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MURRAY BARSKY v. COMMONWEALTH PENNSYLVANIA (08/17/83)

decided: August 17, 1983.

MURRAY BARSKY, D.P.M., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Murray Barsky, D.P.M., dated March 23, 1983.

COUNSEL

Philip L. Blackman, with him Gilbert B. Abramson, Abramson, Freedman & Blackman, for petitioner.

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

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail.

Author: Macphail

[ 76 Pa. Commw. Page 418]

Preliminary objections have been filed by the Department of Public Welfare (DPW) to an Amended Petition for Review wherein Murray Barsky, D.P.M., is the Petitioner. The petition recites that this Court has jurisdiction of the matter by virtue of the provisions of 42 Pa. C.S. § 761, which sets forth our "original jurisdiction", 42 Pa. C.S. § 763, which sets forth our "appellate jurisdiction" and 42 Pa. C.S. §§ 7531-7541 which is the Declaratory Judgments Act (DJA). DPW's objections are in the nature of a petition raising a question of jurisdiction and a demurrer.

The petition sets forth that the Petitioner is a podiatrist whose Medical Provider Agreement (Agreement) with the DPW under the Pennsylvania Medical Assistance Program (Program) was terminated as of March 9, 1983 by a letter from DPW which advised the Petitioner of his right to appeal the termination and his right to a hearing if an appeal was filed. Petitioner filed a timely appeal according to the instructions of DPW on March 9, 1983.*fn1

Petitioner further alleges that his constitutional rights have been offended by DPW's action because it is likely that no adjudication will be rendered before December, 1983, that there is an improper commingling of adjudicatory and prosecutorial functions by DPW, that DPW has indicated that it cannot rule on

[ 76 Pa. Commw. Page 419]

    due process matters nor can it issue subpoenas, that Petitioner cannot obtain a fair administrative remedy, that Petitioner's equal protection rights are offended because DPW has issued different termination orders in other cases, that Petitioner is entitled to a pre-termination hearing, that Petitioner's administrative remedy is inadequate, that the Agreement is unenforceable because it contains adhesion contracts and that DPW's action has caused Petitioner irreparable harm.

Petitioner requests that we enter an order which would prohibit DPW from suspending the Petitioner, declare that the procedures instituted by DPW violate Petitioner's due process rights, order a pre-termination hearing, declare that Petitioner's rights to participate in the program are governed by administrative agency law and declare that the Agreement is illegal, null and void.*fn2

At the outset we note the obvious: preliminary objections may not be filed to an appeal. Our review of the petition before us clearly indicates, however, that there is no final order to substantiate the appeal. Therefore, the DPW letter is not an adjudication. 2 Pa. C.S. § 101. The appellate aspect of the petition, therefore, must be dismissed. Since there is no motion ...


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