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decided: April 14, 1989.


Appeal from the Order of the Department of Public Welfare, in the case of Appeal Of: Melissa Strobhar, No. 511090227.


Harriet Dichter, with her, Amy E. Hirsch, Community Legal Services, Inc., for petitioner.

Catherine Stewart, Assistant Counsel, for respondent.

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

Author: Palladino

[ 125 Pa. Commw. Page 163]

Melissa Strobhar (Petitioner) appeals from a decision of the Department of Public Welfare (DPW) terminating her eligibility for Aid to Families with Dependent Children (AFDC) and Medical Assistance (MA) benefits. For the reasons which follow, we dismiss Petitioner's appeal.

On November 3, 1986, the County Assistance Office notified Petitioner it proposed to terminate the AFDC eligibility of Petitioner and her three children. A fair hearing was held on January 15, 1987 and on March 5, 1987 a hearing officer denied Petitioner's appeal. On March 6, 1987 the Office of Hearings and Appeals (OHA) affirmed the hearing officer's decision. Petitioner requested reconsideration, which request was denied on April 27, 1987. Thereafter, on May 8, 1987 Petitioner filed a petition for review with this court.

In Keith v. Department of Public Welfare, 121 Pa. Commonwealth Ct. 405, 551 A.2d 333 (1988), we outlined the various time requirements in DPW cases. Where, as here, a petitioner does not file a petition for review with this court concurrent with a request for reconsideration, the Executive Secretary has forty-five days in which to act on the request for reconsideration. 1 Pa. Code § 35.241(d). As noted above, OHA's final decision was entered on March 6, 1987, and Petitioner thereafter requested reconsideration. The Executive Secretary had forty-five days from March 6, 1987 to act on Petitioner's request. The Executive Secretary did not

[ 125 Pa. Commw. Page 164]

    issue an order denying reconsideration until April 27, 1987, which is beyond the forty-five day period.*fn1

The Executive Secretary was without authority to enter any order on April 27, 1987. Monsour Medical Center v. Department of Public Welfare, 111 Pa. Commonwealth Ct. 359, 533 A.2d 1114 (1987). Thus, the April 27, 1987 order cannot be appealed to this court.*fn2 Accordingly, Petitioner's appeal is dismissed.*fn3

[ 125 Pa. Commw. Page 165]


And Now, April 14, 1989, the appeal of Melissa Strobhar is dismissed.


Appeal dismissed.

[ 125 Pa. Commw. Page 166]

Concurring Opinion by Judge Doyle:

I respectfully concur in the result only. I am in complete agreement with the majority that the appeal here must be quashed because the Secretary failed to act in a timely manner. Further, I cannot deny that the time frames set forth in Regulation 275.4(h)(4)(ii), 55 Pa. Code § 275.4(h)(4)(ii), are unduly cumbersome. My objection is that we are invalidating this subsection of the Regulation sua sponte and, thus, the Department of Public Welfare (DPW) has not been given an opportunity to defend it.

As the majority has itself demonstrated, the regulation is capable of being applied, albeit not without engaging

[ 125 Pa. Commw. Page 167]

    in vigorous mental gymnastics. But, the fact that it can be applied without directly conflicting with other laws makes this case different from Ormes v. Department of Public Welfare, 98 Pa. Commonwealth Ct. 588, 512 A.2d 87 (1986), wherein a different subsection of the instant Regulation was in direct and unresolvable conflict with Rule of Appellate Procedure 1701(b)(3) and, thus, was invalidated sua sponte by this Court.

Finally, I must note that the Regulation in question here is one of DPW's own regulations and has been promulgated to apply only in public assistance cases. See generally Northwestern Institute of Psychiatry v. Department of Public Welfare, 99 Pa. Commonwealth Ct. 213, 513 A.2d 495 (1986). Regulation 35.241(d), 1 Pa. Code § 35.241(d), which the majority utilizes in lieu of DPW's own Regulation, is a catch-all regulation which appears in the General Rules of Administrative Practice and Procedure (General Rules). Regulation 31.1(c) of the General Rules, 1 Pa. Code § 31.1(c), provides that the General Rules are "not applicable to a proceeding before an agency to the extent that the agency has promulgated inconsistent regulations on the same subject." Inasmuch as DPW has promulgated such a rule, I do not believe it is appropriate for us in the circumstances of this case to invalidate a subsection of DPW's Regulation and proceed to apply the General Rules without at least affording DPW the opportunity to defend its own Rule.*fn1 For these reasons I concur in the result only.

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