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decided: August 7, 1980.


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.


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 Annual Program Plan for 1978-79. Respondents filed a response to Petitioners' motion for summary judgment stating that DPW has recently adopted regulations for personal care boarding homes which became effective on June 19, 1980. See

[ 53 Pa. Commw. Page 39710]

Pa. B. 1678. Respondents appear to argue that they believe such action renders moot the issues raised by Petitioners. We disagree with Respondents as to the question of mootness, but we also are unable to grant the relief requested by Petitioners.

Our Courts have held consistently that cases will not be dismissed as moot where they concern questions of a recurring nature, capable of avoiding review, and of important public interest. Temple University of the Commonwealth System of Higher Education v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 595, 600, 374 A.2d 991, 995 (1977). Nor will a case be dismissed as moot merely because alleged illegal conduct has been stopped voluntarily. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). In determining whether the cessation of such activity compels a finding of mootness, we must consider (1) the good faith of the defendant's announced intention to discontinue the challenged activity, (2) the effectiveness of the discontinuance, and (3) the character of the past violation. Id. at 633; Rhodes v. Weinberger, 388 F. Supp. 437, 440 (E.D. Pa. 1975). The defendant bears the heavy burden of proving that there is no reasonable expectation that the past conduct will be repeated. United States v. W.T. Grant Co. at 633.

We find that Respondents here have not met that burden of proof. We do not question the good faith of DPW in adopting the regulations concerning personal care homes. The Association, however, has challenged the validity of the regulations. Although we decline to rule on the regulations' validity in this context, we do note that the potential challenge places their effectiveness in doubt. Furthermore, the promulgation of regulations by DPW only addresses one of the many issues raised by Petitioners. The mere adoption of the regulations, even presuming them to be valid, does not ensure that they will be implemented and enforced.

[ 53 Pa. Commw. Page 398]

Finally, there is no question that the character of the alleged past violation of duty by Respondents is serious. See Department of Public Welfare v. Garland, 393 Pa. 45, 52, 142 A.2d 14, 17 (1958) in which our Supreme Court recognized the importance of the regulation of residences such as personal care homes. For all of these reasons, we hold that the matters raised by Petitioners are not moot.

Before addressing Petitioners' specific prayers for relief, we must review the general rules applicable to motions for summary judgment. The Court may enter summary judgment on motion of either party pursuant to Pa. R.C.P. No. 1035(b) where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On a motion for summary judgment, this Court will view the record in the light most favorable to the nonmoving party. We will accept as true all well pleaded facts in the nonmoving party's pleadings and admissions on file and will give to the nonmoving party the benefit of all reasonable inferences to be drawn therefrom. We will enter summary judgment only in a case which is clear and free from doubt and all doubts as to the existence of a material fact must be resolved against the moving party. A fact is material if it directly affects the disposition of a case. Windber Area Authority v. Rullo, 36 Pa. Commonwealth Ct. 131, 135-36, 387 A.2d 967, 969-70 (1978). The moving party bears the burden of proving that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment will be entered only "if appropriate," Amabile v. Auto Kleen Car Wash, 249 Pa. Superior Ct. 240, 245-47, 376 A.2d 247, 249-50 (1977), Pa. R.C.P. No. 1035(d),

[ 53 Pa. Commw. Page 399]

    and summary judgment would not be appropriate if the documents submitted in support of a motion for summary judgment evidenced a disputed issue as to a material fact. With these general principles in mind, we now turn to Petitioners' specific requests for relief.

Historically, our courts have held that declaratory judgment may not be entered by way of summary judgment. Laspino v. Rizzo, 40 Pa. Commonwealth Ct. 625, 629 n. 3, 398 A.2d 1069, 1971 n. 3 (1979); Pennsylvania Association of State Mental Hospital Physicians v. State Employees' Retirement Board, 31 Pa. Commonwealth Ct. 151, 154, 375 A.2d 863, 864 (1977), aff'd, 484 Pa. 313, 399 A.2d 93 (1979).*fn7 We express no opinion as to whether our previous holdings have been altered by the new rules concerning declaratory judgment actions set forth in Pa. R.C.P. No. 1601 et seq. Summary judgment is not appropriate in this case in any event, because, as we will discuss, infra, there exist in this matter genuine issues as to material facts. Petitioners err in their argument that pursuant to the Declaratory Judgments Act, 42 Pa. C.S. § 7539, the existence of a question of fact does not preclude the entry of summary judgment. Section 7539 does not refer to summary judgment but rather indicates that if a question of fact does exist in a declaratory judgment action, the factual issue may be

[ 53 Pa. Commw. Page 400]

    decided by a judge or a jury as in any other civil action. See Liberty Mutual Insurance Co. v. S.G.S. Co., 456 Pa. 94, 100, 318 A.2d 906, 909 (1974); Delaware Valley Apartment House Owners' Association v. Department of Revenue, 36 Pa. Commonwealth Ct. 615, 621-22, 389 A.2d 234, 238 (1978).*fn8

Petitioners' second prayer for relief requests an order enjoining Respondents from refusing to inspect, license, and regulate personal care homes and ordering them to perform such duties. Such affirmative relief is by nature a mandatory injunction. Roberts v. Board of Directors of the School District of the City of Scranton, 462 Pa. 464, 470, 341 A.2d 475, 478 (1975). Petitioners seeking a mandatory injunction must present a stronger case than that required for a restraining-type injunction. They must demonstrate that they are clearly entitled to immediate relief and that they will suffer irreparable injury if relief is not granted. Cardamone v. University of Pittsburgh, 253 Pa. Superior Ct. 65, 71, 384 A.2d 1228, 1232 (1978); see also, Rodes v. Commonwealth, 2 Pa. Commonwealth Ct. 328, 330, 279 A.2d 782, 783 (1971). We must deny the relief requested.

[ 53 Pa. Commw. Page 401]

In considering Petitioners' motion for summary judgment, we have before us Petitioners' amended petition for review, Respondents' response to the amended petition for review, and Respondents' responses to interrogatories posed by Petitioners. Because Respondents filed no affidavits or other documents in support of its responses to the amended petition for review, we are confined to reviewing only the responses to the interrogatories and the uncontroverted facts raised by the pleadings. See Phaff v. Page 401} Gerner, 451 Pa. 146, 149-52, 303 A.2d 826, 829-30 (1973) and Laspino v. Rizzo at 631, 398 A.2d at 1072-73. The answers to the interrogatories alone, however, defeat Petitioners' prayer for relief. We find it necessary to detail only those portions of the responses which raise genuine issues of material facts.

Petitioners contend that Respondents did not inspect, license, or regulate personal care boarding homes, citing as an example the home operated by Respondent Laughman in Lewistown. In response to interrogatory numbers one and two, however, Respondents detailed the actions they took in response to complaints received about the Laughman home.*fn9 Interrogatories number nine through twenty-one requesting specific information about personal care homes were not answered by Respondents. They were not answered, however, not because Respondents admitted that they do not inspect, regulate, or license "personal care boarding homes" but because they did not keep specific statistics for such homes as opposed to other "facilities" over which they exercise authority. Again, in response to interrogatories thirty, thirty-four, and thirty-five, Respondents do not admit, as Petitioners would infer, that they do not take action against unlicensed personal care homes or that they do not employ staff to inspect, license, and investigate such homes. Rather, the Respondents answered, they do not keep such records or employ such staff limited to dealing with "personal care homes" as a separate category of "facility." We note that although Respondents apparently admitted excluding mention of personal care homes from its required state plan for

[ 53 Pa. Commw. Page 4021978]

-79, Petitioners have offered no evidence that the federal funding which they described as "in jeopardy" was ever withheld.*fn10 Speculation as to a potential withholding of funds is not sufficient to warrant relief in this case.

Because this record, read in a light most favorable to Respondents, contains genuine issues as to material facts associated with this matter and does not show that Petitioners are clearly entitled to immediate relief, we deny their request for a mandatory injunction. Furthermore, there exists no authority for us to order the Secretaries to develop "cooperation" between the DPW and DOH. This is most especially true where we are dealing with summary relief.

Finally, we deny, as well, Petitioners' request for relief in mandamus.*fn11 Mandamus will lie to compel a public official to perform a ministerial act or a mandatory duty where there is a well-defined legal right in the petitioner and a corresponding well-defined duty in the respondent and where there exists no other adequate, specific, or appropriate remedy at law. Commonwealth ex rel. Lindsley v. Robinson, 30 Pa. Commonwealth Ct. 96, 101, 372 A.2d 1258, 1261 (1977). One seeking summary judgment in a mandamus action

     has a 'heavy burden' to prove to the court that his right to a summary judgment is 'clear and free from doubt.' . . . [S]ummary judgment should only be granted when there are no disputed questions of fact which are material to the disposition of the case. (Citations omitted.)

[ 53 Pa. Commw. Page 403]


And Now, this 7th day of August, 1980, the motion for summary judgment filed by Clara Allen et al., Petitioners, is denied.


Motion for summary judgment denied.

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