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OVERLOOK MEDICAL CLINIC v. COMMONWEALTH PENNSYLVANIA (10/30/89)

decided: October 30, 1989.

THE OVERLOOK MEDICAL CLINIC, SILVER OAKS NURSING CENTER AND GOLDEN HILL NURSING HOME, PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT



PETITION FOR REVIEW STATE HEALTH FACILITY HEARING BOARD.

COUNSEL

Charles O. Barto, Jr., Charles O. Barto, Jr. and Associates, for petitioners.

Carol Brayshaw Longwell, Asst. Counsel, with her, Ruth E. Granfors, Chief Counsel, for respondent.

Andrew S. Gordon, Buchanan Ingersoll, P.C., for intervenor, Castle Manor Properties Associates.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, McGinley and Smith, JJ. Smith, J., concurs in the result only. Crumlish, Jr., President Judge, concurring and dissenting. Barry, J., joins in this concurring and dissenting opinion.

Author: Doyle

[ 129 Pa. Commw. Page 328]

The instant case is before us subsequent to our order of July 25, 1989, granting reconsideration. By order dated June 12, 1989 this Court, in an opinion authored by President Judge Crumlish, 126 Pa. Commonwealth Ct. 466, 560 A.2d 268, (1989), reversed a determination of the State Health Facility Hearing Board (Board) that Overlook Medical Clinic, Silver Oaks Nursing Center and Golden Hill Nursing Home (Petitioners) lacked standing to appeal the grant of a Certificate of Need (CON) by the Department of Health (Department) to Castle Manor Properties Associates (Castle Manor). That determination of lack of standing was based upon Petitioners' failure to file formal written objections to the application of Castle Manor for a CON within fifteen days of a publication notice announcing that the CON application had been deemed complete by the Department and that the project was scheduled to be reviewed by the Department. Our order remanded the case to the Board with directions that it allow Petitioners to exercise their appeal rights under the Health Care Facilities Act (Act), Act of July 19, 1979, P.L. 130, as amended, 35 P.S. § 448.101-448.904.

Subsequent to the issuance of our order, the Department petitioned for reconsideration. We granted that petition and now reaffirm our prior order but on the basis of the rationale set forth in IFIDA Health Care Group Ltd. v. Department of Health, 128 Pa. Commonwealth Ct. 634, 564 A.2d 535, (1989). We held there that where the Department conducts a hearing under Section 704 of the Act, 35 P.S. § 448.704, that Section dictates that the appeal procedures set forth in subsection 703(b) of the Act, 35 P.S. § 448.703(b), be employed.*fn1 It does not direct that the

[ 129 Pa. Commw. Page 329]

    confusing appeal procedures appearing in subsection 703(a) of the Act be utilized as that subsection concerns situations where a health systems agency, rather than the Department, conducts the hearing. We note that in both IFIDA and the instant case the Department conducted the hearing.*fn2

The relevant facts here are neither complicated nor disputed. On December 4, 1987 Castle Manor filed an application for a CON with the Department for the construction of a seventy-eight bed, subacute, skilled and intermediate care facility in Lawrence County. On January 29, 1988 the Department published notice in a local newspaper, and on January 30, 1988 in the Pennsylvania Bulletin, at 18 Pa. B. 517 (1988), that the CON had been deemed complete and that the Department would review the project. Substantively, the notices stated that "[a]ny affected persons may request a public hearing."*fn3 The Pennsylvania Bulletin notice also indicated that "all requests must be made in writing, within 15 days of this notice . . . ." The notice further advised that it was published in accordance with Section 703(b) of the Act 35 P.S. § 448.703(b). The notice said nothing about filing objections, nor did it in any way indicate how persons could become parties.

Each Petitioner here, within fifteen days of the Pennsylvania Bulletin notice, sent a letter to the Department seeking to become an ...


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