Appeal from the Order of the Department of Public Welfare in case of Appeal of Ms. Patricia Renee Williams, Case No. 32059-C.
Frank J. Piatek, for appellant.
Robert E. Kelly, Assistant Attorney General, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 38 Pa. Commw. Page 184]
Appellant seeks review of a decision by a hearing examiner rendered after a fair hearing which found she was ineligible for public assistance and providing for protective payments for her two minor children. This action was based upon regulations of the Department of Public Welfare (DPW) found in Pa. Manual §§ 3122.4211 and 3237.211 which require applicants for assistance to assign to DPW all rights to support payments and to cooperate with DPW in establishing the paternity of a child born out of wedlock. With respect
[ 38 Pa. Commw. Page 185]
to establishing paternity the regulations except the requirement for eligibility where a paternity action would be against the best interests of the child, specifically where conception was the result of rape, incest or adoption proceedings are pending. Appellant refused to complete the assignment form or cooperate with DPW in establishing the paternity of the youngest child, now over two years old. Although appellant stated the reason she did not wish to cooperate with DPW in establishing the paternity of the child, the hearing examiner found that since the child was not born as a result of rape, incest and that adoption proceedings were not pending, that appellant did not qualify under the "best interest" exception contained in the DPW regulations and accordingly denied public assistance benefits.
[ 38 Pa. Commw. Page 186]
Throughout these proceedings, appellant has relied on the best interest exception contained in 42 U.S.C. § 602(a)(26)*fn1 and our decisions in Harer v. Department Page 186} of Public Welfare, 31 Pa. Commonwealth Ct. 136, 375 A.2d 865 (1977) and Martella v. Department of Public Welfare, 31 Pa. Commonwealth Ct. 144, 375 A.2d 869 (1977). In Harer, supra, we held the best interest exception of 42 U.S.C. § 602(a)(26) was effective notwithstanding the absence of federal standards by which the exception is to be measured. And in Martella, supra, we held that until federal regulations defining standards for the application of the best-interest exception are forthcoming, action may not be taken against a recipient claiming the protection of that exception and accordingly ruled DPW regulations with regard thereto invalid. Since the hearing examiner applied these same regulations to the instant case and since federal regulations had not been promulgated regarding standards for applying the best interest rule, appellant argues that the regulations may not be applied in this case. We must agree. We are unable to distinguish this case from the factual posture and issues presented in Martella, supra. Further, we must note that the arguments made by the respondent in this case to support its interpretation that the best interest exception of 42 U.S.C. § 602(a)(26) were considered and rejected by this Court in Martella. Respondent has advanced no reason why Martella should not control in this case and we are bound by that ruling.*fn2
Accordingly, we will enter the following
And Now, October 19, 1978, the order of the hearing examiner dated May 6, ...