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BLAIR CHRISTIAN HOME v. COMMONWEALTH PENNSYLVANIA (02/06/89)

decided: February 6, 1989.

BLAIR CHRISTIAN HOME, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Commonwealth of Pennsylvania, Department of Public Welfare, in the case of Appeal Of: Blair Christian Home, File No. 34-86-009.

COUNSEL

Karen L. Steele, Leopold, Eberhardt, Goldstein, Heslop & Steele, for petitioner.

Howard Ulan, Assistant Counsel, for respondent.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge 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

[ 123 Pa. Commw. Page 348]

Blair Christian Home (Petitioner) a personal care boarding home, has petitioned for our review of an order entered by the Acting Director of the Office of Hearings and Appeals (OHA) of the Department of Public Welfare (DPW). Without reaching the merits, we reverse.

[ 123 Pa. Commw. Page 349]

Petitioner was cited by a DPW inspector for violations of a regulation requiring that personal care home residents be independently mobile or semimobile.*fn1 Petitioner was issued a provisional license as a result of these violations, and it appealed.

Hearings were held before a hearing attorney designated by the DPW to take testimony. On November 24, 1987, the hearing attorney rendered a decision*fn2 in favor of the Petitioner. This decision was reversed by the Acting Director of the OHA on December 29, 1987. Petitioner promptly*fn3 filed a request for reconsideration of this order, in which it specifically challenged the right of the OHA to reject the hearing attorney's decision beyond the ten-day period following its entry. On January 28, 1988, Petitioner filed its appeal to this Court from the OHA order.*fn4

The threshold issue which we must address is whether the hearing attorney's decision became final ten days after it was entered because of the OHA's failure to reject it within that period. Petitioner's argument is based upon the following uncodified regulation of the DPW, found in 7 Pa. B. 3267-3270 (1977):

ยง 9003.13.3 Optional Review by the Secretary.

The decision of the hearing officer is subject to reversal by the Secretary or his designee, the Executive Director ...


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