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decided: March 15, 1983.


Appeal from the Order of the Department of Public Welfare in case of Appeal of: Irvin L. Bowmaster, Case No. 15102-D.


Garry Wamser, for petitioner.

Jean E. Graybill, Assistant Counsel, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 72 Pa. Commw. Page 579]

This is a welfare rights case founded upon an allegation of conflict between the Pennsylvania Department of Public Welfare (DPW) regulation at 55 Pa. Code § 171.22 and Section 432.12 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, added by Section 5 of the Act of July 9, 1976, P.L. 993, 62 P.S. § 432.12.

Irvin L. Bowmaster, the petitioner, Rose Adams, and Ms. Adams' two children have resided together in a mobile home rented in the petitioner's name since September, 1980. Ms. Adams and her children receive assistance under the Aid to Families with Dependent

[ 72 Pa. Commw. Page 580]

Children program (AFDC). Ms. Adams contributes approximately $80 each month for rent, while the petitioner pays approximately $90 a month for rent. The other household expenses are divided in the following manner: the petitioner is responsible for the heating fuel of $50 a month, Ms. Adams pays for both the electricity bill of $35 a month and the bill for trash removal of $6 a month. Neither the petitioner, nor Ms. Adams has a legal duty to support the other.

On October 31, 1980, the petitioner applied for general assistance benefits for himself. At the time of the application, the petitioner informed the caseworker in an interview that he was living with a woman and her two children and that they were sharing shelter expenses. On his application for benefits, however, the petitioner did not state that Ms. Adams and he shared the rental obligation.

The petitioner was notified on November 10, 1980, that he was eligible for general assistance, but only in the amount of $58 which represented the difference between a four-person allowance of $369 and $311, the amount that Ms. Adams and her children were presently receiving in AFDC benefits. The basis for this determination was that the petitioner was not a separate assistance unit, but rather a part of an assistance unit since he was sharing living arrangements in a "common dwelling" with AFDC recipients within the meaning of 55 Pa. Code § 171.22 which provides in pertinent part:

Assistance unit -- Any group of persons who occupy a common dwelling unit and who are applying for or receiving AFDC, including AFDC -- CU or GA. There shall be only one assistance unit in a dwelling unit except for the following:

[ 72 Pa. Commw. Page 581]

(i) The following persons or family groups shall constitute separate assistance units:

(A) A roomer, or a roomer and boarder and their dependents with whom they are living (applies to AFDC or GA, or both). A roomer or boarder, or both is one who pays a fixed fee to a provider of service for room or board, or both. . . .

If the petitioner either lived separately or was considered a "roomer," he would be treated as a single assistance unit and be eligible for $164 each month.*fn1

After a hearing, this action was affirmed by a hearing examiner. Both the director of the Office of Hearings and Appeals and the Secretary of DPW affirmed the hearing examiner's decision. This appeal followed.

The petitioner contends that DPW erred in determining his general assistance eligibility and allowance by applying a single assistance unit approach merely because two recipients share a common dwelling and expenses; and that DPW should make eligibility and need determinations based on how much of Ms. Adams' income and resources were actually available to the petitioner in accordance with Section 432.12 of the Public Welfare Code, 62 P.S. § 432.12.*fn2

[ 72 Pa. Commw. Page 582]

The general assistance program is administered by the state and the state statute applies. See Department of Public Welfare v. Molyneaux, 498 Pa. 192, 197 n. 4, 445 A.2d 730, 733 n. 4. Section 432.12 of the state's Public Welfare Code, 62 P.S. § 432.12 reads in relevant part that:

In determining need for general assistance, the department shall take into consideration all income, excluding that amount equal to the expenses reasonably attributable to the earning of income up to twenty-five dollars ($25) per month, of all members of the assistance unit who are fourteen years of age or older. In addition to said work related expenses, the first twenty dollars ($20) plus fifty percent of the next sixty dollars ($60) shall be deducted from the gross monthly wages of each employed recipient of general assistance. The general assistance grant shall be computed on the remainder.

(c) To be considered in establishing financial eligibility and the amount of the assistance payment, income must be actually available for current use by the applicant or recipient. . . .

[ 72 Pa. Commw. Page 583]

The petitioner, of course, places emphasis on subparagraph (c).

The petitioner additionally relies on Bond v. Department of Public Welfare, 44 Pa. Commonwealth Ct. 535, 403 A.2d 1378 (1979). In Bond, the mother, a general assistance recipient, shared a rented house with her daughter and her daughter's children, AFDC recipients. The mother's general assistance grant was reduced based on a determination by DPW that the mother and daughter comprised one assistance unit within the meaning of 55 Pa. Code § 171.22. We held that the use of 55 Pa. Code § 171.22 so as to automatically reduce general assistance payable to the mother was improper because Section 432.12 of the Public Welfare Code requires that only income actually available may be considered in determining need. The Bond holding was largely based on the case of Gurley v. Wohlgemuth, 421 F. Supp. 1337 (E.D. Pa. 1976), the holding which was that the application of the predecessor of 55 Pa. Code § 171.22, to two sisters and their children who occupied the same dwelling unit, whereby the sisters and their children were treated as a single assistance unit of five persons rather than as two separate assistance units for purposes of determining the amount of their monthly AFDC grant, conflicted with federal regulations similar to Section 432.12 of the Pennsylvania Public Welfare Code, 62 P.S. § 432.12.*fn3

However, the Supreme Court of Pennsylvania has recently considered the procedure to be followed when a state regulation (in that case 55 Pa. Code § 183.61) which presumes income availability comes into conflict

[ 72 Pa. Commw. Page 584]

    with Section 432.12 of the Public Welfare Code. In Department of Public Welfare v. Molyneaux, 498 Pa. 192, 445 A.2d 730 (1982), the court declared in dictum that:*fn4

Section 432.12 of the Act, Added 1976, July 9, P.L. 993, No. 202, § 5, 62 P.S. § 432.12, requires the Department to make that determination of need by considering "income actually available for current use." The departmental regulation applicable to the computation of General Assistance at 55 Pa. Code § 183.64 which deals with the amount available from a resident parent's income must be construed in the light of the Pennsylvania statute's requirement of actual availability for General Assistance purposes. Thus, the department's fact-finders must initially determine whether the resident parent's income is in fact available in determining eligibility for General Assistance.*fn16

Id. at 203 & n. 16, 445 A.2d at 736 & n. 16.

We find this reasoning applicable to 55 Pa. Code § 171.22 and controlling. In this case, the petitioner received a smaller grant, $58 instead of $164, solely on the basis of statements he made to his caseworker regarding his living arrangements and shared expenses.*fn5 Here, DPW, after determining that the facts were not such as would require the application of the room and board exception to 55 Pa. Code § 171.22, held that the general rule of 55 Pa. Code § 171.22 applied and presumed that Ms. Adams' resources were available to the petitioner without determining whether in fact the resources were actually available.

We therefore reverse the order below and remand the record to DPW for a determination of the petitioner's need and assistance entitlement based upon

[ 72 Pa. Commw. Page 586]

    a determination of actual resources shared between the two assistance recipients. However, as Molyneaux teaches, 55 Pa. Code § 171.22 does provide a rational "presumption of availability from residence in the same household" and the burden will be upon the petitioner to prove the non-availability of Ms. Adams' resources.

Reversed; remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


And Now, this 15th day of March, 1983, the order appealed from is reversed, and the case is remanded for further proceedings consistent with the above-captioned opinion. Jurisdiction is relinquished.


Reversed and remanded.

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