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JANE NASON v. COMMONWEALTH PENNSYLVANIA AL BENEDICT (02/03/87)

decided: February 3, 1987.

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, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA; AL BENEDICT, AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



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 et al.

COUNSEL

Elizabeth A. Read, with her, Carol A. Mager, Montgomery, McCracken, Walker & Rhoads, for petitioners.

Clarence A. Dickerson, Solicitor for Mental Health and Mental Retardation Board of Chester County.

Kathleen F. McGrath, Deputy Attorney General, with her, Allen C. Warshaw, Director, Executive Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge Colins.

Author: Doyle

[ 103 Pa. Commw. Page 431]

Jane Nason, a mentally retarded individual, and two trustees of a testamentary trust (Trust) under which she is a beneficiary (Petitioners)*fn1 have filed a mandamus action

[ 103 Pa. Commw. Page 432]

    in our original jurisdiction against the Commonwealth of Pennsylvania, Department of Public Welfare and certain state officials (Commonwealth Respondents),*fn2 and Chester County and certain county officials (County Respondents)*fn3 seeking to compel the respondents to pay for her interim care at a private facility until she can be placed in a state facility. Before us are Petitioners' motion for summary judgment and cross-motions for summary judgment filed by both the Commonwealth and County Respondents. We deny Petitioners' motion and grant summary judgment in favor of both the Commonwealth Respondents and the County Respondents.*fn4

The material facts in this case are undisputed. Jane Nason is a mildly retarded 61-year-old adult who currently resides at the Devereux Foundation (Devereux) in Chester County, a private, state-licensed residential school for the mentally handicapped. She was placed in Devereux by her family at age nine, and since 1972 her care has been paid for through income from the Trust. In recent years, however, the cost of her care at Devereux has exceeded the income of the Trust, resulting

[ 103 Pa. Commw. Page 433]

    in some depletion of the Trust principal.*fn5 Consequently, Nason's family sought to have her placed in a state-operated facility in order to reduce the expense of her care.

In January 1983, Nason was accepted for placement in the state-operated mental retardation facility at Embreeville Center (Embreeville) in Chester County, Pennsylvania. Due to a chronic shortage of available beds, however, Nason was unable to be admitted and ...


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