Appeal from the Order of the Department of Health in the case of In Re: In the matter of the appeal of Mallard Associates, Project No. 603-77-A-1853.
Harold Cramer, with him Jeffrey Cooper, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for petitioner.
Carolyn B. McClain, with her Reed Hamilton, Chief Counsel, and Ruth M. Siegel, for respondent.
President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish.
[ 54 Pa. Commw. Page 647]
Mallard Associates sought approval from the Secretary of Health, Education and Welfare (HEW) for the construction of a 120-bed nursing home in Tredyffrin Township, Chester County, under the "need" criteria of Section 1122 of the Social Security Act.*fn1
[ 54 Pa. Commw. Page 648]
The Secretary's approval would make Mallard eligible for reimbursement of certain interest and depreciation payments associated with capital improvements in the construction of new nursing homes.*fn2
In December of 1978, the Health Systems Agency of Southeastern Pennsylvania (HSA),*fn3 after a multi-level review process, forwarded to the Pennsylvania Department of Health and Human Services (Department) a negative recommendation for the Mallard application. The Department's report stated, in essence, that there was no need for additional nursing home beds in Chester County, and therefore would not recommend approval of the Mallard plan to the Secretary of HEW.
In May of 1979, Mallard requested that a hearing examiner review the Department's decision before it was transmitted to HEW for the Secertary's final consideration. After three days of testimony, briefs and exhibits from both parties, the examiner appointed by the Pennsylvania Department of Justice*fn4 affirmed the Department recommendation.
Although faced with Mallard's request for judicial review of the hearing examiner's decision, we are once again unable to hurdle the threshold problem of jurisdiction.
In Sarah A. Todd Memorial Home v. Department of Health, 49 Pa. ...