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JAMES A. ROCCO v. COMMONWEALTH PENNSYLVANIA (09/09/83)

decided: September 9, 1983.

JAMES A. ROCCO, JR., R. PH. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of In the Matter Of: James A. Rocco, Jr., Hearings and Appeals File No. 12-82-2.

COUNSEL

Philip L. Blackman, with him Gilbert B. Abramson, Abramson, Freedman & Blackman, P.C., for petitioners.

Bruce G. Baron, Assistant Counsel, for respondent.

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

Author: Macphail

[ 77 Pa. Commw. Page 89]

The Department of Public Welfare (DPW) has filed preliminary objections to an amended petition for review filed with this Court by Petitioners.*fn1 The petition is addressed to both our appellate and original jurisdiction*fn2 and includes a request for relief under the Declaratory Judgments Act (DJA), 42 Pa. C.S. ยงยง 7531-7541. DPW's preliminary objections present a question of jurisdiction and a demurrer.*fn3

The amended petition for review alleges that Petitioners were notified by letter dated December 7, 1981 that their provider agreement with DPW under the Pennsylvania Medical Assistance Program (Program) was to be terminated.*fn4 The letter further instructed Petitioners of their right to appeal the termination and their right to a hearing upon appeal. A timely appeal was filed with DPW on December 22, 1981. Numerous administrative hearings have been held regarding the charges underlying DPW's termination action. On September 9, 1982, DPW filed additional charges against Petitioners which the Hearing Examiner proposed to consider and rule on together with the original set of charges. A final order has not yet, to our knowledge, been entered by DPW in this matter.

As best we can determine, Petitioners assert the following legal grounds for the amended petition for

[ 77 Pa. Commw. Page 90]

    review: 1) that their constitutional rights to due process are being violated by an improper commingling of adjudicatory and prosecutorial functions and by the failure of DPW to render a prompt decision; 2) that Petitioners' administrative remedy is inadequate because of the improper commingling and administrative delays; 3) that Petitioners are entitled to a pretermination hearing; 4) that DPW was without authority to enter into the provider agreement which constitutes a contract of adhesion and 5) that DPW's action has caused irreparable harm to Petitioner Rocco's reputation.

The specific relief requested by Petitioners is that we enter an order which would prohibit DPW from suspending Petitioners, declare that Petitioners' due process rights have been violated, order a pretermination hearing, declare that Petitioners' right to participate in the Program is governed by the Administrative Agency Law,*fn5 and declare that the provider agreement is illegal, null and void.

Having summarized the Petitioners' allegations and requested legal relief, we observe that they are virtually identical to those recently analyzed by this Court in the case of Barsky v. Department of Public Welfare, 76 Pa. Commonwealth Ct. 417, A.2d (1983). Barsky involved a podiatrist whose medical provider agreement was also terminated by DPW. As in the instant case, Barsky filed a petition for review addressed to our original and appellate jurisdiction which included a request for declaratory relief. In addressing DPW's preliminary objections in Barsky, we ruled on the same legal issues presented by the instant ...


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