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BENNETT v. WHITE

October 2, 1987

Mary Bennett and Michaeline Forsythe, on behalf of themselves and all others similarly situated
v.
John F. White, Jr., Secretary of the Pennsylvania Department of Public Welfare; Director of the Office of Program Accountability of the Pennsylvania Department of Public Welfare; Director of the Claims Settlement Division of the Pennsylvania Department of Public Welfare; William Slom, individually and as Agent-in-Charge of the Claims Settlement Area Office for the Southeastern Region of the Pennsylvania Department of Public Welfare; Robert J. Henry, individually and as Support Director of Claims Settlement Area Office for the Southeastern Region of the Pennsylvania Department of Public Welfare



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 The plaintiffs Mary Bennett and Michaeline Forsythe instituted this class action challenging Pennsylvania's administration of the child support enforcement program established by Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-667, and its implementing regulations.

 The defendants are the Secretary and four other officials of the Pennsylvania Department of Public Welfare.

 Presently before the Court are cross motions for summary judgment. The relief sought by the plaintiffs includes equitable relief and a declaratory judgment declaring that the defendants violate that portion of the Social Security Act which concerns the child support enforcement program established by Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-667 and its regulations by failing to comply with the federal requirements; that the defendant Secretary of the Department of Public Welfare violates the Taking Clause of the Fifth and Fourteenth Amendments to the United States Constitution by failing to make correct refunds of excess support and support payments collected after the termination of benefits which had been provided in accordance with the Aid to Families with Dependent Children Program (AFDC) and by failing to pay interest on improperly retained support; and that the Secretary violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to provide a periodic accounting of support collected and assistance rendered to caretakers of children whose support is collected by the defendants and a notice of procedures for objecting to the amount or lack of a refund.

 The Court notes that the plaintiffs' claims can be divided into three groups: (I) five claims arising under the federal statute and its regulations; (II) one claim under the Taking Clause; and (III) one claim under the Due Process Clause. The Court further observes that the defendants do not dispute the following facts as related by the plaintiffs in the statement of facts in support of plaintiffs' motion for summary judgment.

 Pennsylvania receives federal funds pursuant to the AFDC program under Title IV-A of the Social Security Act, 42 U.S.C. §§ 601-615. In accordance with Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-667, Pennsylvania is responsible for having in effect a plan to secure child support for children who are AFDC recipients. 42 U.S.C. § 654 and § 602(a)(27). Pursuant to the Social Security Act, the Pennsylvania Department of Public Welfare (DPW) requires, as a condition of eligibility for AFDC benefits, that all applicants or recipients must assign to DPW all rights to support which any member of the assistance unit may have. 42 U.S.C. § 602(a)(26). DPW has designated the Office of Fraud and Abuse Investigation and Recovery, formerly the Bureau of Claim Settlement, as the agency in Pennsylvania responsible for administering its plan under Title IV-D of the Social Security Act for enforcing child support orders of AFDC recipients. The Office of Fraud and Abuse Investigation and Recovery administers the IV-D program in cooperation with the County Boards of Assistance, which administer the AFDC program, and through the Domestic Relations sections of the respective Pennsylvania Courts of Common Pleas, with which the Office maintains cooperative agreements.

 As part of DPW's system for administering the IV-D program, DPW entered into an agreement, effective August 1, 1975, with the Domestic Relations Branch of the Family Court Division of the Philadelphia Court of Common Pleas (Philadelphia Family Court) which provides that the Domestic Relations Branch has primary responsibility for collecting child support payments in cases where an AFDC recipient has assigned support rights to DPW. Thus, the Philadelphia Family Court functions as a local IV-D agency at the Philadelphia County level of government. Pursuant to the cooperative agreement, the Family Court Domestic Relations Branch collects and remits to DPW all child support payments in cases where an AFDC recipient has assigned support rights to DPW. The Social Security Act and its implementing regulations set forth the procedures according to which Pennsylvania is required to distribute the support monies remitted to DPW pursuant to assignments by AFDC recipients. 42 U.S.C. §§ 654(5), (11) and 657(b), (c); 45 C.F.R. §§ 232.30, 302.32, and 302.51. In addition, the Office of Child Support Enforcement of the Department of Health and Human Services has issued instructions to the states for the distribution of child support collections.

 I. Violations of the federal statute and regulations

 1. The failure to reassign support order payments promptly upon the termination of assistance.

 When a family ceases receiving AFDC assistance, the assignment of child support terminates. 45 C.F.R. § 302.51(f). DPW retains the right to attempt to collect arrearage payments for the amount of any unpaid support obligation that accrued under the assignment. 45 C.F.R. § 302.51(f). In seventy-six of the seventy-eight cases for which the defendants produced or made available information concerning persons identified as recipients of support refunds during the first quarter of 1983, DPW took an average of between 164.9 and 178.95 days *fn1" from the date the AFDC case should have terminated to reassign the current support from DPW to the former recipient. In twenty-three cases identified by the defendants, DPW took an average of 301.67 days from the date the last AFDC check was paid to notify the Philadelphia Family Court that the assignment of support had terminated. These delays continue.

 2. The failure to make prompt payment of support collected after assistance terminates.

 Before October 1, 1984, whenever a family stopped receiving AFDC benefits, the IV-D agency had the option of continuing to collect current support payments from the absent parent for a period not to exceed three months from the month following the month in which the family stopped receiving AFDC benefits. 42 U.S.C. § 657(c)(1); 45 C.F.R. § 302.51(e)(1) (1984). Except for such amounts that the State retains as reimbursement for any past assistance payments made to the family for which the State has not been reimbursed, support amounts so collected were to be paid to the family. 42 U.S.C. § 657(c)(1); 45 C.F.R. § 302.51(e)(1)(1984). Effective October 1, 1984, the IV-D agency is required to continue to collect support for the three month period. 42 U.S.C. § 657(c)(1) (as amended October 1, 1984); 45 C.F.R. § 302.51(e)(1)(1985). DPW complies with this requirement by having the Family Court Domestic Relations Branch collect support. All support payments so collected must be paid to the family. 42 U.S.C. § 657(c)(1); 45 C.F.R. § 302.51(e)(1). Nevertheless, the Philadelphia Family Court routinely collects and remits to DPW current support paid for persons whose assistance terminated. In seventy-six of the seventy-eight cases for which the defendants produced or made available information concerning persons identified as recipients of support refunds during the first quarter of 1983, the Philadelphia Family Court collected and remitted to DPW current support for persons whose assistance had terminated. In three of those cases DPW never refunded the support to the former recipient. With respect to the other seventy-three cases, DPW took an average of 279.99 days from the date support was first collected after the assistance case should have been closed to authorize a refund, and an additional four to eight weeks to send the refund to the beneficiary.

 In some cases, the Philadelphia Family Court sent former AFDC recipients a form letter stating that it would take eight weeks from the date the Family Court requested a refund for the recipient to receive the refund. The form letter also advised the recipient not to call the Family Court accounting unit concerning the refund until nine weeks had expired. In the seventy-three cases in which the defendants refunded support remitted to DPW after the assistance case closed during the first quarter of 1983, the amount of the refunds ranged from $ 25.00 to $ 1874.66 and averaged $ 370.03. Former recipients were denied the use of these monies for their children until the refunds were made. In twenty-three cases identified by the ...


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