Appeal, No. 300, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1959, No. 659, in case of Charles H. Robinson v. City of Philadelphia et al. Order affirmed.
Stanley M. Greenberg, with him Ochman & Greenberg, for appellant.
David Berger, City Solicitor, with him Yale B. Bernstein, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and Alan Miles Ruben, Deputy to the City Solicitor, for City of Philadelphia, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiff brought a taxpayer's suit in equity to enjoin the defendants, the City of Philadelphia, its Department of Public Health, and the Board of Trustees of Philadelphia General Hospital, from carrying out a certain contract dated April 24, 1959. This contract was made on behalf of the "City of Philadelphia" by the Board of Trustees Philadelphia General Hospital with two private institutions, the University of Pennsylvania and Temple University, and related to the operation, management and control of the Philadelphia General Hospital.
Plaintiff appealed from the Order of the Court below which sustained defendants' preliminary objections and dismissed the complaint.
In Fawcett v. Monongahela Railway Co., 391 Pa. 134, 137 A.2d 768, we quoted with approval the well settled principle reiterated in Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, where the Court said (page 136): "Defendants by their 'preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders' conclusions or averments of law': Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895. Moreover, when the sustaining of defendants' preliminary objections will result in a denial of plaintiffs' claim, or a dismissal of plaintiffs' suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776."
Plaintiff's complaint alleges that the above mentioned contract made by the City with the University of Pennsylvania and Temple University is illegal, improper
and unconstitutional. Plaintiff also alleges that the initial cost of $200,000 for 6 months, which was appropriated by City Ordinance No. 2696, was for an illegal purpose and the expenditure of this sum "may and probably will result in additional burdens to the taxpayers of Philadelphia caused by wasteful and unwarranted disbursements."
Plaintiff further alleged that the operation of the Philadelphia General Hospital has resulted in adequate care for patients so that there is no need for the proposed contract and the new operation; and that "The contract and proposed operation of the hospital is a violation of Section 5 B 3 of the Pennsylvania Fair Employment Practice Act in that same will result in ...