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BROWER v. WOHLGEMUTH

February 7, 1974

MARY BROWER, et al.
v.
HELENE WOHLGEMUTH, et al.


Higginbotham, J.


The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, J.

 The instant case demonstrates once again the paradoxes within the spectrum of the practical application of the computer sciences. At its best, the computer has enabled NASA to send men on lunar missions zooming 238,857 *fn1" miles into outer space so that they may land softly on the moon and return safely with pinpoint landings despite reentry speeds of 25,000 miles per hour. For computer science application at its worst, Pennsylvania's Department of Public Welfare (DPW) could not master the less dramatic task of assuring a proper disbursement of checks to 3,502 deserving recipients in the counties of Allegheny, Dauphin, Delaware and Philadelphia.

 Though all parties profess their good intentions to fairly correct the impact of the computer program errors of December 31, 1973 involving 3,502 welfare recipients, it appears to be impossible to issue a decree which flawlessly unravels the errors; I cannot simultaneously (1) assure that no deserving recipient will be deprived of funds due him or her and (2) also assure that the Commonwealth will not have to make unnecessary duplicate payments to some individuals who are not in actual "need" *fn2" of the extra payment. Because of the factual penumbras *fn3" of this record and as a consequence of the Court of Appeals January 28, 1974 stay of Chief Judge Marsh's January 24, 1974 *fn4" injunction, at best I can only issue an order which gives rough justice -- recognizing that perhaps some, though probably not many, *fn5" innocent persons may be hurt by my refusal to give a sweeping injunction, as did Chief Judge Marsh, requiring a January 15th payment to the entire class. Apparently the computer and management systems are not so programmed that I can obtain answers as to each specific individual and thereby carve out an order devoid of suppositions. *fn6" Despite any purported good intentions of the defendants to retrieve the totality of data needed for my precise adjudication of the facts on each recipient's claim, defendants seem to be not much more effective in giving me the information needed as to each individual than were the efforts of all the King's horses and all the King's men to put Humpty Dumpty together again. *fn7"

 II.

 New Year's Eve, December 31, 1973, brought a pleasant surprise to approximately 3500 Pennsylvania welfare recipients and a traumatic shock to the personnel of the DPW's data processing units. The drama began to unfold some weeks before. On October 1, 1973, the DPW initiated in Delaware County for the first time a digital payment system, incidentally a system which at an earlier date I had (perhaps too optimistically) described as a "modern computer check processing system." *fn8" Under the digital payment system, rather than all persons being paid on the 1st and the 15th of the month, DPW semi-monthly allotments are spread out so that various recipients are paid on different days; the date of payment is determined by the last digit of the payee's Department of Public Welfare case number. Thus, in this case, those persons whose last digit was "0" were to receive checks on December 31, 1973 and January 15, 1974. In November, 1973 in some of the counties, the DPW had switched to a "bank issuance" program whereby the welfare checks are sent directly to the local bank to be picked up there by the recipients. The bank issuance program was designed to eliminate mail theft and other problems of unpredictable delivery. Additionally, in December, 1973, the DPW was involved with "the switch-over involving thousands of recipients to the new supplemental security income program, providing generally higher grants to recipients" which was to take "place on a state wide basis on January 1, 1974." See Stipulation of Facts, para. 5.

 For some reason the computer system programmers, when attempting to integrate the above three modifications, failed to terminate the old program under which the digit "0" individuals had checks sent to their homes. The digit "0" persons had been previously informed that commencing December 31, 1973 they must pick up their checks at the bank instead of receiving their check by mail at home. Thus, on the morning of December 31, 1973, many recipients were awaiting the opening of the bank doors. They received their checks promptly and after arriving home, to their surprise found an additional check for the same amount in their mail. At this point, some recipients thought it was a bonus and it is stipulated that some thought "that they were entitled to both checks." *fn9" Some believed otherwise. Some immediately returned the extra check to their local office of DPW. Others followed the classic self-help doctrine of "finders keepers".

 Sometime during the morning of December 31st, the panic button was pushed in Harrisburg upon learning that their supreme inanimate robot -- the computer -- had followed precisely the programmed instructions they gave it. Accordingly messages were sent out instantly to all of the banks to not release any further checks still in the possession of the banks. The 3,502 recipients were advised "no earlier than January 11, 1974" that their January 15th checks would not be available. *fn10" See Stipulation of Facts, para. 4 and attached Exhibit "A".

 III.

 At first blush, it would seem easy to find a fair resolution to this problem. However, like many problems perceived as uncomplex, the simplistic solution is partially dependent upon whose lens one uses to view and analyze the problem. For here there are two significantly different perspectives, neither of which is patently unreasonable.

 Position A -- The Rationale of the Commonwealth:

 It is unconscionable for anyone to keep that which is not his, and particularly when one has received a "government benefit" paid in error. Certainly the Commonwealth should be able to correct its blatant error and not have to issue additional checks on January 15th and therefore unnecessarily deplete the Commonwealth's limited resources. Moreover, no one would suffer. If the error of duplicate payments can be corrected by withholding the January 15th payment, the Commonwealth will not have "thrown away" $300,000 by reason of a programmer's error. The recipients should not scream "injustice" because they were indeed fortunate to receive prematurely their entire payments for the month of January on December 31st rather than to have it bifurcated with payments on December 31st and January 15th. *fn11"

 Position B -- The Rationale of the Plaintiffs:

 Plaintiffs argue that this is not a case of first impression, for a three judge court of this circuit, in Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970) has previously dealt with the identical problem of duplicate payments by the DPW. Plaintiffs assert that in Cooper, supra, the court enjoined the defendants specifically from ever again utilizing the procedure it did in fact use in this case in January 1974. They rely, inter alia, on the language of the Cooper opinion which ". . . ordered that defendants be enjoined from seeking restitution of duplicate assistance payments by reducing current grants of AFDC to plaintiffs and their class". Id. at 270. Furthermore, plaintiffs contend the denial of the January 15th payment is repugnant to the rationale of Caldwell v. Laupheimer, 311 F. Supp. 853 (E.D. Pa. 1969), which held:

 
"That due process requires a hearing prior to the termination of public assistance is too clear to merit extended discussion. * * * Procedural fairness requires the notice must be timely and adequate, given within a reasonable time prior to the taking of any action, and specifying the proposed action and the grounds therefor, indicating the information needed to determine eligibility and advising the recipients of the right to be heard and to be represented by counsel." Id. at 855, 856.

 IV.

 The Differential Impacts of the Withholding of the January 15th Checks on Three Different Subgroups

 The tragedy of the January 15th withholding of checks to the 3,502 recipients is that the Commonwealth presupposes that there is no difference in the circumstances among any of the recipients. It further assumes they all received two checks and that there could be no legitimate reason for any of the individuals who received a duplicate payment to have spent it in good faith while fully expecting the January 15th check. However, the actual record does not substantiate the above suppositions as to some of the 3,502 recipients, for within this class of 3,502 persons there are three separate subgroups which have sustained different fates as a result of the withholding of the January 15th checks.

 Subgroup A :

 "One-check persons" -- Some of the persons in this class of 3,502 received only one check on December 31st and not two checks as the Commonwealth suspects. This latter fact is stipulated to by the Commonwealth. *fn12" However, despite this subgroup's total innocence they have been cut off from their January 15th check. Unfortunately, even now we cannot identify specifically all of these persons. Some of these persons may have received a check at the bank but did not have one mailed to their home. *fn13"

 Yet for this group of persons who in fact did not receive duplicate checks on December 31, 1973, some of these individuals have filed affidavits stating that as late as February 2, 1974 they still have not received their January 15th check.

 Subgroup B :

 Some of the persons who received two checks on December 31st spent both in good faith because they " thought, erroneously or not, that they were entitled to both checks " (Stipulation of Facts, para. 8), and thus for that reason were expecting the regular January 15th check since they had made expenditures for other necessities. Each of the four original plaintiffs filed sworn affidavits which would justify me in finding that their expenditure of the duplicate check of December 31st was made in good faith and that they had reason to believe that the "duplicate check" was an additional reimbursement to which they were entitled because of prior communications with representatives of DPW.

 As an example, Mary Brower, in her affidavit asserts that she picked up her semi-monthly check at the bank and on the same day received another check of $234 in the mail: "As soon as she received it, she telephoned her caseworker at the Delancey District office of the Philadelphia County Board of Assistance, 44th & Chestnut Streets, Philadelphia. When she could not reach her caseworker, she spoke to another employee who advised her to do whatever she wished with it.

 "Consequently, Brower expended both checks, as she had numerous pressing obligations, such as a deficiency in her mortgage, back bills to the electric, gas and telephone companies, bills from Christmas shopping, and her purchase of her semi-monthly food stamp allotment of $62.50.

 "Brower had received no prior notice that she would not receive her January 15, 1974 check, and relied upon it for making her mortgage payment, purchasing food stamps and making a payment on ...


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