decided: January 21, 1982.
MALLARD ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT
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.
[ 64 Pa. Commw. Page 209]
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
[ 64 Pa. Commw. Page 211]
the negative recommendation of the Secretary and Department.
The Department's decision is purely discretionary*fn8 and "[m]andamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of law." Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 825 (1972). Mallard's contention that the decision of the Department is "illegal," "arbitrary," and a violation of due process is without foundation in the record.*fn9
Mallard Associates has failed to establish a clear legal right to the relief requested and has failed to plead facts sufficient to show that Respondent's discretionary acts were arbitrary, fraudulent or illegal. The Department's preliminary objections are sustained.
The preliminary objections of the Department of Health and Secretary H. Arnold Muller are sustained and the petition and amended petition for review of Mallard Associates are dismissed.
This decision was reached prior to the expiration of the term of office of Judge Palladino.
Preliminary objections sustained. Petition and amended petition dismissed.