Appeal from the Order of the Department of Public Welfare in case of Re: Brookline Manor Convalescent Home, Hearings and Appeals File Nos. 23-80-132, 23-80-133 and 24-80-22.
Charles O. Barto, Jr., for petitioner.
Bruce G. Baron, with him, Jeffrey Gonick, for respondent.
Judges Craig and Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr., did not participate in the decision in this case.
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Brookline Manor Convalescent Rest Home (Brookline Manor) appeals here from an order of the Executive Deputy Secretary of the Department of Public Welfare (DPW) which held that Brookline Manor could not depreciate demolished assets in its cost reports for 1977 and 1978.
The record reveals that, in mid-1977, Brookline Manor demolished a portion of its facility, replacing it with a new structure, as a result of substantial safety code violations cited by the Department of Health. Brookline Manor depreciated both the demolished building and the new structure for cost reporting years 1977 and 1978. The DPW disallowed the claimed depreciation with respect to the demolished asset. An appeal by Brookline Manor resulted in a reversal of DPW's initial determination by the Office of Hearings and Appeals on July 5, 1983. The DPW then filed a petition for reconsideration with the Executive Deputy Secretary of DPW on July 20, 1983. Brookline Manor filed an answer thereto on July 29, 1983 and the Executive Deputy Secretary issued his opinion reversing the Office of Hearings and Appeals on October 19, 1983.
Brookline Manor initially argues that, pursuant to 1 Pa. Code § 35.241(d), the DPW's petition for reconsideration was "deemed denied" thirty (30) days after it was filed because the Executive Deputy Secretary failed to act upon it within that time period.*fn1 It further contends that because DPW did not appeal to
[ 89 Pa. Commw. Page 632]
our Court from the "deemed denial", see Pa. R.A.P. 1512, the decision of the Office of Hearings and Appeals became final.
The DPW, on the other hand, contends that the thirty day period in which the agency must respond to a petition for reconsideration pursuant to 1 Pa. Code § 35.241(d) was tolled when Brookline Manor filed its answer to that petition on July 29, 1983. It maintains that, once an answer had been filed by Brookline Manor, the Executive Deputy Secretary has an unlimited period of time in which to rule upon the merits of the petition for reconsideration.
1 Pa. Code § 35.241 provides, in pertinent part, that:
(c) Response. No answers to petitions for rehearing or reconsideration will be entertained by the agency. If, and to the extent, however, that rehearing or reconsideration is granted by the agency head, a response in the nature of an answer may be filed by any participant within 15 days after the issuance of the order granting rehearing or reconsideration. Such ...