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March 20, 1959


Appeal, No. 275, Jan. T., 1958, from decree of Court of Common Pleas of Lancaster County, No. 11, page 284, in equity, in case of Harry S. Berberian v. Lancaster Osteopathic Hospital Association, Inc. et al. Decree reversed.


Laurence H. Eldredge, with him Francis X. Diebold, John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for appellant.

Anthony R. Appel, for appellee.

Alexander T. Stein, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 395 Pa. Page 259]


This suit in equity was instituted by Dr. Harry S. Berberian against the Lancaster Osteopathic Hospital Association, Inc. and Dr. George C. Wolf, the medical director of the hospital, to restrain them from discharging the plaintiff from the hospital's staff and from depriving him of staff and hospital privileges. The plaintiff moved for a preliminary injunction, to be made permanent upon final hearing. The complaint alleges that the plaintiff was removed as a staff member of the hospital without notice of charges against him and without a hearing as required by the by-laws of the hospital's staff. The court issued a rule on the defendants to show cause why a preliminary injunction should not be granted. After taking testimony and hearing oral argument on the rule, the court held that the plaintiff was not entitled to equitable relief and discharged the rule to show cause. From the consequent decree refusing a preliminary injunction the plaintiff took this appeal. As the material facts are not in dispute, and present for decision a pure question of law, nothing is to be gained by sending the case back for a final hearing on the bill in the court below.

The plaintiff is a licensed osteopathic physician and has been a member of the defendant hospital's staff since March 9, 1948. He testified that he has enjoyed a larger general practice in and about the City of Lancaster than any other osteopath and that his work has included a large number of obstetrical cases.

On February 27, 1958, the plaintiff was arrested on a charge of conspiracy to commit an abortion and

[ 395 Pa. Page 260]

    of being an accessory before and after the fact of abortion. Promptly after this arrest, the president of the staff requested Dr. Berberian to submit voluntarily his resignation as a staff member. That, he refused to do. On March 10, 1958, the executive committee of the staff held a meeting for the purpose of determining whether to recommend the plaintiff's dismissal as a staff member because of the abortion charges that had been made against him. After notice of the call, Dr. Berberian and his counsel attended the meeting. The executive committee decided to make no recommendation pending final legal disposition of the abortion charges for which he never was indicted. On the day following the meeting called by the executive committee of the staff, the board of directors of the hospital held a meeting at which the individual defendant, Dr. George C. Wolf, was requested to prepare a report concerning Dr. Berberian.

On April 7, 1958, a combined meeting of the hospital's board of directors and the staff executive committee was held for the purpose of considering Dr. Wolf's report. The plaintiff received no notice of this meeting and did not attend. As described in the plaintiff's brief, the Wolf report, which was read at the meeting, "contains many charges of grossly unprofessional conduct and of even criminal misconduct of a serious nature, involving moral turpitude." On the following day, April 8, 1958, the board of directors of the hospital, after again hearing Dr. Wolf's report, adopted a resolution depriving Dr. Berberian of all staff privileges and of the use of the hospital's facilities.

It is admitted by the defendants that the dismissal of the plaintiff was based on the allegations contained in the Wolf report and not on the unpursued abortion charges. Although the plaintiff had been given a hearing in respect of the abortion charges he had never

[ 395 Pa. Page 261]

    been given any opportunity to answer the report's grave allegations, most of which were based on hearsay relayed to Dr. Wolf. In fact, at the time of the hearing in the court below on the preliminary injunction motion, the plaintiff had never seen a copy of the report and had no knowledge of its contents.

It is obvious that the plaintiff will suffer irreparable harm unless injunctive relief be granted him. The corporate defendant is the only osteopathic hospital in Lancaster County. Elsewhere, the nearest of such hospitals is at York, some 30 miles distant from Lancaster, and at Harrisburg, approximately 40 miles away. For all practical purposes, therefore, the corporate defendant's hospital is the only one to ...

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