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COUNTY ALLEGHENY v. COMMONWEALTH PENNSYLVANIA (07/31/80)

decided: July 31, 1980.

COUNTY OF ALLEGHENY, A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT. COUNTY OF DAUPHIN ET AL., INTERVENING PARTY PETITIONERS



Original jurisdiction in case of County of Allegheny, a political subdivision of the Commonwealth of Pennsylvania v. Commonwealth of Pennsylvania, Department of Public Welfare.

COUNSEL

Loraine S. Tabakin, with her James H. McLean, E. J. Strassburger, Assistant County Solicitors, and Alexander Jaffurs, County Solicitor, for petitioner.

Prince Altee Thomas, with him Joseph F. Strain, Deputy Attorney General, for respondent.

H. Reginald Belden, Jr., with him Robert L. Knupp, for intervening party petitioners.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, Craig and MacPhail. Judges Rogers and Williams, Jr. did not participate. Opinion by Judge Crumlish, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Crumlish

[ 53 Pa. Commw. Page 319]

The Department of Public Welfare's (DPW) rate setting procedures for care of criminally insane persons committed to Farview State Hospital is the subject of Allegheny County's (County)*fn1 petition for declaratory relief. DPW has filed a battery of preliminary objections. We sustain DPW's preliminary objections and dismiss the County's petition for review because the relief the County seeks will not terminate its controversy with DPW and the controversy would thus be better resolved before DPW in the first instance.

The filed briefs did not untangle the procedural morass which resulted from poorly framed pleadings. We attempt to journey through this jungle in order to amplify the need for more precise preparation.

In its petition for review, the County invokes our original jurisdiction, seeking a declaratory judgment as to its right to a DPW administrative hearing*fn2 under

[ 53 Pa. Commw. Page 320]

    the rate setting section of the Mental Health and Mental Retardation Act of 1966 (Act),*fn3 and then our appellate jurisdiction, seeking review of DPW's current per diem rates on the theory that the setting of those rates constitutes a final reviewable agency determination.*fn4 By way of preliminary objection, DPW sets forth a seven part demurrer, a five part motion for more specific pleading, a five part objection to jurisdiction, and a two part motion to strike. Although DPW failed to move to quash that part of the County's petition for review as to appellate jurisdiction, it does assert in its supporting brief that to the extent that the suit is in the nature of an appeal from DPW rate setting, it is untimely filed.

The County seeks participation in and appellate review of the process by which DPW determines the rate to be charged for care of convicted or sentenced criminally insane persons committed to Farview State Hospital pursuant to Section 505 of the Act, 50 P.S. ยง 4505. That section imposes liability for care on the convicting or sentencing county. Currently, DPW's policy, to which the County objects, is to compute the patient per diem rate to be charged to each convicting and sentencing county by dividing the overall institution operating cost by the total number of patients.

First, as to the County's assertion of our appellate jurisdiction: We are unable to determine from the facts alleged which decision of DPW, if any, the County would have us review. Nor do we know when the most recent per diem rate was determined. A DPW letter demanding payment of outstanding per diem charges, ...


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