Citizens General Hospital v. Commonwealth

Dissenting Opinion by

Judge Williams, Jr.:

In Sarah A. Todd. Memorial Home v. Department of Health, 49 Pa. Commonwealth Ct. 116, 410 A.2d 404 (1980), this Court held that a proposed negative recommendation of the Department of Health lacked the finality required for our. appellate review.

All of the legal efforts of the present plaintiff-petitioner have been to avoid a negative recommendation from the State Department of Health, and its Secretary,, to the federal Secretary of Health and’ Human Services. That reality remains despite the device of casting the sought relief as a prayer for an “automatic approval.” The very purpose of seeking an automatic approval is to. avoid a negative recommendation. To that end, the plaintiff launched two' distinct-*555legal campaigns: (1) the instant action for mandamus to compel the state agency to issue an automatic approval, that is, a favorable recommendation; and (2) an appeal from the hearing examiner’s decision affirming the agency rejection of the plaintiff’s application. It is to be noted that the original action now before us was filed even before the hearing examiner’s decision was entered.

The resort to our appellate jurisdiction was quashed on the strength of the Todd case, that is, on the ground that the plaintiff was premature in seeking judicial review of a proposed negative recommendation. Yet by the majority’s instant opinion, the plaintiff can achieve that very same purpose by resort to our original jurisdiction. The plaintiff can now obtain judicial review under our original jurisdiction of a proposed negative recommendation unreviewable under our appellate jurisdiction.

It was observed in Todd that this Court was powerless to interject itself in the administrative process then constituted. That same administrative process pertains to this case. Therefore, I cannot see how if our interjection by appellate review is barred, our interjection by judicial review under our original jurisdiction is valid.

I dissent.