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HERMAN FOSTER v. COMMONWEALTH PENNSYLVANIA (11/28/79)

decided: November 28, 1979.

HERMAN FOSTER, 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 Herman Foster, dated September 9, 1977.

COUNSEL

Herman Foster, petitioner, for himself.

Edward P. Carey, Assistant Attorney General, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge MacPhail. Judge Wilkinson, Jr. joins in this dissent.

Author: Rogers

[ 47 Pa. Commw. Page 443]

Herman Foster has appealed from the final administrative action of the Department of Public Welfare upholding the decision of a Hearing Examiner that the Philadelphia County Board of Assistance had properly determined that Foster and his wife were ineligible for General Assistance.

Mrs. Foster has multiple sclerosis, is bedfast and requires constant care of another person. Mr. Foster is and has been regularly employed and in 1977 earned $946 a month. His monthly total work-related expenses in 1977, including $430 paid to persons who attended Mrs. Foster while her husband was at work, were such that the family's adjusted income was less than the maximum allowance of income for a two-person household in Philadelphia of $247. Hence, the Fosters, who had been receiving General Assistance since 1972, were receiving in 1977 about $191 a month.

In 1976, Section 432.12(a) was added to the Public Welfare Code,*fn1 by Section 5 of the Act of July 9, 1976, P.L. 993, 62 P.S. § 432.12(a). This draconian measure provides that in determining need for General Assistance, the Department shall take into consideration all income "excluding that amount equal to the expenses reasonably attributable to the earning of income up to twenty-five dollars ($25.00) per month . . . ." DPW then promulgated a regulation at 55 Pa. Code, § 183.64(e)(1), as follows:

(e) Expense deductions from earned income (GA). Expense deductions from earned income will be as follows:

[ 47 Pa. Commw. Page 444]

(1) Personal and work expenses for other than self-employment. The costs, not to exceed the total amount of $25, will be deducted from the earned income of each GA client 14 years of age or older for the following personal and work expenses attributable to the continued earning of such income:

(i) Expense for transportation to and from employment.

(ii) Expense of care of children or a sick or disabled adult if care cannot be provided by other family members, and if no other ...


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