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decided: July 31, 1980.


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


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. § 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, received by the County on July 27, 1978, indicates that the rates here challenged must

[ 53 Pa. Commw. Page 321]

    have been in effect at least by that date. Since the County did not file its petition for review until September 29, 1978, its "appeal" from DPW's rate setting or its payment demand must, under any interpretation, be considered untimely filed. See Pa. R.A.P. 1512. This being so, the County has waived whatever right it may have had to appeal whatever decision DPW may have made reflecting the per diem rate charged to the County.

As to the County's original action for declaratory judgment: DPW's first preliminary objection is in the nature of a demurrer and argues, among other things, that the County fails to state a cause of action. The Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, prescribes the procedures and guidelines to which a court must adhere in considering applications for declaratory judgments. Section 7537 of the Act, 42 Pa. C.S. § 7537, gives to a court discretion "to refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." The relief sought by the County consists of (1) a declaration that per diem rate setting by DPW under Section 505 of the Act is either an adjudicatory function or a rule making function, which requires compliance with either the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704, or the "Commonwealth Documents Law," Act of July 31, 1968, P.L. 769, 45 P.S. § 1102 et seq., as amended, or in the alternative that the DPW per diem rates as to Farview Hospital constitute an abuse of discretion, and that for any one of these reasons, the current rates are invalid and unenforceable as to the County, and (2) a declaration that certain DPW actions which have allegedly resulted in higher operating costs at Farview constitute an abuse of agency discretion, and that the alleged

[ 53 Pa. Commw. Page 322]

    consequent higher costs may not be passed on to the County in the per diem charges.

Obviously, none of these declarations would terminate the controversy between the County and DPW, because the effect of each would be to create more uncertainty as to the liabilities of the County and of all other sentencing and convicting counties statutorily responsible for the maintenance of the criminally insane in DPW administered facilities. This is not to say that the County has no accessibility to judicial review of DPW's rate setting system for per diem charges under Section 505, but merely that a declaratory judgment from this Court is inappropriate because any result we may reach would be inconclusive. In our view, the only efficient route to resolution of these issues would be through a proceeding before DPW challenging current per diem rates, from which then an appeal would lie to this Court. We sustain DPW's demurrer as to the County's failure to state a cause of action in declaratory judgment, and, for that reason, need not rule on DPW's remaining preliminary objections.

Accordingly, we


Now, July 31, 1980, the Department of Public Welfare's preliminary objection in the nature of a demurrer for failure to state a cause of action is sustained, and the County of Allegheny's petition for review is hereby dismissed.

President Judge Bowman did not participate in the decision in this case.


Preliminary objection in the nature of a demurrer sustained. Petition dismissed.

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