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decided: January 20, 1989.


Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Miller Home, Inc., File No. 34-87-002.


Harold R. Berk, with him, Caroline C. Rubin, Harold R. Berk Associates, for appellant.

Andrew A. Coates, with him, Howard Ulan, Assistant Counsel, for respondent.

Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 124 Pa. Commw. Page 199]

Miller Home, Inc. (Miller) appeals an order of the Pennsylvania Department of Public Welfare, Office of Mental Health, Personal Homes Division (Department) revoking Miller's license to operate a personal care home.

Miller is a personal care home located at 3214 Baring Street, Philadelphia, Pennsylvania, which applied for and obtained a license to operate pursuant to Article X of the Public Welfare Code (Code)*fn1 and 55 Pa. Code § 26.20. Miller has 34 residents. The Department revoked the regular license of Miller and issued a provisional license due to violations of Regulation No. 2-30-82a (Medication-Follow Prescription) and other medication violations discovered by the Department during an inspection on March 5, 1986.*fn2 The Department sent inspectors to Miller's home unannounced on June 17, 1986,*fn3 and October 28, 1986,*fn4 and repeat violations of

[ 124 Pa. Commw. Page 200]

    the same regulation were noted and cited together with violations of additional regulations. Repeatedly the enrolled provider*fn5 represented in writing that corrections had been made, yet the same or similar medication violations were found on subsequent inspections.*fn6 On the last of the series of inspections, October 28, 1986, the highest number of medication violations were found. (Exhibit C-6.)

In November of 1986, Miller was managed by Barbara Reese (Reese). Reese had a son, Gilbert Reese, who lived with her at the home. On certain shifts during October and November when an employee was absent, Gilbert Reese was requested by Reese to act as a substitute and perform the responsibilities of the absent employee. On or about November 7, 1986, Gilbert Reese punched resident Joyce Tymes resulting in her hospitalization for broken bones around the eye. The Department found that Gilbert Reese, on prior occasions, had other, less physical, altercations with residents of the facility which required police intervention on two occasions.*fn7 Reese subsequently resigned as manager of Miller. Lieberman, had no personal knowledge of the incident that occurred between Gilbert Reese and Joyce Tymes. (Adjudication Finding of Fact No. 6.)

By letter dated December 17, 1986,*fn8 the Department revoked Miller's license pursuant to Section 1026(b)(1)

[ 124 Pa. Commw. Page 201]

    and (5) of the Code, 62 P.S. § 1026(b)(1) and (5).*fn9 The Department found that Miller's repeated failure to comply with the Plan of Correction and to correct noncompliance items was also a violation of 55 Pa. Code § 20.71(a)(3) and (4). Miller filed a timely appeal and a hearing was held on March 18, 1987, at which Miller offered testimony regarding subsequent efforts to correct the violations. On November 6, 1987, the Department accepted the hearing officer's recommendation and Miller's appeal was denied.*fn10 Miller now appeals to our Court.

[ 124 Pa. Commw. Page 202]

Initially, we note our scope of review is governed by Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Our Court may overturn an adjudication of a Commonwealth agency if the adjudication is not in accordance with the law or if any of the Findings of Fact are not supported by substantial evidence. Commonwealth Page 202} of Pennsylvania, Department of Health v. Brownsville Golden Age Nursing Home, Inc., 103 Pa. Commonwealth Ct. 449, 520 A.2d 926 (1987); Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Miller argues that where violations are cited by the Department, the Department must consider corrective action by the personal home care provider pursuant to 55 Pa. Code § 20.52 and Section 1026(a) of the Code.*fn11 Miller argues the Department failed to consider evidence regarding a substantial reorganization and a plan of correction.

The Department argues that a holder of a license to operate a personal care home has a qualified right to only one opportunity to correct violations. It also argues that Miller should be held accountable for the misconduct of Gilbert Reese, whom the Department argues was Miller's employee, even if Lieberman had neither actual nor constructive notice of the misconduct.

Under the Department's regulations, a certificate of compliance may be denied or revoked when, upon inspection, it is found that the facility does not comply with

[ 124 Pa. Commw. Page 203]

    the Department's program licensure or approval regulations. 55 Pa. Code § 20.71(a)(2). Also, a certificate of compliance may be denied or revoked for failure to submit an acceptable plan to correct noncompliance items, 55 Pa. Code § 20.71(a)(3), and for gross incompetence, negligence, or misconduct in operating the facility, 55 Pa. Code § 20.71(a)(6).

In the case sub judice the Department's decision to revoke Miller's license was based upon the fact that during an inspection of the facility on July 12, 1985, medication violations were found and cited. Subsequently, violations of the same regulations and medication violations were again cited during an unannounced visit on March 5, 1986, resulting in the revocation of a regular license and the issuance of a provisional license. During an inspection of June 17, 1986, medication violations were once again cited. Finally, during an unannounced visit on October 28, 1986, continuing medication violations were found. Thus, substantial evidence exists to support the Department's conclusion that Miller has repeatedly failed to comply with the plan of correction and to correct non-compliance items in violation of 55 Pa. Code § 20.71(a)(4).

Miller argues that the Department has failed to consider its substantial reorganization and plan of correction. This argument is without merit. We recognize that Section 1026 of the Code conflicts directly with other sections concerning the proper response to the discovery of a violation. Section 1026(a) of the Code provides an opportunity for correction while Section 1026(b) provides for revocation of the license. However, from the Department's initial inspection on July 12, 1985, until the Department's last inspection on October 28, 1986, a period of more than fifteen months, Miller was given several opportunities but failed to correct the non-compliance

[ 124 Pa. Commw. Page 204]

    items and comply with the plan of correction.*fn12 The Department had sufficient grounds for revocation of Miller's license. See Pine Haven Residential Care Home v. Department of Public Welfare, 99 Pa. Commonwealth Ct. 1, 5, 512 A.2d 59, 61 (1986).

Miller's second argument is that the revocation of its license pursuant to Section 1026(b)(5) of the Code is unsupported by substantial evidence because Gilbert Reese was not an employee of Miller. We disagree. Substantial evidence supports the Department's finding that Joyce Tymes was abused by a staff person, Gilbert Reese, who had been hired by the manager subsequent to his having altercations with the residents in the facility which necessitated police intervention on two occasions.*fn13 Section 1026(b) of the Code states that where individuals cared for in the facility are mistreated or abused the Department shall revoke the license. Lieberman's

[ 124 Pa. Commw. Page 205]

    unawareness of Gilbert Reese's conduct is immaterial to a determination that Miller was in violation of the Code.

Accordingly, we affirm.


And Now, this 20th day of January, 1989, the order of the Pennsylvania Department of Welfare, dated November 6, 1987, at File No. 34-87-002, is hereby affirmed.

Judge MacPhail did not participate in the decision in this case.



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