Opinion
No. 891 M.D. 2010
11-21-2012
Constance Naylor, May Susan Kimball, and Salahuddin Al-Sadiq, Individually and on behalf of all Others similarly situated, Petitioners v. Commonwealth of Pennsylvania, Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
This is an opinion in support of this Court's order, dated November 2, 2012, denying Petitioners Constance Naylor, May Susan Kimball, and Salahuddin Al-Sadiq (Petitioners) Application for Reconsideration or Reargument En Banc of this Court's order, dated October 3, 2012, wherein the Court denied Petitioners' renewed application for summary relief and granted the cross-application for summary relief filed by the Commonwealth of Pennsylvania, Department of Public Welfare (the Department). Although the Court's reasons for denying Petitioners' application and granting the Department's cross-application are set forth fully in the Court's accompanying opinion filed October 3, 2012 (Opinion), we write to address a single issue that Petitioners raised in their application for reconsideration/reargument, which is not addressed by our Opinion.
In their application for reconsideration/reargument, Petitioners contend that this Court erred in granting the Department's cross-application for summary relief and dismissing their amended petition for review, because there was a genuine issue of material fact as to whether the Department considered the four factors required by Section 432(2)(iii) of The Public Welfare Code (the Code), Act of June 13, 1976, P.L. 31, as amended, 62 P.S. § 432(2)(iii), when it reduced levels of State Supplementary Payments (SSP) in 2010. What Petitioners fail to perceive is that this issue was not before the Court, because Petitioners failed to raise it in their amended petition for review.
Section 432(2)(i) of the Code requires the Department to pay SSP to "persons who receive Federal supplemental security income for the aged, blind and disabled pursuant to Title XVI of the Federal Social Security Act." Pursuant to Section 432(2)(iii) of the Code, 62 P.S. § 432(2)(iii), the Department is required to establish the SSP amounts based upon "the funds certified by the Budget Secretary as available for State supplemental assistance, pertinent Federal legislation and regulation, the cost of living and the number of persons who may be eligible."
In paragraph 22 of their amended petition for review, Petitioners averred that the Department's notice was deficient because, inter alia, the notice cited only state budget limitations and the number of people who may be eligible to receive the SSP, but did not cite the budget appropriated for SSP payments or the cost-of-living for SSP recipients or provide other documentation or analysis. Whether a notice cites factors to be considered (or provides documentation or analysis) is a different issue from whether the Department considered certain factors in reducing the levels of SSP amounts. Petitioners now argue the latter-i.e., that the Department failed to consider the factors when making its decision. Petitioners, however, did not aver in their amended petition for review that the Department failed to consider those factors when it established the reduced SSP amounts, and Petitioners did not develop any arguments in support of that claim in their briefs to the Court. Rather, the arguments before the Court solely related to whether the Department's mere publication of notice of the reduction of SSP amounts in the Pennsylvania Bulletin was valid in the absence of a new regulation establishing the reduced SSP amount. We concluded that the Department's manner of announcing the reduced SSP amounts through publication of the notice complied with 55 Pa. Code § 299.37.
Paragraph 22 of the amended petition for review provides:
DPW attempted to reduce the SSP via publication in the Pennsylvania Bulletin, citing the revised 55 Pa. Code § 299.37. 40 Pa. Bull. 479 (January 16, 2010). This was the first time since 2005 that [the Department] tried to reduce SSP payment levels simply by publishing a notice in the Pennsylvania Bulletin. In its brief notice, [the Department] cited only "state budget limitations" and the number of people who may be eligible to receive the SSP. It provided no detail or analysis to support these assertions. But most important, DPW did not promulgate this new regulation changing the SSP amounts consistent with formal rule-making procedures as required by statute. It did not provide documentation of the budget appropriated to pay the SSP grants. It did not address the cost-of-living for SSP recipients as is required by state statute.
Moreover, we note that Petitioners did not develop in their briefs any real argument relating to any alleged inadequacy of the substance of the notice, other than mentioning that the notice did not address all four (4) of the criteria to be considered. For purposes of clarification, we note that neither 55 Pa. Code § 299.37 nor Section 432 of the Code require the Department to cite in its notice the statutory criteria to be considered when establishing SSP amounts, and Petitioners do not refer us any other statutory or regulatory provisions that require the Department to do so. Thus, to the extent that Petitioners argue that the Department's notice was invalid for failure to cite the statutory criteria set forth in Section 432(2)(iii) of the Code, the argument is without merit.
Furthermore, we note that Petitioners averred in paragraph 31 of their amended petition for review and paragraph 20 of their renewed application for summary relief, respectively, that "[t]here are no factual issues that need to be developed," and "[t]here are no material facts in dispute." Such averments were and continue to be accurate in the context of the issues that were actually before the Court, relating to the validity of the reduction of the SSP amounts through mere publication of a notice in the Pennsylvania Bulletin. Thus, it appears disingenuous on the part of Petitioners to now assert that genuine issues of material fact exist such that relief cannot be granted.
We note that the Department submitted affidavits in which Department representatives asserted, in part, that the Department considered the factors set forth in Section 432(2)(iii) of the Code when reducing the SSP amounts. It appears that Petitioners and the Department may be under the mistaken belief that the Court relied upon the assertions in the Department's affidavits. The Court, however, did not rely on those assertions in reaching its decision, particularly because whether the Department considered the factors was not relevant to our analysis, given that the issue was not before the Court. --------
As discussed above, the Court's Opinion does not address whether the reduction of SSP amounts is invalid as a result of the Department's alleged failure to consider the factors required by Section 432(2)(iii) of the Code when it reduced SSP amounts in 2010, because that issue was not before the Court as part of this matter.
/s/_________
P. KEVIN BROBSON, Judge