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APRIL SAUERS. COMMONWEALTH PENNSYLVANIA (07/30/82)

decided: July 30, 1982.

IN RE: APRIL SAUERS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: April Sauers, Docket No. 867 of 1979.

COUNSEL

Mary Alexine Reilly, for appellant.

James H. McLean, County Solicitor, with him Dennis R. Biondo, Assistant County Solicitor, for appellee, County of Allegheny, Mental Health/Mental Retardation Program.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Blatt.

Author: Blatt

[ 68 Pa. Commw. Page 84]

This is an appeal by the Department of Public Welfare (DPW) from an order of the Court of Common Pleas of Allegheny County requiring the DPW to allocate funds to the Allegheny County Mental Health/Mental Retardation Program (County) for the placement of a mentally retarded person, April Sauers, in a community-based residence.

In 1979, April Sauers was committed to an institution for the mentally retarded pending the County's development of a community-based residential program which would provide a setting more appropriate for her needs. In March of 1980, the proposed County program was submitted to the DPW for its approval, but no response was ever received. In December of 1980, during a review of the commitment, the court below determined that both the County and the DPW agreed that the proposed community residential program was the most appropriate treatment for April Sauers and ordered the DPW to provide funding for the implementation of that program. This appeal followed.

The DPW argues that the court below lacked subject matter jurisdiction in this matter inasmuch as all actions against the Commonwealth such as this must be brought before the Commonwealth Court. Section 761(a) of the Judicial Code, 42 Pa. C.S. § 761(a).

[ 68 Pa. Commw. Page 85]

Clearly, however, the court below had exclusive jurisdiction to decide the petition for the commitment, care and treatment of the mentally retarded, Section 4406 of the Mental Health and Mental Retardation Act (Act), Act of October 20, 1966, Spec. Sess., P.L. 96, 50 P.S. § 4406, and the DPW, although it requested and was granted permission to intervene in the commitment proceeding here, did not at that time raise any objection to the common pleas court's jurisdiction to adjudicate any issues involving the Commonwealth, and it fully participated in the subsequent hearings. We have previously held that the nature of this Court's jurisdiction over matters involving the Commonwealth is considered to be "in personam" and is therefore waivable by the Commonwealth. Demetriou v. Carlin, 47 Pa. Commonwealth Ct. 478, 408 A.2d 565 (1979), and, inasmuch as the DPW did not challenge the jurisdiction of the court below at the appropriate time, we will consider it to have waived any objection which it may have had thereto.

The DPW further maintains that, because the funds available for Mental Health/Mental Retardation programs are limited, the order of the court below would have the practical effect of decreasing the grants for mental health programs operated by other counties and that those counties should have been joined as indispensable parties, citing Mechanicsburg Area School District v. Kline, 41 Pa. Commonwealth Ct. 371, 399 A.2d 1136 (1979). Our decision in Mechanicsburg, however, was reversed by our Supreme Court in Mechanicsburg Area School District v. Kline, 494 Pa. 476, 431 A.2d 953 (1981), which held that, where a school district seeks a recalculation and increase of its subsidy payments from the Department of Education, other school districts are not indispensable parties unless the record demonstrates that the statutory appropriation had already been reached and

[ 68 Pa. Commw. Page 86]

    that the subsidies of the other districts would be directly affected by the requested increase. In the present case, the DPW advances the assertion that complying with the order of the court below would require a reduction in funding to other counties, but it points to no evidence in the record to support that conclusion and our own review of the record reveals none. In the absence of a showing that DPW's compliance with the order in this case ...


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