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HOLMES CONSTANT CARE CENTER v. COMMONWEALTH PENNSYLVANIA (03/03/89)

decided: March 3, 1989.

HOLMES CONSTANT CARE CENTER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare, in the case of Appeal Of: Holmes Constant Care Center, Docket No. 34-87-016, dated May 5, 1988.

COUNSEL

Velma L. Jackson, for petitioner.

Jeffrey P. Schmoyer, Assistant Counsel, with him, Jason W. Manne, Assistant Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 124 Pa. Commw. Page 43]

Holmes Constant Care Center (Petitioner) has petitioned for our review of an order of the Department of Public Welfare (DPW) denying its appeal from DPW's refusal to renew its license to operate a personal care boarding home.

Petitioner was originally licensed in October 1981 to operate a personal care home. Between 1981 and 1986, it was issued eight provisional licenses and one regular license.*fn1 On July 10, 1986, while operating under its

[ 124 Pa. Commw. Page 44]

    fourth consecutive provisional license, Petitioner submitted an application for a regular license. In response to this application, DPW inspected the home on August 25, September 11 and October 30, 1986 and January 3 and February 23, 1987. Various violations of regulations, detailed below, were found to exist. The DPW inspector recommended that Petitioner be granted a regular license for a period of six months, rather than the typical one-year license. The central office in Harrisburg did not accept this recommendation, finding no authority to issue a six-month regular license. Accordingly, because Petitioner was not in compliance with the regulations, DPW denied its application and Petitioner appealed.

A hearing was held before a hearing examiner on May 21, 1987. On May 3, 1988, the hearing examiner recommended that the appeal be denied. The director of the Office of Hearings and Appeals (OHA) adopted the recommendation in its entirety on May 5, 1988 and Petitioner filed a timely appeal from that order.*fn2

Petitioner presents two issues for our consideration which we shall address in the order presented: 1) whether the adjudication is supported by substantial evidence and

[ 124 Pa. Commw. Page 452]

) whether DPW erred "in allowing testimony obtained through an illegal search of [Petitioner's] property to be used to support its ...


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