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COMMONWEALTH PENNSYLVANIA v. FANNIE PERILLO (04/09/76)

decided: April 9, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE
v.
FANNIE PERILLO, APPELLANT



Appeal from the Order of the Department of Public Welfare in case of In Re: Appeal of Fannie Perillo, No. 104175.

COUNSEL

John F. Miller, Jr., for appellant.

Barry A. Roth, Assistant Attorney General, with him Paul J. Carey, Jr. General Counsel, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 24 Pa. Commw. Page 322]

This is an appeal from an adjudication of the Pennsylvania Department of Public Welfare (DPW) which upheld the suspension of assistance benefits to Fannie Perillo (appellant) and her dependent children by the Luzerne County Board of Assistance (Board). We are constrained to affirm.

Appellant had been receiving assistance since at least 1972*fn1 under the Aid to Dependent Children program. In early 1975, appellant's husband, with whom she lived and still lives, inherited his father's residence. Appellant, her husband, and their children had been living with Mr. Perillo's father at the time of his death. When appellant reported her husband's inheritance to the Board, she was informed that her husband would be required to sign a reimbursement agreement (designated PA 9) in order for her to remain eligible for assistance. Form PA 9, when filed, acts as a lien on the obligor's real property to the extent of $2,000 and obviates the necessity for other legal action for claims less than that amount. Appellant's husband refused to sign, believing mistakenly that he or his children would have the house taken from them by execution.*fn2 Since the reimbursement form was not signed, the Board informed appellant on March 17, 1975 that it would terminate her assistance payments.

[ 24 Pa. Commw. Page 323]

She appealed to DPW and was granted a hearing on June 26, 1975. At no time pertinent to this appeal has appellant's husband received benefits from the Board.

DPW contends preliminarily that the hearing examiner was without jurisdiction to hear the appeal since it was not filed until April 18, 1975, beyond the statutory 30-day limit. The record shows, however, that the notice of appeal was allegedly mailed March 24, 1975, though the Board has no record of its receipt. Apparently conceding the possibility that the notice was misplaced, the Board allowed a second filing on April 18, 1975 and proceeded as though the notice of appeal were timely filed. Under the circumstances in this case, DPW has not established that the notice was untimely.

We therefore proceed to appellant's substantive complaints which will involve us once again in that quagmire of regulations known as the Pennsylvania Assistance Manual. Appellant first contends that DPW's regulations violate her right to equal protection under the Fourteenth Amendment of the United States Constitution by creating, without a reasonable basis, two classes of persons in her situation. Both parties agree that one treatment is accorded to recipients of public assistance who live with a nonrecipient spouse or parent and a different treatment is given to those who live apart from the nonrecipient spouse or parent. Recipients who live with a spouse or parent may be denied benefits if the spouse or parent refused to sign the reimbursement agreement. This is not true for recipients separated from a spouse or living apart from a parent.

The disparate treatment is achieved through regulation 3235 which provides in pertinent part:

"A spouse, or the natural or adoptive parent(s) of an unemancipated minor child must, as a condition of eligibility for his dependents living with him, utilize and ...


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