79 Pa. Commw. 34 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal by Josephine Augelli (Petitioner) from an order of the Pennsylvania Department of Public Welfare (DPW) which terminated cash and food stamp assistance to Petitioner and her child. For the reasons which follow, we reverse.
Petitioner was a recipient of cash assistance and food stamps for herself and one child in Lackawanna County. Following receipt of information that Petitioner’s husband, Frank Augelli, resided with Petitioner at her address, DPW advised Petitioner of its intention to discontinue cash assistance and food stamps for failure to verify information required to determine eligibility, i.e. information regarding the husband’s income. 55 Pa. Code §§133.23(a) and 541.3(h)(5). Petitioner appealed
DPW regulations place the burden on applicants and recipients of welfare assistance to verify conditions of eligibility at the time of application and
The client will be the primary source of information in establishing eligibility for financial assistance. As a condition of eligibility the client will be required, to the exent that he is able, to substantiate the information he has provided by documentary evidence or such other means as may serve to establish the truth of his-statements. (Emphasis added.)
55 Pa. Code §201.1(1). Here, Petitioner testified before the hearing examiner that her husband does not reside with her. Petitioner’s son corroborated his mother’s testimony that his father did not reside with them. Petitioner’s daughter testified that, even as ■a child, she .seldom saw her father and that he did not support his family. Petitioner further testified that she did not know the whereabouts of her husband or his current address. Her daughter testified that when asked to give an address, her father would laugh and state that he did not believe in -addresses. We are at a loss to conceive what documentation or other means Petitioner might have had available under these peculiar circumstances to substantiate the husband/ father’s absence from the household.
The hearing examiner found, weighing all the testimony presented, that Petitioner’s husband is not residing with her. DPW regulations provide that “no findings of fact made by the Hearing Examiner will be subject to reversal.” 55 Pa. Code §275.4 (h)(4)(ii). We have held that the hearing examiner’s findings may not be set aside if they are supported by substantial evidence. Ross v. Department of Public Welfare, 60 Pa. Commonwealth Ct. 403, 431
DPW urges, however, that the Secretary did not reverse a finding of fact but rather reversed the hearing examiner as a matter of law because Petitioner failed to meet her burden of proof. We agree that if a finding or conclusion of the hearing examiner is not supported by substantial evidence, the Secretary may, as a matter of law, reverse the hearing examaminer’s conclusion. Here, however, as noted above, there was substantial evidence to support the hearing examiner. The Secretary found a failure to meet the burden of proof because Petitioner presented no documentary evidence that her husband did not reside with her but resided elsewhere. This was in error. First we note that Petitioner was not required to verify where her husband resided but only that he was not a member of her household. Second, as discussed above, Petitioner presented such evidence as she was able to verify his absence. DPW policy requires no more. 55 Pa. Code §201.1 (1).
The case at bar is distinguishable from Burks v. Department of Public Welfare, 48 Pa. Commonwealth Ct. 6, 408 A.2d 912 (1979). In Buries we upheld the reversal of a hearing examiner’s finding that the husband was not a member of the household because the testimony of the petitioner and the petitioner’s witness was not substantial when weighed against DPW’s “presentation of a great deal of documentary evidence.” Id. at 9, 408 A.2d at 914. In Burks, it had been shown that: 1) the husband had listed the household address as his address with his most recent employer; 2) he had been receiving unemployment compensation checks at the address; 3) he had not changed his address on his license or vehicle registration; 4)
Order
Now, December 8, 1983, the order of the Secretary of Public Welfare in the above referenced matter, dated November 15, 1982, is hereby reversed and the order of the Director of the Office of Hearings and Appeals is reinstated. The matter is remanded for computation of all current and retroactive benefits due. Jurisdiction relinquished.
Petitioner’s appeal was not, filed within, the ten day limit for continuation of benefits pending appeal. Her cash assistance bene-, fits were therefore discontinued effective May 11, 1982 and food stamp benefits were discontinued effective June 1, 1982.