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DAVID C. BEARD v. COMMONWEALTH PENNSYLVANIA (05/03/79)

decided: May 3, 1979.

DAVID C. BEARD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of David C. Beard, dated November 22, 1977.

COUNSEL

Charles A. Bierbach, for petitioner.

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

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

Author: Mencer

[ 42 Pa. Commw. Page 394]

David C. Beard (claimant) has appealed a decision of the Department of Public Welfare (Department) terminating claimant's assistance under Aid to Families with Dependent Children (AFDC). The Department's action was predicated on conduct by the claimant, which the Department contends was tantamount to refusing without good cause two separate bona fide job referrals from the Bureau of Employment Security, in violation of Section 432.3 of the Public Welfare Code (Code).*fn1 We reverse and remand.

[ 42 Pa. Commw. Page 395]

On August 2, 1977, the Huntingdon County Board of Assistance (County Board) notified claimant of its intent to terminate his AFDC assistance as of August 23, 1977 because of claimant's alleged failure to accept two bona fide job referrals in July 1977. The County Board alleged that claimant discouraged employment by the submission to prospective employers of assertions of physical infirmities not documented in the Board's records.*fn2

Claimant appealed the County Board's decision to the Department and was afforded a fair hearing. At the ensuing hearing, the County Board relied exclusively on documentary evidence, objected to by claimant's counsel as hearsay, to substantiate its decision. This evidence consisted of two letters from prospective employers to the Board detailing their reasons for not hiring the claimant, two referral and placement reports from the Bureau of Employment Security stating why claimant was rejected, and a letter from Dr. V. Rao reporting the results of an orthopedic evaluation completed on June 6, 1977 for the Bureau of Vocational Rehabilitation. The gist of the first four documents was that claimant was refused employment because

[ 42 Pa. Commw. Page 396]

    he told the employers he was physically unable to do the work required as he had a bad back and could not lift over 25 pounds. Dr. Rao's letter indicated that claimant could "do any type of work which does not involve lifting more than 100 pounds." Claimant testified that he had informed both employers of his disabilities, including his inability to lift more than 25 pounds. Moreover, both the claimant and his wife testified to the debilitating nature of his infirmities.

The hearing examiner reversed the Board and ordered a continuation of claimant's assistance. Pursuant to 55 Pa. Code ยง 275.4(h)(4),*fn3 the Department's Hearing and Appeals Unit (Appeals Unit) reversed the hearing examiner on the basis of Dr. Rao's letter and there being no evidence that claimant could not do the work required. Upon a petition to reconsider, the Appeals Unit reaffirmed its decision and this appeal followed.

Claimant contends that the Appeals Unit erred because its decision to reverse the hearing examiner was based solely on ...


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