Appeal from the Order of the Department of Labor and Industry, Bureau of Vocational Rehabilitation, in case of Appeal of Timothy M. Cook, dated April 20, 1978.
Frank J. Laski, with him Edward A. Stutman, for petitioner.
Robert E. Kelly, Deputy Attorney General, with him Norman J. Watkins, Deputy Attorney General, and Gerald Gornish, Attorney General, for respondent.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. dissents.
[ 45 Pa. Commw. Page 416]
Timothy M. Cook (Petitioner) brings this appeal from an order of the Bureau of Vocational Rehabilitation of the Department of Labor and Industry (BVR) denying him vocational rehabilitation assistance in the form of financial aid for tuition, room and board, and other related expenses incurred while he was enrolled in law school.*fn1
[ 45 Pa. Commw. Page 417]
Petitioner was born with hemophilia, a condition of the circulatory system characterized by delayed clotting of the blood and difficulty in controlling hemorrhage. As a result of hemorrhages during his growth years, Petitioner lost nearly all of the motion in his knees and ankles. Due to Petitioner's crippling disability, he was found to be eligible for rehabilitative support from BVR. After extensive diagnostic studies, Petitioner was afforded numerous physical restorative services including orthopedic surgery, blood transfusions, braces, and orthopedic shoes. Petitioner also was afforded educational rehabilitative support resulting in his earning a Bachelor of Arts degree in Political Science from the University of Pennsylvania in 1975.
Following his college graduation, Petitioner entered the University of Pennsylvania School of Law. He again turned to BVR in search of funds for his education. Petitioner was told in 1975 that he was ineligible for such assistance. In 1977, he again requested rehabilitative services while he was in law school. Petitioner's request was denied at the Bureau level on the basis that he was employable within the terms of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., (Rehabilitation Act) and therefore, was not in need of further training. Petitioner appealed this decision to a "first level administrative review," the result of which was an affirmation of the Bureau's decision. A "second level administrative review" produced the same result. Petitioner finally requested and received a fair hearing before a fair hearing panel which concluded that appropriate and sufficient training
[ 45 Pa. Commw. Page 418]
services had been provided to Petitioner and that the denial of benefits was consistent with federal and state rules, regulations and procedures. Petitioner is here on appeal from the decision rendered after the fair hearing.
Petitioner raises four issues for our review:
I. Whether BVR's practice of refusing to provide post baccalaureate degree training to otherwise qualified individuals is invalid as a regulation because it was not promulgated pursuant to the Act of July 31, 1968, P.L. 769, as amended, 45 P.S. § 1102 et seq. (Commonwealth Documents Law);*fn2
II. Whether BVR's denial of law school assistance to Petitioner violated the Rehabilitation Act of 1973;
III. Whether BVR's denial of law school assistance to Petitioner violated the Vocational Rehabilitation Act of one thousand nine hundred forty-five, Act of May 22, 1945, P.L. 849, as amended, 43 P.S. § 681.1 et seq. (PRA);
IV. Whether BVR's denial of law school assistance to Petitioner violated his right to equal protection under the Pennsylvania*fn3 and United States*fn4 Constitutions.
[ 45 Pa. Commw. Page 419]
For the reasons which follow, we reverse the order of BVR and remand this case for proceedings consistent with this opinion.
I. The Commonwealth Documents Law
Petitioner contends that BVR has a policy of refusing to grant educational assistance to anyone beyond the baccalaureate degree level. He further contends that BVR's "policy" is, in reality, a regulation and that since it was not promulgated pursuant to the requirements of the Commonwealth Documents Law, 45 P.S. § 1102 et seq., it cannot be applied to the facts of this case. We find it unnecessary to address the merits of Petitioner's claim.
Our review of the record indicates that while there did occur discussion at the various hearings below concerning the alleged BVR policy or regulation and while statements were made that such a policy would be binding at all stages of administrative review previously afforded Petitioner, it also is clear from the record that BVR's decision here was not based on such a policy or regulation. Instead, regardless of any such policy, BVR found Petitioner ineligible for further services because he was deemed to be employable within the terms of the Rehabilitation Act of ...