Appeals from Orders of the Department of Public Welfare in cases of Appeal of Linda Elkin, et al. and Appeal of Margaret Goldstein, et al., dated June 15, 1979.
Kathleen Herzog Larkin, Blank, Rome, Comisky & McCauley, for petitioners.
Mary Frances Grabowski, Assistant Attorney General, for respondent.
Joseph M. Hankins, Duane, Morris & Heckscher, for Amicus Curiae, Kensington-Kingstowne Child Care Center.
John S. Bevan, Duane, Morris & Heckscher, for Amicus Curiae, Associated Day Care Center, Inc.
President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig and Williams, Jr. Judge MacPhail did not participate. Opinion by Judge Blatt. Judge Mencer dissents to No. 2291 C.d. 1979.
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The petitioners in these consolidated cases are two groups of parents of pre-school children who are appealing from an order of the Department of Public Welfare (DPW) which terminated in part their eligibility for financial assistance for their children's day-care program at the Paley Day Care Center in Philadelphia.
The petitioners had been receiving federal assistance for this program participation pursuant to Title XX of the Social Security Act (Title XX), 42 U.S.C. § 1397 et seq., which, like many federal grant programs, provides that state agencies, in this case
[ 53 Pa. Commw. Page 556]
the DPW, shall administer the program and set specific eligibility criteria for recipients. A major Title XX restriction concerning the use of the funds by the DPW is that the funds may not be used to replace or reduce existing state subsidization of social or educational services. Section 2002(a)(10) of Title XX, 42 U.S.C. § 1397a(10); 45 C.F.R. § 228.43.*fn1 In 1977, the DPW's legal counsel, by way of an unpublished, intra-agency memorandum, interpreted this federal policy to require that Title XX assistance for day-care services could be offered on a full-day basis to kindergarten-age children only if the child's respective school district does not provide kindergarten.*fn2 This memorandum also stated that, where a school district does provide a kindergarten, day-care services for kindergarten-age children of that school district may be financed by Title XX funds only to the extent that the hours of day-care services do not overlap the hours of the kindergarten classes. This policy, which the DPW adopted was the basis for its termination of assistance in both cases here concerned and it is the issue in each appeal. Because the cases involve significantly different procedural issues, however, we will discuss and resolve each case separately.
The DPW notified the Paley Day Care Center in 1979 that Title XX funding ...