ST. ELIZABETH‘S CHILD CARE CENTER, Appellee v. DEPARTMENT OF PUBLIC WELFARE, Appellant.
Supreme Court of Pennsylvania.
Decided Feb. 19, 2009.
Resubmitted Jan. 22, 2009.
963 A.2d 1274
Argued March 5, 2008.
Justice EAKIN and Justice BAER join this dissenting statement.
Philip J. Murren, Thomas A. Capper, Harrisburg, for St. Elizabeth‘s Child Care Center, appellee.
Gregory R. Reed, Law Offices of Gregory R. Reed, Harrisburg, for Keystone Christian Educ. Ass‘n., appellee amicus curiae.
Randall Luke Wenger, Clymer & Musser, P.C., Camp Hill, for PA Family Inst. et al, appellee amicus curiae.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.
Justice EAKIN.
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.
An administrative law judge (ALJ) explained Article IX of the Public Welfare Code,
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
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, 589 Pa. 431, 909 A.2d 1221, 1223 (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, 586 Pa. 484, 895 A.2d 530, 539 n. 14 (2006).
DPW argues Article IX confers broad regulatory power on DPW, providing it with supervisory authority over “all children‘s institutions within this Commonwealth.”
St. Elizabeth‘s argues Article IX only permits DPW supervision of nonprofit, religious child care providers and does not authorize licensing. St. Elizabeth‘s Brief, at 16. Because administrative agencies may only exercise regulatory authority conferred on them expressly or by implication, St. Elizabeth‘s contends DPW lacks authority to require it have a certificate of compliance. See Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 454 A.2d 1, 4 (1982). St. Elizabeth‘s notes DPW regulations relating to the social development of children may conflict with Catholic teaching. See,
“The purpose of the interpretation and construction of statutes is to ascertain and effectuate the legislature‘s intent.” Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923 A.2d 1099, 1104 (2007) (citing
Article IX provides DPW “shall have supervision over . . . all children‘s institutions within this Commonwealth.”
(a) The department shall have the power, and its duty shall be:
(1) To make and enforce rules and regulations for a visitation, examination and inspection of all supervised institutions and said visitation, examination or inspection may occur both before and after the beginning of operation of the supervised facility.
(2) To visit and inspect, at least once in each year, all state and supervised institutions; to inquire and examine into their methods of instruction, discipline, detention,
care or treatment, . . . the official conduct of their inspectors, trustees, managers, directors or other officer or officers[,] . . . the buildings, grounds, premises, and equipment[,] . . . and all and every matter and thing relating to their usefulness, administration, and management, and to the welfare of the inmates thereof.... *
(c) Whenever upon the visitation, examination, and inspection of any State or supervised institution, any condition is found to exist therein which, in the opinion of the department, is unlawful, unhygienic, or detrimental to the proper maintenance and discipline of such State or supervised institution . . .[,] [the department has power] to direct the officer or officers . . . to correct the said objectionable condition in the manner and within the time specified by the department....
Article IX neither explicitly forbids nor requires DPW to issue regulations mandating that supervised institutions have a certificate of compliance. However, “[o]ur review of the code must recognize that ‘[s]ubstantive rule-making is a widely used administrative practice, and its use should be upheld whenever the statutory delegation can reasonably be construed to authorize it.‘” Hospital Association of Pennsylvania, at 733 (quoting Bernard Schwartz, Administrative Law § 56 at 151 (1976)). “The interpretation of a statute by those charged with its execution is entitled to great deference, and will not be overturned unless such construction is clearly erroneous.” Caso v. Workers’ Comp. Appeal Bd., 576 Pa. 287, 839 A.2d 219, 221 (2003); see also
DPW‘s interpretation of its enabling statute is not clearly erroneous. Section 911 expressly requires DPW inquire into and examine supervised institutions’ “methods of instruction, discipline, . . . care or treatment, . . . the official conduct of their . . . managers, directors or other officers[,] . . . the buildings, grounds . . . and equipment[,] . . . and all . . . matter . . . relating to their . . . administration, and manage-
Moreover, Article IX has been interpreted as granting broad supervisory powers to DPW. Although § 911 only specifically authorizes regulations related to visitation, examination, and inspection, Hospital Association of Pennsylvania relied on § 911 to uphold over 500 regulations of private hospitals on issues including patient dealings with administrators, orientation programs, inventory, and the taking and filing of minutes at meetings. See Hospital Association of Pennsylvania, at 734; 738-40. The regulations were so pervasive as to lead one Justice to declare them “a manifesto for . . . a socialization of private hospitals!” Id., at 737 (Flaherty, J., dissenting). In spite of his warning, this Court found Article IX‘s grant of supervisory power includes the power to make substantive rules regulating supervised institutions beyond mere procedure. Id., at 734-35.
We further note DPW regulations requiring nonprofit and for-profit child care centers receive a certificate of compliance have been in effect in some form since 1978. See, e.g.,
In striking down the certificate of compliance requirement, the Commonwealth Court relied on the maxim expressio unius est exclusio alterius. St. Elizabeth‘s Child Care Ctr., at 1282. However, when interpreting a statute, courts are required to follow the Rules of Statutory Construction.
This failure to consider other means of construction is problematic in light of this Court‘s treatment of expressio unius. See Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675, 684 (1977) (warning automatic application of maxim may thwart legislative intent). Other courts and commentators have also recognized limits on the maxim. See, e.g., Mourning v. Family Publications Service, Inc., 411 U.S. 356, 372 (1973) (not reasonable to interpret acts delegating agency powers as including specific consideration of every evil to be corrected); Texas Rural Legal Aid v. Legal Services Corporation, 940 F.2d 685, 694 (D.C.Cir.1991) (“this canon [expressio unius] has little force in the administrative setting“); Cass Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L.Rev. 405, 455-56 (1989) (warning against mechanical application of expressio unius).
Accordingly, we hold the Commonwealth Court erred when it invalidated DPW‘s regulations requiring St. Elizabeth‘s hold a certificate of compliance from DPW verifying its compliance with health and safety regulations. Further, we conclude the Commonwealth Court erred in applying expressio unius est exclusio alterius to invalidate the DPW regulations, while not referring to other canons of statutory construction.2 We reverse the Commonwealth Court‘s order and remand to the Commonwealth Court for consideration of St. Elizabeth‘s religious liberty claim.
Jurisdiction relinquished.
Chief Justice CASTILLE and Justices TODD and GREENSPAN join the opinion.
Justice BAER files a concurring opinion.
Justice SAYLOR files a dissenting opinion in which Justice McCAFFERY joins.
Justice BAER, concurring.
I join the majority‘s holding that Article IX of the Public Welfare Code (Code),
As astutely recognized by the majority, Article IX of the Code authorizes DPW to make and enforce regulations for “visitation, examination, and inspection” of all supervised institutions, both “before and after the beginning of operation of the supervised facility.”1
In reversing the Commonwealth Court‘s holding to the contrary, the majority cites the proposition that “[t]he interpretation of a statute by those charged with its execution is entitled to great deference, and will not be overturned unless such construction is clearly erroneous.” Op. at 1277, citing Caso v. Workers’ Comp. Appeal Bd., 576 Pa. 287, 839 A.2d 219, 221 (2003);
Justice SAYLOR, dissenting.
The General Assembly has required licensing of many types of health and personal care facilities. See
Thus, the question arises whether the Department‘s “certificate of compliance” requirement is tantamount to licensure, as
In light of the above, I believe the Department has established a licensing scheme which extends beyond express statutory boundaries. The Department relies on its implied powers to support its approach, explaining that it is required to supervise such centers and to order the correction of any condition which “in the opinion of the department is unlawful, unhygienic, or detrimental to the proper maintenance and discipline of such State or supervised institution or to the proper maintenance, custody, safety, and welfare of the persons being treated, detained or residing therein.” Brief for the Department at 12 (quoting
this Court has long adhered to the precept that the power and authority exercised by administrative agencies must be conferred by legislative language that is clear and unmistakable. At the same time, we recognize that the General Assembly has prescribed that legislative enactments are generally to be construed in such a manner as to effect their objects and promote justice, and, in assessing a statute, the courts are directed to consider the consequences of a particular interpretation, as well as other factors enumerated in the Statutory Construction Act. Based upon such considerations, the rule requiring express legislative delegation is tempered by the recognition that an administrative agency is invested with the implied authority necessary to the effectuation of its express mandates.
Id. at 495-96, 788 A.2d at 359-60 (citations omitted). Thus, the Department‘s implied powers are to be assessed against its enabling authority, which, again, establishes clear boundaries upon licensure. While the Department‘s health and safety concerns are vitally important, it does not sufficiently explain why its employees cannot inspect facilities and supervise the correction of health-and-safety related deficiencies outside a scheme of regulation centered on licensure.3 Moreover, in my view, the statutory boundaries upon licensure have a rational basis, as licensure may impact the costs of providing necessary child care services and may increase concerns of supervised entities regarding the possibility of governmental intervention in their curricula and/or ministries, as discussed by Appellee and its amici.
Finally, it is worth repeating that the Department has identified no health or safety concerns pertaining to the childcare services provided by Appellee.
For the above reasons, I believe the Commonwealth Court reached the correct result and would affirm its order.
Justice McCAFFERY joins this dissenting opinion.