Appeal from the Order of the Department of Public Welfare, in case of Appeal of: Betty L. Ishler, Case No. 14-0015000, dated September 9, 1985.
Richard G. Fishman, for petitioner.
Jason W. Manne, Assistant Counsel, with him, John Kane, Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry. Judge Craig joins in this dissent.
[ 102 Pa. Commw. Page 307]
Betty L. Ishler (Petitioner) appeals a final administrative action of the Department of Public Welfare (Department), affirming an adjudication and order of the hearing officer which held that Petitioner had received an overissuance of food stamps. The case is now before us on reargument.
[ 102 Pa. Commw. Page 308]
Prior to June 21, 1983, federal regulations permitted states participating in the food stamp program to utilize a standard utility allowance (SUA) in calculating deductions for shelter costs,*fn1 provided, inter alia, the household had incurred heating or cooling costs separate and apart from their rent or mortgage. 7 C.F.R. § 273.9(d)(6)(i) (1983). On June 21, 1983, federal rules governing SUA were amended to further provide that cooling costs would be limited to the operation of air conditioning systems or room air conditioners.*fn2 48 Fed. Reg. 28192 (1983), codified at 7 C.F.R. § 273.9(d)(6)(i) (1986) (federal amendment). The federal amendment was subject to state implementation no later than October 19, 1983. 7 C.F.R. § 272.1(g)(66) (1986). Owing to what the Department claims was administrative error, the Department's regulation containing SUA requirements, 55 Pa. Code § 523.3(d)(5)(iii), was never revised to conform to the new federal requirements. Instead, on April 10, 1985, the Department communicated the federal amendment to its caseworkers by way of an internal Department memorandum, entitled Income Maintenance Bulletin No. 523-85-10 (IMB), which was to take effect on May 1, 1985.
[ 102 Pa. Commw. Page 309]
As a result of the Department's error, Petitioner, a food stamp recipient, was permitted to receive a deduction under SUA for cooling costs she incurred in 1984 while operating a twenty-inch electric fan to cool her second floor apartment.
Petitioner received a notice from the Department dated April 15, 1985, which indicated that she had received an overpayment of food stamps. Petitioner requested a hearing which was held on June 3, 1985, by telephone. At the hearing, counsel for Petitioner argued that inasmuch as she had incurred a separate cooling cost, she was eligible for SUA and that the IMB could not be applied retroactively. The hearing officer dismissed Petitioner's argument on the basis that Petitioner failed to qualify for SUA under the federal amendment. The Department affirmed the decision of the hearing officer and the instant appeal followed.*fn3
We note as a preliminary matter that the food stamp program is a joint undertaking of the federal and state governments under which the participating states agree to administer the program in conformity with the provisions of the Food Stamp Act of 1977 (Act), 7 U.S.C.A. §§ 2011-2029 (West Supp. 1986), regulations issued pursuant to the Act and any changes in federal law and regulations. See 7 C.F.R. § 272.2(b) (1986). In exchange for state compliance, the federal ...