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July 25, 1975

FLORENCE McLAUGHLIN, et al., Plaintiffs
HELENE WOHLGEMUTH, et al., Defendants

The opinion of the court was delivered by: FULLAM


 This suit challenges the legality of §§ 3234.6 and 3234.61 of the Pennsylvania Department of Public Welfare's Public Assistance Manual (hereinafter P.A. Manual). These provisions are part of the regulatory system used by the Department of Welfare (hereinafter DPW) to compute the cash assistance available to applicants under the Federal Aid to Families with Dependent Children Program (hereinafter AFDC). Sections 3234.6 and 3234.61 provide for a conclusive presumption that the income of a legally responsible relative is available to dependents living in the same assistance unit. *fn1" The plaintiffs argue that this conclusive presumption violates the Federal Social Security Act, HEW Regulations, the due process and equal protection clauses of the Fourteenth Amendment, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The plaintiffs have filed motions for summary judgment and for certification of this suit as a class action and the defendant has responded with a motion to dismiss plaintiffs' complaint.

 I. Factual Background

 The parties have stipulated that the named plaintiffs in this action, Mrs. Florence McLaughlin and Mrs. Artie Brown, are participants in the AFDC assistance program. This program provides authority for the appropriation of federal monies for the care of children who have "been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent." 42 U.S.C. § 606(a). The amount of cash assistance available to families under the AFDC program depends, in part, on the amount of income available to the applicants from other sources.

 The named plaintiffs in this action have been receiving AFDC assistance for a number of years. Prior to November of 1973, DPW, in computing the plaintiffs' income, assumed that the plaintiffs were receiving no income other than their AFDC assistance. However, in the latter part of 1973, DPW reevaluated the plaintiffs' income level and determined that the assistance unit was receiving additional unreported income. Accordingly, Mrs. McLaughlin's assistance for herself and her nine minor children was reduced by $95.40 per month, and Mrs. Brown's assistance for herself and her three minor children was reduced by $101 per month.

 The additional unreported income which led to the reductions in AFDC assistance consisted of income received by the plaintiffs' spouses. Plaintiff McLaughlin's spouse worked as a part time bus driver, and plaintiff Brown's husband received monthly Veteran's Administration checks. DPW, in accordance with P.A. Manual §§ 3234.6 and 3234.61, concluded that the Brown and McLaughlin AFDC assistance should be reduced to reflect the income of the spouses since it appeared that (1) the men were "legally responsible relatives," and (2) they were occupying a common dwelling with the AFDC recipients. *fn2"

 II. Jurisdiction

 The plaintiffs brought this action under 42 U.S.C. § 1983 and invoked the jurisdiction of this Court pursuant to 28 U.S.C. § 1343(3) and (4). They contend that P.A. Manual §§ 3234.6 and 3234.61 violate the due process and equal protection clauses of the Fourteenth Amendment. Furthermore, they argue that these regulations are inconsistent with the federal Social Security Act and HEW Regulations thereunder, and are therefore invalid by virtue of the Supremacy Clause of the United States Constitution. Obviously, any consideration of the merits of the constitutional claim would require the convening of a three-judge court. On the other hand, plaintiffs' "statutory claim" -- the alleged conflict between state and federal law -- could be properly decided by a single judge.

 In Hagans v. Lavine,3 the Supreme Court held that the following procedures should be used by a federal court when faced with statutory and constitutional challenges to the validity of state AFDC regulations. First, the lower federal courts are instructed to determine if the constitutional claim has sufficient substance to support federal jurisdiction pursuant to 28 U.S.C. § 1343. If the court finds that there is a substantial federal question raised, the court has jurisdiction over the cause of action, and may also hear, as a matter of pendent jurisdiction, plaintiffs' allegations that the State regulations are invalid because they conflict with federal law. In order to avoid reaching the constitutional issues and the necessity of convening a three-judge court, the Supreme Court directs the lower federal courts to adjudicate the possibly dispositive pendent "statutory" claims before dealing with the constitutional questions. If the single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional question.

 I have concluded that the plaintiffs have raised a substantial constitutional question and that jurisdiction lies in this Court pursuant to 28 U.S.C. § 1343(3). The complaint in this action clearly alleges a deprivation, under color of state law, of the plaintiffs' constitutional rights. The plaintiffs contend that their Fourteenth Amendment right to procedural due process is violated by the DPW's conclusive presumption that a "legally responsible relative," occupying a common dwelling with the AFDC recipients, will contribute his/her income to the maintenance of the assistance unit. Their position in this respect is strongly supported by the recent opinion in Hurley v. Van Lare, 380 F. Supp. 167 (S. & E.D.N.Y. 1974) (three-judge court), affirmed on other grounds Van Lare v. Hurley, et al., 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208, 43 USLW 4592 (1975). In Hurley, AFDC recipients challenged a New York state regulation which automatically reduced aid to families with dependent children if the recipient houses a non-contributing "lodger." In holding that this regulation violated the due process clause of the Fourteenth Amendment, the court stated that:

"The state may not conclusively presume that a lodger will pay his share of the rent . . . merely because ethically he should or theoretically he could. . . Federal law prohibits a conclusive presumption of support. . . Irrebuttable presumptions are offensive to due process because they effectively deny an individual the essential procedural right to challenge the purported factual basis of a determination adversely affecting his own liberty or property. In this case, the 'property' right in question is the AFDC recipient's statutory entitlement to a shelter allowance commensurate with actual need. . . Before reducing the shelter allowance of a recipient family because the family houses a non-contributing lodger, the state must make an individualized determination of whether the presence of the lodger does in fact diminish the family shelter needs. If presumptions are used, they must be rebuttable." Hurley v. VanLare, 380 F. Supp. at 175.

 The rationale of the Hurley decision is consistent with the recent trend of authority voiding irrebuttable presumptions when the presumption is not necessarily true in fact and when the state has "alternative means of making the crucial determination." Vlandis v. Kline, 412 U.S. 441, 452, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973) (irrebuttable presumption of non-residency of student invalidated); see, also, e.g., Stewart v. Wohlgemuth, 355 F. Supp. 1212 (W.D. Pa. 1972) (irrebuttable presumption terminating welfare benefit of college student violative of due process); Boucher v. Minter, 349 F. Supp. 1240 (D. Mass. 1972) (three-judge court) (irrebuttable presumption terminating shelter allowances where step-father lives in the same house violative of due process); Owens v. Parham, 350 F. Supp. 598 (N.D. Ga. 1972) (three-judge court) (irrebuttable presumption that the members of a household bear a pro rata share of expenses violates the due process clause). The defendants have not cited a single case in which an irrebuttable presumption affecting an individual's liberty or property rights has withstood a challenge on due process grounds, and my research has failed to disclose any cases favorable to the defendants' position that there is no substantial constitutional question raised.

 After surveying the pertinent case law, I find that the plaintiffs' due process argument raises a substantial constitutional issue and that the jurisdiction of this Court is properly invoked pursuant to 28 U.S.C. § 1343(3). However, I wish to emphasize that I do not rule on the substance of the constitutional claims and will consider only plaintiffs' allegation that the Pennsylvania AFDC regulations are inconsistent with applicable federal law.

 III. Certification of the Class

 The plaintiffs have made a timely motion to certify this case as a class action pursuant to Rule 23(a) and Rule 23(b)(2). The proposed class would consist of all "past, present, and future public assistance applicants and recipients in the Commonwealth of Pennsylvania whose public assistance has been or will be denied in whole or in part, reduced, or terminated because they are to be considered living with a legally responsible relative who receives an income." The plaintiffs have defined their proposed class to include all instances in which the Commonwealth of Pennsylvania might determine, ...

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