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JOSEPH C. DOUGHERTY v. COMMONWEALTH PENNSYLVANIA (09/23/81)

decided: September 23, 1981.

JOSEPH C. DOUGHERTY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, LACKAWANNA, SUSQUEHANNA AND WAYNE MENTAL HEALTH AND MENTAL RETARDATION PROGRAM, RESPONDENTS



Appeal from the Order of the Department of Public Welfare in case of Appeal of Joseph C. Dougherty, dated March 8, 1979.

COUNSEL

Joseph J. O'Brien, Jr., Haggerty & McDonnell, for petitioner.

Howard Ulan, Assistant Attorney General, for respondent, Pennsylvania Department of Public Welfare.

Michael Basista, for respondent, Lackawanna, Susquehanna and Wayne Mental Health and Mental Retardation Program.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 62 Pa. Commw. Page 16]

The Department of Public Welfare (DPW) dismissed, as untimely, the appeal of Joseph C. Dougherty from the assessment of his liability for the care of his minor child pursuant to the Mental Health and Mental Retardation Act of 1966 (Act).*fn1 Dougherty has filed a petition for review with this Court, urging that DPW's dismissal of his appeal was improper.

On June 8, 1978, the appropriate Base Service Unit issued to the petitioner an assessment of his liability, under the Act, for services provided to his eight-year-old son at St. Joseph's Hospital in Scranton, Pennsylvania. The liability was assessed at $228 a month, for the period from June 8, 1978 to June 7, 1979; this sum represented an increase over the previous liability. On June 23, 1978, the petitioner requested DPW to abate the assessment, contending that he was financially unable to meet it. Upon reviewing the assessment DPW sent a letter to petitioner informing him that his liability was to be imposed in two steps: $114 a month for the first six months of the assessment period, and $228 a month for the second six months of the period. This letter also advised the petitioner of his right to appeal the assessment by submitting a written request for a fair hearing to the Secretary of Public Welfare within 30 days. The letter from DPW was dated August 14, 1978, and was sent to the petitioner by regular mail.

By letter dated September 20, 1978, the petitioner appealed the assessment by requesting a fair hearing.

[ 62 Pa. Commw. Page 17]

A hearing was held on January 10, 1979, on which occasion petitioner was afforded the opportunity to present testimony and argument in support of his position. It was the petitioner's contention, at the hearing, that his assessment should be abated or further modified because it created a financial hardship.*fn2 He also asserted that the DPW regulations governing the computation of his income and expenses were unsound.

After concluding that the assessment was computationally correct, the Hearing Examiner in his adjudication declined to consider the merits of the petitioner's claim for further relief from liability. The Examiner refused to decide the issue of abatement or further modification, because the petitioner's appeal from the assessment decision of August 14, 1978 had not been appealed within 30 days, as the DPW letter of that date instructed, and as DPW regulation 5405.3 prescribes.*fn3 The petitioner's administrative appeal was not filed until the 37th day; for that reason the Examiner entered a recommendation that the appeal be dismissed for untimeliness. On March 8, 1979, DPW adopted that recommendation and entered it as the agency's order. The instant petition for review followed.

DPW regulation 5405.3 sets forth the procedure for appealing, to the Secretary of Public Welfare, from a decision that has been entered on a request for review of an assessment determination or for an abatement or modification of liability. As already indicated, under this regulation such an appeal must be taken within 30 days of the decision. The instant petitioner does ...


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