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REV. JAMES S. PRESTON v. CITY PHILADELPHIA ET AL. REV. JAMES S. PRESTON ET AL. (08/12/76)

decided: August 12, 1976.

REV. JAMES S. PRESTON, 4210 POWELTON AVENUE, PHILADELPHIA, PENNA. ET AL.
v.
THE CITY OF PHILADELPHIA ET AL. REV. JAMES S. PRESTON ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Rev. James S. Preston, 4210 Powelton Avenue, Philadelphia, Pa., Samuel Evans, 1520 Spruce Street, Philadelphia, Pa., Dr. Cynthia Cook, Dr. Richard Freeman, Harriet Mayhugh and Jessie Powell v. The City of Philadelphia, Frank L. Rizzo, Mayor of the City of Philadelphia, and The Board of Trustees of Philadelphia General Hospital, No. 2765 February Term, 1976.

COUNSEL

Edward V. Sparer, with him Charles W. Bowser, H. Patrick Swygert, Bruce L. Thall, and R. Michael Kemler, for appellants.

John M. McNally, Jr., First Deputy City Solicitor, Sheldon L. Albert, City Solicitor, and Stephen Arinson, Chief Deputy City Solicitor, for appellees.

Richard Kirschner, with him Miriam L. Gafni, and Markowitz & Kirschner, for amici, APTA District Council 47, AFSCME, AFL-CIO, Local 488, District Council 33, AFSCME, AFL-CIO.

A. L. Zwerdling, with him Janet Kohn and Zwerdling, Maurer and Papp, for American Federation of State, County and Municipal Employees, AFL-CIO.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 26 Pa. Commw. Page 108]

The appellants, Reverend James S. Preston, a Baptist minister; Samuel Evans, Chairman of the American Foundation for Negro Affairs; Dr. Cynthia Cook, a medical doctor at Philadelphia General Hospital (PGH); Dr. Richard Freeman, a medical intern at PGH; and Harriet Mayhugh and Jessie Powell, patients at PGH, filed a complaint in equity alleging that the Mayor of the City of Philadelphia announced the City's intention to close PGH and that such a closing would be illegal. The appellants were granted a preliminary injunction and an evidentiary hearing was set for five days later.

The complaint was not drawn in two counts. It alleged only that there is a legal duty imposed upon the city to continue in operation the PGH. At the hearing the lower court sustained preliminary objections to that issue but stated that it would allow the presentation of evidence on the issue of whether, by closing the hospital, the city was capriciously avoiding a duty to provide health care to indigent persons. No evidence was presented by the appellants and the court dismissed the complaint for failure to prosecute on the alternative theory. This appeal followed; we affirm.

The appellants insist that their complaint states a cause of action, that there is a legal duty imposed upon the city to operate PGH as a functioning general hospital available to indigent persons in Philadelphia.*fn1 They ground their case on three bases: that

[ 26 Pa. Commw. Page 109]

Pennsylvania statutory law and the Philadelphia Home Rule Charter require it; that the Mayor of Philadelphia has no power to terminate the operation of the hospital; and that the city cannot close the hospital without prior approval from the Pennsylvania Department of Health.

We have dutifully reviewed all of the law advanced by the appellants in support of their theories and, while there are strong indications of a desire to provide indigent health care, we fail to find therein any support for the ...


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