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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Gonzalez-Carmelo,
:

Petitioner :

:

v.

: No. 1050 C.D. 2002

: Submitted: November 8, 2002
Department of Public Welfare,
:

Respondent
:
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION
BY JUDGE LEAVITT

FILED: March 19, 2003

Mary Gonzlez-Carmelo (Petitioner) petitions for review of an
adjudication of the Department of Public Welfare, Bureau of Hearings and Appeals
(Department), denying her request for a restoration of cash assistance and food
stamp benefits. In doing so, the Department affirmed the decision of the hearing
examiner denying her appeal from a decision of the Luzerne County Assistance
Office (CAO). We affirm the Department.
On June 13, 2000, Petitioner met with an income maintenance
caseworker to report that she had recovered an unspecified amount under a tort
claim settlement. Under the Temporary Assistance for Needy Families Program
(TANF), Petitioner had been collecting cash assistance and food stamps
appropriate for a three person household.1 In addition, she and her two children

1 In 1988, Petitioner was originally found eligible for cash assistance and food stamps. In
November of 1993, Petitioner was determined eligible for supplemental security income (SSI) in
(Footnote continued on next page . . . )

were enrolled in the medical assistance program. At the conclusion of this
meeting, Petitioner executed documents to effect a termination of cash assistance
and food stamp benefits; however, she requested that her family's medical
assistance benefits be continued. On the same day, the CAO issued a confirming
notice to Petitioner indicating that her benefits were being discontinued at her
written and oral request.2 Petitioner did not appeal or otherwise challenge the
CAO's confirming notice of June 13, 2000.
On December 11, 2001, Petitioner requested the CAO to restore her
terminated benefits. Her filing3 with the CAO alleged that she had not been

(continued . . .)
addition to her cash assistance and food stamps. Although the number of persons belonging in
Petitioner's household had changed since 1988, Petitioner was receiving SSI benefits for herself,
medical assistance and food stamps for a three-person household and cash assistance for her two
children as of June 13, 2000. Adjudication, Findings of Fact, 1-7.
2 State regulations provide that a confirming notice is to be issued to notify a discontinuance of
cash assistance and medical assistance benefits. They provide as follows:
The confirming notice is used to provide the client with confirmation of an action
that has been taken . . . . The CAO shall take its action and provide the client with
a confirming notice whenever one of the following changes occur:
***
(2) A decrease or discontinuance of a monthly assistance
payment, MA benefits or services resulting from one of the
following:

(i) A written request signed by the client or someone
acting on his behalf.
55 Pa. Code § 133.4(c)(2)(i). The food stamp program, however, is governed by the
federal regulations. 55 Pa. Code §501.1. The federal regulations provide that a letter
confirming the voluntary withdrawal of food stamp benefits must be sent when the
household does not provide a written request to terminate food stamp benefits. 7 C.F.R.
§273.13(b)(12).
3 In this filing, Petitioner was represented by Legal Services of North Eastern Pennsylvania, Inc.
William McLaughlin, paralegal, personally represented Petitioner.

2

correctly advised by the CAO on her eligibility for benefits and, further, that she
had signed the Voluntary Withdrawal Of Benefits Form under coercion from a
field agent of the Office of Inspector General.
On December 26, 2001, the CAO, by William Schabener (Schabener),
District Manager, denied Petitioner's request for a restoration of benefits for the
stated reason that Petitioner voluntarily requested their termination. His
conclusions were set forth in a letter in which he explained the basis for denying
Petitioner's request. The letter stated,
[Petitioner] visited the Hazleton District Office of the Luzerne
County Assistance Office of her own volition on June 13, 2000.
The stated purpose of [Petitioner's] visit was to report that, as
excerpted from the narrative entry, "she had received a lump
sum of money but was `legally bound' not to disclose the
amount or where it came from . . . She asked for the children's
cash to be closed, as well as F.S. She wanted only medical to
continue." When questioned by the responsible [Income
Maintenance Caseworker] and, afterwards, by a Field Agent of
the Office of the Inspector General as to why [Petitioner]
wanted her cash and food stamps terminated, she replied that
she was no longer in need of them.
To be precise, at no time did any representative of the Hazleton
District Office either explicitly state, or otherwise imply that
[Petitioner] was ineligible for continued benefits because of the
receipt of a lump sum settlement.
Additionally, with respect to events surrounding [Petitioner's]
application interview conducted on or about December 4, 2001,
at no time did any representative of the Hazleton District Office
either explicitly state, or otherwise imply that [Petitioner's]
cash and food stamp benefits were erroneously closed. As
stated above, [Petitioner's] cash and food stamp benefits were
closed based solely on an unsolicited written request made by
[Petitioner].

3

Schabener Letter dated December 26, 2001 (emphasis added). Petitioner appealed
the CAO's determination to the Department.4
At the hearing before the hearing examiner, Schabener testified on
behalf of the CAO. Schabener explained that he conducted a thorough review of
the Petitioner's case file and interviewed the CAO representatives. His letter was
placed into the record.
Next, Ruthann Schultz (Schultz), Income Maintenance Caseworker,
testified. She explained that at the June 13, 2000 meeting, Petitioner stated that she
wanted to discontinue her cash assistance and food stamp benefits because she had
received a "settlement." However, the settlement agreement did not permit her to
disclose the amount of the settlement or its source. Schultz conferred with her
supervisor, who recommended that Petitioner speak with Michael Reddy, a
representative of the Inspector General. She did so. Schultz then met again with
Petitioner and informed her that she did not have to terminate her cash assistance
or food stamp benefits. In response to Schultz, Petitioner stated that her bills were
current; she had bought a car; she had made a down payment on a new home; and
she was paying for private school for her daughter. Petitioner stated that she only

4 On March 6, 2002, the CAO submitted a motion to dismiss the Petitioner's appeal alleging that
Petitioner did not file the confirming notice in a timely manner and as a result Petitioner waived
her right to an appeal. The Bureau, however, concluded that Petitioner's appeal was filed in a
timely manner because the CAO did not actually deny Petitioner's request for restoration of lost
benefits until December 26, 2001. Petitioner filed her appeal on December 31, 2001, which was
within a few days of the actual denial. Bureau Adjudication, 4. The regulations provide that
with regard to cash assistance, Petitioner has thirty days from the date of written notice of a
decision or action by the CAO to file an appeal. 55 Pa. Code §275.3(b)(1). For food stamps, a
household may request a hearing within 90 days from the date of an action by the CAO or loss of
benefits. 55 Pa. Code 275.3(b)(4). The issue relating to the timeliness of Petitioner's appeal has
not been raised on appeal.

4

needed medical assistance for the children. Accordingly, Schultz asked Petitioner
if she wished to sign the voluntary withdrawal form, and Petitioner responded
"yes, I want everything closed. I don't want to raise my children on welfare. I'll
sign this." Testimony Transcript, 32 (Test. Tr. ___ ). Petitioner then signed the
voluntary withdrawal form.
Schultz acknowledged at the hearing that her notes of the June 13,
2000 meeting did not record her discussion with Petitioner on her continued
eligibility for benefits. Schultz explained that not every bit of information is put
into case notes; the case notes serve only as a summary of contact with a client.
Schultz also acknowledged that Petitioner and her children remained eligible for
cash assistance and food stamp benefits as of June 13, 2000, notwithstanding the
settlement.
Reddy also testified at the hearing. He explained that at Schultz's
request, he had interviewed Petitioner. After showing his Inspector General badge,
he inquired into the terms of her settlement. Petitioner explained that she had
received approximately $67,000 in settlement of a medical malpractice action that
she had filed. With those proceeds, Petitioner purchased a home for approximately
$31,000 and a Dodge Durango truck. Petitioner stated that she wanted to close her
welfare case because she was no longer eligible for benefits. Reddy informed her
that she was still eligible for benefits and referred her back to Schultz. After her
meeting at the CAO, Petitioner showed Schultz and Reddy her new truck.
Petitioner also testified at the hearing. Petitioner claimed that Schultz
informed her that she no longer qualified for food stamp benefits because her new
vehicle was too valuable. Petitioner also stated that she refused to disclose the
specifics of her settlement because of a confidentiality agreement; however, she

5

offered the name of her attorney for Schultz to contact. At this point, Schultz
called Reddy into the office, who, according to Petitioner, informed her that she
was not eligible for assistance benefits. Petitioner asserted that she felt intimidated
by Reddy because he told her that he was with the Fraud Investigation Unit. She
claimed that Reddy told Petitioner that she should sign the voluntary withdrawal
form. Finally, Petitioner claimed that the voluntary withdrawal form was blank
when she signed it and, that, in any case, she would not have signed had she known
that she was eligible for benefits notwithstanding her settlement.
After reviewing the testimony, the hearing examiner concluded that
Petitioner's decision to sign the voluntary withdrawal form was voluntary. The
hearing examiner reasoned that,
Both Ms. Schultz and Mr. Reddy provided credible testimony
regarding their discussions with the [Petitioner] on June 13,
2000. The [Petitioner] claimed, at the hearing, that she was
intimidated and frightened during her interview with Mr.
Reddy, yet she went outside with him and Ms. Schultz and
showed her vehicle to them. Despite the fact that there is no
mention of a discussion of eligibility in her case notes, Ms.
Schultz testified that she did not discuss the [Petitioner's]
eligibility with her. Evidence to support this contention is
found on the withdrawal form, in that the [Petitioner] opted to
continue her household Medical Assistance benefits.

Furthermore, it is the position of the [Petitioner] that she signed
a blank form and that the information was completed after she
signed the form. Regardless of whether the [Petitioner] felt
intimidated during her interview, the form is clear on its fact
when one considers the title of the form, "Voluntary Withdrawl
(sic) Form." Even if no information was inserted prior to her
signature, the obvious purpose of the form is to discontinue
benefits on a voluntary basis and there is no dispute that the
[Petitioner] signed this form.

6

Adjudication, 8. Accordingly, the hearing examiner denied the appeal, and the
Department adopted the hearing examiner's determination. Petitioner then
petitioned for this Court's review.
On appeal, Petitioner contends that the Department erred by failing to
restore her benefits for the period from June 13, 2000, through December 20015
because Petitioner was entitled to the benefits notwithstanding her settlement.6

5 Specifically, Petitioner requests that her food stamp benefits be reinstated at least 12 months
prior to her request for restoration of benefits that was made on December 11, 2001. Petitioner
requests that her cash assistance benefits be reinstated from June 13, 2000 through the reopening
the case in either November or December 2001. Petitioner's Brief, 13.
6 Petitioner relies on Section 432.16 of the Public Welfare Code, Act of June 13, 1967, P.L. 31,
as amended, 62 P.S. §432.16(c), to support her argument that she is entitled to a retroactive
payment when the agency makes an error. Section 432.16 provides that,
(c) The department shall establish procedures for retroactive correction of
underpayments caused by administrative error provided that:
(1) retroactive payments shall be limited to the twelve months
preceding the month in which the underpayment first becomes
known to the department;
(2) retroactive payments to correct improper denial of assistance
shall be made for up to twelve months prior to the month in which
the error first becomes known to the department, but in no case
earlier than the date of application;
(3) for the purposes of determining continued eligibility and the
amount of assistance, such retroactive corrective payments shall
not be considered as income or as a resource in the month in which
paid nor in the next following month.
In addition, the state and federal regulations provide that:
Individuals have a right to receive corrective payments when they have been
underpaid due to agency error or delay. In cases, corrective payment shall be
made promptly, so that the client will receive the check for the corrective payment
within 30 calendar days from the date of verification of the underpayment.
55 Pa. Code § 175.23(b)(1)(iii)(emphasis added)

(a) Entitlement.
(Footnote continued on next page . . . )

7

Further, Petitioner contends that she did not sign the withdrawal form voluntarily;
rather, Reddy coerced her into signing it by showing her his badge, telling her that
he was with the Fraud Investigative Unit and by telling her that she was no longer
entitled to benefits. Therefore, Petitioner asks that the Department's determination
be reversed.
This Court's scope of review of an adjudication of the Department is
limited to determining whether the adjudication is supported by substantial
evidence and in accordance with the law and whether petitioner's constitutional
rights were violated. Carr v. Department of Public Welfare, 412 A.2d 1126 (Pa.
Cmwlth. 1980). As the fact finder, the hearing examiner's role is to resolve
conflicts in testimony and reject the testimony of any witness. Geriatric &
Medical Services, Inc. v. Department of Public Welfare, 616 A.2d 746, 747 (Pa.
Cmwlth. 1992); see also Gomez v. Department of Public Welfare Office of
Children Youth and Families, 533 A.2d 826, 828 (Pa. Cmwlth. 1987). The hearing

(continued . . .)
(1) The State agency shall restore to households benefits which
were lost whenever the loss was caused by an error by the State
agency or by an administrative disqualification for intentional
Program violation which was subsequently reversed as specified in
paragraph (e) of this section, or is there is a statement elsewhere in
the regulations specifically stating that the household is entitled to
restoration of lost benefits.
7 C.F.R. §273.17(a)(1)(emphasis added).
Further, the regulations provide that if the client caused an error then she is entitled to a
restoration of benefits. 55 Pa. Code § 227.24(d)(1)(ii)(A)(III). This regulation has no
application here because the hearing examiner found that Petitioner intended to terminate her
TANF benefits voluntarily. The fact that she may have later changed her mind doe not mean that
her earlier decision was an underpayment error.

8

examiner is empowered to determine questions of evidentiary weight and matters
of credibility.
Here, the hearing examiner found the testimony of Schultz and Reddy
to be credible on the point of whether Petitioner voluntarily signed the withdrawal
form. Adjudication, Findings of Fact, 19-20. These credibility findings may not
be set aside by this Court. Carr, 412 A.2d at 1128. Both Schultz and Reddy
testified that Petitioner came into the office on June 13, 2000, intending to
terminate her cash assistance and food stamp benefits. Nevertheless, Schultz
informed Petitioner that she was entitled to the cash assistance and food stamp
benefits notwithstanding her settlement. Test. Tr. 31-32. Reddy denied that he
told Petitioner that she and her children would never be eligible for benefits again.
Test. Tr. 43. The hearing examiner also believed Schultz's testimony that the
Petitioner wanted to sign the "Voluntary Withdrawl [sic] Form." We agree with the
Department that this large print title, even misspelled, states the purpose of the
form with absolute clarity. Even Petitioner does not dispute the fact that she
signed it.
Because the hearing examiner's findings are supported by substantial
evidence, we conclude that Petitioner voluntarily waived her benefits for the period
of June 13, 2000 through December 31, 2001, and that no error of law was
committed.
Accordingly, we affirm the decision of the Department.

_____________________________

MARY
HANNAH
LEAVITT,
Judge

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Gonzalez-Carmelo,
:

Petitioner :

:

v.

: No. 1050 C.D. 2002

:
Department of Public Welfare,
:

Respondent
:

ORDER

AND NOW, this 19th day of March, 2003, the order of the Department
of Public Welfare, Bureau of Hearings and Appeals, dated March 28, 2002, in the
above-captioned matter is hereby affirmed.

_____________________________

MARY
HANNAH
LEAVITT,
Judge