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decided: September 21, 1982.


Appeal from the Order of the State Health Facility Hearing Board in case of In Re: Mercy Hospital, Docket No. C.N.81-001.


Eric W. Springer, with him Barbara A. Blackmond and James C. McManus, Horty, Springer & Mattern, for petitioner.

Julia E. Gabis, Assistant Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by Judge Craig.

Author: Blatt

[ 69 Pa. Commw. Page 144]

Mercy Hospital of Altoona (Hospital) appeals from a decision of the State Health Facility Hearing Board (Board) which affirmed a determination of the Pennsylvania Department of Health (Department) that the

[ 69 Pa. Commw. Page 145]

Hospital's plan to organize a rehabilitation unit was reviewable under the certificate-of-need provisions of the Health Care Facilities Act (Act).*fn1

On December 22, 1980, following an informal telephone discussion with the Department in which the Hospital described its plan to activate a ten-bed dedicated unit of medical/surgical beds to be used for rehabilitation care, it submitted a follow-up letter to the Department outlining its plan. The Hospital claims that the letter was intended to confirm the alleged earlier telephone advice from the Department that the proposal was not reviewable; however, upon receiving the letter on December 26, 1980, the Department treated it as a letter of intent requesting a determination as to reviewability and assigned a certificate-of-need project number to it. After internal staff review and consultation with the Keystone Health Systems Agency, the local health systems agency involved, the Department issued a determination on January 30, 1981 that the proposal was reviewable as an addition of a health service pursuant to Section 701(a)(4) of the Act, 35 P.S. § 448.701(a)(4). The decision, mailed on February 4, 1981, was received by the Hospital on February 5, 1981, whereupon it appealed the "Determination of certificate-of-need reviewability" to the Board. On March 13, 1981, in response to an order of the Board, the Department issued a statement setting forth the reasons for its January 30, 1981 determination. On November 13, 1981, following a hearing, the Board affirmed the Department's determination and dismissed the Hospital's appeal. This appeal followed.

The Department has moved, inter alia, that the appeal be quashed because the Board's decision is interlocutory and therefore not within our jurisdiction

[ 69 Pa. Commw. Page 146]

    over "final orders" of state government agencies pursuant to Section 763(a) of the Judicial Code, 42 Pa. C.S. § 763(a).

Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), is instructive here:

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. . . . A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. . . . In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. . . . Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. . . . We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant "out of court" the order will be treated as final. . . . Similarly, an order is "final" if it precludes a party from presenting the merits of his claim to the lower court.

Id. at 72-74, 394 A.2d at 544-45 (citations and footnote omitted).

The order before us can hardly be considered separable from or collateral to the main cause of action. In fact, it is the very underpinning of the action in that it establishes the Department's right to review the proposal. The right involved, while important, is not "too important to be denied review," and the

[ 69 Pa. Commw. Page 147]

    claimed right will not be irreparably lost if the matter is permitted to reach final conclusion within the Department, at which time it will be ripe ...

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