Appeal, No. 168, Jan. T., 1958, from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1957, No. 1713, in case of Commonwealth of Pennsylvania, Department of Welfare v. Florence M. Garland, individually and trading as Garland Home. Decree affirmed.
Jerome H. Gerber, Deputy Attorney General, with him Herbert S. Levin, Special Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellant.
Maxwell L. Davis, with him Herman S. Davis, and Davis & Davis, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
A narrow issue is presented on this appeal: does an equity court have discretion to refuse an injunction where the Department of Welfare submits evidence that a private convalescent home is being operated without a license issued by the Department?
Florence Garland, the appellee, since 1950 has been operating a private convalescent home for the aged*fn1 at 2041-43 Wallace Street, Philadelphia, wherein were twenty-nine patients. On October 3, 1956 the Department of Welfare issued a license to appellee, dated February 11, 1956, to operated a private convalescent home accommodating a maximum of thirty-seven patients. On April 4, 1957 the Department advised appellee that her license, which expired February 10, 1957, was not being renewed because she had failed to maintain certain standards and facilities required by the Department. Following conferences between departmental representatives and appellee's counsel, the appellee was notified on July 10, 1957 that her license would not be renewed and she was directed to discontinue operation of the home. Appellee then instituted a mandamus action against the Department in the Dauphin County Court seeking the restoration of her license and that action is still pending. On August 29, 1957 the Department advised appellee's counsel that no further proceedings would be taken against the appellee pending the decision in the mandamus action "unless it should appear from complaint or inspection hereafter made that the well-being of patients urgently requires it."
On October 11, 1957 appellee was arrested on charges of illegal possession of dangerous narcotic drugs, the prosecution of which is still pending.
On October 25, 1957 the Department, acting under the Act of April 6, 1951, P.L. 68, §§ 1-4, as amended,*fn2 instituted the present equity action to enjoin the appellee from operating the home. After issue joined, and a hearing, the Court below refused to issue an injunction. From such action this appeal was taken.
The Department elected, both in the Court below and in this Court, to take the position that under the Act of 1951, supra, it was entitled to the issuance of an injunction simply and solely upon proof that the appellee was operating a private convalescent home without a license. The Court below, in refusing the injunction, took the position that the Act of 1951, supra, did not give to the Department the right to an ...