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08/20/97 SUCCESS AGAINST ALL ODDS v. DEPARTMENT

August 20, 1997

SUCCESS AGAINST ALL ODDS, BY SHEILA ST. AMAND, TRUSTEE AD LITEM, KENSINGTON WELFARE RIGHTS UNION, BY CHERI HONKALA, TRUSTEE AD LITEM, DENISE BELL, CARMEN PEREIRA, AND MARIA CASIANO, ON BEHALF OF THEMSELVES, THEIR MEMBERS, THEIR MINOR CHILDREN, AND ALL OTHER SIMILARLY SITUATED PERSONS, PETITIONERS
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge,* Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Doyle.** Judge Leadbetter did not participate in the decision in this case. Senior Judge Jiuliante Dissents.

The opinion of the court was delivered by: Doyle

ORIGINAL JURISDICTION

OPINION BY JUDGE DOYLE***

FILED: August 20, 1997

Before us for Disposition are the preliminary objections of the Department of Public Welfare (DPW) to Petitioners' April 1, 1997 class action petition for review filed in our original jurisdiction pursuant to 42 Pa. C.S. § 761. Petitioners are two organizations, Success Against All Odds and the Kensington Welfare Rights Union, and three individual public assistance recipients who sued on their own behalf as well as for all those similarly situated. For the following reasons, we sustain DPW's preliminary objections in the nature of a demurrer, but we will address all of the objections raised by DPW because the matter is in our original jurisdiction and will more than likely be appealed to the Supreme Court for appellate review.

On April 1, 1997, Petitioners filed a class action petition for review *fn1 seeking injunctive, declaratory and monetary relief against DPW, which had suspended child support pass-through payments to eligible public assistance beneficiaries. The impetus for the petition for review was DPW's March 1, 1997 publication in the Pennsylvania Bulletin of a "Notice of Rule Change" announcing the elimination of the child support pass-through payments for both federal and state aid recipients. *fn2 In initiating the elimination of the child support pass-through payments, DPW relied upon its interpretation of language contained in Act 35 of 1996, *fn3 which was adopted by Pennsylvania's General Assembly and signed into law by Governor Ridge on May 16, 1996.

Section 12 of Act 35 amended Section 432.7 of the Public Welfare Code *fn4 (Code), in pertinent part, as follows (with additions indicated by underline and deletions indicated by strikeout):

Section 432.7. Determination of Paternity and Enforcement of Support Obligations

In accordance with a child support plan approved by the Federal Government, the department shall have the power and its duty shall be to:

(a) Require as a condition of eligibility for assistance that the applicant or recipient:

(2) Assign to the department on forms provided by the department such support rights as the applicant or recipient may have

in his own behalf individually or on behalf of any family member who is a part of the assistance unit group.

(b) Provide for protective payments as set forth in section 432.7A. Require cooperation in accordance with the following:

(1) Subject to federal approval, only when necessary, cooperation shall include, but not be limited to, taking the following actions:

(i) identifying the parents of any child for whom assistance is sought or received, including appearing for scheduled genetic testing with the child;

(vi) paying to the department any support payment received directly from an absent parent after an assignment of support has been made.

(c) Provide that in any case in which the child support payments are collected for a child with respect to whom an assignment has been made pursuant to clause (2) of subsection (a), such payment shall be made to the department for distribution pursuant to subsection (g) except for those payments made for any month in which the amount collected is sufficient to make such family ineligible for assistance. . . .

(g) Provide for bonus payments to recipients consistent with Federal law from amounts collected periodically without any decrease in the amount of assistance. The department shall continue payment of support pass-through payments to assistance recipients as required by Federal law.

Consequently, Section 432.7(g) of the Code, which is the specific section of the Code that pertains to child support pass-through in this Commonwealth, now provides that "the department shall continue payment of support pass-through payments as required by Federal law."

At the time Act 35 was signed into law by Governor Ridge, the federal government had not yet changed the federal requirement that states receiving block grants recognize the fifty-dollar child support pass-through. However, on August 22, 1992, the United States Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which repealed the Aid to Families with Dependent Children (AFDC) program and replaced it with the Temporary Aid to Needy Families (TANF) program. PRWORA essentially put an end to the federal requirement that states comply with child support pass-through. Because federal law ceased to require the pass-through payments, DPW concluded that, pursuant to the express language of Section 12 of Act 35, DPW was no longer required, or authorized, to make such pass-through payments and therefore responded accordingly.

On January 18, 1997, DPW published its TANF State Plan in the Pennsylvania Bulletin and submitted the State Plan to the federal government at that time as well. Subsequently, in accordance with Section 20 of Act 35, the Department published a "Notice of Rule Change" to announce the implementation of the State Plan, including the rescission of the regulation requiring DPW to disregard the first fifty dollars of support received by the family, which had been codified at 55 Pa. Code § 183.81(29). The change was to be effective as of March 3, 1997, as authorized by the federal government. *fn5

On April 1, 1997, Petitioners filed a motion for a preliminary injunction, seeking to enjoin DPW from enforcing its policy regarding the elimination of child support pass-through. On April 22, 1997, Judge Kelton considered Petitioners' request for a preliminary injunction. No testimony or other evidence was taken at that time in light of the lengthy joint stipulation of facts, which consisted of thirty-two pages with 104 stipulated facts and was dated the same day.

The joint stipulation of facts, with emphasis added, pertinently provides as follows:

I. LEGISLATIVE HISTORY OF ACT 35 OF 1996

1. Senate Bill 1441, the legislation eventually enacted as Act 35, as originally introduced, contained the following provision:

Subject to Federal approval, only when necessary, the department shall cease payment of support pass-through payments to assistance recipients. Such cessation shall occur at the earliest time permitted by Federal law.

S.B. 1441, Printer's Number 1814, § 12, amending 62 P.S. § 432.7(g). The Senate passed the bill by a vote of 32-17.

2. By a vote of 200-0, the House of Representatives unanimously amended Senate Bill 1441 to delete this proposed language and to restore the prior statutory language at 62 P.S. § 432.7(g), which read:

In accordance with a child support plan approved by the Federal Government, the department shall have the power and its duty shall be to:

[(g)] Provide for bonus payments to recipients consistent with Federal law from amounts collected periodically without any decrease in the amount of assistance.

S.B. 1441, Printer's Number 1992, § 12. This language dated back to 1976.

3. The Senate non-concurred on the House Amendments to S.B. 1441 by a vote of 28-21.

4. The bill was subsequently sent to Conference Committee. The Conference Committee Report proposed the following language concerning the Child Support Pass-Through:

The department shall continue payment of support pass-through payments to assistance recipients as required by Federal law.

S.B. 1441, Report of the Committee of Conference, Printer's Number 2008, § 12, amending 62 P.S. § 432.7(g)

9. The House of Representatives subsequently passed S.B. 1441 as reported by the Conference Committee by a vote of 103-93 . . . . It became known as Act 35 of ...


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