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COMMONWEALTH PENNSYLVANIA v. DARIA GILMORE (07/06/76)

decided: July 6, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE
v.
DARIA GILMORE, APPELLANT



Appeal from the Order of the Department of Public Welfare in case of In Re: Appeal of Daria Gilmore, No. 117,148, dated July 25, 1975.

COUNSEL

David G. Petonic, with him David L. Beck, for appellant.

Harold Dunbar, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case.

Author: Blatt

[ 25 Pa. Commw. Page 407]

This is an appeal from an adjudication of the Commonwealth of Pennsylvania, Department of Public Welfare (Department) upholding a decision of the

[ 25 Pa. Commw. Page 408]

Westmoreland County Board of Assistance which discontinued the appellant's public assistance benefits under the state administered Aid to Families with Dependent Children Program (AFDC). The facts are not in dispute. In March or April of 1975, the appellant, Ms. Daria Gilmore, a recipient of public assistance benefits in the amount of $210.10 per month, received a joint income tax refund check in the amount of $1,149.00 payable to both her estranged husband and herself. She informed her Department caseworker of this refund and on April 4, 1975, the appellant and her husband went to a bank and endorsed the check, which her husband then cashed. At Ms. Gilmore's request, the teller noted that the check was cashed upon a Department form previously supplied to the appellant by the caseworker. After he cashed the check, however, her husband refused to give the appellant her rightful one-half share of the proceeds, indicating instead that he would use the money to purchase a used car for her benefit in accordance with a prior understanding between them. The appellant, who contended that she never received in any form the proceeds of the income tax refund check, was refused benefits by the local board of assistance which concluded that her rightful share of the tax refund ($574.50) was available to meet her needs and, because it exceeded her monthly grant of $210.10, she was ineligible to continue receiving benefits until this amount was exhausted. Her benefits were, therefore, discontinued. After a hearing on appeal from the local decision, the Department upheld the action taken and this appeal followed.

Inasmuch as the facts are not in dispute, we have before us pure questions of law. And, as in most public assistance cases, the guiding principles are found in the regulations of the Department promulgated under the authority of Section 403 of the Public

[ 25 Pa. Commw. Page 409]

Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 403, and in regulations of the United States Department of Health Education and Welfare promulgated under the authority of the Social Security Act of 1935, as amended, 42 U.S.C. § 1302. The federal regulations for the times here involved required that a state plan for AFDC

"(ii) Provide that, in establishing financial eligibility and the amount of the assistance payment: . . . .

"(c) only such net income as is actually available for current use on a regular basis will be considered, and only currently available resources will be ...


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