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decided: March 27, 1986.


Appeals from the Orders of the Department of Public Welfare in the case of Appeal of: Arthur Heaton, Case No. 28-0036354, and in the case of Clifford A. Thomas, Case No. 29-0004070.


David Woodward, with him, Harry S. Geller, for petitioners.

Jason W. Manne, Assistant Counsel, with him, John Kane, for respondent.

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

Author: Macphail

[ 96 Pa. Commw. Page 196]

We have consolidated for argument and decision the appeals of Arthur Heaton and Clifford Thomas from orders of the Department of Public Welfare (DPW) which affirmed decisions of their respective County Assistance Offices (CAO) suspending receipt of benefits under the Aid to Families with Dependent Children (AFDC) program.

Heaton and his family received cash assistance benefits through the Franklin CAO. Heaton is an AFDC-CU principal wage earner.*fn1 Section 165.23(e)(2)(ii)(A) of the Public Assistance Manual (Manual), 55 Pa. Code § 165.23(e)(2)(ii)(A) provides that an AFDC-CU principal wage earner is required, inter alia, to accept work or training offered by the Community Work Experience Program (CWEP). Heaton was assigned to work as a general laborer for the Department of Transportation (DOT). DOT gave Heaton permission to take two

[ 96 Pa. Commw. Page 197]

    vacation days on June 28 and 29, 1984, provided that he work June 26 and June 27, 1984. Heaton did not work on June 26 and 27 as scheduled, and DOT asked the Franklin CAO for permission to terminate Heaton for poor attendance, which was granted. The Franklin CAO notified Heaton that as of June 28, 1984, his cash assistance benefits would be discontinued for him and his family for sixty days. After a fair hearing was held, the hearing officer rejected Heaton's good cause defense and issued an adjudication approving the CAO's discontinuance of benefits, but modifying the discontinuance of benefits to thirty days in accord with the provisions of 55 Pa. Code § 165.23(e)(3)(ii). The Office of Hearings and Appeals (OHA) of DPW affirmed the hearing officer's decision, and an appeal to this Court followed.*fn2

Heaton and Thomas (Petitioners) argue here that (1) the decisions of the OHA are not supported by substantial evidence; (2) assuming the OHA findings are supported by substantial evidence, the appropriate sanction period is thirty days;*fn3 (3) DPW violated Pennsylvania law in discontinuing benefits to the entire family; and (4) denial of benefits to an AFDC-CU's family solely on the basis of parental misconduct violates their right to equal protection. We shall address each argument seriatim.

[ 96 Pa. Commw. Page 198]

Petitioners' first argument raises the issue of whether they had good cause for their failure to participate in CWEP. Section 165.23(e)(3)(ii) of the Manual states:

(3) Failure to retain bona fide employment or training. The following requirements will apply:

(ii) AFDC-CU, principal wage earner failure. Any AFDC-CU principal wage earner who willfully and without good cause as described in subsection (f), voluntarily terminates employment, reduces earning capacity, or terminates his participation in a vocational rehabilitation or training program, will be ineligible for assistance for himself and family members for a 30-day period. (Emphasis added.)

Subsection (f) of Section 165.23 of the Manual provides:

(f) Bona fide employment and good cause refusals. The following requirements relate to bona fide employment and good cause refusals:

(2) Good Cause. A person who fails to maintain OES registration, voluntarily terminates employment, reduces his earning capability, refuses to seek employment or training, including the Work Incentive Program, or refuses to accept referral to, an offer of or maintain employment in accord with subsection (e) must provide proof of good cause for such action or failure to act. Good cause shall include, but not be limited to, the following:

(i) The job was beyond the capacity of the person.

(ii) The person is unable to maintain transportation to the job or a person involved in the Community Work Experience Program cannot maintain satisfactory day care for his minor children between the ages of 6 and 14.

[ 96 Pa. Commw. Page 199]

(iii) The working conditions are substandard, that is, the place of employment is not free of recognized hazards that are causing or are likely to cause death or serious physical harm, or the wages paid are below the minimum wage if applicable for that type of employment or are below the prevailing wage normally paid in the community for the specific kind of employment.

(iv) The person establishes a basis for a claim of discrimination, including sex discrimination, from the employer or fellow employes.

Where, as here, the party with the burden of proof did not prevail below, our scope of review as to the factual findings is to determine whether there has been a capricious disregard of evidence or an error of law. McCartney v. Department of Public Welfare, 71 Pa. Commonwealth Ct. 116, 455 A.2d 222 (1983). Although Petitioners phrase the issue in terms of substantial evidence, we ...

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