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LEROY S. ZIMMERMAN v. HELEN B. O'BANNON (12/22/82)

decided: December 22, 1982.

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



Appeal from the Order of the Department of Public Welfare promulgating Department of Public Welfare Regulations published at 11 Pa. B. 2997-3021, filed August 29, 1981.

COUNSEL

Joel M. Ressler, Deputy Attorney General, with him LeRoy S. Zimmerman, Attorney General, for petitioner.

Jonathan Vipond, III, Chief Counsel, with him Howard Ulan, Assistant Counsel, for Department of Public Welfare, Jay C. Waldman, General Counsel, Governor's Office, and James R. Farley, Administrative Deputy General Counsel, Office of General Counsel, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Doyle.

Author: Rogers

[ 70 Pa. Commw. Page 483]

By Petition for Review filed pursuant to Section 204(b) of the Commonwealth Attorney's Act,*fn1 the Attorney General here challenges a regulatory provision of the Department of Public Welfare (Department) found at 11 Pa. Bull. page 3000 by which the licensure renewal term applicable to personal care boarding homes was increased from one to two years. The Attorney General asserts that this regulation must fall because it is inconsistent with a number of provisions of the Public Welfare Code (Code), Act of June 13, 1967, P.L. 31, No. 21, 62 P.S. § 101-1503 and especially with Section 1009 of the Code, entitled "Term and content of license," which requires with respect to the facilities here at issue that "All licenses issued by the department under this act shall expire one year following the day on which issued. . . ."

The Department argues in defense of its regulation that Section 1009 has been implicitly repealed by Section 211(L) of the Code, added by the Act of July 10, 1980, P.L. 493, No. 105, 62 P.S. § 211(L) (Supp. 1982-1983), which provides:

(L) After initial approval, personal care boarding homes need not be visited or inspected annually; provided that the department shall schedule inspections in accordance with a plan that provides for coverage of at least seventy-five

[ 70 Pa. Commw. Page 484]

    percent of the licensed personal care boarding homes every two years and all homes shall be inspected at least once every three years.

As the final premise of its syllogism, the Department contends that the license term may not be less than the required interval between inspections because Section 1007 of the Code, 62 P.S. § 1007, provides that the Department may issue a license only in those instances where "after investigation " (emphasis added) it is satisfied that the requirements of the Code and applicable regulations are met. In sum, the Department argues that Section 1009, requiring annual license renewal, is irreconcilable with Section 211, permitting some facilities to be inspected as infrequently as once in three years, read in conjunction with Section 1007, requiring each license renewal to be predicated on a departmental investigation, and therefore, since Section 211 is the most recent statement of the legislative will, it must prevail. See Sections 1934 and 1971(c) of the Statutory Construction Act, 1 Pa. C.S. §§ 1934, 1971(c).

The Attorney General responds that the provisions of the Code described above are not irreconcilable and that the requirement of Section 1009 that the term of each license be one year has not been implicitly repealed.*fn2 In our ...


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