decided: April 6, 1981.
DONALD BRANDT, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT
Appeal from the Order of the Department of Public Welfare in the case of Appeal of Donald Brandt, dated January 4, 1980.
Joseph J. Dixon, for petitioner.
Howard Ulan, Assistant Attorney General, for respondent.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.
[ 58 Pa. Commw. Page 267]
Donald Brandt (Petitioner) appeals from an order of the Hearing and Appeal Unit of the Department of Public Welfare (DPW) dated January 4, 1980, that denied the Petitioner's request for an abatement or modification of the liability assessment for costs incurred by his son who is a resident at the Children's Rehabilitation Center (Center), Butler, Pa.
The Petitioner's son was placed at the Center through the Cumberland-Perry Mental Health and Mental Retardation Program in 1976. Pursuant to Section
[ 58 Pa. Commw. Page 268502]
of the Mental Health and Mental Retardation Act of 1966 (Act),*fn1 the Petitioner was assessed a liability of $152.00 per month for the period June 1979 to June 1980 based upon a determination of Petitioner's income and expenses as of June 6, 1979.*fn2 On June 28, 1979, the Petitioner requested a review of the assessment. The Petitioner was notified on August 29, 1979 that the liability was modified to $76.00 per month for the first six months and $152.00 per month for the second six months of the assessment year.
On September 25, 1979, the Petitioner filed a written request for an administrative hearing to consider the amount of this new assessment alleging that his income had been reduced because he was now working only five days instead of six days a week.*fn3
[ 58 Pa. Commw. Page 269]
A hearing was held on November 19, 1979. The Petitioner appeared pro se. The request for modification or abatement was denied. In his adjudication the examiner noted that the only oral testimony by the Petitioner bearing upon the question of abatement or modification concerned transportation expenses that exceeded the maximum allowable under DPW rules and regulations.*fn4
Our scope of review is limited to a determination of whether the adjudication was in accordance with law, whether constitutional rights were violated, and whether all necessary findings of fact were supported by substantial evidence. Skehan v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 419, 373 A.2d 1364 (1977).
In his appeal to us Petitioner states that the question involved*fn5 is
[ 58 Pa. Commw. Page 270]
Was the Department of Public Welfare's adjudication supported by substantial evidence and in accordance with the law?
DPW regulations controlling appeals and fair hearings are found in Chapter 275 of Title 55 of the Pennsylvania Code, 55 Pa. Code § 275 et seq.
Section 275.1(b) reads in pertinent part as follows:
The objectives of appeals and fair hearing will be as follows:
(2) To settle the issue or issues raised by the client in requesting a hearing and to produce a clear and definitive decision setting forth the findings of the Department. (Emphasis added.)
Section 275.4(g) reads in pertinent part as follows:
Hearing proceedings will conform with the following:
(1) The proceedings will follow this order.
(i) The hearing officer will open with a statement of the purpose of the hearing, the procedure it will follow, who the deciding authority is, and the way the decision will be transmitted to the appellant.
(ii) The hearing officer will ask the appellant to state the issue or issues so that they are identified at the commencement of the hearing.
(v) The appellant will present his case.
Section 275.4(g)(2) reads in pertinent part as follows:
Hearing decisions will be based on the following:
(i) The hearing officer will restrict his decision to the hearing record, which will consist of testimony and exhibits introduced into
[ 58 Pa. Commw. Page 271]
the hearing and the notice of action taken by the agency and the appeal of the client. The hearing officer will make his adjudication in accordance with regulations established by the Department of Public Welfare which have been promulgated in accordance with the Commonwealth Documents Law. (Emphasis added.)
We have no difficulty concluding that the DPW findings are supported by substantial evidence. Our further inquiry, however, is whether the adjudication is in accord with the law.
As we have noted, the basis for Petitioner's appeal which triggered the hearing before the examiner was his alleged decrease in income because he was working five instead of six days per week. The examiner did not ask the Petitioner to state the issues at the commencement of the hearing nor did he "settle the issue" raised by the Petitioner when he requested the hearing, to wit, did the Petitioner have a loss of income and, if so, would that change his assessment of liability?
Admittedly, Petitioner volunteered no testimony regarding his change in income during the course of the hearing and there is no doubt that it was his burden to prove that the liability assessed against him by DPW should be modified. On the other hand, where the person seeking relief before an examiner is not represented by counsel, the examiner must be more than usually cautious to insure that all relevant issues are fully examined and that all parties have an opportunity to fully present their case. In every hearing the litigants have a right to expect compliance by the examiner with DPW's own regulations.
Our reading of the record indicates that the Petitioner was belligerent and some of his threatening statements would certainly irritate a person of ordinary
[ 58 Pa. Commw. Page 272]
sensitivity. Perhaps this accounts for the examiner's failure to question the Petitioner concerning his loss of income but it will not excuse that failure in the light of DPW's regulations.
Accordingly, we conclude that the DPW adjudication was not in accord with the law and that the case must be remanded for a further hearing consistent with this opinion.
And Now, this 6th day of April, 1981, the order of the Hearing and Appeal Unit of the Department of Public Welfare dated January 4, 1980 denying Donald Brandt's request for an abatement or modification of a liability assessment is hereby vacated and the case is remanded for a further hearing consistent with this opinion.
This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.
Order vacated and case remanded.