Lead Opinion
Opinion by
By Petition for Review filed pursuant to Section 204(b) of the Commonwealth Attorney’s Act,
The Department argues in defense of its regulation that Section 1009 has been implicitly repealed by Section 211 (L) of the Code, added by the Act of July 10,1980, P.L. 493, No. 105, 62 P.S. §211(L) (Supp. 1982-1983), which provides:
(L) After initial approval, personal care boarding homes need not be visited or inspected annually; provided that the department shall schedule inspections in accordance with a plan that provides for coverage of at least seventy-*484 five percent of the licensed personal care boarding homes every two years and all homes shall be inspected at least once every three years.
As the final premise of its syllogism, the Department contends that the license term may not be less than the required interval between inspections because Section 1007 of the Code, 62 P.S. §1007, provides that the Department may issue a license only in those instances where “after investigation” (emphasis added) it is satisfied that the requirements of the Code and applicable regulations are met. In sum, the Department argues that Section 1009, requiring annual license renewal, is irreconcilable with Section 211, permitting some facilities to be inspected as infrequently as once in three years, read in conjunction with Section 1007, requiring each license renewal to be predicated on a departmental investigation, and therefore, since Section 211 is the most recent statement of the legislative will, it must prevail. See Sections 1934 and 1971(c) of the Statutory Construction Act, 1 Pa. C. S. §§1934, 1971(c).
The Attorney General responds that the provisions of the Code described above are not irreconcilable and that the requirement of Section 1009 that the term of each license be one year has not been implicitly repealed.
These authorities are unpersuasive in the context of this case. Here the issue is not, as the Department would have it, whether “inspections” and “investigation” are commonly or even usually employed without differentiation. Instead the issue before us is whether the provisions set forth above clearly disclose an irreconcilable repugnancy “so inconsistent as not to admit of any far consonant construction. ...” Parisi v. Philadelphia Zoning Board of Adjustment, 393 Pa. 458, 463, 143 A.2d 360, 363 (1958). This is because implied statutory repealers are strongly disfavored and because we must presume that the legislature intended the whole of the Code to be effective folio,wing its recent additions. Commonwealth Department of Education v. First School, 471 Pa. 471, 370 A.2d 702 (1977); Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975); Parisi v. Philadelphia Zoning Board of Adjustment. See Section 1922(2) of the Statutory Construction Act, 1 Pa. C. S. §1922(2). With respect to this more appropriate formulation of the question presented the Department offers neither authority nor argument why, in the case of the reissuance of a li
Finally, we must note the obvious: that licensure serves a variety of useful purposes, among which are the updating of records as to the identity, number, and location of facilities still in operation, the number of their patrons, the registering of changes in ownership and management, as to which an on-site inspection is unnecessary. Here, we believe, the legislature has, in the clearest possible language, mandated that the functions to be served by licensure be performed annually.
Accordingly, we enter the following
Order
And Now, this 22nd day of December, 1982 the Order of the Department of Public Welfare promulgating Section 2-30-35 of the Personal Care Boarding Home Plan and accompanying regulations, published August 29,1981, is reversed insofar as it provides for other than annual licensure of boarding homes. In all other respects, the Order is affirmed.
Act of October 15, 1980, P.D. 950, No. 164, §101, 71 P.S. §732-101 et seq.
Tiie Attorney General also asserts, with some force, that the Department’s argument proves too much since any inconsistency in the Code created by Act 105 of 1980 relates to the combination of Sections 1009 and 1007 and not to Section 1009 alone; and that the Department has proved too little since, if it is correct in its contention, the term of licensure may not be less than the interval between inspections — a correspondence not accomplished by the regulations at issue which provide for biannual licensing although inspections with respect to as many as twenty-five percent of these facilities are required only every three years.
Dissenting Opinion
Judge Doyle:
After a careful review of the pertinent statutes and controlling regulations herein, I believe we should reject the Attorney General’s challenge to the De
Section 1007 of the Code, 62 P.S. §1007 reads:
Issuance of License
When, after investigation the department is satisfied that the application or applicants for a license are responsible persons, that the place to be used- as a facility is suitable for the purpose, is appropriately equipped and that the applicant or applicants and the place to be used as a facility meet all the requirements of this act and of the applicable statutes, ordinances and regulations, it shall issue a license and keep a record thereof and of the application. (Emphasis added.)
I agree with the majority that “inspection” as discussed in Act 105 in the context of an inspection schedule is not synonomous with “investigation” as discussed in Section 1007 of the .Code in the context of annual licensure. I do not agree, however, that the former can be read separate and apart from the latter. While the actual term “inspection” is not used in Section 1007 of the Code, that section’s requirements that the investigation satisfy the Department that the facility is suitable and appropriately equipped and that the place meets all the requirements of the Code can only be interpreted to mean that an inspection is part of the investigation requirement, i.e. no investigation is complete unless an inspection has been conducted. Thus, the language of Act 105 specifically allowing the Department to establish an inspection cycle which may provide that no licensed personal care boarding home be inspected more than once every two years is in direct conflict with the annual investigation and licensure require
Moreover, I also feel this conclusion more closely tracks the legislative intent behind Act 105, than does the conclusion reached by the majority. As stated in its preamble, the purpose of Act 105 is to provide a vehicle by which to “eliminate fraudulent, abusive and deceptive conduct and practices that may occur” in the administration of governmentally reimbursed personal care boarding home services under the Code. Consistent with the preamble, Act 105, by explicit terms, requires the Department to “ develop and implement” a statewide plan for “regulating and licensing” personal care boarding homes. (Emphasis added.) Accordingly, in its preliminary form, which included the two year licensing requirement, see 11 Pa. B. 192 (1981), did not see fit to submit any adverse comments to the Department with respect to the licensing provisions.
