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SYLVIA B. POWELL v. COMMONWEALTH PENNSYLVANIA (02/17/83)

decided: February 17, 1983.

SYLVIA B. POWELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Sylvia Powell, Re: Herbert Powell, dated April 29, 1981.

COUNSEL

Sylvia B. Powell, petitioner, for herself.

Gary Goldman, Assistant Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 72 Pa. Commw. Page 157]

Sylvia B. Powell (appellant) appeals here an adjudication and order of the Department of Public Welfare (DPW) denying her request for abatement or modification of her current assessment of liability for the care of her husband (Herbert), an inpatient at Norristown State Hospital.

On August 19, 1980, the appellant was advised that liability for care of her husband was assessed at $220 per month effective as of July 1, 1980. The amount involved is approximately 50% of Herbert's Social Security benefits. Prior to this latest assessment, the liability had been set at $125, which was approximately 33 1/3% of said benefits.*fn1 The appellant filed a request for abatement or modification which was denied by the Office of Mental Health. An appeal was taken from that decision on October 16, 1980 and the

[ 72 Pa. Commw. Page 158]

    hearing officer recommended denial of the appeal on April 29, 1981. This recommendation was followed and the order of the DPW was filed the same day. The appeal to this Court followed.

The appellant had the burden of proving her right to an abatement or modification. Tartaglia v. Department of Public Welfare, 52 Pa. Commonwealth Ct. 579, 416 A.2d 608 (1980). And where, as here, the party with the burden of proof has failed below, our scope of review is limited to a determination of whether or not the adjudication was in accordance with law, whether or not the appellant's constitutional rights were violated, Skehan v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 419, 373 A.2d 1364 (1977), and whether or not the hearing officer's findings of fact can be upheld without a capricious disregard of competent evidence. Nunley v. Department of Public Welfare, 54 Pa. Commonwealth Ct. 10, 419 A.2d 240 (1980).

The appellant, who has proceeded pro se in the matter, argues first that her due process rights have been violated by the DPW's denial of her request for abatement or modification.

Our analysis of the case must, of course, begin with the statutory scheme. Section 501 of the Mental Health and Mental Retardation Act of 1966 (Act), Act of October 20, 1966, Special Sess. No. 3, P.L. 96, 50 P.S. § 4501, provides that liability is imposed upon the individual committed, and that the government may recover the expended public funds from that party, subject to the regulations of the department. The DPW regulations, 55 Pa. Code § 5404.4,*fn2 provide that "when the client receives residential ...


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