Appeal from the Order of the Pennsylvania State Health Facility Hearing Board, in the case of In Re: James H. Stewart, Jr., project No.: CON-85-C-4443-B and CON-85-C-4435-B, (Grantham Woods), Docket No. CN 87-007.
James H. Stewart, Jr., petitioner, for himself.
Carol Brayshaw Longwell, Assistant Counsel, with her, Jonathan P. Neipris, Chief Counsel, for respondent, Department of Health.
Reed Hamilton, Blank, Rome, Comisky & McCauley, for respondent, Grantham Woods, Inc.
Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 117 Pa. Commw. Page 553]
James H. Stewart, Jr. (Petitioner) appeals from an order of the State Health Facility Hearing Board (Board) quashing Petitioner's appeal from a decision of the Department of Health (Department) which granted the application of Grantham Woods, Inc. for a certificate of need (CON) to construct a long term care facility. We reverse and remand for further proceedings.
The Department's decision to grant the CON appears in a letter dated December 12, 1986 from H. Arnold Muller, M.D., Secretary of Department, to James O. Banks, Executive Director of Grantham Woods. The copy of this decision appearing in the record
[ 117 Pa. Commw. Page 554]
certified from the Department to the Board contains Muller's signature, a handwritten signing date of December 23, 1986, and a handwritten mailing date of December 24, 1986. Record at 830. The copy of the decision received by Petitioner was not signed, contained no signing date and no mailing date.*fn1 Record items 7 and 8, Exhibit A. Petitioner admits to having received notification of the decision on December 26, 1986. Petitioner filed his appeal with the Board on January 26, 1987.
The Department and Grantham Woods filed motions with the Board to quash or dismiss Petitioner's appeal for being untimely filed. Petitioner filed an answer in which he argued his appeal was timely. In the event that the Board determined his appeal had been untimely filed, Petitioner also requested permission from the Board to appeal nunc pro tunc. The Board determined that Petitioner's appeal was untimely filed and that Petitioner was not entitled to appeal nunc pro tunc.*fn2 On appeal to this court, Petitioner continues to assert that his appeal to the Board was timely and that if not, he should have been permitted to appeal nunc pro tunc. For the reasons which follow, we conclude that the appeal was timely.
Section 506(a) of the Health Care Facilities Act,*fn3 in pertinent part, provides:
Decisions of the department on an application for a certificate of need ...