NO. 117 E.D. Misc. Dkt. 1984, Application for Writ of Prohibition and Mandamus, Application to Assume Extraordinary Jurisdiction, and Application to Review Denial of Stay.
Howard Ulan, Asst. Counsel, Dept. of Public Welfare, John O.J. Shellenberger, III, Allen C. Warshaw, Deputy Attys. Gen., Harrisburg, for petitioner.
Alfred J. DiBona, Jr., Rita S. Levine, Defender's Ass'n of Philadelphia County, Ilene W. Shane, Developmental Disabilities Law Project, Howland W. Abramson, Charles W. Johns, Paul J. Gelman, Philadelphia, for respondent.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a Dissenting Opinion in which Flaherty, J., joins.
The Commonwealth, Department of Public Welfare (Department) has petitioned this Court for a writ of prohibition in order to preclude the Court of Common Pleas of Philadelphia from ruling on the propriety of the transfer of mentally
retarded patients from one facility to another. The Commonwealth has further requested that this Court assume plenary jurisdiction of the underlying controversy, and that we review the decision of the Commonwealth Court denying the application for a stay.
The proposed transfer involves 86 patients who were involuntarily committed by the Philadelphia court pursuant to Section 406 of Mental Health/Mental Retardation Act,*fn1 50 P.S. § 4406. Each of these patients was committed specifically to a residential program known as the Woodhaven Extension Program, located on grounds adjacent to, and/or part of, the Philadelphia State Hospital in Northeast Philadelphia.
In approximately April, 1984, the Department decided it would be more efficient, both economically and administratively, to close the Woodhaven facility. This decision was precipitated by the expiration of the service contract between the Department and Temple University, whereby Temple had operated the Woodhaven facility.
In conjunction with the decision to close the Woodhaven facility the Department decided to transfer all of the patients currently in the program to the Embreeville Center, located in Chester County. Embreeville is a state operated facility dedicated exclusively to the care of mentally retarded patients. It is located approximately 35 miles from center city Philadelphia, and approximately 50 miles from Woodhaven.
Upon hearing of the proposed transfers the Defenders' Association of Philadelphia, which was the attorney of record for most of the patients involved, filed a petition to amend the orders of commitment to provide that any transfer would require an individual hearing prior to its effectuation.*fn2 The petition to amend was considered by the Honorable Alfred J. DiBona, Jr., of the Court of Common Pleas of Philadelphia. However, prior to a decision on said petition,
the Department entered a special appearance and filed preliminary objections contesting, among other things, the jurisdiction of the common pleas court to hear this matter, as well as the authority of that court to order relief. On April 27, 1984, Judge DiBona signed a rule to show cause why an order should not be entered prohibiting the transfers. The rule provided that "all proceedings to stay ...