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decided: December 13, 1988.


Original jurisdiction in the case of Henry Simmons, Executor of the Estate of Ethel H. Holloway Simmons v. Walter Cohen, et al.


Robert J. Mulligan, for petitioner.

Kate L. Mershimer, Deputy Attorney General, with her, John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

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

Author: Craig

[ 122 Pa. Commw. Page 71]

Simmons v. Cohen, 111 Pa. Commonwealth Ct. 267, 534 A.2d 140 (1987), recites much of the history of this case, which is a class action brought against the Pennsylvania Department of Public Welfare (DPW) to require DPW to reimburse welfare recipients for legal expenses incurred by them in recovering Supplemental Security Income (SSI) awards from the federal government, awards from which DPW has recovered payment of the subrogation liens accruing to it by virtue of DPW's previous payment of interim benefits to the welfare recipients pending resolution of their federal claims.

The question now presented is as follows:

Where DPW has a common law obligation to bear its proportionate share of the legal costs incurred by welfare recipients in recovering federal SSI awards, as to which DPW has subrogation liens for providing interim assistance, may DPW elect to limit its common law obligation only to those recipients who received their federal awards after a specific date selected by DPW for administrative or 'policy' reasons?

[ 122 Pa. Commw. Page 721984]

. DPW rested its denial solely on the fact that the record date of the petitioner's award antedated the cutoff date by one month.

Shortly after the denial letter, petitioner's counsel, on September 7, 1984, requested a hearing from DPW on the matter. To that request, DPW did not bother to respond.

Finally, when DPW's continuing silence for nearly a year indicated that no hearing would be forthcoming, the petitioner filed this action on August 14, 1985. In Simmons, this court denied DPW's motion for summary judgment, holding that this court had jurisdiction over the action as an original jurisdiction proceeding and declining to dismiss the action upon the ground of the statute of limitations. In Simmons, we also held that 42 Pa. C.S. ยง 5524(6) sets a two-year period of limitation for actions against government units for the nonpayment of money or the non-delivery of property in a government officer's possession. The court further held that the statute, by the commencement of this action, was tolled as to other members of the class, and that the two-year period of limitations would bar only those class members, if any, whom DPW informed, before August 14, 1983, that their attorney's fee reimbursement requests were denied on the basis of the DPW Fee Reimbursement Policy cutoff date.

After our Simmons decision, counsel sought to implement the class certification by serving on DPW interrogatories seeking a list of class members who had received their federal awards pursuant to appeal on or after January 1, 1974, the date of the federal-state compact on this subject. DPW elected to answer only in terms of recipients whose awards were dated earlier than the April 1, 1983 cutoff date and who had received DPW denials of attorney fee reimbursement between the June 28, 1983 date of the DPW Fee Reimbursement

[ 122 Pa. Commw. Page 74]

Policy and August 14, 1983, the date two years before the running of the statute of limitations was tolled by the commencement of this action. On the basis of that interpretation, DPW claimed that the only class member was Ethel H. Holloway, the deceased initiating petitioner in this case. Accordingly, DPW moved for decertification of the class on the ground that it only had one member.

DPW's interpretation was both factually and legally erroneous. As a matter of fact, as established by the Joint Stipulation, DPW had not expressly denied reimbursement to Ethel Holloway until long after August 14, 1983. As a matter of law, DPW was attempting to limit its response to the interrogatories only to those recipients which, according to DPW's own view of Simmons, would be excluded by virtue of the statute of limitations.

Moreover, despite DPW's theory that all potential parties earlier than Holloway need not be included in answering interrogatories because they would be barred by the statute of limitations, this court pointed out that it cannot delegate to DPW the function of determining, before trial, which persons are to be excluded from the class by reason of the statute of limitations. Because the purpose of discovery is to obtain information necessary to identify persons within the class and outside of it, proper response to discovery is required, particularly because that response would not constitute any admission with respect to the ultimate rights of the persons identified.

Petitioner's present motion for summary judgment must be characterized more properly as a motion for partial summary judgment because, if the substantive right is established, there would still remain in this action a need to proceed with the identification and possible classification of all class members.

[ 122 Pa. Commw. Page 751981]

, DPW's legal counsel had agreed that the recipient was entitled to have DPW contribute to the attorney's fees. When DPW reneged on its legal counsel's agreement and attempted to contest the reimbursement obligation, this court confirmed the substantive ...

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