the duplicate payment. Cooper v. Laupheimer, supra, at 270.
10. Having established payment schedules for individual recipients fixing the dates on which assistance will be received and making these dates known to the recipients, D.P.W. is not free to ignore these schedules as a result of its own error. Defendants' conduct of withholding the regularly scheduled check of January 15, 1974 is a violation of federal requirements that aid be furnished promptly to eligible individuals without any delay attributable to the agency's administrative process and that aid shall be continued regularly to all eligible individuals until they are found to be ineligible. 45 C.F.R. 206.10(a) (5), Federal Register, Vol. 38, No. 157, August 15, 1973.
11. The fact that some of the members of the class possibly have a portion of the earlier duplicate payment in their possession which can be used for the children's benefit is not a sufficient basis to deny relief to all members of the class because: (a) defendants have shown no way in which these members of the class can be identified; (b) the harm to the children whose parents do not have such funds available is immediate and irreparable; (c) all members of the class have had their due process rights violated by summary termination of benefits; and (d) on this record, the interests of the children in receiving uninterrupted benefits out-weighs the state's interest in preventing an increase in its fiscal and administrative burdens. Goldberg v. Kelly, supra, 264-266, 90 S. Ct. 1011.
12. The defendants and the State Department of Welfare have adequate remedies for preventing losses arising from the erroneous issuance of duplicate December 31, 1973, A.F.D.C. grant checks either by recoupment procedure which provides plaintiffs and their class procedural due process and is consistent with the Social Security Act of 1935, supra, or by following the restitution procedures set out in the Pennsylvania Department of Welfare Manual culminating in Civil proceedings against the recipient.
13. The plaintiffs and the class they represent are entitled to a preliminary injunction restraining the individual defendants from seeking restitution of duplicate assistance payments by summarily reducing or suspending the January 15, 1974, Aid to Families with Dependent Children grants to plaintiffs and the class they represent.
14. The defendants, Helene Wohlgemuth and Edward Kalberer, have not made any attempt to comply with this court's temporary restraining order issued January 18, 1974 and are in contempt thereof. Accordingly, these defendants have been fined the sum of $1000 each, said fines to be suspended if they have complied with the Temporary Restraining Order issued on January 18, 1974, on or before January 25, 1974.