Original jurisdiction in case of Mallard Associates, a Pennsylvania limited partnership v. Commonwealth of Pennsylvania, Department of Health and H. Arnold Muller, M.D., Secretary of Health of the Commonwealth of Pennsylvania.
Jeffrey Cooper, with him Harold Cramer, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for petitioner.
Reed Hamilton, Chief Counsel, with him Carolyn B. McClain and Ruth M. Siegel, Assistant Counsels, for respondent.
President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino.
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Mallard Associates filed a petition for review invoking both our original*fn1 and appellate*fn2 jurisdiction to review a negative recommendation by the Pennsylvania Department of Health (Department), as affirmed by a fair hearing examiner.*fn3 Before the Court are the Department's preliminary objections to that portion of the petition for review addressed to our original jurisdiction, challenging our jurisdiction over the hearing examiner, questioning Mallard's failure to
[ 64 Pa. Commw. Page 210]
exhaust administrative remedies, and registering a demurrer for failure to state a cause of action.
The Department recommended to the United States Department of Health, Education and Welfare (HEW), now the Department of Health and Human Services (HHS), that HEW deny medicaid and medicare reimbursements for certain capital expenditures in the construction of a proposed nursing home under Section 1122 of the Social Security Act.*fn4
Mallard Associates here seeks to have us change the affirmation of the fair hearing examiner and enjoin the Department and its secretary from forwarding a negative recommendation to HEW.
In Mallard Associates v. Department of Health, 54 Pa. Commonwealth Ct. 646, 422 A.2d 1178 (1980) (Mallard I), considering only the appellate petition, we granted the Department's motion to quash.*fn5 Our holdings in Sarah Todd and Mallard I preclude Mallard's original action in mandamus against the fair hearing examiner. A creature of federal statute and regulation,*fn6 a hearing examiner is neither an officer nor agency of the Commonwealth subject to our jurisdiction.*fn7 We find no merit in Mallard's petition to reverse
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the negative recommendation of the ...