MALLARD ASSOCIATION v. DEPT. of HEALTH, 64 Pa. Commw. 208 (1982)

439 A.2d 866

Mallard Associates, a Pennsylvania Limited Partnership, Petitioner v. Commonwealth of Pennsylvania, Department of Health, Respondent.

Commonwealth Court of Pennsylvania.Argued June 1, 1981
January 21, 1982.

Mandamus — Nursing home construction costs — Jurisdiction — Discretionary acts.

1. The Commonwealth Court of Pennsylvania has no authority to review a negative recommendation regarding the payment of construction costs of a nursing home made to federal officials under a procedure which is purely the creature of federal statutes and regulations. [210]

2. Mandamus does not lie to compel the Department of Health to give an affirmative recommendation to federal authorities concerning the payment of construction costs of a nursing home when the act sought to be compelled is purely discretional and when there is no evidence that such discretion was not exercised or that it was exercised in an illegal, fraudulent or arbitrary manner. [211]

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Argued June 1, 1981, before President Judge CRUMLISH and Judges ROGERS and WILLIAMS, JR., sitting as a panel of three.

Original jurisdiction, No. 258 C.D. 1980, in case of Mallard Associates, a Pennsylvania limited partnership v. Commonwealth of Pennsylvania, Department of Health and H. Arnold Muller, M.D., Secretary of Health of the Commonwealth of Pennsylvania. Petition for review in the Commonwealth Court of Pennsylvania to compel affirmative recommendation for payment of nursing home construction costs. Respondent filed preliminary objections. Held: Preliminary objections sustained. Petition and amended petition dismissed.

Jeffrey Cooper, with him Harold Cramer, Mesirov, Gelman, Jaffe, Cramer Jamieson, for petitioner.

Reed Hamilton, Chief Counsel, with him Carolyn B. McClain an Ruth M. Siegel, Assistant Counsels, for respondent.

OPINION BY PRESIDENT JUDGE CRUMLISH, JR., January 21, 1982:

Mallard Associates filed a petition for review invoking both our original[1] and appellate[2] jurisdiction to review a negative recommendation by the Pennsylvania Department of Health (Department), as affirmed by a fair hearing examiner.[3] Before the Court are the Department’s preliminary objections to that portion of the petition for review addressed to our original jurisdiction, challenging our jurisdiction over the hearing examiner, questioning Mallard’s failure to

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exhaust administrative remedies, and registering a demurrer for failure to state a cause of action.

The Department recommended to the United States Department of Health, Education and Welfare (HEW), now the Department of Health and Human Services (HHS), that HEW deny medicaid and medicare reimbursements for certain capital expenditures in the construction of a proposed nursing home under Section 1122 of the Social Security Act.[4]

Mallard Associates here seeks to have us change the affirmation of the fair hearing examiner and enjoin the Department and its secretary from forwarding a negative recommendation to HEW.

In Mallard Associates v. Department of Health, 54 Pa. Commw. 646, 422 A.2d 1178 (1980) (Mallard I),
considering only the appellate petition, we granted the Department’s motion to quash.[5] Our holdings in Sarah Todd an Mallard I preclude Mallard’s original action in mandamus against the fair hearing examiner. A creature of federal statute and regulation,[6] a hearing examiner is neither an officer nor agency of the Commonwealth subject to our jurisdiction.[7] We find no merit in Mallard’s petition to reverse

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the negative recommendation of the Secretary and Department.

The Department’s decision is purely discretionary[8] and “[m]andamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of law.” Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 825
(1972). Mallard’s contention that the decision of the Department is “illegal,” “arbitrary,” and a violation of due process is without foundation in the record.[9]

Mallard Associates has failed to establish a clear legal right to the relief requested and has failed to plead facts sufficient to show that Respondent’s discretionary acts were arbitrary, fraudulent or illegal. The Department’s preliminary objections are sustained.

ORDER
The preliminary objections of the Department of Health and Secretary H. Arnold Muller are sustained and the petition and amended petition for review of Mallard Associates are dismissed.

This decision was reached prior to the expiration of the term of office of Judge PALLADINO.

[1] 42 Pa. C. S. § 761(a).

[2] 42 Pa. C. S. § 763(a).

[3] See 42 U.S.C. § 1320a-1 and 42 C.F.R. § 100.106(c).

[4] 42 U.S.C. § 1320a-1. For a detailed discussion of the relationship among the state, the health care provider and the federal government, see N.A.A.C.P. v. Medical Center Inc., 584 F.2d 619, 627 (1978).

[5] In Mallard I, we relied upon the reasoning of our earlier Opinion in Sarah A. Todd Memorial Home v. Department of Health, 49 Pa. Commw. 116, 410 A.2d 404 (1980).

[6] See 42 U.S.C. § 1320a-1(b)(3) and 42 C.F.R. § 100.106(c).

[7] Section 761(a) of the Judicial Code, 42 Pa. C. S. § 761(a), provides in part:

The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:
(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity. . . .

[8] “Mandamus will lie only to compel public officials to perform their duties in accordance with the law where these duties are ministerial in character and not discretionary.” Rakus v. Robinson, 33 Pa. Commw. 496, 500, 382 A.2d 770, 772
(1978).

[9] In an earlier opinion of this court, quoting from the Pennsylvania Supreme Court, we noted that:

‘[m]andamus will not lie to compel a revision or modification of a decision by an administrative body or person invested with discretionary power, though in fact the decision may have been wrong.‘ (Emphasis added.)

South Whitehall Township v. Department of Transportation, 11 Pa. Commw. 558, 562, 316 A. 104, 105 (1974), quoting Raffel v. Pittsburgh, 340 Pa. 243, 16 A.2d 392 (1940).

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