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DOUGLAS R. DIEHL v. COMMONWEALTH PENNSYLVANIA (03/27/85)

decided: March 27, 1985.

DOUGLAS R. DIEHL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of: Douglas Diehl, No. 98293.

COUNSEL

Douglas R. Diehl, petitioner, for himself.

Mary Frances Grabowski, Assistant Counsel, for respondent.

Judges Craig and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr., did not participate in the decision in this case.

Author: Blatt

[ 88 Pa. Commw. Page 405]

Douglas R. Diehl (petitioner) appeals here pro se from an order of the Department of Public Welfare (DPW) which affirmed the decision of the Dauphin County Assistance Office (DCAO) denying his application for Medical Assistance (MA) benefits. It determined that his income and available resources exceeded the applicable MA eligibility limit.

The undisputed factual findings indicate that the petitioner applied for MA benefits for himself, his wife, and his three children on July 13, 1981 when his wife was admitted into the Osteopathic Hospital; that he owns a non-resident property located at 61 Pine Street, York, Pennsylvania; that the property contains two apartments, one of which is occupied by his mother, who, in exchange for the apartment, pays all

[ 88 Pa. Commw. Page 406]

    the expenses of operating the building; that the second apartment has not been rented since May of 1979; that the value of the property less encumbrances was $9,659.46; that he also had available cash resources equaling $239.63; that his available resources minus an amount for maintenance for his family equaled $5,799.09; that his income exceeded the eligibility limit by $50.99; that the medical bills involved totaled $4,340.80; and that, pursuant to 55 Pa. Code §§ 133.84 and 141.81(g)(1), the applicable benefit period ran from April 18, 1981 until October 18, 1981. On the basis of these facts, the DCAO determined that the property at 61 Pine Street was not income producing, that the petitioner would thus have to spend $5,850.08 ($5,799.09 available resources plus $50.99 excess income) in order to be eligible for MA benefits and that, because the submitted medical bills did not exceed that figure, the petitioner was ineligible for MA benefits. The DPW dismissed the petitioner's timely appeal and the present appeal ensued.

The only issue before us here is whether or not the DPW erred in concluding that the 61 Pine Street property was not income producing and that it, therefore, could not be considered exempt from the calculation of available resources under 55 Pa. Code § 177.83(b)(1). And, of course, our review of a DPW determination includes all questions of law. Matthews v. Department of Public Welfare, 66 Pa. Commonwealth Ct. 275, 443 A.2d 1362 (1982).

Eligibility for MA benefits depends upon the total resources available to the family unit, 55 Pa. Code § 177.81, exempting certain income and property as delineated in 55 Pa. Code § 177.83. Of particular note in the present case, 55 Pa. Code § 177.83(b)(1)(iii) exempts "income producing non-resident real property if its value is reasonably related to the amount of income

[ 88 Pa. Commw. Page 407]

    resulting or expected to result from ownership of such property." Additionally, non-resident real property is defined for purposes of computing its value as "[p]roperty not used as a home by the client [petitioner], his spouse or his minor or incompetent adult children, or property that has been the home of the client or his spouse but has not been so used for six consecutive ...


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