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St. Elizabeth's Child Care Center v. Dep't of Public Welfare

February 19, 2009


Appeal from Order of the Commonwealth Court entered 4-3-06 at No. 1751 CD 2005, which Reversed the Order of the Bureau of Hearings and Apps, Department of Public Welfare, entered 7-29-05 at No. 18-97-038.

The opinion of the court was delivered by: Mr. Justice Eakin


ARGUED: March 5, 2008

RESUBMITTED: January 22, 2009


A Department of Public Welfare (DPW) field representative visited St. Elizabeth's Child Care Center, a nonprofit child day care center affiliated with the Roman Catholic Church. The field representative did not observe any health or safety hazards at the center; however, she determined it did not have a certificate of compliance. DPW regulations require all child day care centers providing care for seven or more children, like St. Elizabeth's, to obtain a certificate of compliance before commencing operations. 55 Pa. Code § 3270.3(c); id., § 3270.11(a). Because St. Elizabeth's did not have a certificate, DPW ordered it to cease and desist operating the day care center. St. Elizabeth's appealed to DPW's Bureau of Hearings and Appeals, arguing DPW lacked statutory authority to promulgate regulations requiring certification of nonprofit child day care centers.

St. Elizabeth's also raised constitutional concerns regarding the regulations' impact on religious liberty.

An administrative law judge (ALJ) explained Article IX of the Public Welfare Code, 62 P.S. §§ 901-922, grants DPW supervision over "all children's institutions within this Commonwealth," including nonprofit child day care centers like St. Elizabeth's. Id., § 902(3). This supervisory power has been construed broadly. See Hospital Association of Pennsylvania v. MacLeod, 410 A.2d 731, 734-35 (Pa. 1980) (holding § 902 authorized Department of Health to regulate hospitals' managerial practices). Further, the ALJ determined § 911's primary purpose was to approve operations. ALJ Opinion, 7/25/05, at 15 (noting § 911(a)(1) authorizes inspection before operations commence). Therefore, the ALJ held DPW may require nonprofit child day care centers to obtain a certificate of compliance. Id., at 18. Because of statutory constraints, the ALJ could not rule on the regulations' constitutionality. See 1 Pa. Code § 35.187 (enumerating ALJ's authority). The ALJ recommended St. Elizabeth's appeal be denied, and the Bureau of Hearings and Appeals adopted this recommendation.

The Commonwealth Court reversed, distinguishing Hospital Association of Pennsylvania, concluding it did not address any regulation under Article IX. St. Elizabeth's Child Care Ctr. v. Dep't of Pub. Welfare, 895 A.2d 1280, 1282-83 (Pa. Cmwlth. 2006) (citing Hospital Association of Pennsylvania, at 735 n.11). Moreover, the court noted Article X authorizes DPW to promulgate regulations regarding licensing of for-profit child day care centers, see 62 P.S. §§ 1002, 1021, whereas Article IX is silent on the issue of certification, see 62 P.S. § 911. St. Elizabeth's Child Care Ctr., at 1282. Applying the maxim expressio unius est exclusio alterius,*fn1 the court concluded DPW did not have authority under Article IX to require St. Elizabeth's be certified before operating its day care center. Id. The court did not discuss St. Elizabeth's religious liberty argument. Id., at 1283 n.8.

Judge Pellegrini concurred with the majority's analysis of Article IX, but would have reversed on different grounds, namely, that DPW did not have jurisdiction to enforce the cease and desist order. Id., at 1283 (Pellegrini, J., concurring). He cited § 911, noting DPW is limited to visiting and inspecting nonprofit centers, inquiring into matters related to their operations, and directing institutions to correct any objectionable conditions. Id., at 1283-84. He further argued § 911 does not give authority to issue cease and desist orders, but only permits DPW to request the Department of Justice institute legal proceedings. Id., at 1284 (citing 62 P.S. § 911(c)).

Judge Cohn Jubelirer joined Judge Pellegrini's concurrence, and dissented without opinion. Judge Smith-Ribner dissented without opinion.

We granted allowance of appeal on the following issues:

Whether [the] Commonwealth Court erred when it invalidated a [DPW] regulation requiring nonprofit day care facilities, in order to lawfully operate, to hold a certificate of compliance from DPW verifying compliance with health and safety regulations?

Whether [the] Commonwealth Court, in so invalidating the DPW regulation, erred in applying the maxim expressio unius est exclusio alterius to the absolute exclusion of other canons of statutory construction that are more relevant here?

Petition for Allowance of Appeal, at 3.

As this case concerns Article IX's meaning, it is a case of statutory interpretation and is a pure question of law. See Commonwealth v. Bortz, 909 A.2d 1221, 1223 (Pa. 2006). Questions of law are subject to a de novo standard of review, and the scope of review is plenary. Craley v. State Farm Fire and Casualty Company, 895 A.2d 530, 539 n.14 (Pa. 2006).

DPW argues Article IX confers broad regulatory power on DPW, providing it with supervisory authority over "all children's institutions within this Commonwealth." 62 P.S. ยง 902(3). DPW contends the language authorizing the supervision of child day care facilities is more explicit than the language Hospital Association of Pennsylvania relied on to uphold extensive regulations under Article IX. See Hospital Association of Pennsylvania, at 734-35 (holding Article IX gives Department of Health power to establish rules and regulations although Article IX lacks express grant of authority). Finally, DPW questions the Commonwealth Court's exclusive ...

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