decided: March 8, 1983.
GLORIA DORN, 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: Gloria Dorn, Case No. 36057-C.
Jeffrey L. Greenwald, for petitioner.
Stanley Slipakoff, with him, Mary Frances Grabowski, Assistant Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 72 Pa. Commw. Page 454]
Gloria Dorn, a recipient of Aid to Families with Dependent Children (AFDC), has petitioned for review of a Final Administrative Action Order of the Department of Public Welfare (DPW) affirming the dismissal by a hearing examiner of her appeal from the action of the Northampton County Assistance Office (CAO) reducing her children's AFDC grant by reason of the receipt by her of support payments from her estranged husband.
Mrs. Dorn was receiving AFDC benefits of $318.00 a month for herself and her two children. In September of 1980, Mrs. Dorn began to receive court ordered support payments of $180.60 a month from her husband. The husband is not the father of Mrs. Dorn's dependent children. As a result of the support payments Mrs. Dorn was removed from the AFDC grant, causing the same to be reduced from $318.00 a month to $262.00 a month. The AFDC benefits which she continued to receive were for her two minor children.
On September 15, 1980, the CAO notified Mrs. Dorn that the grant would be further reduced to $137.40 per month pursuant to 55 Pa. Code § 183.44.*fn1 This DPW
[ 72 Pa. Commw. Page 455]
regulation establishes a set formula for the determination of the amount of the income of the parent which is available to dependents who reside with the responsible relative and who receive AFDC assistance.
Mrs. Dorn appealed and at her fair hearing advanced evidence of her living expenses, taking the position that the regulation at 55 Pa. Code § 183.44 establishes an unlawful irrebuttable presumption of the amount of her income which is available to her dependents is contrary to the due process clause, the Federal Social Security Act and its implementing regulations and case law.*fn2 The hearing examiner,
[ 72 Pa. Commw. Page 456]
whose order was affirmed by DPW, adhered to the formula of 55 Pa. Code § 183.44 in his determination of the amount of Mrs. Dorn's income which was available to her children.
The petitioner says that the issue is controlled by our previous determination in Lundy v. Department of Public Welfare, 54 Pa. Commonwealth Ct. 1, 419 A.2d 801 (1980), where it is true that on virtually identical facts we held that the presumption created by DPW regulation, 55 Pa. Code § 183.44, violated due process and therefore remanded the case for a new hearing to determine the amount of the mother's income which was available to her children. In Lundy we relied upon our earlier decision in Molyneaux v. Department of Public Welfare, 44 Pa. Commonwealth Ct. 111, 403 A.2d 635 (1979), where we held that 55 Pa. Code § 183.44 unlawfully and irrebuttably presumed that the income of a father who was residing with his children was available to them.
However, our holding in Molyneaux was reversed and the application of the regulation, 55 Pa. Code § 183.44, was upheld as applied to the determination of need and eligibility for AFDC. Department of Public Welfare v. Molyneaux, 498 Pa. 192, 445 A.2d 730 (1982). In the course of its opinion, the Supreme Court makes the following, here controlling, reference to 55 Pa. Code § 183.44:
In addition, the provisions of 55 Pa. Code Section 183.44 establishing procedures for the calculation of AFDC grants are in conformity with the federal act and do not violate the due process requirements of the Fourteenth Amendment of the United States Constitution.
[ 72 Pa. Commw. Page 457498]
Pa. 202, 445 A.2d at 735-36. This obviously fatally undercuts the authority of Lundy.
And Now, the 8th day of March, 1983, the final adjudication of the Department of Public Welfare, in the above matter is hereby affirmed.