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decided: January 31, 1978.



John F. Miller, Jr., Luzerne County Legal Ass'n, Hazleton, for appellant.

Linda M. Gunn, Asst. Atty. Gen., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., filed an opinion in support of affirmance in which O'Brien and Pomeroy, JJ., joined. Roberts, J., filed an opinion in support of reversal in which Nix, J., joined. Manderino, J., filed an opinion in support of reversal. Jones, former C. J., did not participate in the decision of this case.

Author: Per Curiam

[ 476 Pa. Page 496]


The Court being equally divided, the Order of the Commonwealth Court is affirmed.

[ 476 Pa. Page 497]


EAGEN, Chief Justice.

Appellant Fannie Perillo here challenges a decision by the Luzerne County Board of Assistance to suspend an Aid to Families with Dependent Children (AFDC) grant for herself and two of her minor children because of the unwillingness of her husband and the children's father, Louis Perillo, with whom they were living but whose needs were not included in the grant, to sign a reimbursement agreement encumbering the family home, which he had recently inherited. This decision was affirmed by the Department of Public Welfare (DPW) after a hearing. On direct appeal a three-judge panel of the Commonwealth Court affirmed the decision of the department. Commonwealth, Department of Public Welfare v. Perillo, 24 Pa. Commw. 321, 355 A.2d 606 (1976). We granted Mrs. Perillo's petition for allowance of appeal, and this appeal followed. I would affirm the order of the Commonwealth Court.

The facts of the case are not in dispute. On January 22, 1975, Mr. Perillo's father, with whom the family had been living, died. On February 26, 1975, Mrs. Perillo notified the board of assistance that her husband had inherited the family home from his father. She was informed that pursuant to departmental regulations her husband would have to sign Reimbursement Agreement, PA 9, encumbering the inherited property as a condition of further AFDC assistance

[ 476 Pa. Page 498]

    for herself and the children.*fn1 Although Mr. Perillo at this time was unemployed, he was disabled and was receiving Supplemental Security income; consequently, his needs were not taken into account in determining the amount of the family's AFDC grant.*fn2 Mrs. Perillo's caseworker explained the reimbursement agreement to her including the fact that the department was precluded from executing on the lien so long as Mr. Perillo, his wife, or his children lived in the home,*fn3 and asked her to have her husband sign the form. Mrs. Perillo, however, was unable to convince Mr. Perillo that signing the form would not cause the family to lose the home, and he refused to do so.*fn4 As a result of his failure to sign, the board notified Mrs. Perillo that it was suspending AFDC assistance. Testifying at her fair hearing, Mrs. Perillo

[ 476 Pa. Page 499]

    indicated that she herself was willing to encumber her dower interest in the property.

Appellant argues that the DPW regulations pursuant to which AFDC assistance was suspended are in violation of both the Pennsylvania Welfare Code and the federal Social Security Act.*fn5 She further argues that since under the regulations if she and the children had not been living with her husband when he inherited the property or if they had subsequently left him, assistance would not have been suspended because of his refusal to sign the reimbursement agreement,*fn6 to suspend assistance in her circumstances violated her constitutional right to equal protection of the law.*fn7

Initially, I observe that the DPW policy of requiring parents who themselves seek or receive AFDC assistance to encumber their real property by signing a PA-9 reimbursement agreement as a condition of AFDC eligibility for themselves and their children has already been upheld in the federal courts in the face of statutory, equal-protection, and due-process challenges. Charleston v. Wohlgemuth, 332 F.Supp. 1175 (E.D.Pa.1971), aff'd, 405 U.S. 970, 92 S.Ct. 1204, 31 L.Ed.2d 246 (1972). See also Snell v. Wyman, 281 F.Supp. 853 (D.N.Y.1968), aff'd, 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d

[ 476 Pa. Page 500511]

(1969), upholding a comparable policy of the State of New York. Instantly, appellant is challenging the DPW policy of rendering a mother and her minor children ineligible for AFDC assistance because of the refusal of a non-applicant, non-recipient husband and father, with whom they were living, to sign a PA-9 form, while providing that a refusal to sign by a husband and father not living with his dependents will not affect their eligibility.

In the Public Welfare Code the General Assembly has delegated broad authority to DPW to promulgate regulations governing eligibility for public assistance:

"The department shall establish rules, regulations and standards, consistent with the law, as to eligibility for assistance and as to its nature and extent." (Emphasis added.)

Act of June 13, 1967, P.L. 31, no. 21, art. 4, § 403, as amended by Act of July 9, 1976, P.L. 993, no. 202, § 2(b), 62 P.S. § 403(b) (Supp.1977-78).*fn8 It must be determined, therefore, whether or not the regulations challenged instantly are consistent with the law.

Section 403 itself makes reference only to the possibility of a recipient of public assistance being required to encumber his property in favor of the Commonwealth as a "prerequisite to receiving assistance." Section 4(a) of the Support Law, however, provides with an exception not here pertinent that

". . . the real and personal property of any person shall be liable for the expenses of his support, maintenance, assistance and burial, and for the expenses of the support, maintenance, assistance and burial of the spouse and unemancipated minor children of such property owner, incurred by any public body or public agency, if such property was owned during the time such expenses were incurred, or if a right or cause of action existed during the time such expenses were incurred from which the ownership of such property resulted. Any public body or public

[ 476 Pa. Page 501]

    agency may sue the owner of such property for moneys so expended, and any judgment obtained shall be a lien upon the said real estate of such person and be collected as other judgments, except as to the real and personal property comprising the home and furnishings of such person, which home shall be subject to the lien of such judgment but shall not be subject to execution on such judgment during the lifetime of the person, surviving spouse, or dependent children." (Emphasis added.)

Act of June 24, 1937, P.L. 2045, § 4(a), as amended, 62 P.S. § 1974(a). The law thus clearly establishes the liability of Mr. Perillo's property to DPW for any assistance given his spouse and minor children after he inherited it and while he retains it. Appellant argues, however, that since DPW is thereby given a statutory right to bring suit to protect its interest in the property, the department may not deprive his wife and children of assistance because of his refusal to encumber his property voluntarily.

Clearly the mere availability of suit to protect its interest does not prevent DPW from rendering otherwise eligible dependent children ineligible because of a refusal of a recipient parent to sign a PA-9 form.*fn9 See Charleston v. Wohlgemuth, supra. In my view, the instant situation does not differ materially merely because the needs of Mr. Perillo, who had other income available to him, were not taken into consideration in determining the amount of the family's AFDC grant. See 42 U.S.C.A. § 602(a)(7). As a member of the family unit to which assistance was being paid, he plainly shared in the benefits of that assistance to his dependents, just as his wife and children shared with him

[ 476 Pa. Page 502]

    the property he was required to encumber as a condition of further assistance. To treat differently his refusal to execute a PA-9 form merely because his needs were not taken into consideration in determining the amount of the family's assistance would be to exalt form over substance.*fn10

Appellant argues that DPW's policy is contrary to the legislative intent of the Public Welfare Code "that assistance shall be administered promptly and humanely with due regard for the preservation of family life" (62 P.S. § 401), in that the policy forces appellant and her children to leave her husband in order to remain eligible for assistance. I cannot, however, accept appellant's drastic characterization of the situation confronting her. The record indicates that Mr. Perillo's refusal to execute the form was due to his mistaken belief that to do so would cause his children to lose the home. Apparently, therefore, a lack of effective communication rather than DPW's policy was responsible for appellant's problem. Since section 401 also provides that "assistance shall be administered in such a way and manner as to encourage self-respect, self-dependency and the desire to be a good citizen and useful to society," I cannot conclude that the policy challenged instantly, which merely requires a member of a family unit to recognize and acknowledge his liability for ...

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