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CITY PHILADELPHIA ET AL. v. COMMONWEALTH PENNSYLVANIA (09/18/89)

decided: September 18, 1989.

CITY OF PHILADELPHIA ET AL., PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE ET AL., RESPONDENTS



Appeal from COMPLAINT (CLASS ACTION).

COUNSEL

Richard J. Gold, First Deputy City Sol., with him, Guy Vilim, Divisional Deputy City Sol., Doris M. Leisch, Deputy City Sol., Beth Kahn, Asst. City Sol., and Seymour Kurkland, for petitioners, City of Philadelphia, Mayor Goode, and Doctors Clifford and Glover.

David Ferleger, Philadelphia, for petitioners, Philadelphia Police and Fire Ass'n for Handicapped Children, Inc., individuals Coccia and Fialkowski, et al.

Gwendolyn T. Mosley, Deputy Atty. Gen., with her, Gregory R. Neuhauser, Sr. Deputy Atty. Gen., David Donaldson, Sr., Deputy Atty. Gen., and John G. Knorr, III, Chief Deputy Atty. Gen., Chief litigation Section, and Morey Meyers, Office of Gen. Counsel, for respondents, Com. of Pennsylvania, Dept. of Public Welfare, Governor Casey, and Secretaries Hershock, White, Jr., and Eidelman and Director Orr.

Robert S. Spalding, Deputy Gen. Counsel, Philadelphia, with him, Bridget M. Whitley, Asst. Gen. Counsel, Harrisburg, Judith Karns Ciszek, Associate Gen. Counsel, Greensburg, and James M. White, Gen. Counsel, for respondent, Catherine Baker Knoll, Treasurer of the Com. of Pennsylvania, Harrisburg.

C. Clark Hodgson, Jr., with him, Jane Landes Foster, Stradley, Ronon, Stevens & Young, Philadelphia, for respondents, Singel and Manderino and The Pennsylvania Gen. Assembly.

Crumlish, Jr., President Judge.

Author: Crumlish

[ 128 Pa. Commw. Page 567]

OPINION

The City of Philadelphia et al. (petitioners)*fn1 have filed a motion for preliminary injunction seeking to compel the Commonwealth of Pennsylvania et al. to provide funding to continue or reinstate adequate nonresidential services to mentally retarded persons.*fn2

Petitioners include a class comprised of mentally retarded persons living in their own homes who are receiving or until

[ 128 Pa. Commw. Page 568]

    recently had been receiving nonresidential "habilitative"*fn3 services provided by the City of Philadelphia. The petitioner class includes infants, children and young adults and persons with mild, moderate, severe and profound retardation. Class members have experienced or will experience the curtailment or elimination of four basic types of service: early intervention programs, family support services, vocational training and case management.

In order to understand the funding mechanism for these programs, a review of the relevant statutory authority is necessary.

Provision of services to the mentally retarded is governed by the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess., P.L. 96, as amended, 50 P.S. §§ 4101-4704 (Act), which divides responsibility for providing services to the mentally retarded between state and county governments. The state, through the Department of Public Welfare, is obligated to "assure . . . the availability and equitable provision of adequate . . . mental retardation services for all persons who need them . . .," and to assist the counties in fulfilling their duties. 50 P.S. § 4201. The counties are responsible for diagnosis, evaluation of needs, and development of a plan to meet those needs. 50 P.S. § 4301. The Act requires the Pennsylvania General Assembly to appropriate funds for such mental retardation services, 50 P.S. § 4201. It authorizes the Department to disburse these and supplementary federal funds. Section 4509(1) requires that the state provide ninety percent of funding for county ...


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