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BARBARA J. KEITH v. COMMONWEALTH PENNSYLVANIA (12/02/88)

decided: December 2, 1988.

BARBARA J. KEITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Executive Secretary of the Department of Public Welfare, in case of Appeal of: Barbara J. Keith, Case # 360036459.

COUNSEL

Richard A. Katz, for petitioner.

Cynthia White Williams, Assistant Counsel, for respondent.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 121 Pa. Commw. Page 407]

Barbara J. Keith (Petitioner) appeals from a decision of the executive secretary of the Department of Public Welfare (DPW) denying her request for reconsideration of a decision of DPW's Office of Hearings and Appeals (OHA) affirming a hearing officer's decision that Petitioner had received an overissuance of food stamps. We affirm the denial of reconsideration.

The Lancaster County Assistance Office (CAO) determined that Petitioner had received an overissuance of food stamps for the period of March 1 to June 30, 1987 because a member of her household, her granddaughter, had received wages from a part-time job which Petitioner had not reported to the CAO. The overissuance was to be recouped by decreasing Petitioner's food stamp allotment. Petitioner appealed this decision. After a fair hearing, the hearing officer concluded that the CAO decision was correct. Petitioner sought review of this determination by DPW's Office of Hearings and Appeals (OHA).

On November 24, 1987, OHA issued a final administrative order affirming the hearing officer's decision. The OHA order also informed Petitioner that she could seek reconsideration of the order from DPW's executive secretary within 15 days of the date of the order and could appeal the decision to this court within 30 days of the date of the order. Petitioner sought reconsideration of the order on December 6, 1987, which was within 15 days. Petitioner filed no appeal from the November 24, 1987 decision with this court. DPW denied Petitioner's request for reconsideration on December 30, 1987.

Petitioner filed an appeal of the December 30, 1987 order to this court on January 29, 1988. Petitioner requests that this court reverse the decision that she received an overissuance of food stamps and order that all food stamps allotments which have been recouped from

[ 121 Pa. Commw. Page 408]

    her be returned. As explained below, we may not grant this relief because our scope of review in this case is limited to determining whether DPW's executive secretary abused his discretion when he denied Petitioner's request for reconsideration. The only relief which we could grant would be a reversal of the denial of the request for reconsideration.

When DPW's OHA issues a final order, four scenarios are possible. First, the aggrieved party could do nothing. Second, the aggrieved party could appeal the final order to this court within 30 days. Third, the aggrieved party could seek reconsideration of the final order from DPW's executive secretary within 15 days. Fourth, the aggrieved party could seek reconsideration of the final order from DPW's executive secretary within 15 days and appeal the final order to this court within 30 days. The third and fourth scenarios have played a major role in a number of appeals to this court involving DPW. This opinion will attempt to put those two scenarios in perspective.

If a request for reconsideration of a final order is made within 15 days of the order, but no appeal of that order is filed with this court, DPW's executive secretary has 30 days from the date of the request in which to act on the request. 1 Pa. Code § 35.241(d).*fn1 Failure to act within 30 days results in the request being deemed denied. Id. The effect of 1 Pa. Code § 35.241(d) is to give DPW's executive secretary a maximum of 45 days ...


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