Zimmerman v. O'Bannon , 70 Pa. Commw. 481 ( 1982 )

Opinion by

Judge Rogers,

By Petition for Review filed pursuant to Section 204(b) of the Commonwealth Attorney’s Act,¹ the Attorney General here challenges a regulatory provision of the Department of Public Welfare (Department) found at 11 Pa. Bull, page 3000 by which the licensure renewal term applicable to personal care boarding homes was increased from one to two years. The Attorney General asserts that this regulation must fall because it is inconsistent with a number of provisions of the Public Welfare Code (Code), Act of June 13,1967, P.L. 31, No. 21, 62 P.S. §101-1503 and especially with Section 1009 of the Code, entitled “Term and content of license,” which requires with respect to the facilities here at issue that “All licenses issued by the department under this act shall expire one year following the day on which issued. ...”

The Department argues in defense of its regulation that Section 1009 has been implicitly repealed by Section 211 (L) of the Code, added by the Act of July 10,1980, P.L. 493, No. 105, 62 P.S. §211(L) (Supp. 1982-1983), which provides: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-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.² In our judgment the construction of the Attorney General is correct.

As the Department concedes, the annual licensure requirement of Section 1009 of the Code is irreconcilable with the recent changes made by Act 105 of 1980 only if the “inspections” no long’er required to be performed on a yearly basis and the “investigations” required to be performed before the reissuance of licenses denote the same departmental activity. In support of this equation, the Department points to a definitional entry contained in the fifth edition of Black’s Law Dictionary as well as judicial constructions of the two terms at issue as they appear in Section 7605(b) of the United States Internal Revenue Code of 1954, 26 U.S.C. §7605(b).

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 license, the investigation required by Section 1007 might not fairly be construed to include examination of the application for reissuance, a review of previous applications, licenses, reports, and complaints related to the same facility or to its .present proprietors or managers, as well as such verification of this information as appeared to be required — but not to include, necessarily, the onsite inspection now to be performed, after initial licensure, only every two or three years.

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.

1 Act of October 15, 1980, P.D. 950, No. 164, §101, 71 P.S. §732-101 et seq.

2 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.