Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania, Department of Public Welfare v. George R. Blake, Jr. and Erwin Miller, Esquire, No. 4241 May Term, 1979.
Jonathan M. Stein, with him Erwin Miller, for appellants.
Joseph F. Lynch, Deputy Attorney General, for appellee.
President Judge Crumlish and Judges MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.
[ 63 Pa. Commw. Page 492]
This appeal comes to us from a denial by the Court of Common Pleas of Philadelphia County of a petition filed by George Blake (Appellant) to stay and set aside execution by the Department of Public Welfare (DPW) upon workmen's compensation benefits paid pursuant to The Pennsylvania Workmen's Compensation Act. The benefits are currently held in escrow by the Appellant's attorney, Erwin Miller, Esq., the garnishee below.
The Appellant sought public assistance in early 1976 while awaiting benefits under workmen's compensation for an injury in the course of his employment which left him unable to work. Before granting assistance, DPW required the Appellant to sign several standard Pa. 176-K agreement to pay forms containing Confession of Judgment clauses.*fn1 Upon receipt
[ 63 Pa. Commw. Page 493]
of his workmen's compensation award, Appellant refused to reimburse DPW for assistance received. DPW then filed its Complaint in Confession of Judgment with a writ of execution against the garnishee. On September 18, 1979, the Appellant filed a Petition to Open Judgment with the Philadelphia Court of Common Pleas. That petition was denied on May 23, 1980, and was not appealed. On June 12, 1980, the Appellant filed a Petition to Stay and Set Aside Execution. That petition was denied on September 19, 1980, the lower court basing its decision on the holding of our Superior Court in Wartella Page 494} v. Osick, 108 Pa. Superior Ct. 589, 165 A. 660 (1933).*fn2
The issue involved in this appeal is quite clear. May DPW bring an action to enforce repayment of public assistance from workmen's compensation benefits? The issue is one which this Court noted, but did not answer, in our recent decision of Congleton v. Department of Welfare, 48 Pa. Commonwealth Ct. 615, 409 A.2d 1382 (1980).*fn3
The lower court believed that this issue was resolved by Wartella and that that decision is still controlling on the question. Wartella, it is true, did hold that once payments were made under the workmen's compensation law they were not exempt from execution by a creditor. However, the statutes regarding execution exemption for workmen's compensation have undergone what we believe to be a fundamental change since that decision came down.
At the time of Wartella, Section 318 of the Workmen's Compensation Act*fn4 (Act) read in pertinent part: "Claims for payments due under this article shall not be assignable, and . . . shall be exempt from all claims of creditors and from levy, execution, or attachment, which exemption may not be waived." The Court in Wartella, reading this exemption strictly, ...