Commonwealth v. Garland , 393 Pa. 45 ( 1958 )

Dissenting Opinion by

Mr. Justice Cohen:

In order to cope with the abuses which have characterized the operation and conduct of private nursing homes, the legislature passed the Act of April 6, 1951, P. L. 68, 71 P.S. §775.1-775.4 (Supp.). As indicated by its title, the purpose of the act was to authorize the Commonwealth “to proceed by injunction ... to prohibit and restrain any unlicensed person . . . from engaging in an activity for which a license is required. . . .” (Emphasis supplied) This legislation was not designed to empower the Commonwealth to restrain only the operation of nursing homes that were nuisances, that were improperly operated, or that endangered the well-being of the inmates. The Commonwealth had those powers through the established licensing procedures. The act simply empowered the Commonwealth to restrain forthwith the operation of any nursing homes operated without a license. Although the legislature believed that immediate corrective action might be necessary in such cases, it also recognized that a defendant ought to be afforded an opportunity at the earliest possible moment to show that the Commonwealth’s action was based upon a mistake, and that he, in fact, was authorized to conduct a nursing home. Hence, while it provided in section 2 of the act that a court may issue a ■temporary restraining order, it provided that the court “shall determine any such action on its merits as soon as possible. . . .” But the “merits” the court is authorized to determine are not whether the operation of the nursing home is a nuisance, nor whether its continued operation would adversely affect the inmates, nor whether the patients in the home require the protection of the Commonwealth. The sole issue “on the merits” is: — does the operator, of the nursing home have a license? If the operator has such a license the restraining order should be dissolved. If the operator does not have such a license, an injunction should be granted. Any other interpretation of the term “merits” as used in the act would make a nullity of the statute and deprive the Commonwealth of its power to protect expeditiously the inmates of a nursing home by peremptorily restraining unlicensed operators.

The unfortunate results of the majority’s decision denying the Commonwealth a remedy which the Act of 1951 was intended to provide are illustrated by the present case, for the defendant herein was arrested on charges of illegal possession of dangerous narcotic drugs on October 11, 1957, and subsequently convicted.

I would reverse the decree of the court below and order the immediate cessation of the operation of this unlicensed nursing home.