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LEROY S. ZIMMERMAN v. HELEN B. O'BANNON (03/11/82)

decided: March 11, 1982.

LEROY S. ZIMMERMAN, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HELEN B. O'BANNON, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, APPELLEE



No. 103 Misc. Docket, 1981, Appeal from the Order of the Commonwealth Court denying Application for Stay, No. 2142 C.D. 1981, Dated September 11, 1981.

COUNSEL

Joel M. Ressler, Deputy Atty. Gen., for appellant.

Myra W. Sacks, Harrisburg, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., filed a dissenting opinion joined by Flaherty and McDermott, JJ.

Author: Nix

[ 497 Pa. Page 552]

OPINION

This appeal requires an interpretation of the Attorney General's right to stay the promulgation of a proposed rule

[ 497 Pa. Page 553]

    or regulation under Section 204(b) of the Commonwealth Attorneys Act (Act), Act of October 15, 1980, P.L. 950, No. 164, § 101, 71 P.S. § 732-101 et seq. The Department of Public Welfare (DPW) prepared a personal care boarding home plan and implementing regulations, and submitted them to the office of Attorney General for review pursuant to Section 204(b) of the Act. The Attorney General's office, after study, concluded that the plan and regulations authorizing a two-year's license was inconsistent with the Public Welfare Code, Act of June 13, 1967, P.L. 31, No. 21, 62 P.S. § 211 added by Act of July 10, 1980, P.L. 493, No. 105, (Supp. 1981-82), and therefore was without proper statutory authority. This fact was communicated to DPW. Despite the disapproval of the Attorney General, DPW had the regulations published in the Pennsylvania Bulletin whereupon they immediately became effective. The Attorney General filed a petition for review and application for stay with the Commonwealth Court. The Commonwealth Court denied the application for stay and it is that judgment that is presently before us for consideration.

The controversy in this appeal focuses upon the proper standard for the issuance of a requested stay of implementation of a regulation which has been deemed improper by the Attorney General. Section 204(b) provides:

Commonwealth agencies; rules and regulations.

The Attorney General shall review for form and legality, all proposed rules and regulations of Commonwealth agencies before they are deposited with the Legislative Reference Bureau as required by section 207 of the act of July 31, 1968 (P.L. 769, No. 240), known as the "Commonwealth Documents Law." If the Attorney General determines that a rule or regulation is in improper form, not statutorily authorized or unconstitutional, he shall notify in writing within 30 days after submission the agency affected, the Office of General Counsel, and the General Assembly through the offices of the Secretary of the Senate and the Chief Clerk of the House of Representatives of the reasons for the determination. The Commonwealth

[ 497 Pa. Page 554]

    agency may revise a rule or regulation to meet the objections of the Attorney General and submit the revised version for his review. Should the agency disagree with the objection, it may promulgate the rule or regulation with or without revisions and shall publish with it a copy of the Attorney General's objections. The Attorney General may appeal the decision of the agency by filing a petition for review with the Commonwealth Court in such manner as is provided for appeals from final orders of government agencies pursuant to 42 Pa.C.S. § 763 (relating to direct appeals from government agencies) and may include in the petition a request for a stay or supersedeas of the implementation of the rule or regulation which upon a proper showing shall be granted. If a rule or regulation has been submitted to the Attorney General and he has not approved it or objected to it within 30 days after submission, the rule or regulation shall be deemed to have been approved.

This section obviously attempts to accommodate the independence of the agency and the role of the Attorney General as the attorney for the Commonwealth. It mandates first that the Attorney General must review for form and legality all rules and regulations sought to be proposed by Commonwealth agencies. Second, it places upon the Attorney General the duty of notifying the agency in question if, in the judgment of the Attorney General, the proposed regulation or rule is either without statutory authority, violative of the Constitution or not in proper form. Third, this provision provides a new procedure in this Commonwealth whereby the Attorney General must also communicate his objection to the office of General Counsel and the General Assembly. This third requirement is designed to assure that other concerned units of government are alerted of the potential problem.*fn1 Fourth, the agency is provided the discretion of

[ 497 Pa. Page 555]

    revising the rule or regulation to satisfy the objection or proceeding despite the objection. The fifth provision is the one we are now called upon to interpret. It relates to the right of the Attorney General to interrupt the promulgation of the rule or regulation prior to a judicial determination of the validity of the objection.

It is the basic position of DPW that the right for stay is governed by the normal rules of appellate procedure for such a request. Under these rules, the court must exercise its discretion in making a ...


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