providing, “where there is a conflict between a statute and a regulation promulgated thereunder, the statute must prevail”
How later courts described this case
- providing, “where there is a conflict between a statute and a regulation promulgated thereunder, the statute must prevail”
Written by the judges who cited it.
The opinion
CONCURRING and DISSENTING OPINION BY
Judge COHN JUBELIRER.
I agree with the majority’s disposition of all issues except the issue raised in Count I, as to whether there is a material conflict between the regulations promulgated by the Department of Public Welfare regarding personal care homes, and the provisions of the authorizing statute. 1
*1193 I agree with the characterization made by Northern Area Personal Care Home Administrators Association, et al (collectively, the Association), that the regulations seem to impose on personal care homes “tasks of an entirely different nature and character” than those mentioned in the statutory language, and that these regulatory categories “reflect residents with ... greater disabilities and higher acuity levels.” (Association’s Br. at 22.) 2
Whether or not the Association, in the end, ultimately prevails on this issue, I would find the Association has established a sufficient material conflict between the regulations and authorizing statute to withstand a demurrer as to this Count. Accordingly, I dissent from the majority’s sustaining the demurrer as to Count I and concur with the majority in all other respects.
. The standard for ruling on preliminary objections is well established:
In ruling on preliminary objections, the Court must accept as true all well pleaded allegations of material fact as well as all of the inferences reasonably deducible from the facts pleaded. For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party by refusing to sustain the objections. When the motion *1193 is in the nature of a demurrer, all of the non-moving party’s allegations of fact in the complaint must be accepted as true, and only those facts specifically admitted may be considered against the non-moving party.
Smith v. Pa. Employees Benefit Trust Fund, 894 A.2d 874, 881 (Pa.Cmwlth.2006) (citations omitted).
. See generally McClellan v. Health Maint. Org. of Pa., 546 Pa. 463, 472 , 686 A.2d 801, 805 (1996) ("It is widely accepted that general expressions such as 'including, but not limited to' that precede a specific list of included items should not be construed in their widest context, but apply only to persons or things of the same general kind or class as those specifically mentioned in the list of examples.’’)
In the following quotations from the applicable regulations, I have highlighted, by boldface, those tasks in the regulations that I agree with the Association could exceed the kind and class of those in the statute. The regulation defines “activities of daily living” as:
The term includes eating, drinking, ambulating, transferring in and out of a bed or chair, toileting, bladder and bowel management, personal hygiene, securing health care, managing health care, self-administering medication and proper turning and positioning in a bed or chair.
55 Pa.Code § 2600.4 (emphasis added). "Instrumental activities of daily living" is defined as:
The term includes the following activities when done on behalf of a resident: (i) Doing laundry, (ii) Shopping, (iii) Securing and using transportation, (iv) Managing finances. (v) Using a telephone, (vi) Making and keeping appointments, (vii) Caring for personal possessions, (viii) Writing correspondence. (ix) Engaging in social and leisure activities, (x) Using a prosthetic device. (xi) Obtaining and keeping clean, seasonal clothing.
55 Pa.Code § 2600.4 (emphasis added).