No. 81-2-270, Appeal from the Order of the Commonwealth Court, dated July 28, 1981, at No. 1473 C.D. 1981
Bruce G. Baron, Asst. Counsel, Dept. of Public Welfare, Harrisburg, for appellant.
Gilbert B. Abramson, Philip L. Blackman, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a concurring opinion in which O'Brien, C.j., and Larsen, Flaherty and Hutchinson, JJ., join. Flaherty, J., files a concurring opinion in which Hutchinson, J., joins.
This is an appeal of a Commonwealth Court order vacating the suspension of appellee by the Department of Public
Welfare ("Department") and enjoining the Department from further action against him pending a hearing on the merits of this matter. The Department brings this direct appeal and we now reverse.*fn1
Appellee, Irwin L. Eisenberg, D.O., was a participating provider in the Pennsylvania Medical Assistance Program ("Program") operating under the Public Welfare Code.*fn2 On September 30, 1980, the Department, by means of a letter, suspended appellee from further participation in the Program for a three year period, advising him of his right to appeal before the Hearing and Appeals Unit of the Department ("Appeals Unit").*fn3 Appellee initiated the appropriate administrative proceedings before the Appeals Unit, stipulating as to all issues concerning the merits of the case to be raised at the hearing. These issues did not include any constitutional challenge by appellee of the Department's right to suspend him from participation in the Program. Before the hearing on appellee's suspension took place, however, appellee filed an application for special relief with Commonwealth Court raising a constitutional challenge to the Department's action. As a result of the action in Commonwealth Court, further proceedings before the Appeals Unit were suspended and the record indicates that no hearing on the merits has been held.
The Commonwealth Court concluded that the termination of appellee's participation in the Program was an adjudication
within the meaning of the Administrative Agency Law,*fn4 and, therefore, that appellee was entitled to a hearing prior to his termination. The lower court viewed the application for special relief as addressed to its equitable powers and enjoined the Department from further action against appellee. Commonwealth v. ...