St. Elizabeth's Child Care Center v. Department of Public Welfare

CONCURRING OPINION BY

Judge PELLEGRINI.

While I agree with the majority’s analysis that the Department of Public Welfare (Department) lacked statutory authority to require St. Elizabeth’s Child Care Center (St. Elizabeth’s) to obtain a license or certificate, I would not reach that issue, but instead reverse on the basis that the Department did not have jurisdiction to issue the order we are now reviewing.

In its April 18, 1997 notice, the Department ordered St Elizabeth’s to “immediately CEASE AND DESIST operation” and then went on the state:

You have a right to appeal the Department’s decision within thirty (30) days of the mailing of this decision. Enclosed is a copy of the Department’s Licensure/Approval Appeal. YOUR APPEAL MUST INDICATE THE REASONS FOR THE APPEAL AND YOU MUST BE SPECIFIC AS POSSIBLE REGARDING THE AREAS OF DISAGREEMENT WITH THE DEPARTMENT’S DECISION [55 Pa. Code] (§ 9003.11(C)).
If you do not appeal the decision of the Department it will become final.

Fearing that the decision would become final if it did nothing, St. Elizabeth’s appealed the decision to the Department’s Hearing and Appeals which rendered a decision after hearing eight years later.

As the majority points out, Article IX of the Public Welfare Code1 does not give the Department the power to require a nonprofit day care center to have a certificate of compliance to operate. Under Section 911 of the Public Welfare Code, 62 P.S. § 911, the Department is limited to visiting and inspecting non-profit centers and to inquiring into all matters relating to its operations; 62 P.S. § 911(a); and is given “free and full access” to the facility premises, records and all persons connected with St. Elizabeth’s. 62 P.S. § 911(b). If *1284the Department finds any conditions that are “unlawful, unhygienic, or detrimental,” it is authorized to notify the institution of such conditions and “to direct the ... institution to correct the said objectionable conditions.” 62 P.S. § 911(c). If the institution fails to correct any such objectionable conditions, the Department, however, is not given the power to hold a hearing on whether the institution is in compliance or, as here, whether the institution is required to get a license.

62 P.S. § 911(c) is quite specific that the Department’s only civil legal remedy is to request an attorney to bring the appropriate action to enforce compliance. It provides:

If such officer or officers shall fail to comply with such direction, the department may request the Department of Justice to institute appropriate legal proceeding to enforce compliance therewith. .. ,2

As can be seen, nothing gives the Department the authority to adjudicate a cease and desist order.

The manner in which a “cease and desist order” is enforced is important because it determines the type of access an entity has to this Court. If a cease and desist order can be enforced through the Department’s administrative process, an appeal would come before this Court and we would review the Department’s order in our appellate jurisdiction and apply, as does the majority, the normal administrative agency scope of review.3 If, however, the Attorney General accedes to the Department’s request and brings an action to enforce its cease and desist order, then a court and not the agency would make its own findings of fact unencumbered by the effects of any action taken by the Department.

Because Section 911(c) of the Public Welfare Code, 62 P.S. § 911(c), only authorizes the Department to bring an action and the Department does not have the jurisdiction to enforce its cease and desist order through that basis, I would also reverse.

Judge COHN JUBELIRER joins in this concurring opinion.

. Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 901-922.

. The Department’s other remedy is to "withhold any state money available for such institution until such officer or officers comply with such direction.” 62 P.S. § 911(a).

. Our normal appellate administrative scope of review is whether the adjudication is in accordance with law, whether constitutional rights have been violated, or whether the findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.