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RALPH MODZELEWSKI v. COMMONWEALTH PENNSYLVANIA (09/24/87)

decided: September 24, 1987.

RALPH MODZELEWSKI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Ralph Modzelewski, dated October 8, 1986.

COUNSEL

John C. Aciukewicz, Legal Services of Northeastern Pennsylvania, Inc., for petitioner.

Jason W. Manne, Assistant Counsel, for respondent.

President Judge Crumlish, Jr., and Judges MacPhail, Doyle, Barry and Colins. Opinion by Judge MacPhail.

Author: Macphail

[ 109 Pa. Commw. Page 520]

This appeal is from a final order of the Department of Public Welfare (DPW) denying the request of Ralph Modzelewski (Petitioner) for reconsideration of its order discontinuing Petitioner's cash assistance and food stamps for failure to comply with employment regulations without good cause.

At the fair hearing conducted by DPW, evidence was received which established that Petitioner, a recipient of cash assistance and food stamps, had been referred to employment as a truck driver by the Office of Employment Security (OES), that he had been hired and that he had failed to report for work. Petitioner testified that the "main reason" he refused the job was because his wife's nervous condition required him to be at home to help take care of their three children. Petitioner also testified that he was concerned that the vehicles he would operate were "illegal," i.e., not in good shape nor "fit for the roads" and that the employer could not guarantee that he would get more than one truck trip a day and might be required to work as a laborer "in the yard." Notes of Testimony at 8-9; Reproduced Record at 14-15. Petitioner was to be paid $70.00 per day.

Petitioner said he reported the allegedly unsafe conditions to a Mr. Woods at OES and was told by Mr. Woods that he should not have been referred to that job. Mr. Woods was not present at the hearing nor was he deposed.

[ 109 Pa. Commw. Page 521]

Woods apparently did sign a form indicating that Petitioner was hired but failed to show up for work. That form gives no reasons for the Petitioner's actions.

At the conclusion of the hearing, the hearing officer filed an adjudication which sustained Petitioner's appeal. On review, the director of DPW's Office of Hearings and Appeals reversed the hearing officer in an order dated July 24, 1986. Petitioner requested reconsideration which was denied on October 8, 1986. Petitioner filed his petition for review with this Court on October 14, 1986.*fn1

The first issue which is before us is our scope of review. In his brief, Petitioner, citing Hudson v. Department of Public Welfare, 96 Pa. Commonwealth Ct. 572, 508 A.2d 383 (1986), states that the only issue for review "is whether the Department abused its discretion in denying [Petitioner's] request for reconsideration." DPW's brief, interestingly, sets forth that our scope of review is not limited to reviewing the denial of reconsideration, but "is plenary." Petitioner then filed a supplemental brief in which he agreed with DPW's position that we are to review the order of July 24, 1986, not the denial of reconsideration order of October 8, 1986.

In Hudson we held that the only matter which we could properly consider in an appeal to this Court where the petitioner had not timely appealed DPW's order denying him eligibility was DPW's denial of the application for reconsideration. In such ...


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