Momma D's Day Care Center, LLC v. DPW ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Momma D’s Day Care Center, LLC, :
Petitioner :
:
v. :
:
Department of Public Welfare, : No. 2009 C.D. 2014
Respondent : Submitted: May 1, 2015
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 23, 2015
Momma D’s Day Care Center, LLC (Momma D’s) petitions this Court
for review of the Department of Public Welfare (DPW),1 Bureau of Hearings and
Appeals’ (BHA) October 8, 2014 order adopting the DPW Administrative Law
Judge’s (ALJ) recommendation revoking Momma D’s Certificate of Compliance
(Certificate) to operate a daycare center due to Public Welfare Code (Code)2
violations. Essentially, the issues for review are: (1) whether the ALJ erred by failing
to consider Momma D’s brief; (2) whether DPW failed to follow the Code and
violated Momma D’s due process rights; (3) whether the ALJ violated Momma D’s
constitutional rights by recommending revocation when DPW could not determine
whether a correction plan was required; and, (4) whether the ALJ erred and violated
1
Effective November 24, 2014, DPW was officially renamed the Department of Human
Services. See Act of June 13, 1967, P.L. 31, added by Section 2 of the Act of September 24, 2014,
P.L. 2458, 62 P.S. § 103(a) (effective November 24, 2014). However, because this appeal was filed
prior to the official name change, we will refer to Respondent as DPW herein.
2
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101-1503.
Momma D’s constitutional due process rights by relying upon hearsay evidence.
Upon review, we affirm.
Momma D’s is a child care center operated subject to DPW’s Certificate
at 1 Knob Road, Mount Pocono, Pennsylvania by Dorine Pinkney (Pinkney). By July
25, 2013 letter, DPW’s Office of Child Development and Early Learning (OCDEL)3
notified Momma D’s that DPW had preliminarily decided to revoke its Certificate
based on Momma D’s failure to comply with DPW’s regulations; failure to comply
with acceptable plans to correct non-compliance items; and gross incompetence,
negligence or misconduct in operating the facility. The letter advised as follows:
On July 3, 2013, a representative from [DPW] conducted a
complaint inspection at your facility. Our representative
observed twelve children in care in the preschool room and
the preschool room had a maximum capacity of ten
children. As a result, our representative verified violation
of 55 Pa. Code . . . §[]3270.61(h), relating to measurement
and use of indoor child care space (Attachment A-1).
In addition, you have been repeatedly cited for the
following violations, demonstrating failure to comply with
the acceptable plans to correct non[-]compliance. As
exhibited by the complaint inspection on June 22, 2013
(Attachment A-2), the complaint inspection on June 13,
2013 (Attachment A-3), and the complaint inspection on
May 28, 2013 (Attachment A-4) you were found in
violation of the following:
•[Section] 3270.52 [of DPW’s Regulations], relating to
staff: child ratio mixed age level (cited 6/22/13
Attachment A-2 and 5/28/13 Attachment A-4);
• [Section] 3270.54(a) [of DPW’s Regulations], relating
to minimum number of facility persons in the child care
facility (cited 6/22/13 Attachment A-2 and 5/28/13
Attachment A-4); and
3
OCDEL is jointly overseen by DPW and Pennsylvania’s Department of Education. See
Reproduced Record (R.R.) at 252a.
2
• [Sections] 3270.113(a) and (a)(1), [] 3270.113(c), and
[] 3270.113(e) [of DPW’s Regulations], relating to
supervision of children (cited 6/13/13 Attachment A-3
and 5/28/13 Attachment A-4).
As a result of the inspection conducted on May 28, 2013,
you submitted acceptable plans to correct the violations
cited and [DPW] accepted your plans of correction
(Attachment A-4). You failed, however, to comply with
these acceptable plans of correction, as verified by the
inspections conducted on June 22, 2013 (Attachment A-2)
and June 13, 2013 (Attachment A-3).
Your non-compliance with [DPW’s] regulations for child
care centers and failure to comply with acceptable plans of
correction constitutes gross incompetence, negligence, and
misconduct in operating a facility.
Reproduced Record (R.R.) at 252a-253a.
Momma D’s timely appealed the preliminary revocation and an ALJ
hearing was held on July 17, 2014, at which Pinkney testified for Momma D’s and
OCDEL certification representative Michael Gatto (Gatto) testified for DPW. By
August 4, 2014 letter, BHA gave the parties the opportunity to file briefs on or before
September 5, 2014. BHA received DPW’s brief on September 5, 2014. Although
postmarked September 5, 2014, BHA did not receive Momma D’s brief until
September 8, 2014. Thereafter, the ALJ recommended that DPW deny Momma D’s
appeal. By October 8, 2014 order, BHA adopted the ALJ’s recommendation and
denied Momma D’s appeal. Momma D appealed to this Court.4
Momma D’s argues that the ALJ erred by failing to consider its post-
hearing brief. Specifically, Momma D’s contends that its timeliness in filing its brief
should have been determined by the United States (U.S.) Postal Service postmark,
and BHA’s failure to do so requires remand for the ALJ’s consideration. We
4
“Our review in an appeal of an adjudication of DPW is limited to determining whether
constitutional rights were violated, an error of law was committed or whether necessary findings of
fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa.C.S. § 704[.]” KC Equities v. Dep’t of Pub. Welfare, 95 A.3d 918, 925 n.5 (Pa. Cmwlth. 2014).
3
disagree. The General Rules of Practice and Procedure (GRAPP) “apply when
agencies hold a hearing, unless the agency adopted alternate procedures.” KC
Equities v. Dep’t of Pub. Welfare, 95 A.3d 918, 932 (Pa. Cmwlth. 2014). Section
31.11 of the GRAPP applicable in these types of cases, specifies that “documents . . .
shall be received for filing at the office of the agency within the time limits . . . for the
filing. The date of receipt at the office of the agency and not the date of deposit in
the mails is determinative.” 1 Pa. Code § 31.11 (emphasis added). Here, BHA’s
Standing Practice Order (SPO)5 also provides, in pertinent part:
RULE 11: Filing, Service and Proof of Service
(a) A document will not be considered by [BHA] for its
intended purpose unless it is filed at the office of BHA on
or before the day it is due.
....
(c) A party who submits a document to [BHA] by mail is
responsible to do so far enough in advance of the day so
that the document is received before the due date.
SPO Rule 11 (emphasis added).6 Both GRAPP and DPW’s SPO require that briefs
must be received at BHA’s office on or before the day they are due or they will not
be considered. 1 Pa. Code § 31.11 and SPO Rule 11(a).
The parties do not dispute that their post-hearing briefs were due to BHA
on or before September 5, 2014, that Momma D’s brief was postmarked September 5,
2014 and that BHA received it September 8, 2014. Because Momma D’s brief was
5
According to BHA SPO Rule 3, the SPO “shall supplement hearing procedures specified at
1 Pa. Code Chapters 31 [General Rules of Administrative Practice and Procedure (GRAPP) –
Preliminary Provisions], 33 [GRAPP – Documentary Filings], 35 [GRAPP – Formal Proceedings]
and which involve formal proceedings.” Id.
At the hearing, the ALJ stated that the scheduling order instructed the parties to follow the
SPO. See R.R. at 10a. The scheduling order was not included with this record.
6
See http://www.dpw.state.pa.us/cs/groups/webcontent/documents/form/s_002109.pdf.
4
not “at [BHA’s] office” until September 8, 2014, it was not mailed “far enough in
advance of the day so that the document is received before the due date,” thus, it was
not timely filed and BHA was not authorized to consider it. 1 Pa. Code § 31.11 and
SPO Rule 11(a), (c).
Citing Gannett Satellite Information Network, Inc. v. Unemployment
Compensation Board of Review, 661 A.2d 502 (Pa. Cmwlth. 1995) and C.E. v.
Department of Public Welfare, 97 A.3d 828 (Pa. Cmwlth. 2014), Momma D’s claims
that because the timeliness of unemployment compensation appeals and appeals from
indicated reports of child abuse are calculated based upon postmark dates, the
timeliness of Momma D’s brief filing must be similarly calculated. However,
Gannett Satellite and C.E. are inapposite. Unlike in the instant case, Section
101.82(b)(1) of the Department of Labor and Industry’s Regulations expressly
provides that appeal filing dates are to be determined, inter alia, by the official U.S.
Postal Service postmark on the envelope. 34 Pa. Code § 101.82(b)(1)(i). Further,
DPW’s regulations governing indicated report amendment and expungement requests
reflects that they “shall be . . . postmarked within 45-calendar days of the mailing
date of the letter,” 55 Pa. Code § 3490.105a(a), and denial appeals “shall . . . be
postmarked within 45-calendar days of the date” of DPW’s denial. 55 Pa. Code §
3490.106(b). Since Section 31.11 of the GRAPP and SPO Rule 11 do not make U.S.
Postal Service postmark sufficient to demonstrate timeliness, but rather receipt of the
document at BHA’s office, the ALJ did not err by refusing to consider Momma D’s
post-hearing brief.7
7
Further supporting our holding is that Momma D’s timely appealed from OCDEL’s July
25, 2013 letter which similarly specified that “an appeal [therefrom] must be received at the
[OCDEL] address within thirty (30) days of the mailing date of this letter.” R.R. at 253a (italics
emphasis added). Thus, Momma D’s was on notice months before the post-hearing brief was due
that U.S. Postal Service postmarks do not apply in this type of case.
5
Momma D’s next contends that DPW failed to follow the Code and,
therefore, violated Momma D’s due process rights. Momma D’s specifically avers
that based on Gatto’s admission that he followed a procedure that is separate and
distinct from the Code, Momma D’s was “tried and, essentially convicted, based
upon an ‘internal procedure’” about which it was not on notice and from which it
could not assert a proper defense. Momma D’s Br. at 11. We disagree.
Indeed, the law is well-settled that
government is prohibited from depriving individuals of life,
liberty, or property, unless it provides the process that is
due. While not capable of an exact definition, the basic
elements of procedural due process are adequate notice, the
opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over
the case.
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (emphasis added). However,
our review of the record reveals that Momma D’s was provided with adequate notice
advising it of DPW’s determination to not renew its certificate of compliance, the
conduct and regulations which formed the basis for this decision and its right to appeal.
See R.R. at 252a-253a. At the hearing, where Momma D’s was represented by legal
counsel, the ALJ afforded Momma D’s the opportunity to present evidence, cross-
examine DPW’s witnesses and argue its case. See R.R. at 1a-184a.
During the hearing, Gatto testified that he has worked for DPW since 1987,
but has served in his current position since 1997. He explained that his duties included
licensing, training and inspecting approximately 82 Pennsylvania daycare facilities, and
investigating noncompliance complaints related to them.8 He described that he
8
Gatto estimated that he has conducted approximately 1,700 OCDEL investigations or
inspections during the 17 years that he has held his current position. See R.R. at 119a-120a.
6
investigated the complaints and prepared the inspection summaries9 that led to Momma
D’s 2014 Certificate revocation.
Gatto represented that although the law authorizes DPW to revoke a
Certificate for a single violation, DPW does not typically do so. See R.R. at 119a-120a.
He related that he uses DPW’s procedure manual (Manual), “that is different [from] the
[Code].” R.R. at 121a; see also R.R. at 120a. This statement is the sole basis upon
which Momma D’s avers that its due process rights were violated. Despite Momma D’s
opportunity to cross-examine Gatto, he was not asked to produce the Manual or expound
on DPW’s revocation procedure.10 See R.R. at 121a. We cannot determine solely from
Gatto’s statement, as Momma D’s would have us do, that the Manual holds Momma D’s
accountable to a standard different from the Code, as opposed to the alternate
interpretation, that the Manual and the Code differ because they are physically separate
documents.
Notwithstanding, the Manual was raised based on Gatto’s representation
that DPW does not typically revoke a compliance certificate based on a single violation.
This came after significant questioning about whether and what actions Gatto
recommended regarding Momma D’s violations. He described that although he could
and did recommend that DPW employ certain action plans, OCDEL’s acting manager
Katherine Holod (Holod) made the ultimate determinations. See R.R. at 82a, 91a-92a.
Gatto stated that, based upon the May 2014 violation, his recommendation was to
downgrade Momma D’s Certificate and make it provisional but, after additional similar
violations occurred within a few short weeks thereafter, he agreed that revocation was in
9
According to Gatto, an inspection summary identifies the daycare’s name, legal owner and
location; the type of investigation conducted, violation descriptions and what DPW would require
for correction; and, potentially, the owner’s correction plan and date.
10
Momma D’s legal counsel merely asked Gatto if he had the Manual with him at the
hearing, which he did not. See R.R. at 121a. Momma D’s had the opportunity under GRAPP and
Rule 22 of the SPO (relating to discovery) to request it.
7
order. See R.R. at 91a-92a. In this context, where there was more than a single Code
violation, Gatto was not the ultimate decision-maker, and the Code sections relied upon
for Momma D’s revocation were specified in the July 25, 2014 letter. Thus, what action
the Manual may have instructed Gatto to take for a single Code violation is immaterial.
Accordingly, Gatto’s pronouncement that his investigations are guided
by the Manual does not establish that DPW disregarded the Code or that DPW “tried
and, essentially convicted [Momma D’s] based upon an ‘internal procedure’” about
which it was not on notice and from which it could not assert a proper defense.
Momma D’s Br. at 11.
Momma D’s next asserts that the ALJ violated its constitutional rights by
recommending revocation when Gatto could not state whether correction plans were
required for Momma D’s violations. Specifically, it avers that the ALJ improperly
relied upon correction plans that may not have been required. We disagree.
Initially, Section 20.71(a)(3) of DPW’s Regulations, 55 Pa. Code §
20.71(a)(3), authorizes DPW to revoke a certificate due to a provider’s “[f]ailure to
submit an acceptable plan to correct noncompliance items.” However, since Momma
D’s voluntarily submitted plans of correction for the relevant violations, and its
revocation in this case was not based on its failure to submit acceptable plans, but
rather its failure to comply with the accepted plans, Momma D’s argument is
meritless. See R.R. at 252a-253a.
Further, Momma D’s claim notwithstanding, Gatto did not testify that he
did not know if they were required. Gatto was asked:
Q. With regards [sic] to a plan of correction, generally
speaking, when you request a plan of correction from a
provider, what is the purpose of that?
A. Well, we have -- a plan of correction is – i[t] takes place
when we have a violation and we give the operator an
opportunity to provide a plan to correct that violation. And
8
in the case of these citations and inspection summary, a
request -- requests for plans and corrections were made
through the mail.
....
Q. Would they need to provide a plan of correction in -- is
that something that would be required in order to show you
any kind of future compliance with their regulation?
A. Yes, a plan of correction would be needed to show how
they would comply with correcting the noncompliance.
R.R. at 156a-157a. The testimony continued:
Q. Mr. Gatto, you testified in my initial cross[-]examination
that a plan of correction is not required, did you not?
A. It is -- it is the – it’s up to the provider. . . .
....
A. . . . A plan of correction is needed if there’s a
noncompliance and the provider is going to provide us with
an explanation as to how they’re going to correct the
noncompliance.
....
A. If the provider chooses not to give a plan of correction,
that’s up to the provider.
Q. But you just testified . . . that a plan of correction is
required to show compliance.
A. It is.
R.R. at 160a-161a. Further:
Q. You previously testified that a plan of corrective action
is not required to be filed by Momma D’s[,] correct?
A. A plan of correction is required when you have a -- a
noncompliance, in order to present a plan on how you’re
going to correct that noncompliance.
9
Q. Okay. But you testified, and we had a number of
objections, that if there was no corrective plan of action,
you would just proceed without one.
A. We can’t force the provider to provide a plan of
correction. If the provider doesn’t provide a plan of
correction, then we would proceed without a plan of
correction.
Q. So it’s not required?
A. It’s – it’s required when we have a noncompliance, to --
for the provider to plan -- provide us a plan on how they’re
going to correct that noncompliance.
R.R. at 163a.
Although not the model of clarity, Gatto’s explanation was hardly
“bizarre and inconsistent” as Momma D’s claims. Momma D’s Br. at 15. He did
clarify that in order for DPW to cite a provider for noncompliance, as it did in this
case, a plan of correction must have been submitted and accepted.11 Because there is
no support for Momma D’s claim that the ALJ improperly relied upon correction
plans that may not have been required, the ALJ did not violate Momma D’s
constitutional rights.
Finally, Momma D’s maintains that the ALJ erred and violated its
constitutional due process rights by relying upon “precluded evidence” to support her
recommendation. Momma D’s Br. at 20. Specifically, Momma D’s contends that the
ALJ “ignored the consistent hearsay objections as to [] Gatto’s testimony,” and
thereafter improperly reversed herself without notice to Momma D’s. Momma D’s
Br. at 21. Although it is clear that the ALJ did not ignore Momma D’s hearsay
objections, we agree that Momma D’s was not afforded the opportunity to rebut
evidence previously ruled inadmissible.
11
Gatto stated that if a plan of correction was not offered, DPW “would proceed without
[it].” R.R. at 79a, 82a. Precisely how DPW would proceed would be Holod’s decision. See R.R. at
82a; see also R.R. at 85a.
10
Hearsay is defined as a ‘statement, other than one made by
the declarant while testifying at the trial or hearing offered
in evidence to prove the truth of the matter asserted.’
[Pennsylvania Rules of Evidence (]Pa.R.E.[)] 801(c). A
‘statement’ is defined in the [Pa.R.E.] as ‘(1) an oral or
written assertion or (2) nonverbal conduct of a person if it is
intended by the person as an assertion.’ Pa.R.E. 801(a).
Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1163 (Pa. Cmwlth.
2012). Hearsay is generally inadmissible in any court proceeding.12 D’Alessandro v.
Pa. State Police, 937 A.2d 404 (Pa. 2007); see also Pa.R.E. 802. Section 505 of the
Administrative Agency Law provides: “Commonwealth agencies shall not be bound
by technical rules of evidence at agency hearings, and all relevant evidence of
reasonably probative value may be received.” 2 Pa.C.S. § 505. Based upon that rule,
the Pennsylvania Supreme Court has held that “hearsay evidence may generally be
received and considered during an administrative proceeding.” D’Alessandro, 937
A.2d at 411-12. Notwithstanding, “it is well-settled that hearsay evidence, properly
objected to, is not competent evidence to support a determination of an agency.”13
Sule v. Phila. Parking Auth., 26 A.3d 1240, 1243 (Pa. Cmwlth. 2011). Moreover, an
“[a]dmission by [a] party-opponent[]” is an exception to the hearsay rule when “[t]he
statement is offered against a party and . . . was made by the party’s . . . employee on a
matter within the scope of that relationship and while it existed . . . .” Pa.R.E.
803(25).
12
“‘The rationale . . . is that hearsay is too untrustworthy to be considered by the trier of
fact. Exceptions have been fashioned to accommodate certain classes of hearsay that are
substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay
rule.’” Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super. 2006) (quoting Commonwealth
v. Bean, 677 A.2d 842, 844 (Pa. Super. 1996)).
13
“Hearsay evidence, admitted without objection, will be given its natural probative effect
and may support a finding . . . [i]f it is corroborated by any competent evidence in the record . . . .”
Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976) (emphasis
omitted).
11
In the instant case, on June 13, 2013, Gatto investigated a complaint that
Pinkney mistreated a child on June 10, 2013.14 He explained that he typically
interviews staff during his investigations and gives them the option of providing
verbal or written statements. In this case, Momma D’s four employees opted to
provide written statements regarding their observations of Pinkney’s actions that day.
See R.R. at 105a, 107a. Gatto declared that he cited Momma D’s based on his
interview of the child and four employees’ handwritten statements. See R.R. at 52a,
278a-279a. Gatto testified that the employees were working at Momma D’s when the
incident occurred, and when he conducted his June 13, 2013 investigation. See R.R.
at 62a. He stated that he discussed the matter with Pinkney after the citation was
issued. He recalled that Momma D’s did not challenge the citation for the June 11,
2013 incident, but rather submitted a correction plan which DPW accepted. See R.R.
at 65a-66a, 89a, 104a; see also R.R. at 258a.
Momma D’s lodged a hearsay objection to the admission of the
employees’ statements, and DPW responded. See R.R. at 126a. The ALJ sustained
Momma D’s objection. See R.R. at 126a. However, in her recommendation, the ALJ
concluded:
By not offering any challenge in regards [sic] to the citation
involving the complaint investigation of June 13, 2013 . . . ,
the evidence stands as uncontroverted.
Regarding the June 13, 2013 complaint investigation,
further review of Pa.R.E. 803(25)(A)(D) and the hearing
record leads this [ALJ] to conclude that [Momma D’s] . . .
staff members[’] statements were all offered against
[Momma D’s], and they were made by [Momma D’s]
employees within the scope of their relationship with
[Momma D’s] as employees. These statements are
admissible as an exception to the hearsay rule as statements
of a party[-]opponent. (Exhibit C-2).
14
Gatto testified that although the complainant reported the incident occurred on June 11,
2013, Momma D’s employees indicated that it occurred on June 10, 2013. See R.R. at 114a.
12
ALJ Rec. at 14; see also R.R. at 199a.
Since it is clear based on the hearing transcript and the ALJ’s
recommendation that the ALJ twice considered and ruled upon Momma D’s hearsay
objection, Momma D’s argument that the ALJ ignored it is meritless. Further,
Momma D’s cites no legal basis precluding the ALJ from changing her evidentiary
ruling upon further review of the record, particularly when DPW’s post-hearing brief
again raised the issue. See R.R. at 205a, 208a, 222a-225a. Moreover, since the
undisputed evidence supports the ALJ’s conclusion that the employees who
witnessed the June 10, 2013 incident prepared the written statements on “matter[s]
within the scope of that relationship . . . while it existed,” it would appear that the
statements may qualify as admissions by a party[-]opponent. Pa.R.E. 803(25)(d).
However, because the ALJ sustained Momma D’s hearsay objection at
the hearing, Momma D’s had no reason to and, therefore, did not attempt to rebut that
evidence. When the ALJ later reversed her ruling and relied upon the statements in
rendering her recommendation which BHA adopted, there was no forum in which
Momma D’s could offer rebuttal and, thus, Momma D’s due process rights were
violated in that limited manner.
Nevertheless, and Gatto’s testimony notwithstanding, the law is clear
that DPW may base Momma D’s revocation on a single violation of the Code or
DPW’s Regulations, particularly where, as here, the violation “may endanger
children.”15 KC Equities, 95 A.3d at 930. Here, Momma D’s certificate revocation
15
Section 3270.2 of DPW’s Regulations states that “[t]he purpose [there]of . . . is to provide
standards to aid in protecting the health, safety and rights of children and to reduce risks to
children in child day care centers.” 55 Pa. Code § 3270.2 (emphasis added). Accordingly, Section
1026(b)(1) of the Code, 62 P.S. § 1026(b), expressly authorizes DPW to revoke a license for Code
or DPW Regulation violations. Section 20.71(a)(2) of DPW’s Regulations provides that “[DPW]
may deny, refuse to renew or revoke a certificate of compliance for any of the following: . . . .
Noncompliance with [DPW’s] . . . [R]egulations[.]” 55 Pa. Code § 20.71(a)(2) (emphasis added).
Accordingly, this Court has long held that DPW revocations may be based upon “[a]ny one [Code
or DPW Regulation] violation[,]” particularly “when regulatory violations may endanger
13
was based upon more than a single violation. Pinkney admitted that on May 17,
2013, Momma D’s violated Sections 3270.51 (relating to similar age child group
size/staff ratio), 3270.52 (relating to mixed age child group size/staff ratio),
3270.54(a) (relating to required minimum staffing) and 3270.113(a) (relating to staff
supervision) of DPW’s Regulations.16 See R.R. at 252a, 259a-261a. With respect to
the June 10, 2013 incident, Mommas D’s was cited for violating Section 3270.113(c)
(relating to ridiculing or threatening to harm a child) and Section 3270(e) (relating to
child confinement) of DPW’s Regulations. See R.R. at 252a, 258a. On June 22,
2013, Pinkney admitted that Momma D’s violated Sections 3270.52 and 3270.54(a)
of DPW’s Regulations, despite having submitted a correction plan for the May 17,
2013 violations.17 See R.R. at 252a, 256a. On July 3, 2013, Momma D’s was cited
for violating Section 3270.61(h) of DPW’s Regulations (relating to indoor space
capacity). See R.R. at 255a. Momma D’s May 17, June 22 and July 3, 2013
violations were of staff-to-child supervision and capacity regulations specifically
enacted to ensure the safety of children.
Since revocation can be based upon a single violation, and Pinkney
admitted at least one, this Court “need not address the remaining violations.” Nancy
Hadlock’s Family Child Care Home v. Dep’t of Pub. Welfare, 103 A.3d 851, 857 (Pa.
children.” KC Equities, 95 A.3d at 930 (bold emphasis added); see also Nancy Hadlock’s Family
Child Care Home v. Dep’t of Pub. Welfare, 103 A.3d 851 (Pa. Cmwlth. 2014); Altagracia De Pena
Family Day Care v. Dep’t of Pub. Welfare, 943 A.2d 353 (Pa. Cmwlth. 2007); Pine Haven
Residential Care Home v. Dep’t of Pub. Welfare, 512 A.2d 59 (Pa. Cmwlth. 1986). In Nancy
Hadlock’s Family Child Care Home, this Court concluded that because a single violation was
sufficient to support revocation, and the subject facility admitted one violation, the Court
“need not address the remaining violations.” Id. at 857 (emphasis added).
16
Although Pinkney disputed the length of time, she admitted that after two staff members
argued, one staff member left, leaving the other staff member to supervise 17 children who were in
two different rooms. See R.R. at 144a-147a.
17
The ALJ confirmed: “[Y]ou admit that there were more children -- that the staff-child
ratio was more than it should have been on . . . June 22, 2013?” Pinkney responded: “Yes.” R.R. at
144a.
14
Cmwlth. 2014). Because even without consideration of the June 10, 2013 incident,
Momma D’s numerous other regulatory violations were of the type that “may
endanger children,” BHA’s order revoking Momma D’s Certificate is affirmed. KC
Equities, 95 A.3d at 930.
___________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Momma D’s Day Care Center, LLC, :
Petitioner :
:
v. :
:
Department of Public Welfare, : No. 2009 C.D. 2014
Respondent :
ORDER
AND NOW, this 23rd day of September, 2015, the Department of Public
Welfare, Bureau of Hearings and Appeals’ October 8, 2014 order is affirmed.
___________________________
ANNE E. COVEY, Judge