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decided: July 10, 1979.


Original jurisdiction in case of Children's Rehabilitation Center, Inc. and Children's Care Center, Inc. v. County of Allegheny, County of Bradford, County of Butler, County of Cumberland, County of Dauphin, County of Fayette, County of Indiana, County of Lancaster, County of Lawrence, County of Lehigh, County of Montgomery, County of Perry, County of Philadelphia, County of Schuylkill, County of Washington, County of Westmoreland, Counties of York and Adams and Commonwealth of Pennsylvania.


Thomas B. Schmidt, III, with him Pepper, Hamilton & Scheetz, for plaintiffs.

Frank G. Verterano, with him James R. Miller; Dickie, McCamey & Chilcote; James A. Pruyne; William C. Costopoulos; Timothy F. Nicholson; Arnold C. Rapoport; William R. Bunt; Frank L. Tamulonis; Anthony J. Bonadio; John R. White; Alexander J. Jaffurs; James A. Esler, Loraine S. Tabakin; Cheryl A. Craig, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 44 Pa. Commw. Page 173]

By a multiple-count complaint in assumpsit, plaintiffs, Children's Rehabilitation Center, Inc. and Children's Care Center, Inc., seek money damages on a legal theory of implied contract from named counties or from the Commonwealth (Department of Public Welfare) for interim care afforded mentally retarded persons admitted to plaintiff institutions as residents of particular counties, said damages being measured by a per diem rate or fee from a particular date forward in excess of the per diem rate or fee approved by the Department of Public Welfare. Under the Mental Health and Mental Retardation Act of 1966 (the Act), Act of October 20, 1966, Special Sess., P.L. 96, as amended, 50 P.S. ยง 4101 et seq., the Department is responsible for the general supervision and funding of community based programs and the counties are responsible for the operation of such programs under Department supervision.

[ 44 Pa. Commw. Page 174]

All defendants have filed preliminary objections to plaintiffs' complaint raising, among others, the jurisdiction of this Court and a demurrer for failure to state a cause of action. As we sustain the Commonwealth's preliminary objections asserting the want of subject matter jurisdiction of this Court over the cause of action directed against the Commonwealth, we do not reach its demurrer nor the preliminary objections of the named counties.

To posture the Commonwealth's assertion that we lack subject matter jurisdiction, we briefly refer to the plaintiffs' complaint generally and specifically as it is asserted against the Commonwealth. Being captioned as a cause of action in assumpsit, the complaint consists of three counts. The first count is asserted by plaintiff, Children's Rehabilitation Center, Inc., against certain named counties and alleges that it has provided interim care services to certain residents of the named counties at a per diem rate of $24.50 prior to February 1, 1977, that effective February 1, 1977, the per diem rate would be increased to $29.75, of which the counties were given written notice, that interim care services have been rendered since that date but that the counties refused to pay the increased rate for the reason that the Department of Public Welfare has not approved the increase. On these facts and asserting a statutory obligation on the part of the counties to provide the interim care afforded under the Act, plaintiff advances a theory of implied contract in fact and in law.

The second count by plaintiff, Children's Care Center, Inc., against named counties, asserts essentially the same facts and raises the same legal issues. Count III is asserted by both plaintiffs against the Commonwealth, incorporates the essential facts of the first two counts and advances a legal theory that the Commonwealth has an obligation sounding in contract

[ 44 Pa. Commw. Page 175]

    under the facts and by reason of the provision of the Act.

It is thus clear and readily admitted by plaintiffs that the cause of action is one based upon a theory of implied contract or quasi-contract. We compliment the ingenuity of plaintiffs' counsel in attempting to overcome the formidable jurisdictional barriers confronting one who in a single cause of action seeks resolution of legal issues sounding in contract asserted against both local government units and the State government, particularly where a statutory remedy is afforded as to contract claims against the State ...

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