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decided: June 19, 1978.


Appeal from the Order of the Department of Public Welfare in case of Appeal of: Rosemary Luhovey, dated October 11, 1976.


Peter P. Cherellia, with him Gary Robert Fine, for appellant.

John A. Kane, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 36 Pa. Commw. Page 127]

A decision of the Department of Public Welfare (Department/Appellee) finding Rosemary Luhovey (Appellant) liable for an overissuance of food stamps, and ordering her to make restitution thereof, is the subject of this appeal.

As required of recipients of food stamps and public assistance grants,*fn1 Appellant was registered in a Manpower Work Incentive Program. On September 29, 1975, she enrolled in a 15-week secretarial training course during which time she received a $30.00 weekly incentive payment to attend classes. In July, 1976, the County Board of Assistance, claiming that Appellant's failure to report the incentive payments resulted in an overissuance of food stamps during the preceding nine months, notified Appellant that the cost of her monthly food stamp allowance would be increased to recoup the amount of the overissuance.

Appellant was granted a hearing before a Department Hearing Officer who found that the Department should have been aware that Appellant was receiving weekly Manpower incentive payments. He, however, concluded, relying on Sections 3757.22(B) and (D) of the Pennsylvania Public Assistance Manual (Manual),*fn2

[ 36 Pa. Commw. Page 128]

    that regardless of whether the overissuance resulted from administrative or client error, restitution must be made.

Claiming that the Department's regulations and the conclusion of the Hearing Officer conflicts with the Federal Food Stamp Act of 1964 (Food Stamp Act)*fn3 and results in a violation of the Supremacy Clause and a deprivation of Equal Protection and Due Process Guarantees, Appellant appealed to us.

It is asserted that to require Appellant to make restitution of a food stamp overissuance, which was no fault of her own, frustrates the purpose and spirit of the Food Stamp Act, which, she argues, is intended to permit families of limited income to purchase a nutritionally adequate diet. This strict liability approach to restitution, so she says, contradicts federal regulations and therefore violates the Supremacy Clause of the United States Constitution. Appellant further urges that this conflict also results in a denial of her due process rights guaranteed by the Fourteenth Amendment to the United States Constitution because she is arbitrarily precluded from enjoying rights given under the federal regulations. Lastly, Appellant asserts that there is no rational basis for

[ 36 Pa. Commw. Page 129]

    the Department's restitution regulation nor a legitimate state interest in pursuing restitution in this particular case and, therefore, the regulation deprives her of her constitutional guarantee to equal protection under the law.

We disagree.

The Department's regulations are in harmony with the federal regulations governing the actions of participating state agencies in dealing with food stamp distributions. Section 7 of the Code of Federal Regulations, 7 C.F.R. ยง 271.7(f) (1977), states in pertinent part:

If excess free coupons are issued because of a certification error by the State agency or a misunderstanding of program provisions by a participating household, the State agency shall . . . make demand upon such household for repayment of the value of the free coupons issued to the household as a result of such certification error or misunderstanding of program provisions. The State agency may decline collection action to recover the value of the excess free coupons from the recipient household in any case in which such value is less than $400 under the following conditions:

(1) The issuance of excess free coupons did not involve gross negligence or fraud covered by paragraphs (a) and (d) of this section; and

(2) The State agency determines that either:

(i) It cannot collect or enforce collection of any significant sum from the household,

(ii) The cost of collection action likely will exceed the amount recoverable thereby, or

[ 36 Pa. Commw. Page 130]

(iii) Evidence necessary to prove the claim cannot be produced.

In any case described in this paragraph in which the value of excess coupons issued is $400 or more, the State agency may decline collection action under the conditions specified herein only with the concurrence of FNS. In any such case, the State agency shall submit a statement of the facts and its proposed determination to FNS for review and concurrence. (Emphasis added.)

Clearly, forgiveness of restitution by the Department is optional, not mandatory, and the federal regulations give Appellant no vested rights to public assistance over and above that for which she is eligible. Also, Appellant has failed to establish the invidious discrimination allegedly produced by the application of the Department's regulations; all overpayment claims are processed in a uniform manner by the Department.

We hold that Claimant/Appellant fails in all her contentions because there has been no lack of substantial evidence, a disregard of the law, or a violation of constitutional rights, and, therefore, affirm the Department's decision.*fn4

Accordingly, we


And Now, this 19th day of June, 1978, the decision of the Department of Public Welfare is affirmed.



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