Zimmerman v. O'Bannon

Dissenting Opinion by

Judge Doyle:

After a careful review of the pertinent statutes and controlling regulations herein, I believe we should reject the Attorney General’s challenge to the De*487partment’s Plan and regulations and I therefore dissent from the position taken by the majority.

Section 1007 of the Code, 62 P.S. §1007 reads:

Issuance of License
When, after investigation the department is satisfied that the application or applicants for a license are responsible persons, that the place to be used- as a facility is suitable for the purpose, is appropriately equipped and that the applicant or applicants and the place to be used as a facility meet all the requirements of this act and of the applicable statutes, ordinances and regulations, it shall issue a license and keep a record thereof and of the application. (Emphasis added.)

I agree with the majority that “inspection” as discussed in Act 105 in the context of an inspection schedule is not synonomous with “investigation” as discussed in Section 1007 of the .Code in the context of annual licensure. I do not agree, however, that the former can be read separate and apart from the latter. While the actual term “inspection” is not used in Section 1007 of the Code, that section’s requirements that the investigation satisfy the Department that the facility is suitable and appropriately equipped and that the place meets all the requirements of the Code can only be interpreted to mean that an inspection is part of the investigation requirement, i.e. no investigation is complete unless an inspection has been conducted. Thus, the language of Act 105 specifically allowing the Department to establish an inspection cycle which may provide that no licensed personal care boarding home be inspected more than once every two years is in direct conflict with the annual investigation and licensure require*488ments of Sections 1006, 1007 and 1009 of the Code, 62 P.S. §§1006, 1007 and 1009. Moreover, even if an investigation did not require an inspection per se, I am at a loss to see how the elements of Section 1007 of the Code could possibly be satisfied on an annual basis without the Department conducting a visit to the facility to be licensed. This is patently at odds with Act 105’s provision that “personal care boarding homes need not be visited . . . annually.” Accordingly, as it is well settled that where, as here, provisions of two statutes are irreconcilable, the provisions of the statute enacted the latest in date shall prevail, Section 1936 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1936. I would therefore hold that the requirement of annual investigation and licensure in Sections 1006, 1007 and 1009 of the Code has been implicitly repealed by Act 105 and that the two year licensing period in the Plan and regulations at issue herein is not contrary to the Law.

Moreover, I also feel this conclusion more closely tracks the legislative intent behind Act 105, than does the conclusion reached by the majority. As stated in its preamble, the purpose of Act 105 is to provide a vehicle by which to “eliminate fraudulent, abusive and deceptive conduct and practices that may occur” in the administration of governmentally reimbursed personal care boarding home services under the Code. Consistent with the preamble, Act 105, by explicit terms, requires the Department to develop and implement” a statewide plan for “regulating and licensing” personal care boarding homes. (Emphasis added.) Accordingly, in its preliminary form, which included the two year licensing requirement, see 11 Pa. B. 192 (1981), did not see fit to submit any adverse comments to the Department with respect to the licensing provisions.

*489Therefore, I would affirm the Department’s promulgation of the Personal Care Boarding Home Plan and its implementing regulations.