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decided: June 8, 1983.


Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Karen A. Miller, Case No. 44158.


George R. Price, Jr., for petitioner.

Stanley Slipkoff, with him Phillip B. Rosenthal, Assistant Counsel, and Mary Frances Grabowski, Assistant Counsel, for respondent.

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

Author: Williams

[ 74 Pa. Commw. Page 643]

Karen A. Miller (petitioner) appeals from the Department of Public Welfare's (DPW) affirmance of the decision of the Lycoming County Board of Assistance (LCBA). The LCBA determined that the petitioner's food stamp benefits and public assistance grant be reduced.

On December 22, 1980, the petitioner applied for food stamps for a three person household, consisting of herself, Stephen Roy, and one child, Renee Roy. Four days after the application, the petitioner gave birth to her second child, Little Bird of the Snow. Stephen Roy is the father of both of petitioner's children and is legally responsible, pursuant to a court order, to provide $25.00 a week for both of the children. The LCBA authorized a food stamps grant for a four person household in the amount of $179.00 per month, effective January, 1981.

When the LCBA initially authorized food stamps for four persons, the household income consisted of solely public assistance grants; both the petitioner and Stephen Roy were receiving public assistance grants.*fn1 However, in February, 1981, Mr. Roy began

[ 74 Pa. Commw. Page 644]

    receiving unemployment compensation benefits. This change in circumstances led to the discontinuance of his public assistance grant, and a reduction in the petitioner's food stamp benefits. On February 9, 1981, the LCBA recomputed the petitioner's food stamp benefits, and issued a notice proposing to reduce food stamps effective March 1, 1981, to $52.00 per month. On February 19, 1981, the petitioner filed a timely appeal to DPW. On March 11, 1981, as a further consequence of Mr. Roy's receipt of unemployment compensation benefits, the LCBA further proposed to reduce the petitioner's public assistance grant by issuing a form notice PA-162A-41 pursuant to 55 Pa. Code § 183.44. The LCBA thereby notified the petitioner that her newly born daughter would be removed from her public assistance grant, and that the petitioner would be transferred to the state's General Assistance program. On March 23, 1981, the petitioner filed an appeal from that decision. Both of petitioner's appeals were consolidated before DPW's Bureau of Hearings and Appeals.

On April 16, 1981, a hearing on both matters was held. On May 7, 1981, an adjudication and order were entered denying petitioner's appeals on both matters. A Final Administrative Action Order was entered by the Director of the Office of Hearings and Appeals on May 11, 1981. On May 21, 1981, the petitioner made a request for reconsideration. However, a final order denying the petitioner's challenge to both of the reductions was entered on June 5, 1981. There followed the instant appeal to our Court.

[ 74 Pa. Commw. Page 645]

In an appeal from an adjudication of the Department of Public Welfare, we must limit our focus to determining whether DPW's adjudication is supported by substantial evidence, is in accordance with the law, and whether the petitioner's constitutional rights were violated. Carr v. Department of Public Page 645} Welfare, 50 Pa. Commonwealth Ct. 375, 412 A.2d 1126 (1980).

In regard to the petitioner's challenge to the reduction in her food stamp grant she contends that two food stamp households exist, and that therefore the reduction of her food stamp grant was unwarranted. She asserts that the LCBA failed to consider whether petitioner and one child constituted a separate food stamp household. The petitioner also asserts that LCBA should have made a determination under 55 Pa. Code § 505.2(ii) rather than under subsection (iv). Subsection (ii) provides that a household consists of one person living with others, but who buys and prepares their meals separate and apart from the other residents. Subsection (iv) states that a household consists of "a group of individuals living together and customarily purchasing food and preparing meals together for whom food is customarily purchased in common and for whom meals are prepared together for home consumption."

More specifically, the petitioner argues that she and one child receive public assistance separate from the father and other child, and that the father purchased and prepared meals for himself and one child separate from the petitioner and the other child. The petitioner testified that she and Mr. Roy eat together occasionally, but that most of the time they do not because they like different foods. This testimony, even when coupled with the fact that the petitioner and the father of her two children have different sources of income, does not warrant the finding of two separate households. This Court has held that separate sources of income and disparate diets do not negate the fact that one common household exists. Bennett v. Department of Public Welfare, 49 Pa. Commonwealth Ct. 198, 410 A.2d 953 (1980). Furthermore, after a careful review of the record, we conclude that LCBA's determination

[ 74 Pa. Commw. Page 646]

    that petitioner, her two children, and Stephen Roy constituted one household is supported by substantial evidence.

However, notwithstanding its determination that one household existed for the purpose of the food stamp grant, DPW had recognized two separate public assistance units in the household. As we stated above, when DPW received notice of Mr. Roy's receipt of unemployment compensation, his public assistance grant for himself and Renee was terminated. Subsequently, the petitioner's separate public assistance grant was reduced by removing Little Bird of the Snow from the petitioner's grant and transferring the petitioner to the state's general assistance program.

In her appeal to this Court from the reduction of her public assistance benefits, the petitioner argues that the LCBA fallaciously presumed that Mr. Roy's unemployment compensation was available to her for support of their children. She contends that the method of calculating available income pursuant to the formula set down in 55 Pa. Code § 183.44 creates an unconstitutional irrebuttable presumption. The petitioner believes that the LCBA failed to recognize her right to rebut the presumption of the availability of income.

55 Pa. Code § 183.44 represents DPW's effort to incorporate into state regulations the federal eligibility requirements set down in sections 406 and 407 of the Social Security Act.*fn2 Our State Supreme Court recently held that the provisions of the Social Security Act which establish only two categories of dependent children eligible for AFDC assistance are constitutional.*fn3 Department of Public Welfare v. Molyneaux,

[ 74 Pa. Commw. Page 647498]

Pa. 192, 445 A.2d 730 (1982). The court rejected the application of the "irrebuttable presumption" doctrine, and applied the analysis employed by the United States Supreme Court when it upheld similar federal statutory categories to be valid exercises of legislative responsibility. Further, the Court in Molyneaux, supra, concluded that the provisions of 55 Pa. Code § 183.44 are in conformity with the federal act and do not violate the due process requirements of the Fourteenth Amendment of the United States Constitution.

Accordingly, we affirm the decision of the Department of Public Welfare.


And Now, the 8th day of June, 1983, the adjudication and final order of the Department of Public Welfare, dated May 7, 1981, is hereby affirmed.



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