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SHARP'S CONVALESCENT HOME v. DEPARTMENT PUBLIC WELFARE (03/01/73)

decided: March 1, 1973.

SHARP'S CONVALESCENT HOME
v.
DEPARTMENT OF PUBLIC WELFARE



Appeal from the Order of the Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania in case of In Re: Appeal of Dr. H. David Sharp, t/d/b/a Sharp's Convalescent Home.

COUNSEL

Walter H. Wilt, with him Hepford, Zimmerman & Swartz, for appellant.

Marx S. Leopold, Assistant Attorney General, with him Barry A. Roth, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 7 Pa. Commw. Page 625]

This is an appeal by H. David Sharp, trading and doing business as Sharp's Convalescent Home (Sharp) from an Order of the Secretary of the Department of Public Welfare (Secretary), wherein Sharp was directed to cease and desist in the operation of his nursing home.

On September 22, 1971, the Department of Public Welfare (Department) issued an order requiring Sharp to make certain required improvements within 60 days or to cease all operations as a nursing home. As of December 29, 1971, Sharp had not complied with the requirements set forth in the Order of September 22, 1971, and was therefore ordered to cease and desist operating the nursing home within 30 days. Sharp appealed the Order of December 29, 1971, and a hearing was set for March 21, 1972. Although 11 specific violations were referred to in the original Order of September 22, 1971, by the time of hearing only one substantial issue remained. That remaining problem was one involving the staffing of the nursing home. In specific, Sharp failed to comply with the Department regulation requiring a Registered Nurse (RN) or Licensed Practical Nurse (LPN), on all shifts during the nursing home operation. The hearing was held on March 21, 1972 and restricted to the issue of staffing. The hearing officer found that Sharp had not complied with the Department regulation pertaining to staffing, and as a result, on April 17, 1972, the Secretary issued an order to the appellant directing him to cease and desist operating his nursing home within 15 days. On May 17, 1972, appellant appealed to this Court from the Order of the Secretary.

[ 7 Pa. Commw. Page 626]

Our scope of review in this case is governed by Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. ยง 1710.44. In such cases, the issue before this Court is whether the Department abused its discretion or committed an error of law. If the findings of fact and the conclusions of law are consistent with each other and supported by the evidence, we must affirm. See Parago v. Department of Public Welfare, 6 Pa. Commonwealth Ct. 16, 291 A.2d 923 (1972); A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A.2d 515 (1971).

Appellant alleges that the findings of fact and conclusions of law reached by the Department are not supported by the evidence. Having read and reread the record in this case, the one issue which cannot be disputed is that appellant did not comply with the staffing requirements of the Department regulation. Appellant candidly admits that he did not have in his employ the required number of registered nurses and/or licensed practical nurses. It is appellant's contention that the Department's conclusion is too vague, because it only states that appellant failed to comply with Department regulations. This might very well be a valid complaint if there were several distinct violations involved, but nothing could be clearer from this record than that all parties were dealing with one issue, viz., staffing. Much of the testimony in the record deals with trying to unearth the reason for appellant's staffing problem. Based on the record in this case, we must conclude that the findings of the Department were supported by substantial evidence.

Along with the allegation of abuse of discretion by the Department, Sharp claims several additional violations of the Administrative Agency Law: (1) that he was not given proper notice of the charges against him; (2) that the transcript and record submitted by the

[ 7 Pa. Commw. Page 627]

Department were not in compliance with the Administrative Agency Law; (3) that the Department did not supply appellant with a written copy of the adjudication when it issued its order to appellant; and (4) that appellant was not afforded an opportunity to file a brief prior to the final order of the Department, as required by the Administrative ...


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