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May 10, 1978

Naomi RUFFIN and Doris Bellamy
Frank S. BEAL, Individually and as Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: MCGLYNN


This matter is before the Court on cross-motions for summary judgment. For the reasons hereinafter stated the plaintiffs' motion will be denied and the defendants' motion will be granted.

 The basic facts are undisputed and are as follows:

 Naomi Ruffin and Doris Bellamy are residents of Philadelphia County of the Commonwealth of Pennsylvania. Both are eligible for and receive benefits for themselves and their children under the Aid to Families with Dependent Children (AFDC) Program. Title IV-A of the Social Security Act, 42 U.S.C. § 601 Et seq. In addition, Naomi Ruffin receives $ 129.00 a month in support payments. Also Doris Bellamy receives Supplemental Security Income benefits for her daughter, Tina, who suffers from a physical disability.

 The AFDC Program in the Commonwealth of Pennsylvania is administered by the Pennsylvania Department of Public Welfare (DPW). Defendant Frank S. Beal is the Secretary of DPW and is responsible under the Public Welfare Code, 62 P.S. § 401 Et seq., for establishing and administering policies, rules, regulations and standards concerning the AFDC Program in the Commonwealth of Pennsylvania, including the administration of hearing procedures.

 On August 19, 1976, Naomi Ruffin was required to enter Episcopal Hospital for surgery. Her doctor had estimated a hospital stay of five days. Because Ms. Ruffin had no relatives to care for her eight children while she would be hospitalized, she requested assistance from DPW, through defendant C. Canino, Income Maintenance Worker II, with the Philadelphia County Board of Assistance.

 Ms. Canino initially informed Ms. Ruffin that she would receive a child care allowance for the time that Ms. Ruffin was hospitalized and for the period of her at-home recovery. Later Ms. Canino offered Ms. Ruffin the choice of either a homemaker supplied by DPW or DPW's payment to a third party whom Ms. Ruffin could choose.

 Relying on the information provided by DPW, Ms. Ruffin hired a neighbor, Alice Dent, to care for her eight children while she was incapacitated. The agreed compensation was to be $ 15/day. Ms. Dent provided Ms. Ruffin with necessary child care for 10 days, and thereby became entitled to $ 150.00 for her services.

 When Ms. Ruffin had recovered and informed DPW of the arrangement with Ms. Dent, she was then informed that DPW would not provide payment for Ms. Dent. It was at this time that Ms. Ruffin was informed that homemaker service should have been requested for her by defendant Canino.

 Similarly, Doris Bellamy was scheduled to enter the hospital on August 28, 1976 for necessary surgery. On August 24, 1976 she requested aid from DPW to care for her children while she was hospitalized.

 Plaintiff Bellamy told DPW that because of her daughter Tina's disability, twenty-four hour care would be necessary. Ms. Bellamy did not have any relative who could care for her family. DPW did not refer Ms. Bellamy to the District Office's homemaker. DPW also did not inform Ms. Bellamy of her right to such service and failed to utilize procedures set out in DPW regulations. Pa. Manual Section § 3710, Appendix VI provides for homemaker services when a parent is hospitalized.

 Having to enter the hospital before hearing from DPW, Ms. Bellamy arranged with Ms. Woods, (a neighbor with a daughter who has a disability similar to Tina's), to care for Tina and Ms. Bellamy's four other children. Ms. Woods took care of Ms. Bellamy's children during her nine days in the hospital and charged $ 200.00 for her services.

 Administrative hearings were requested and provided to plaintiffs. The procedures used in these separate hearings are not challenged in this lawsuit. In each case, the hearing examiner, defendant Farley, found that DPW had committed an administrative error in failing to provide the appropriate services which were available under existing DPW regulations. Yet, since those regulations do not authorize monetary payments for such services, Farley held that he was without authority to issue corrective grants. *fn1" He suggested that by appeal to Commonwealth Court, these regulations could be challenged.

 Plaintiffs then filed this civil rights action claiming that defendant Farley's failure to grant corrective payments deprived plaintiffs of their right to a meaningful hearing, in violation of the due process clause of the Fourteenth Amendment (and 42 U.S.C. § 1983). Plaintiffs also allege that defendants' policy and practice as outlined above conflicts with a binding federal regulation for the AFDC program, 45 C.F.R. § 205.10(a)(18) (1975), and therefore violates the Supremacy Clause of the United States Constitution. In addition, plaintiffs allege a pendent state law tort claim against defendant Canino for negligent misrepresentation.



 The Civil Rights Act, 42 U.S.C. § 1983, provides for a cause of action for an individual who, under color of state law, has been deprived of any rights, privileges or immunities secured by the Constitution and laws. This provision in itself is clearly not jurisdictional. Hagans v. Lavine, 415 U.S. 528, 535, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); Lynch v. Household Finance Corp., 405 U.S. 538, 540, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972). Plaintiffs, therefore, rely upon 28 U.S.C. § 1343(3) and (4). These jurisdictional provisions are, however, narrower in scope than 42 U.S.C. § 1983. See Gonzalez v. Young, 560 F.2d 160 (3rd Cir. 1977). Assertion of a claim under § 1983 does not automatically invoke the jurisdiction of this Court.

 While 42 U.S.C. § 1983 provides redress or a cause of action for deprivation, under color of state law, for "any rights, privileges, or immunities secured by the Constitution and laws," 28 U.S.C. § 1343(3) gives Federal District Courts jurisdiction only in those cases brought "to redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution of the ...

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