Reynolds v. Commonwealth

570 A.2d 1373, 131 Pa. Commw. 514, 1990 Pa. Commw. LEXIS 140
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 26, 1990
StatusPublished
Cited by2 cases

This text of 570 A.2d 1373 (Reynolds v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reynolds v. Commonwealth, 570 A.2d 1373, 131 Pa. Commw. 514, 1990 Pa. Commw. LEXIS 140 (Pa. Ct. App. 1990).

Opinion

PALLADINO, Judge.

Diane Reynolds (Mrs. Reynolds) and Rodney Reynolds (Mr. Reynolds) (collectively, Petitioners) appeal from an order of the Department of Aging (Department), which affirmed the Franklin County Area Agency on Aging’s [517]*517(area agency) decertification of Petitioners’ domiciliary care home (home).1 We affirm.

Petitioners were certified to operate a home by the area agency. In September, 1986, Mr. Reynolds, while in an inebriated state, became involved in an altercation away from the home in a motel hallway. Shortly thereafter, J. Foster Stambach, unaware of the altercation, greeted Mr. Reynolds in the hallway. Mr. Reynolds seized Mr. Stambach, an 81 year old person, and dropped him from a second story balcony causing him serious bodily injury. On August 25, 1987, Mr. Reynolds was convicted of aggravated assault and recklessly endangering another person.

On August 1, 1988, the area agency informed Petitioners by letter that their home was decertified because Mr. Reynolds had been convicted of a crime involving assaultive behavior or moral turpitude.2 Petitioners sought relief through the mandatory informal complaint process of 6 Pa.Code § 3.5, utilizing the Domiciliary Care Review Team, established by the area agency, which affirmed the decertification. Petitioners requested an informal investigation by the Department,3 which also recommended decertification.

Petitioners filed a request for a formal hearing. The Secretary of the Department (Secretary) appointed a hearing examiner to preside over the hearing. A hearing was held, and the hearing examiner issued a proposed report, which concluded that because draft regulation 21.27(7) was not adopted at the time of the hearing, it was a nullity and could not form the basis for decertification of the home. [518]*518The hearing officer recommended reversal of the decertification of the home but recommended -revocation of Mr. Reynolds’ privilege to operate the home.

Pursuant to the mandatory provision of 6 Pa.Code § 3.11, the Secretary reviewed the proposed report and issued a formal opinion and order, adopting the hearing officer’s conclusion that the draft regulation did not have the force of law, but finding the proposed regulation instructive as Department policy. The Secretary concluded that the Petitioners were on notice that the area agency had the power to decertify the home if it found that the provider or the home could no longer provide a safe family setting. The Secretary determined that Mr. Reynolds’ presence was a threat to the residents of the home, affirmed the area agency’s decertification of the home and revoked Mr. Reynolds’ privilege to operate a home.

On appeal to this court,4 Petitioners raise the following issues: (1) whether the area agency waived the objections to the reversal of the decertification of the home by not appealing within 30 days from the proposed report of the hearing officer; (2) whether Petitioners’ due process rights were violated because the grounds underlying the Secretary’s decision to affirm the decertification were first raised after the formal hearing; (3) whether sufficient grounds exist for decertification; (4) whether Mrs. Reynolds has a property interest in the operation of the home which protects the home from decertification; (5) whether the Secretary improperly relied on draft regulations which had not been promulgated; and (6) whether Mr. Reynolds’ conduct can be the basis for decertification.

As to the first issue, Petitioners cite a general procedural provision for administrative appeals, 1 Pa.Code § 35.211, which provides that a party to a formal proceeding must file exceptions to a proposed report to preserve issues for [519]*519review by a department head. Petitioners argue that because the area agency did not file exceptions to the proposed report, which reversed the decertification, any objections to the reversal of the decertification are waived.

The general provisions for formal administrative proceedings are not applicable to a proceeding before an agency to the extent that the agency has promulgated more specific inconsistent regulations on the same subject. 1 Pa.Code § 31.1(c). The regulations of the Department state that the hearing officer shall issue only a recommendation as to the correct result and all recommendations must be reviewed by the Secretary or a designee. 6 Pa.Code §§ 3.10-3.11. Findings of fact are subject to reviéw and reversal by the Secretary, who shall issue an opinion and order. This mandatory and broad power of the Secretary to review and reverse proposed reports under the Department regulations is inconsistent with the general provision regarding preservation of issues. Therefore, the general provision cited by Petitioners is inapplicable.

As to the second issue, Petitioners state that at the time of the hearing they were on notice only that their home was to be decertified because of a violation under draft regulation 21.27(7). They argue that the Secretary violated their due process rights by giving a new reason for decertification of their home, namely lack of a safe family setting, without giving them notice or an opportunity to challenge this new reason.

Due process of law is afforded when the “accused” is informed with reasonable certainty of the nature of the accusations lodged against him. Speare v. Pennsylvania Human Relations Commission, 16 Pa.Commonwealth Ct. 502, 328 A.2d 570 (1974). The sole reason for decertification of the home was Mr. Reynolds’ conviction for assault and reckless endangerment, and the consequent concern of the area agency for the safety of persons it has placed in a home where Mr. Reynolds resides. Petitioners did not dispute that Mr. Reynolds had been convicted. The bulk of [520]*520Petitioners’ witnesses’ testimony at the hearing was offered to prove that Mr. Reynolds was not a threat to the safety of the residents. We conclude that Petitioners were sufficiently warned of the nature of the reason for decertification and accordingly were not deprived of their due process rights.

On the third issue, as to whether sufficient grounds for decertification exist, Petitioners argue that Mr. Reynolds is not a threat to the safety of the residents. Petitioners contend that their evidence refutes the Secretary’s finding that there is a “potential for violence to the clients so long as Mr. Reynolds remains situated in the same residence.”5

The Secretary is the fact finder in formal proceedings before the Department.6 The Secretary found that the violence Mr. Reynolds exhibited against Mr. Stambach was so reprehensible that there is a continued threat of violence to the residents, while he remains in the home. Given the undisputed facts surrounding the event in question, the seriousness of the violence perpetrated by Mr. Reynolds and the fact that his victim was elderly, we conclude that this single event is substantial evidence to support the Secretary’s finding that Mr. Reynolds’ presence in the home constitutes a continued threat of violence to the residents.

The Petitioners contend further that there is no statutory basis for the action of the Secretary.

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Dickey v. Department of Aging
615 A.2d 990 (Commonwealth Court of Pennsylvania, 1992)
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579 A.2d 426 (Commonwealth Court of Pennsylvania, 1990)

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Bluebook (online)
570 A.2d 1373, 131 Pa. Commw. 514, 1990 Pa. Commw. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-commonwealth-pacommwct-1990.