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CATHY ZANI v. COMMONWEALTH PENNSYLVANIA (04/20/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 20, 1979.

CATHY ZANI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT. KENNETH E. RANKIN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeals from the Orders of the Department of Public Welfare in cases of Appeal of Cathy A. Zani, dated June 13, 1977; and Appeal of Kenneth E. Rankin, dated November 23, 1977.

COUNSEL

Niles Schore and Stephen F. Krone, for appellants.

Linda M. Gunn, Assistant Attorney General, for appellee.

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

Author: Craig

[ 42 Pa. Commw. Page 158]

Cathy Zani and Kenneth E. Rankin, applicants, appeal here from separate orders by the Hearing and Appeals Unit of the Department of Public Welfare (DPW), dismissing their appeals because they were not timely filed. Because of the similar issues in the

[ 42 Pa. Commw. Page 159]

    two appeals, the cases were consolidated for argument. We affirm DPW in both cases.

On January 31, 1977, applicant Zani went to the Columbia County Board of Assistance (CBA) to apply for public assistance. At that time, she was residing apart from her husband, who was in military service in North Carolina. She was receiving no support from her husband, but did have some contact with him. The CBA informed her that because she did have contact with her husband she could not be considered to be separated and was therefore ineligible for public assistance. Zani then left the CBA office without filing an application. On February 2, 1977, the CBA sent her a denial notice, Form PA 162. Zani took no action until May 25, 1977, at which time she appealed CBA's denial of assistance and requested a fair hearing. By letter dated June 13, 1977, the Hearing and Appeals Unit of DPW dismissed her appeal citing Section 3590.1 of the DPW Manual. That section, as quoted in DPW's letter, stated the time limit within which all appeals must be taken: "(a) Thirty days from the date of written notice (PA 162, PA 162-A, PA 162-C or other similar notice) of a decision or action by a County Assistance Office, administering agency or service provider."

Applicant Rankin first applied to the Dauphin CBA for public assistance in mid-September, 1977, which the CBA denied on September 16, 1977. Rankin then filed a second application, and on September 26, 1977, the CBA again denied him assistance.*fn1 After each denial, Rankin was sent a denial Form PA 162. On November 1, 1977, Rankin appealed both denials of assistance. By letter dated November 23, 1977, the Hearing and Appeals Unit of DPW dismissed his appeal,

[ 42 Pa. Commw. Page 160]

    citing Section 275.3(b)(1) of the DPW Manual, which was the same as Section 3590.1(a), quoted above.*fn2

The appeals of both applicants were taken more than thirty days after the date of the written notices denying their applications for assistance. Therefore, their appeals were dismissed without hearings, pursuant to the DPW Manual.*fn3 Applicants appealed those actions to this court.

Although the issues raised by the two applicants are similar, the two briefs differ. Because a discussion of Rankin's issues is helpful in deciding the Zani case, we will discuss the issues raised by Rankin first, referring to the Zani case whenever our discussion is also relevant to it.

Rankin raised three issues on appeal: (1) DPW erred as a matter of law and due process in failing to include on its denial of assistance notices the thirty-day limit on the taking of appeals; (2) DPW erred in failing to inform applicant of the availability of free legal services; and (3) DPW deprived applicant of his right to due process in not providing him with the opportunity for an administrative hearing on the question of timeliness.

There is no question that the constitutional guarantees of due process apply in public assistance cases,

[ 42 Pa. Commw. Page 161]

    failed to make such a showing, applicants' late appeals will not be permitted.

Nor are we persuaded by Rankin's second argument, that DPW's denial notices must inform applicants of the availability of free legal services.

DPW, in its denial notice, Form PA 162, states:

You have the right to appear at the hearing in person and to be represented by a lawyer, if you so desire. You can ask a staff member of the County Assistance Office how to arrange for a lawyer to help you explain the facts at the hearing; or you can take a friend with you to the hearing to help present the facts.

Whether or not applicants have a constitutional right to counsel (a question we need not decide today), DPW has determined that, as a matter of policy, applicants do have such a right. Therefore, the only question is whether DPW has adequately informed them of that right. The above-quoted paragraph, standing alone, sufficiently informs applicants of their right to an attorney. Moreover, when read in context with the entire section on "right to appeal and a fair hearing" contained in Form PA 162,*fn4 applicants' rights are clear even to the most unsophisticated applicant.

[ 42 Pa. Commw. Page 163]

Finally, Rankin argues that DPW must provide a hearing on the question of timeliness of his appeal. Under the facts of the present case, that argument is without merit. Rankin does not contest the fact that he had thirty days to appeal DPW's denial of assistance and that he did not do so. Therefore, we need not decide here whether a hearing would be appropriate in cases where there is a factual issue as to whether or not an appeal was timely filed.

Zani raises two additional issues: (1) She did not knowingly, intelligently and voluntarily waive her right to a hearing because she did not know of the time limits; and (2) DPW erred in failing to apply other relevant regulations.

As we discussed in the context of Rankin's appeal, above, applicants have no right to a special notice of the time limitation for appeal. Walker, supra.

Zani's second argument is also without merit. She argues that DPW Manual ยง 3590.1(c) gives her up to six months in which to appeal.

[ 42 Pa. Commw. Page 164]

Section 3590.1(c) states:*fn5

When the County Office, administering agency and service provider fails to send written notice which was required of the action and of the right to appeal, or because of administrative error, ongoing delay or failure to take corrective action that should have been taken, the time limit in paragraph 3590.1(b) does not apply. (Emphasis supplied.)

Section 3590.1(b) states that an appeal must be taken within:

Sixty (60) days from the date of any decision or action by the County Assistance Office, administering agency and service provider when they did not send written notice because such notice was not required, or 60 days from the failure of the County Assistance Office to act. (Emphasis supplied.)

Because notice was sent to applicants, the thirty-day time limit, and not the sixty-day time limit set out above, applies.

Therefore, we conclude that DPW's decisions must be affirmed in these two cases.*fn6

Order

And Now, this 20th day of April, 1979, the order of the Hearing and Appeals Unit of the Department of Public Welfare, dated June 13, 1977, dismissing the

[ 42 Pa. Commw. Page 165]

    appeal of Cathy Zani, and the order of the Hearing and Appeals Unit of the Department of Public Welfare, dated November 23, 1977, dismissing the appeal of Kenneth E. Rankin, are affirmed.

Disposition

Affirmed.


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