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NORMA K. PHILLIPS AND SAMUEL B. PHILLIPS v. COMMONWEALTH PENNSYLVANIA (02/22/89)

decided: February 22, 1989.

NORMA K. PHILLIPS AND SAMUEL B. PHILLIPS, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HOUSING FINANCE AGENCY, RESPONDENT



Appeal from the Order of the Pennsylvania Housing Finance Agency, in the case of Samuel B. Phillips, decision dated May 23, 1988.

COUNSEL

Carolyn L. Carter, Legal Services, Inc., for petitioners.

John F. Goryl, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 123 Pa. Commw. Page 526]

Norma K. Phillips and Samuel B. Phillips (Petitioners) appeal from a decision of the Pennsylvania Housing Finance Agency which denied Petitioners' application for emergency mortgage assistance under what is known as the Pennsylvania Homeowners' Emergency Assistance Act (Act 91).*fn1

In December of 1984, Petitioners purchased a mobile home and an area of land in Shippensburg, Pennsylvania. Petitioners purchased the land with a mortgage from the Letterkenny Federal Credit Union; the mortgage provided for a monthly payment of $113.35. Mr. Phillips had been laid off from his job in November of 1984; thus, at the time Petitioners purchased the land, they were relying on Mrs. Phillips' income to meet their expenses. Petitioners believed, based on statements from Mr. Phillips' employer, that Mr. Phillips would be called back to work soon after the lay-off. However, Mr. Phillips was not called back to work. Petitioners failed to make the

[ 123 Pa. Commw. Page 527]

    scheduled mortgage payment in May of 1985 and they have been in default on the mortgage since that time.

Since April of 1986, Mr. Phillips has been disabled as a result of uncontrollable diabetes, muscle wasting due to diabetes and a herniated disc. In September of 1986, Mrs. Phillips voluntarily terminated her employment in order to care for Mr. Phillips.

Also in September of 1986, Petitioners applied for mortgage assistance under Act 91. The application was denied on January 15, 1987; Petitioners did not appeal from that denial. However, on January 19, 1988, Petitioners again applied for mortgage assistance. Petitioners' second application was denied on February 29, 1988, and Petitioners timely appealed from that decision. A hearing was held by a hearing examiner on April 21, 1988. On May 23, 1988, the hearing examiner affirmed the denial of mortgage assistance, concluding that Petitioners had not met all the conditions for eligibility provided for in section 404-C of Act 91.

Specifically, the hearing examiner found that Petitioners were ineligible for mortgage assistance because: (1) the financial hardship they were suffering was not due to circumstances beyond their control as required by section 404-C(a)(4) of Act 91; and (2) there was not a reasonable prospect that Petitioners would be able to resume full mortgage payments within 36 months after the beginning of the period for which assistance payments would be provided, nor was there a reasonable prospect that Petitioners would pay the mortgage in full by the maturity date, as required by section 404-C(a)(5) of Act 91. The hearing examiner concluded that Mrs. Phillips' termination of her employment was not a circumstance beyond Petitioners' control and that, because Petitioners entered into the mortgage at a time of financial hardship, the total delinquency could not be considered

[ 123 Pa. Commw. Page 528]

    beyond Petitioners' control. The hearing examiner also concluded that Petitioners' situation was "ongoing" rather than one making them eligible for emergency mortgage assistance. Petitioners have appealed to this court.

Petitioners present four issues for review: (1) whether the hearing examiner erred in disqualifying Petitioners because of Mrs. Phillips' termination of employment to care for Mr. Phillips; (2) whether the hearing examiner erred in concluding that Petitioners were ineligible for emergency mortgage assistance because they entered into the mortgage at a time of financial hardship; (3) whether the hearing examiner erred in concluding there was no reasonable prospect that Petitioners would resume full mortgage payments within 36 months; and (4) whether the hearing examiner violated Petitioners' due process rights. We shall address the last issue first.

Petitioners' due process argument is based on a "Note to Phillips File," initialed by the hearing examiner and dated April 22, 1988. The "Note" indicates that on April 22, 1988, the day after the hearing in this case, the hearing examiner spoke with an employee at the Credit Union. The hearing examiner's handwritten notes demonstrate that the Credit Union employee made statements to the hearing examiner regarding Petitioners' mortgage, Mr. Phillips' medical problems and Mr. Phillips' employment history. The hearing examiner noted various discrepancies between the information provided by the Credit Union employee and the testimony given by Petitioners at the hearing. Petitioners assert that the hearing examiner's improper procedure violated their due process rights. We agree.

[ 123 Pa. Commw. Page 529]

The essential elements of due process in an administrative hearing are notice and an opportunity to be heard and defend. Gutman v. State Dental Council and Examining Page 529} Board, Bureau of Professional Affairs, 76 Pa. Commonwealth Ct. 193, 463 A.2d 114 (1983). Due process further requires an opportunity to confront and cross examine adverse witnesses. Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982). In the present case, Petitioners were given no opportunity to cross-examine or confront the Credit Union employee who gave statements to the hearing examiner. Furthermore, we agree with the Petitioners that the information received by the hearing examiner, even if it did not provide a basis for her decision, could very well have led her to view Petitioners' credibility unfavorably. Accordingly, the improper contact between the hearing examiner and the Credit Union employee taints the entire proceeding, including the hearing examiner's findings of fact and her decision.

Our resolution of the due process issue does not end our review. If the hearing examiner's conclusions were based solely on credibility determinations, we would, of course, remand for a new hearing. However, our review of the transcript of the hearing establishes that, accepting as true every shred of testimony offered on the issue, Petitioners failed to establish that there was a reasonable prospect they would resume full mortgage payments within 36 months.

At the time of the hearing, the mortgage had been in default since May, 1985, neither Mr. nor Mrs. Phillips was employed, and the family's sole source of income was public assistance in the amount of $414.00 per month and food stamps in the amount of $207.00 per month. Mr. Phillips testified that he had applied for and been denied Social Security Disability benefits. N.T. at 7. It was suggested that Mr. Phillips might still be entitled to such benefits. Id. Mr. Phillips also testified that he hoped to be able to return to work:

[ 123 Pa. Commw. Page 530]

CA At present, does your doctor say you can work?

A1 The doctor says that I should not be able to yet, because he don't [sic] feel that my muscle tone has come back to where it should be.

CA Has your doctor released you to ...


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