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COMMONWEALTH PENNSYLVANIA v. DIVINE PROVIDENCE HOSPITAL (10/10/86)

decided: October 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, PETITIONER
v.
DIVINE PROVIDENCE HOSPITAL, RESPONDENT



Appeal from the Order of the Board of Claims, in case of Appeal of: Divine Providence Hospital, 1100 Grampian Blvd., Williamsport, Pa. 17701, Docket No. 777, dated August 15, 1985.

COUNSEL

Bruce G. Baron, Assistant Counsel, for petitioner.

Richard A. Vanderlin, with him, O. William Vanderlin, McNerney, Page, Vanderlin & Hall, for respondent.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 101 Pa. Commw. Page 250]

This is an appeal by the Department of Public Welfare (DPW) from an order of the Board of Claims (Board) awarding Divine Providence Hospital (Provider) $3,448.84 plus six percent interest beginning on August 1, 1980.

This matter began when Provider was sent, on July 14, 1981, its final settlement and cost report for the year ending June 30, 1980. Provider appealed this report to DPW on September 4, 1981, but the appeal was untimely and hence DPW's Office of Hearings and Appeals dismissed the appeal on March 8, 1982. The Secretary of the Department of Public Welfare denied reconsideration on May 10, 1982. The matter was appealed to this court and we affirmed on August 5, 1983. Divine Providence Hospital v. Department of Public Welfare, 76 Pa. Commonwealth Ct. 188, 463 A.2d 118 (1983). The basis on which the appeal before DPW was sought was that "the state auditor erroneously represented to the facility that per diem reimbursement for depreciation and interest was included in the net operating costs reimbursement to [Provider] and that the applicable regulation did not permit separate reimbursement for depreciation and interest expenses."

On December 9, 1981, after Provider filed its appeal with DPW, but before the appeal was dismissed as

[ 101 Pa. Commw. Page 251]

    untimely, Provider also filed a claim before the Board alleging that DPW had breached its provider agreement (alleged to be a binding contract) by not reimbursing Provider in accordance with DPW regulations as mandated by the agreement. The Board stayed the matter pending final action by DPW. The Board then lifted the stay on July 8, 1982, but prior to this determination however, the Board overruled DPW's preliminary objections asserting lack of jurisdiction and ripeness and also denied DPW's request to permit an interlocutory appeal.

After the stay was lifted, DPW filed its answer and new matter. On September 7, 1982 DPW's motion for judgment on the pleadings was denied. After this Court affirmed DPW's dismissal of the appeal pending before it in August of 1983, see Divine Providence Hospital, DPW moved for summary judgment before the Board asserting that the claim constituted an impermissible collateral attack on a final order. The Board denied the motion. A hearing on the merits was held on October 31, 1984. On August 15, 1985 the order, which is the subject of this appeal, was entered.

In its appeal to this Court DPW has raised numerous arguments which can be categorized briefly as (1) an attack on the subject matter jurisdiction of the Board (2) an assertion that the Board proceedings constituted an impermissible collateral attack and (3) an assertion that the Board's decision on the merits is unsupported by the evidence and is contrary to law. We will examine these contentions keeping in mind that our review of a Board order is limited to determining whether the order is in accordance with law and whether the findings of ...


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