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ANN PETRY v. COMMONWEALTH PENNSYLVANIA (02/24/87)

decided: February 24, 1987.

ANN PETRY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Ann Petry, Re: David Petry, Assessment of Liability, dated February 19, 1985.

COUNSEL

Joseph C. Cascarelli, for petitioner.

Howard Ulan, Assistant Counsel, for respondent.

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

Author: Macphail

[ 104 Pa. Commw. Page 184]

Petitioner Ann Petry appeals an order of the Department of Public Welfare (Department) denying her appeal and request for abatement or modification of liability imposed for the cost of care at Haverford State Hospital (HSH) for her son, David Petry. We affirm.

David Petry has been a mental patient at HSH since April, 1981, his condition allegedly resulting from a May 2, 1976 motorcycle accident involving a collision with a deer. On May 21, 1984, Petitioner received notice from the Department that it was assessing fifty percent of David Petry's social security benefits, for which she is representative payee, pursuant to Section 501 of the Mental Health and Mental Retardation Act of 1966 (Act), Act of October 20, 1966, Special Sess., P.L. 96, as amended, 50 P.S. § 4501. Petitioner filed a request for abatement or modification of liability under Section 504(a) of the Act, 50 P.S. § 4504(a). See also 55 Pa. Code § 4310.17.

The Department denied Petitioner's request, and she appealed to its Office of Hearings and Appeals. After a hearing, the hearing officer found that Petitioner did not prove the existence of extraordinary circumstances

[ 104 Pa. Commw. Page 185]

    to warrant abatement or modification, as required by 55 Pa. Code § 4310.17(a), and recommended that such relief be denied. The Department adopted that recommendation and, on February 19, 1985, entered an order denying Petitioner's request for abatement or modification. Petitioner's petition for review of this order is now before our Court.

It appears from the record*fn1 that the Petitioner had been receiving Social Security benefits as "representative payee" for her son for some time. She failed to advise the Department of this income and had been depositing most of the money in a savings account, which, at the time of the hearing totaled $11,000.00. The cost of care at HSH was $177.00 per day.

It was Petitioner's burden to prove entitlement to abatement or modification of the assessment. Tartaglia v. Department of Public Welfare, 52 Pa. Commonwealth Ct. 579, 416 A.2d 608 (1980). In the instant case, Petitioner contended that there were extraordinary circumstances which entitled her to relief. 55 Pa. Code § 4310.17(a) provides that only in extraordinary circumstances will the Department abate or modify an assessment. The regulation further provides that extraordinary circumstances are limited to the situations set forth in Section 504(a) of the Act which states that the Department may abate, modify, compromise or discharge liability where it is satisfied that the imposition of liability would result in loss of ...


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