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ELIZABETH HARRIS v. COMMONWEALTH PENNSYLVANIA (03/18/77)

decided: March 18, 1977.

ELIZABETH HARRIS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE



Appeal from the Order of the Department of Public Welfare in case of In the Matter of Elizabeth Harris, dated April 16, 1976.

COUNSEL

Dianne Upson, for appellant.

Linda M. Gunn, Assistant Attorney General, with her James R. Adams, Assistant Attorney General, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 29 Pa. Commw. Page 348]

In December of 1972, Elizabeth Harris (applicant) filed a request for public assistance with the Pennsylvania Department of Public Welfare (Department)

[ 29 Pa. Commw. Page 349]

    in behalf of an unrelated child whom she was supporting and who was also under her custody and control.*fn1 Assistance was denied on December 21, 1972, the Department ruling that the applicant must have adopted the child in order to receive the assistance requested. Although the parties now agree that the applicant was in fact eligible for this assistance at the time of this denial, no appeal was then taken. On September 12, 1975, however, the applicant again requested assistance in behalf of the child, and, when this application was denied, she did file an appeal from that denial. On April 16, 1976, the Department made a favorable decision on this appeal, which had been filed on October 9, 1975, and, taking note of the fact that, while this appeal was pending, the applicant had reapplied on December 22, 1975 and had then been granted benefits as of that date, it authorized a deficiency grant of assistance for the period from September 12, 1975 to December 22, 1975. The applicant then appealed to this Court claiming that she was also entitled to a retroactive grant of benefits from September 12, 1975 back to December 21, 1972.

The applicant does not contest the fact that she had thirty days to appeal from the December 21, 1972 denial of assistance and that she did not do so, and it is clear that "Pennsylvania courts have consistently held that appeals nunc pro tunc will not be allowed unless there is a showing that fraud, duress, or coercion was responsible for the delay." Dinges Transfer v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 468, 470, 326 A.2d 668, 669 (1974); Cuffee v. Department of Public Welfare, 5 Pa. Commonwealth Ct. 503, 291 A.2d 549 (1972). We do not believe that the Department's erroneous determination in 1972 of the applicant's eligibility at that time

[ 29 Pa. Commw. Page 350]

    would justify an appeal nunc pro tunc. While it is apparent that the Department's decision at that time was wrong, an erroneous decision is the very basis upon which appeals may be taken. The applicant, therefore, has not shown that her failure to appeal was due to fraud, duress or coercion. See also Wohlgemuth v. Armacost, 18 Pa. Commonwealth Ct. 394, 398-399, 336 A.2d 455, 457 (1975).

The applicant's second argument is that she should have been granted retroactive benefits on the basis of the Department's Regulation 3623, ...


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