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WHITE v. BEAL

April 21, 1976

RALPH WHITE; WILLIAM B. JOHNSON; and PHILADELPHIA WELFARE RIGHTS ORGANIZATION Plaintiffs and Plaintiff-Intervenors, on behalf of themselves and all others similarly situated
v.
FRANK S. BEAL, Individually and as Secretary of the Department of Public Welfare; GLENN JOHNSON, individually and as Director, Bureau of Medical Assistance, Department of Public Welfare; DON JOSE STOVALL, individually and as Executive Director of the Philadelphia County Board of Assistance; THE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE; and THE PHILADELPHIA COUNTY BOARD OF ASSISTANCE Defendants



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 This matter is before the court on motions for summary judgment and preliminary injunction. *fn1"

 Plaintiffs claim that Pa. Stat. Ann. tit. 62, § 443.4 DPW -- Pa. Manual §§ 9740 and 9743 are in conflict with the Social Security Act, 42 U.S.C. § 1396 (1970) et seq. ; the regulations promulgated thereunder, 45 CFR § 249.10 et seq. ; and the Due Process and Equal Protection clauses of the Fourteenth Amendment.

 Ralph White is an adult citizen of Pennsylvania. He is poor and receives $166 a month in benefits under Supplementary Security Income Program and pays $88 per month in rent. He had been employed by the Bellevue Stratford Hotel as a night auditor until July, 1972. He cannot perform that job because of refractive error and inadequate eyeglasses. He has been examined at the Scheie Eye Institute and the Wills Eye Hospital as recently as January 17, 1975. These examinations revealed severe refractive error in the form of nearsightedness requiring trifocals. He submitted an application for eyeglasses under the Medical Assistance Program to the Pennsylvania Department of Public Welfare. On May 15, 1975, he was informed through his caseworker that his request was disapproved because he did not have an eye disease or pathologic condition as required by DPW -- Pa. Manual § 9743. (Stipulation as to Facts).

 Bernice Fredricksdorf is a citizen of Pennsylvania. She is poor, receiving $88 per month under the Public Assistance Program. She suffers from diabetes and high blood pressure and was examined on December 10, 1974 at the Pennsylvania College of Optometry. This examination disclosed hyperopic astigmatism and new eyeglass lenses were prescribed as necessary to alleviate this condition. Fredericksdorf applied to the Pennsylvania Department of Public Welfare for eyeglasses under the Medical Assistance Program. In February, 1975, her request was denied on the ground that she had refractive error and not eye disease or pathology. She asked for reconsideration, and in May, 1975, was again advised that she was ineligible. (Stipulation).

 Charles Eder is a citizen of Pennsylvania. He is poor, receiving $76.50 every two weeks under the Public Assistance Program. His rent is $100 per month. Because of severe headaches and bloodshot eyes, he went to Dr. B. M. Hamberg, Doctor of Optometry for an eye examination on March 4, 1975. Dr. Hamberg prescribed eyeglasses to improve the refractive error from which Eder suffered. On Eder's behalf, Dr. Hamberg submitted an application for eyeglasses under the Medical Assistance Program to the Pennsylvania Department of Public Welfare. On May 29, 1975, plaintiff received notification that his request for glasses had been denied under § 9743 because he had no eye pathology. Eder then arranged to purchase eyeglasses from Tru-Site Optical Co., Philadelphia, Pennsylvania. He has paid $20 and owes $15 to Tru-Site. Through his attorney, Eder has delayed the payment of the balance pending a determination of his entitlement to eyeglasses from the Medical Assistance Program. (Complaint of Intervening Plaintiff, Eder).

 Michael Darragh is a citizen of Pennsylvania. He is poor, receiving $516 per month under the Public Assistance Program for support of himself, his wife and six children. His expenses include $60 a month for rent and $57 a month to repay a consumer loan. Darragh is 35 years old and has worn eyeglasses for about 10 years. His present eyeglasses are two years old. In April, 1975, while cleaning his glasses, the frames broke. On April 28, 1975, Darragh was examined at the Philadelphia College of Optometry where he was advised that while his lenses were adequate, his frames had to be replaced. He spoke to his Pennsylvania Department of Public Welfare caseworker, Miss Bergman, who advised him that the Medical Assistance Program would not provide this service because he had no eye pathology (Complaint of Intervening Plaintiff -- Darragh).

 William B. Johnson is a citizen of Pennsylvania. He is poor, receiving $21 every two weeks. Johnson is twenty-one years old and has worn eyeglasses for 10 years. He suffers from myopia and astigmatism neither of which is an eye disease or pathology, but both of which can be corrected by eyeglasses. He accidentally broke his glasses and requested eyeglasses from his caseworker at the Philadelphia County Board of Assistance. He was informed by his caseworker that the Medical Assistance Program would not pay for eyeglasses because he had no eye disease or pathology. (Amended Complaint).

 A. Eleventh Amendment

 The Eleventh Amendment of the United States Constitution has been held to forbid a federal court from rendering a judgment against an unconsenting state in favor of a citizen of that state. *fn2" Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Employees of Dept. of Public Health and Welfare of Missouri v. Dept. of Public Health and Public Welfare of Missouri, 411 U.S. 279, 280, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1973). If a state agency is the named defendant, it is necessary to determine the relationship of the agency to the state to ascertain whether the state is the real or substantial party in interest. Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250 (3d Cir. 1969).

 Some courts have determined that the relief sought is the controlling factor and that if a state agency is sued and equitable relief rather than money damages is sought, the Eleventh Amendment is inapplicable. See, e.g., 21 Properties, Inc. v. Romney, 360 F. Supp. 1322, 1326 (N.D. Tex. 1973). The better reasoning, however, is to determine the status of the agency without regard to the type of relief sought. See Byram River v. Village of Port Chester, New York, 394 F. Supp. 618 (S.D.N.Y. 1975). This is logical since the Supreme Court has held that the Eleventh Amendment is applicable when a state is sued for equitable relief, Duhne v. New Jersey, 251 U.S. 311, 64 L. Ed. 280, 40 S. Ct. 154 (1920), and the language of the Eleventh Amendment states that it applies to both suits in law and equity.

 In analyzing the functions of the Department of Public Welfare in light of standards used in determining the status of a state agency, see, e.g., King v. Caesar Rodney School Dist., 396 F. Supp. 423 (D. Del. 1975); it is clear that the Department is an alter ego of the state and, hence, is immune from suit before this court by virtue of the Eleventh Amendment. Downs v. Dept. of Public Welfare, 368 F. Supp. 454 (E.D. Pa. 1973) (Green, J.). The Eleventh Amendment does not immunize state officials from suit in federal court insofar as prospective relief is sought which relief has only an ancillary impact on the public treasury. Edelman v. Jordan, 415 U.S. 651, 668, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Byram River v. Village of Port Chester, New York, supra at 628. To the extent that plaintiffs' demand for relief sought is prospective having an ancillary impact on the state treasury and because full relief can be obtained from the named state officials in the form of an equitable remedy, the named state officials are not immune from suit. See Fialkowski v. Shapp, 405 F. Supp. 946 (E.D. Pa. 1975).

 Defendants contend that this court lacks subject matter jurisdiction. Plaintiffs allege jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343.

 28 U.S.C. § 1343

 Plaintiffs' statutory claim that Pa. Stat. Ann. tit. 62 § 443.4 and DPW-Pa. Manual §§ 9740 and 9743 are in conflict with the Social Security Act, 42 U.S.C. § 1396 et seq., and the regulations promulgated thereunder, 45 CFR § 249.10 et seq., and thus violative of the Supremacy Clause of Article VI of the United States Constitution presents serious jurisdictional questions if that claim is brought under 28 U.S.C. § 1343. The pertinent sections of that statute provide the following:

 
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
 
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. (emphasis added).
 
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. (emphasis added).

 It has been held that the Social Security Act, which is the basis of plaintiffs' statutory claim fails to meet the "equal rights" language of § 1343(3), Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 101 (1974); McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1966); and Acosta v. Swank, 325 F. Supp. 1157 (N.D. Ill. 1971), or the "Civil Rights" language of § 1343(4), Duffany v. Van Lare, 373 F. Supp. 1060 (N.D.N.Y. 1973). There are, however, decisions to the contrary. See, e.g., Blue v. Craig, 505 F.2d 830 (4th Cir. 1973); and Rosen v. Hursh, 464 F.2d 731 (8th Cir. 1972). The Supreme Court has specifically declined to decide this issue. Hagans v. Lavine, 415 U.S. 528, 534, 39 L. Ed. 2d 577, 94 S. Ct. 1372 n.5 (1974), and Rosado v. Wyman, 397 U.S. 397, 405 n. 7, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970). Because another independent ground for jurisdiction exists, it is inappropriate to determine if there is jurisdiction under § 1343 to decide the statutory claim. *fn3"

 Jurisdiction exists under the theory of pendent jurisdiction propounded by the Supreme Court in Hagans v. Lavine, supra. Hagans holds that where a plaintiff brings a civil rights action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 in which the complaint asserts both a constitutional claim and a statutory conflict, the district court has jurisdiction to entertain the constitutional claim under 28 U.S.C. § 1343(3) if that claim satisfies the substantiality doctrine. The district court could then hear the conflict between state and federal law as a matter of pendent jurisdiction. Given the fact that a district court has jurisdiction over both a constitutional claim and a statutory claim, the court must first decide the statutory claim and not reach the constitutional claim if its decision on the statutory claim is dispositive. Doe v. Westby, 420 U.S. 968, 43 L. Ed. 2d 648, 95 S. Ct. 1385 (1975). *fn4"

 In the instant case the complaint alleges both constitutional and statutory claims. Thus, if a constitutional claim presents a substantial question, this court is seised of jurisdiction and will examine the statutory claim under the authority of Hagans. This policy has been adopted in this circuit, Doe v. Beal, 523 F.2d 611 (3rd Cir. 1975), and district, Williams v. Wohlgemuth, 400 F. Supp. 1309 (E.D. Pa., 1975) (Broderick, J.).

 The immediate issue presented is whether either the due process and/or equal protection claims are substantial. The Supreme Court has stated that a claim is constitutionally insubstantial "only if prior decisions inescapably render the claims frivolous." Hagans v. Lavine, supra, 415 U.S. at 538 quoting Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973). It must be noted that previous decisions which may render a claim doubtful or of questionable merit, do not render those claims insubstantial. Id. Thus, a claim is insubstantial only if previous decisions "foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 54 L. Ed. 482, 30 S. Ct. 326 (1910).

 The due process claim asserts that the Pennsylvania Department of Public Welfare's regulations which restrict eyeglasses under the Medical Assistance Program have established a conclusive presumption "that eyeglasses are medically required to aid or improve vision only for persons having eye disease or pathology." (Amended Complaint para. 45), and that this presumption is not true in fact and thus violates the Fourteenth Amendment. Defendants argue that no presumption has been created by the Commonwealth, and that plaintiffs have fabricated this argument as a method of attacking these regulations. There are cases in which a statute specifically creates a "rebuttable" presumption. See, e.g., Lavine v. Milne, 424 U.S. 577, 96 S. Ct. 1010, 47 L. Ed. 2d 249, 44 U.S.L.W. 4295 (1976); Leary v. United States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969). There are other cases, however, in which a statute does not specifically create a presumption. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974); Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976), 44 U.S.L.W. 2415. In the latter situation a plaintiff asserts that such a presumption exists by virtue of the statute and defendants argue that the statutory purpose was valid and not arbitrary. In La Fleur the Court struck down mandatory maternity leave regulations of school boards. These required a pregnant school teacher to take unpaid maternity leave five months before the expected childbirth and not be eligible to return until the child was three months old. The plaintiffs' theory was based upon the Equal Protection Clause of the Fourteenth Amendment and the School Boards gave various explanations for their policies. The Court, however, used a Due Process analysis and found that the regulations created a presumption that a teacher more than five months pregnant was presumed incapable of teaching. The Court held such presumption lacked a factual basis.

 In the instant case plaintiffs' constitutional claim embraces both Due Process and Equal Protection and the alleged presumption is put forward by the plaintiffs rather than the defendants. Defendants, however, state several bases for the challenged classification: *fn5"

 
First, the Commonwealth was not and is not ready to provide the large amounts of money necessary to provide glasses to every recipient needing them "to aid or improve vision." Second, it was not believed, nor is it thought now that the state could not limit provision of glasses to a group considered most in need of them. Third, it was felt that recipients whose eye pathology could be treated or cured by providing glasses were the most immediately needy group of recipients.

 Defendants' Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction And/Or Summary Judgment, And In Further Support of ...


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