St. Elizabeth's Child Care Center v. Department of Public Welfare
895 A.2d 1280
Pa. Commw. Ct.
2006
Check Treatment

*1 ST. ELIZABETH’S CHILD CARE

CENTER, Petitioner

DEPARTMENT OF PUBLIC

WELFARE, Respondent. Pennsylvania.

Commonwealth Court

Argued March

Decided

Philip Quinlan, J. Murren and Maura K. Hill, Camp for petitioner. Ulan, Counsel,

Howard Sr. Asst. Harris- burg, respondent. for COLINS, Judge, President BEFORE: SMITH-RIBNER, Judge, PELLEGRINI, FRIEDMAN, Judge, JUBELIRER, Judge, Judge, COHN SIMPSON, LEAVITT, Judge, Judge. Judge OPINION BY FRIEDMAN. (St. St. Elizabeth’s Child Care Center Elizabeth) petitions July for review the 29, 2005, order of the of Pub- (DPW) Hearings lic Bureau of Welfare’s (Bureau), Appeals adopted of an Administrative recommendation Law (ALJ) Judge deny St. Elizabeth’s directing from Elizabeth DPW’s operation to cease and of an uncerti- desist fied child care center. We reverse. St. Elizabeth is a care center affiliated the Roman January Catholic Church. On Eliza- representative DPW field visited St. beth and learned center did not of Com- have Certificate pliance, regulations require which DPW *2 operation facility.1 for the of such a On in the Commonwealth.” an DPW issued order di- the Public Code Welfare recting St. Elizabeth to cease and desist to include “supervised defines institution” operation day of the child uncertified ... “all children’s institutions within the care center. an appeal, St. Elizabeth filed Commonwealth”; section 901 defines arguing that DPW lacks authori- in- “any “children’s institutions” to mean ty promulgate regulations requiring a corporated unincorporated organization, non-profit religious day child care center society, corporation agency, public a in Compliance obtain Certificate of private, may receive or care for ” (ALJ’s 15.) operate.2 op. order to at children.... 901. Because private organization Elizabeth is a that ALJ, by

The matter was heard who children, cares for it is a “children’s both Pennsylvania Supreme considered the institution” a “supervised institution” Court’s IX discussion Article of the over supervisory which DPW exercises in Hospital Public Welfare Code3 Associa- power. MacLeod, Pennsylvania tion 487 Pa. 516, (1980), 410 A.2d 731 and determined Section 911 of the Public Welfare Code that statutory authority DPW had under duties, powers sets forth in DPWs promulgate regulations its pertinent part, as follows: requiring a care cen- (a) power, shall have the and its [DPW] ter to obtain a Certificate of in Compliance duty shall be: to operate. The ALJ recommended (1) To make and enforce rules and denied, that St. Elizabeth’s be visitation, regulations for a examination adopted the Bureau the ALJ’s recommen- inspection supervised of all institu- dation. St. Elizabeth petitions now this visitation, tions and said examination or court for review.4 inspection may occur both before and argues St. Elizabeth in that DPW erred beginning after the of operation of the concluding Ar- under supervised facility.... ticle IX of the Public Code to Welfare (c) visitation, upon Whenever exami- promulgate regulations that require a non- nation, inspection super- ... profit religious day care center to obtain institution, any vised condition is found Certificate Compliance oper- in order to which, to exist therein in opinion agree. ate. We unlawful, unhygienic, or detri- [DPW] proper mental to the maintenance and Section 902 of the Public Wel discipline supervised of such ... provides fare Code institu- DPW “shall have tion, maintenance, supervision” proper over all or to the cus- “supervised institu tions” and all ... tody, safety, per- “children’s institutions with- and welfare of the 31, 3270.3(c) amended, regulation 1. DPW's at 55 Pa.Code 3. Act of June P.L. as requires non-profit entity seeking §§ 901-922. operate apply a child care center for a Compliance Certificate of under Title scope 4. Our of review is limited to determin- Chapter (relating 20 of the Code rights ing violat- whether constitutional were facilities). approval to licensure or ed, adjudication whether the was in accor- necessary dance with the law or whether the argued regu- 2. St. Elizabeth also that DPW’s findings supported by of fact are substantial religious ministry lation of Section 704 of the Administrative evidence. interferes with St. Elizabeth’s free exercise of Law, Agency 2 Pa.C.S. 704. However, religion. the ALJ stated that he constitutionality. may not rule on issues of therein, residing requiring ... direct center a Certificate of sons Com- pliance. any way having officer or ... officers control, exercising government, or Code, Article X of the Public Welfare IX, management supervised gives of such ... contrast to Article DPW the *3 authority promulgate regulations to that stitution, objectiona- to correct the said for-profít require day a child care center in the ble condition manner within in operate. to obtain a license order to the time If specified [DPW].... such Section 1002 of the Public Welfare Code officer or to comply officers shall fail person operate any states that no shall direction, may request [DPW] “facility, herein, having as defined without [i.e., Department the of the Justice At- ” § a license.... 62 P.S. 1002. Section torney appropriate to institute General] “facility” the 1001 indicates that word legal proceeding compliance to enforce center,” day cludes a “child care therewith, may any or withhold [DPW] profít operated “any premises means for in money State available for such institu- provided day which child care simulta- comply tion until such officer or officers neously children for seven more who operator, except with such are not of the direction. relatives social operated such centers under service 911. auspices.”5 (emphasis 1001 add- ed). provides 1021 Finally, section that expressio The est maxim unius ex- may regulations adopt establishing DPW that, clusio alterius teaches where certain minimum for the issuance of standards law, in things specified are a omissions licenses. 62 P.S. should be understood as excluded. Fink promul- clearly Article X allows to DPW Commonwealth, elstein 61 Pa.Cmwlth. for-profit regulations that a gate require (1981). First, 146 section 911 433 A.2d day child center to a Certifi- care obtain the specifies Public Welfare Code in Compliance operate. cate of order to visit, to power DPW the examine and However, for-profit Elizabeth not a day a care Section inspect child center. Thus, day Article X child care center. mention, give, 911 does not even the above, not apply. does As indicated Arti- Compli power require to a Certificate of Elizabeth, applies IXcle to St. but Article Second, in operate. ance order to section to power IX re- give does not DPW the that, visits, religious non-profit, specifies quire whenever DPW obtain non-profit, day child care center inspects examines and a child care oper- to Compliance in order Certificate of it begins operate center or after to before concluding otherwise. ate. erred DPW condition, objectionable and finds an DPW of Arti- supreme court’s discussion Our may Attorney refer matter to Gen the Pennsyl- IX in Association Hospital cle to eral withhold vania, In alter our view. does not money available the institution. case, hospitals a number of not 911 does authorize DPW to Depart- Secretary and contended that the operation of a child care prevent the (DOH) lacked ment Health6 "facility" apply do not to Article IX 5. We note that the definition of care facilities. specifically section 1001 excludes "supervised" by DPW. centers supervision hospitals, respect 1001. We also note that the words "social With functions, non-profit agencies legislature auspices” includes of the service transferred all Thus, IX regularly powers DPW engaged in child care. Id. duties of under licensing requirements Welfare Code is clear that Article X Public notice, promulgate In regulations gov- Depart- to “immedi- erning managerial practices hospi- ment ordered St Elizabeth’s ately operation” tals. Our CEASE AND DESIST supreme disagreed, court con- and then went on the state: cluding that sections 911 and 921 of the Public Welfare Code7 provided such right You have a the De- However, authority. (30) our supreme court thirty partment’s decision within specifically never addressed Arti- whether days mailing of the of this decision. En- regulation cle authorizes a requiring a copy closed is a of the of Compliance oper- Certificate in order to Licensure/Approval Appeal. YOUR fact, noted, ate. In our supreme court APPEAL MUST INDICATE THE *4 pass do not upon “We the reasonableness FOR THE APPEAL AND REASONS any of particular regulation. only We hold BE YOU MUST SPECIFIC AS POSSI- agency] possesses] [the statuto- BLE REGARDING THE AREAS OF ry authority to promulgate challenged the THE DE- DISAGREEMENT WITH regulations.” 11, Id. at 524 n. 410 at A.2d PARTMENT’S DECISION Pa. [55 735 n. (§ 9003.11(C)). Code]

Accordingly, we reverse.8 you If do not decision of

Judges the SMITH-RIBNER and COHN the Department will become final. JUBELIRER dissent. Fearing that the decision would become ORDER nothing, final if it did ap- St. Elizabeth’s NOW, 2006, pealed AND the decision to the day April, this 3rd of Hearing Appeals the order of which rendered a Department the of Public Welfare, 29, July hearing eight years dated decision after later. hereby is reversed. out, majority As the points the give Public Welfare Code1does not the CONCURRING OPINION BY Judge Department power require the to a non- PELLEGRINI. profit day care center to a certificate have agree I majority’s analy- While with the compliance operate. to Under sis that Department Code, the of Public Welfare 911 of the Public Welfare P.S. (Department) § lacked Department the is limited to visit- require St. Elizabeth’s ing inspecting non-profit Child Care Center centers and (St. Elizabeth’s) to obtain a all inquiring relating license cer- into matters to its tificate, issue, 911(a); I operations; § would not reach that but given P.S. instead facility prem- reverse on the basis that the De- “free and full access” to the partment jurisdiction ises, persons did not have to issue records and all connected 911(b). § the order we reviewing. are now Elizabeth’s. 62 If P.S. food, Pennsyl- provisions Hospital beyond Health. See the basic Association service laundry- vania. shelter and 62 P.S. 921. issue, disposition 7. Section 921 of the Public Welfare Code re- 8. Because our the first quires that by DOH establish standards for the we need not address the other issues raised adequate safe and at care of individuals insti- St. Elizabeth. tutions, homes, hospitals nursing like amended, which furnish food and shelter to 1. Act of June P.L. as three persons provide §§ more and which some care 901-922. Department ings by of fact any the finds conditions that unencumbered the effects “unlawful, detrimental,” unhygienic, are any Department. action taken notify it is authorized to the institution of 911(c) Because Section of the Public ... and “to direct the such conditions Code, 911(c), only au- Welfare objectionable stitution to correct the said Department thorizes the an action bring 911(c). conditions.” 62 P.S. If the insti- does not have the objectiona- tution to correct fails jurisdiction to enforce its and desist cease conditions, however, Department, ble basis, through I would also given power hearing is not on hold reverse. or, is in whether the institution here, required as whether the institution is joins Judge COHN JUBELIRER this get a license. concurring opinion. 911(c) quite specific Department’s only legal remedy civil is to

request attorney to bring appropri- compliance. pro-

ate action to It

vides:

If such officer or officers shall fail to direction,

comply depart- with such request ment may COMMONWEALTH legal Justice to institute appropriate proceeding to enforce there- ,2.. with. HOLTZAPFEL, Appellant. Alice seen, nothing Depart- As can be gives Pennsylvania. Commonwealth Court adjudicate ment the a cease and desist order. on Briefs 2005. Submitted Dec. and The manner which “cease desist Decided important order” enforced is because it entity type determines the access an

to this If a cease desist Court. order through Department’s

can be enforced process,

administrative would

come this Court we would before re- Department’s appel-

view the our jurisdiction apply,

late as does the

majority, agency normal administrative If, however,

scope of the Attor- review.3

ney Department’s General accedes to the

request brings an action to order, court

cease and desist then a agency

not the would make its own find- scope appellate remedy other 3. Our administrative 2. The "with- normal adjudication is in of review is whether money hold available for insti- law, constitutional accordance with whether comply tution officer until such or officers violated, rights find- have or whether the been 911(a). such direction.” ings supported by evi- of fact are substantial dence. Pa.C.S.