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decided: July 30, 1982.


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.


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 would adversely affect other counties, we cannot say that there was a failure here to join them as indispensable parties.

Finally, the DPW contends that the lower court erred in concluding that the DPW, rather than the County, had the financial responsibility for the care and placement of April Sauers. It relies upon our Supreme Court's decision in In Re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), to support its conclusion that the County, not the DPW, had the obligation to provide the appropriate program, where, as here, placement in an institution was not necessary.

It is true that the Supreme Court in Schmidt stated:

We fully agree with the court below that the legislative scheme was designed to require the county to provide those supportive services where they would eliminate the necessity of institutionalization, even where those services would be required on a long term basis.

Id. at 95, 429 A.2d at 635-6. The Court also made clear, however, that its decision was not a determination as to which governmental unit would ultimately bear the cost for providing the necessary services, citing Sections 4508 and 4509 of the Act, 50 P.S. §§ 4508 and 4509.*fn1 In the instant case, the County has

[ 68 Pa. Commw. Page 87]

    undertaken to establish an appropriate program for April Sauers, consistent with its obligation under Schmidt, and the controversy now before us centers upon who should pay for that program under the Act, a question which Schmidt did not resolve.

[ 68 Pa. Commw. Page 88]

The court below examined the legislative history, and sections 4508, 4509 and other sections of the Act, as well as the DPW's regulations, in reaching its determination

[ 68 Pa. Commw. Page 89]

    that the DPW and not the County was financially responsible for April Sauers, and its opinion stated:

There is little ambiguity, either in the rather spare legislative history of the act or in the statutory language, about which governmental entity bears the lion's share of financial responsibility for providing mental health services. State Senator Pechan, speaking on behalf of supporters of the proposed Act recognized that

"[t]he financial burden of caring for the mentally ill and retarded rests largely on the State now, and will continue to do so under the new Act."

"The State will also bear the cost of institutional care of the mentally retarded [and] . . . will also bear the major share of the cost of other services. . . ."

1966 Pa. Legis. J., 3d Spec. Sess. -- No. 34, 76-77, (Sept. 27, 1966). Another supporter added, "By putting this fiscal burden on the shoulders of the Commonwealth, with its broader fiscal revenues and sources of money, I think, is going to make a much better workable plan, because it means the money will be there." Id. at 79.

Several sections of the Act expressly apportion the financial liability for provision of mental

[ 68 Pa. Commw. Page 90]

    health services. Section 507, 50 P.S. § 4507, requires the Commonwealth to pay the entire cost of certain mandated programs. Section 509, 50 P.S. § 4509(1), obligates the Commonwealth to defray 90% of the cost of county programs authorized by the Act. Section 510, 50 P.S. § 4510, authorizes the Department to make supplemental grants to the counties to assist them in meeting their obligations under approved plans. Additionally, there is statutory machinery which authorizes county administrators to apply for relief from their financial liabilities under Section 301, 50 P.S. § 4301, when it would be economically unsound to hold them to their obligations. 50 P.S. § 4508. Moreover, sections 508, 510 and subsection (5) of 509 of the Act all contemplate the possibility that unbudgeted, unappropriated fiscal demands might be made on the State Treasury to pay for the essential services which the Act requires the Commonwealth to provide under Section 201, 50 P.S. § 4201(1). Finally, regulations promulgated under the authority of Section 201, 50 P.S. § 4201, direct the Department to participate at 100% of the approved expenditures for, inter alia, "[i]nterim care of the mentally retarded . . . [and] [c]ommunity living arrangements for the mentally retarded." Department of Public Welfare, Fiscal Manual, Title 6100 MH/MR, Section 6111.1(3) and (4) (July, 1978). [8 Pa. B. 1684].

The Department, by the authority of its own regulations, is obligated to fund community living arrangements. The proposal submitted by the County is manifestly a community living arrangement, albeit a highly specialized one.

[ 68 Pa. Commw. Page 91]

The issue here, therefore, must be resolved adversely to the Department's assertion that the County is financially liable for the implementation of the proposed treatment plan.

We can find no fault with this reasoning or with the result reached by the court below, and we will therefore affirm its order.


And Now, this 30th day of July, 1982, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.



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