Original jurisdiction in the case of Jane Nason, individually and as Beneficiary of the Trust under the Will of Bertha A. Hudson; Harry Nason, as Trustee of the Trust under the Will of Bertha A. Hudson; and Ralph W. Brenner, as Trustee of the Trust under the Will of Bertha A. Hudson v. Commonwealth of Pennsylvania; Al Benedict, Auditor General of the Commonwealth of Pennsylvania; R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania; Department of Public Welfare; Walter A. Cohen, Secretary of Welfare; County of Chester; Chester County Commissioners; Chester County Mental Health/Mental Retardation Board; and William McKendry, Administrator of the Chester County Mental Health/Mental Retardation Board.
Elizabeth A. Read, with her, Carol A. Mager, Montgomery, McCracken, Walker & Rhoads, for petitioners.
Vincent X. Yakowicz, Counsel, with him, Meredythe Jane Yakowicz, Deputy Counsel, and R. Budd Dwyer, Treasurer, for respondent, State Treasurer of the Commonwealth of Pennsylvania.
Kathleen F. McGrath, with her, Karen L. Galli, for respondent, Al Benedict, Auditor General of the Commonwealth of Pennsylvania.
Judges Williams, Jr., MacPhail and Doyle, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case.
[ 90 Pa. Commw. Page 131]
Before this Court are the preliminary objections of the Treasurer of the Commonwealth (State Treasurer) to the amended petition for review of Jane Nason, Harry Nason, and Ralph Brenner (Petitioners)
[ 90 Pa. Commw. Page 132]
filed in our original jurisdiction. Jane Nason is a mentally disabled adult who attends and resides at the Devereaux Foundation, a state approved school for individuals with mental handicaps in Chester County. Harry Nason and Ralph Brenner are the trustees of a testamentary trust under which Jane Nason is a beneficiary.
The amended petition for review alleges that the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess., P.L. 96, as amended, 50 P.S. §§ 4101-4704 (Act) confers upon mentally retarded residents of the Commonwealth who have been accepted and are awaiting admission to a state facility a statutory right to funded interim care. Petitioners further allege that on or about January, 1983, Jane Nason was notified of her acceptance to such a facility but, because bed space was not available, she was placed on a waiting list; that the Commonwealth and the Department of Public Welfare, (Respondents) contrary to their statutory duties under the Act, have refused to provide funds for Jane Nason's interim care; that Chester County and the Mental Health/Mental Retardation Board of Chester County, (Respondents) contrary to their statutory duties under the Act, have refused to appropriate, provide and/or disburse funds for Jane Nason's care; and, that Jane Nason's trust has paid for the interim care causing the trust principal to become depleted. Petitioners thus seek relief in the nature of a mandamus compelling Respondents to provide, appropriate, and disburse funds for interim care for Jane Nason and to reimburse Jane Nason and/or her trust for all amounts expended in payment for her interim care. Petitioners also seek attorney's fees.
Both the Auditor General and the State Treasurer filed preliminary objections to the petition for review,
[ 90 Pa. Commw. Page 133]
the focus thereof being that neither is a proper party to an action such as this. By stipulation of the parties at oral argument on the preliminary objections, the Auditor General has been dropped as a party.*fn1 Still outstanding, however, are the ...