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decided: August 21, 1987.


Appeal from the Order of the Department of Public Welfare in case of Appeal of Case of Eric Howard, Case No. 1382 835-D, dated July 15, 1985.


Richard Weishaupt, with him, Sharon Gornstein, Community Legal Services, Inc., for petitioner.

Jeffrey P. Schmoyer, Assistant Counsel, for respondent.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 108 Pa. Commw. Page 593]

This is an appeal from an adjudication of the Department of Public Welfare (Department) which affirmed the decision of the Philadelphia County Assistance Office (CAO) which changed the petitioner's General

[ 108 Pa. Commw. Page 594]

Assistance (GA) category from chronically needy to transitionally needy.

The petitioner, Mr. Howard, lives with his son (born 12/2/64) who is mentally retarded and who receives Supplemental Security Income (SSI). In his capacity as his son's caretaker, Mr. Howard was authorized to receive GA benefits for the chronically needy in January of 1979.*fn1 His status was reevaluated in June of 1983 at which time it was determined that Mr. Howard's status as being chronically needy was to continue.

On March 7, 1985, the CAO conducted a redetermination interview and subsequently proposed a change in Mr. Howard's status from chronically needy to transitionally needy. Mr. Howard appealed the decision of the CAO and a hearing before a Department

[ 108 Pa. Commw. Page 595]

Hearing Officer followed on June 5, 1985. On July 12, 1985, the Hearing Officer issued an order and adjudication affirming the CAO's redetermination of Mr. Howard's status as transitionally needy. On July 15, 1985, the Director, Office of Hearings and Appeals entered a final order affirming the decision of the Hearing Officer. Following a denial of Mr. Howard's request for reconsideration he filed a timely appeal with this Court.

Mr. Howard raises several issues on appeal. First, whether the doctrine of res judicata applies to administrative proceedings before the Department of Public Welfare. Second, if so, whether the application of the doctrine in this case operates to preclude a redetermination of Mr. Howard's status as anything other than chronically needy as found in the 1983 determination if there is no finding of changed circumstances. Third, whether the hearing officer committed an error of law in determining that Mr. Howard was only transitionally needy.

Our scope of review in public assistance cases is limited to determining whether the adjudication is supported by substantial evidence, is in accordance with the law and whether any constitutional rights were violated. Harston Hall Nursing and Convalescent Home, Inc. v. Department of Public Welfare, 99 Pa. Commonwealth Ct. 475, 513 A.2d 1097 (1986).

The statutory authority for the Department's redetermination process is found in Section 432(3)(ii) of the Public Welfare Code*fn2 which provides in pertinent part:

Assistance for chronically needy persons shall continue as long as the person remains eligible. Redeterminations shall be conducted on at least an annual basis. . . .

[ 108 Pa. Commw. Page 596]

Initially, we find that the doctrine of res judicata is not applicable to the Department of Public Welfare's redetermination process here. For the doctrine of res judicata to be applicable there must be identity of the causes of action. See Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). "[F]or purposes of res judicata, there is identity of causes of action when in both the old and new proceedings the subject matter and the ultimate issues are the same." McCarthy v. Township of McCandless, 7 Pa. Commonwealth Ct. 611, 618, 300 A.2d 815, 820 (1973). The ultimate issue in this action is whether Mr. Howard is entitled to be categorized as chronically needy at the time of this redetermination. The ultimate issue in Mr. Howard's 1983 action was whether he was entitled to be categorized as chronically needy at the time of the 1983 redetermination. Clearly, the ultimate issues in the old and in the new proceedings are not the same. See generally, Rieck Ice Cream Co. Appeal, 417 Pa. 249, 209 A.2d 383 (1965) (an application for a review of an assessment not barred on principle of res judicata by determination made in earlier year; propriety of each year's assessment presents a different cause of action). Accordingly, we find that the Department's redetermination of Mr. Howard's entitlement in 1985 is not barred on the principle of res judicata by its determination in 1983 and it must stand on its own merits.

Having so found we would ordinarily not reach Mr. Howard's second argument inasmuch as it is presented in terms of res judicata. However, we consider this to be a misnomer and will address Mr. Howard's second argument as though it were presented in terms of collateral estoppel.

In Philadelphia Electric Co. v. Pennsylvania Public Utility Commission, 61 Pa. Commonwealth Ct. 325, 433 A.2d 620 (1981) we held that the doctrine of collateral

[ 108 Pa. Commw. Page 597]

    estoppel barred the relitigation in a later administrative proceeding of historical issues of fact, i.e., matters residing wholly in the past and not subject to change by time.*fn3 "Collateral estoppel is designed to prevent relitigation of issues which have once been decided and have remained substantially static, factually and legally." Keystone Water Co. v. Pennsylvania Public Utility Commission, 81 Pa. Commonwealth Ct. 312, 320, 474 A.2d 368, 373 (1984).

The question before us, then, becomes whether the issues to be litigated in this redetermination hearing are historical, static or not subject to change. The issue to be determined before the Hearing Officer, here, was whether Mr. Howard was eligible to be classified as chronically needy based upon the necessity of his presence in the home to serve as a caretaker for his son. Clearly, as the needs of his son change, so too, do Mr. Howard's responsibilities towards him. We, therefore, cannot find that the issues here are historical, static or not subject to change which would permit us to conclude that the Department is collaterally estopped from relitigating them in a redetermination proceeding.

It is well-settled that the applicant bears the burden of demonstrating his eligibility for public assistance. Dempsey v. Department of Public Welfare, 45 Pa. Commonwealth Ct. 121, 404 A.2d 1373 (1979). Further, in Juras v. Department of Public Welfare, 73 Pa. Commonwealth Ct. 169, 172, 457 A.2d 1020, 1022 (1983), we noted that where, as here, the Department issues a

[ 108 Pa. Commw. Page 598]

PA 162-A*fn4 the recipient thereof is put on notice that his public assistance benefits may be "terminated unless he [is] able to establish his continued eligibility for the benefits." (Emphasis added.) Accordingly, we find that, in order to continue to be eligible for GA benefits as chronically needy, Mr. Howard had the burden of demonstrating that his continued presence in the home was necessary to care for his son.

After careful review of the record, we find that the Hearing Officer's decision is supported by substantial evidence.

In order to be categorized as chronically needy on the basis that Mr. Howard is a caretaker, 55 Pa. Code § 141.61(d)(1)(iv) requires that he provide documentation of the illness or incapacity of his son. To that end, Form PA 635, Medical Assessment Form was completed by Mr. Howard's son's physician which indicated that young Mr. Howard suffers from stable residua of birth trauma and mental retardation.

Mr. Howard must also demonstrate that his presence is required in the home because of his son's illness or incapacity. The Hearing Officer found that young Mr. Howard attends special classes at the Martin Luther School and on alternate weeks at the Randolph Skill Center. The PA 635 indicates that young Mr. Howard has a limited capacity, i.e., he has a chronic or acute physical or mental condition which restricts but does not prohibit employment, if work is 30 hours or less a week.*fn5 Further, Mr. Howard testified that his son was

[ 108 Pa. Commw. Page 599]

    actually employed part-time April 1, 1985 through May 11, 1985 and that the reason for his discharge was unrelated to his disability (N.T. at 26). In addition, the Hearing Officer found that Mr. Howard volunteers at the Welfare Rights Organization from 9:00 a.m. to 2:00 p.m. and until 5:00 p.m. whenever possible.

Mr. Howard testified that his presence in the home was required in the mornings to assure that his son leaves for school or work on time. He testified further, that his son functions well in familiar, structured settings but that any change in his routine requires Mr. Howard's attention and assistance. The father testified that he is currently able to perform his volunteer activities outside of the home due to an understanding supervisor and introduced copies of his attendance record demonstrating numerous absences. When he was asked what arrangements had been made for his son prior to his having become eligible for GA, Mr. Howard testified that he had been employed at the post office and, further, "When you have a job you can afford a babysitter." (N.T. at 33)

The Hearing Officer made two conclusions, based on this evidence, which Mr. Howard argues amount to an error of law. First, he argues that it was an error of law for the Hearing Officer to conclude that, "[e]ven though the appellant's son is mentally retarded it appears he is employable which makes it questionable that incapacities of the appellant's son require the appellant's presence in the home."*fn6 Second, he argues that it was an error of law for the Hearing Officer to conclude that, "there has been no documentation provided to verify

[ 108 Pa. Commw. Page 600]

    that the appellant's presence is actually needy [sic] in the home to care for his son."*fn7

Mr. Howard's argument is essentially a challenge to the Department's interpretation of its regulations. Our scope of review of an administrative agency's interpretation of its own regulation is limited to determining 1) whether that interpretation is plainly erroneous or inconsistent with that regulation and 2) whether the regulation as interpreted is consistent with the statute under which it is promulgated. Department of Public Welfare v. Forbes Health System, 492 Pa. 77, 422 A.2d 480 (1980).

55 Pa. Code § 141.61(d)(1)(iv) provides that eligibility as chronically needy is limited to, inter alia, "[a] person . . . whose presence is required in the home, because of illness or incapacity of another member of the household." (Emphasis added.) The regulation does not specify the portion of the day during which the caretaker's presence is required in the home. In light of the evidence presented at the hearing concerning young Mr. Howard's capabilities and Mr. Howard's responsibilities with respect to him we cannot conclude that the Department's interpretation of this regulation as applied to these facts is clearly erroneous or inconsistent therewith. Further, this regulation is consistent with the statute which it implements, 62 P.S. § 432(3)(i)(D) which provides that the category of caretaker includes, ". . . persons whose presence is required in the home to care for another person. . . ." (Emphasis added.)

Accordingly, we affirm.


Now, August 21, 1987, the Order of the Department of Public Welfare, dated July 15, 1985, is hereby affirmed.



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