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WILLIAM D. LEE AND WILLIAM D. LEE T/D/B/A DENVER NURSING HOME v. COMMONWEALTH PENNSYLVANIA (02/20/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 20, 1987.

WILLIAM D. LEE AND WILLIAM D. LEE T/D/B/A DENVER NURSING HOME, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Orders of the Department of Public Welfare, in case of Appeal of: Denver Nursing Home, File Nos. 23-80-173, 23-80-174, 23-83-283, 23-83-284, 23-83-285, 23-83-286, and 23-83-314, dated March 15, 1985.

COUNSEL

Gilbert B. Abramson, Abramson, Cogan, Kogan, Freedman & Blackman, P.C., for petitioner.

Bruce G. Baron, Assistant Counsel, for respondent.

Judges Barry and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 105 Pa. Commw. Page 212]

William D. Lee (Lee), on his own behalf, and on behalf of the Denver Nursing Home, Inc. (Home) (jointly, the petitioners), which Mr. Lee owned and administered during the period of time involved in this matter, the fiscal years ending in 1977 through 1981,*fn1 petitions for review of the March 15, 1985 order of the Director of the Office of Hearings and Appeals (Director) of the Department of Public Welfare (DPW), which adopted, in its entirety, a Recommendation by a DPW Hearing Officer (Hearing Officer).*fn2

[ 105 Pa. Commw. Page 213]

The relevant events leading to the Hearing Officer's Recommendation present the following scenario. The Hearing Officer had scheduled a hearing in this matter for November 15, 1984 with due notice to the petitioners and to DPW. On November 14, 1984, Robert E. Giering, the attorney, who, up to that time, had been representing the petitioners before the administrative authorities,*fn3 notified the Hearing Officer and counsel for DPW that he had been dismissed as counsel for the petitioners as of that date. No motion for a continuance was filed by the petitioners, then or later, with the Hearing Officer.

Despite his notification of dismissal, Attorney Giering attended the hearing, which the Hearing Officer convened at the scheduled place and time. At the hearing, Attorney Giering, while again noting that he no longer represented the petitioners, requested a continuance

[ 105 Pa. Commw. Page 214]

    so as to allow the petitioners' new attorney, who was not named for the record, an opportunity to familiarize himself with the case. Mr. Lee did not appear at the hearing, nor did he or any other representative of the petitioners request a continuance. The Hearing Officer denied Attorney Giering's "request" for a continuance, and, upon DPW's motion, issued the dismissal order which is at issue here.

On review, the petitioners, while conceding that the decision to grant or deny a continuance is within the discretion of the Hearing Officer, O'Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 487 A.2d 90 (1985), and that our review thereof is limited to determining whether or not the Hearing Officer abused that discretion in so doing id., contend that the denial of a continuance under the circumstances here did constitute such an abuse of discretion. We cannot agree.

Initially, we note that it is, at best, questionable that Attorney Giering's request for a continuance on behalf of the petitioners, coming as it did, after his dismissal as their lawyer, can constitute a valid request by the petitioners. Assuming arguendo that it does, however, we have held in somewhat similar circumstances that such an untimely request, in the unemployment compensation context, may be properly refused even if founded on good cause. Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 463 A.2d 1298 (1983). Accordingly, we find no abuse of the Hearing Officer's discretion by his refusal to grant a continuance under the present circumstances.

The petitioners also contend that the Hearing Officer abused his discretion by dismissing the involved appeals without considering their merits and that the dismissal was premised on invalid and inadequate findings of fact. Again, we disagree.

[ 105 Pa. Commw. Page 215]

The petitioners bore the burden of proof before the Hearing Officer, see Mead Nursing Home v. Department of Public Welfare, 59 Pa. Commonwealth Ct. 539, 430 A.2d 379 (1981), and by virtue of their nonappearance, failed to present any evidence to support their challenges as to the audit appeals which are presently before us,*fn4 cf. Frankford Hospital v. Department of Public Welfare, 77 Pa. Commonwealth Ct. 448, 466 A.2d 260 (1983). The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper.

Accordingly, finding no abuses of discretion on the part of the administrative authorities, we will affirm the Director's order of March 15, 1985.

Order

And Now, this 20th day of February, 1987, the order of the Director of the Office of Hearings and Appeals of the Department of Public Welfare, dated March 15, 1985, in the above-captioned matter is affirmed.

Disposition

Affirmed.


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