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CLARA ALLEN ET AL. v. ALDO COLAUTTI (08/07/80)

decided: August 7, 1980.

CLARA ALLEN ET AL., PETITIONERS
v.
ALDO COLAUTTI, SECRETARY OF PUBLIC WELFARE, DEPARTMENT OF PUBLIC WELFARE, COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS. SOUTHEASTERN PENNSYLVANIA MENTAL HEALTH ASSOCIATION, INC., INTERVENING PARTY PETITIONER



Original jurisdiction in case of Clara Allen et al. and Southeastern Pennsylvania Mental Health Association, Inc. v. Helen O'Bannon, Secretary of the Department of Public Welfare, Arnold Muller, Secretary of the Department of Health and Shirley Laughman. Petition for review in the Commonwealth Court of Pennsylvania seeking declaratory relief, injunctive relief and relief in mandamus to compel the respondents to perform certain duties.

COUNSEL

O. Randolph Bragg, with him Elias S. Cohen, for petitioners.

Allen C. Warshaw, Deputy Attorney General, Chief, Civil Litigation, with him Joseph L. McCann, Deputy Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondents.

Mark Spiegel, for intervening party petitioner.

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

Author: Macphail

[ 53 Pa. Commw. Page 394]

This case comes before us pursuant to our original jurisdiction, Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1), for determination of a motion for summary judgment filed by Petitioners. Petitioners in this action are two individuals*fn1 who are residents or former residents of personal care homes*fn2 within the Commonwealth and three individuals and the Pennsylvania Association of Older Persons, Inc. who assert "a direct and substantial interest in the rights, safety and health of elderly citizens in the Commonwealth including those who reside in nursing homes and personal care homes, and in the integrity and propriety of expenditures of state funds." Respondents are Helen O'Bannon, Secretary of the Department of Public Welfare (DPW), Arnold Muller, Secretary of the Department of Health (DOH), and Shirley Laughman, the alleged proprietor of a personal care home for adults.*fn3 The Southeastern Pennsylvania Mental Health

[ 53 Pa. Commw. Page 395]

Association, Inc. (Association) was granted leave to intervene in this case.*fn4

In their petition for review, Petitioners alleged that DPW and DOH, through their Secretaries and the Secretaries' subordinates have a legal duty to inspect, license, and regulate personal care homes and to maintain actions to enjoin the operation of unlicensed personal care homes. See, Generally, Sections 901 et seq. and 1001 et seq. of the Public Welfare Code (Code), Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 901 et seq. and 1001 et seq., and Reorganization Plan No. 3 of 1975, 71 P.S. § 756-3. Petitioners alleged further that the Secretaries, inter alia, failed to issue rules and regulations or to otherwise provide for the licensing and regulating of personal care homes and failed to comply with federal requirements pursuant to Title XX of the Social Security Act, 42 U.S.C. § 1397 et seq., in submitting the "Pennsylvania State Plan" to federal authorities.*fn5 Petitioners alleged that Respondent

[ 53 Pa. Commw. Page 396]

Laughman was the proprietor of an unlicensed personal care home for adults and that she failed to provide or to allow others to provide necessary medical care to the home's residents. Petitioners alleged that at least two residents of Respondent Laughman's home contracted gangrene due to bedsores. One, Clara Allen, suffered the amputation of both legs and the other, Edna Treaster, died before the gangrene could be treated effectively.

Following the closing of pleadings and the filing of Respondent Secretaries' answers to Petitioners' interrogatories, Petitioners filed the instant motion for summary judgment pursuant to Pa. R.C.P. No. 1035. They seek (1) declaratory relief stating that the Secretaries of DPW and DOH have the duty and responsibility to inspect, supervise, and/or license personal care homes for adults and to enjoin their illegal operation, (2)(a) injunctive relief restraining the Secretaries from refusing to perform said inspection, licensing, and regulation and requiring them to perform such duties*fn6 of (b) relief in the form of mandamus requiring them to perform the alleged duties, (3) an order directing the Secretaries to develop a cooperative plan to assure licensure and regulation of personal care homes, and (4) an order directing the Secretary of DPW to file an amendment to the DPW Title XX Comprehensive ...


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