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decided: August 12, 1976.


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.


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 proposition that the city has a duty to maintain PGH as such.

The appellants' statutory argument begins with prerevolution laws governing the Province of Pennsylvania and traces the history of PGH to modern times. In 1766, the General Assembly passed "An Act for the better employment, relief and support of the poor within the City of Philadelphia, the District of Southwark, the Township of Moyamensing and Passyunk and the Northern Liberties," making it lawful for persons within the province contributing ten pounds or more to a corporation named "Contributors to the Relief and Employment of the Poor in the City of Philadelphia" to become members of the corporation and elect managers of the fund thus created. The corporation was charged with the duty of erecting an almshouse in the city "to and for the reception and lodging of all such of the poor of the said city, district and township as shall be incapable of contributing towards their support by their labor." Act of February 8, 1766, 7 Statutes at Large of Pennsylvania 9. The corporation had the power to expend the money

[ 26 Pa. Commw. Page 110]

    collected by the overseers of the poor which had been collected for the maintenance, support and employment of the poor.

"An Act for the Relief of the Poor," Act of March 9, 1771, 8 Statutes at Large of Pennsylvania 75, established the office of overseers of the poor with the power, inter alia, of levying and collecting taxes "for relieving such poor, old, blind, impotent and lame persons or other persons not able to work. . . ."*fn2

With slight variations, the above Acts remained continuously in effect through 1782, when, after the Revolution, the Representatives of the Freeman of the Commonwealth of Pennsylvania in General Assembly reenacted the various poor laws previously adopted by the Proprietaries of the Province of Pennsylvania by and with the consent of the representatives of the freeman of the Province in General Assembly.*fn3

The Acts were consolidated, amended and repealed by the Act of March 25, 1782, 10 Statutes at Large of Pennsylvania 401. That Act allowed the overseers of the poor, public appointees, to assume the duties of the private corporation (Contributors to the relief and employment of the poor in the City of Philadelphia) should the corporation fail to elect a board of directors

[ 26 Pa. Commw. Page 111]

    or should the board fail to meet. The overseers of the poor became a corporation also, called "The Guardians of the Poor in the City of Philadelphia," with power and control over the almshouse.

The Act of March 29, 1803, 17 Statutes at Large of Pennsylvania 385, (passed by the now Senate and House of Representatives of the Commonwealth of Pennsylvania), made extensive revisions of the poor laws relating to the City of Philadelphia, the district of Southwark, and the township of Northern Liberties. A new corporate body was established, consisting of "substantial house-keepers" appointed by the municipalities, which was to supervise the almshouse and the house of employment of the poor and continue to exercise all the powers of the current managers of the almshouse, the Guardians of the Poor.*fn4

This short statutory history preceded the Act of March 5, 1828, 10 Smith's Laws 69, which created a new corporation called "The guardians for the relief and employment of the poor of the City of Philadelphia, the district of Southwark, and the townships of the Northern Liberties and Penn." All of the assets of the previous corporation were transferred to the new one, which had expanded geographical limits and membership on the board.*fn5 The Act of 1828 also authorized the guardians to sell the land upon which the almshouse was erected and to designate a "commission for the erection of buildings" which would be empowered to purchase another site for the building

[ 26 Pa. Commw. Page 112]

    of a hospital, almshouse, house of employment and children's asylum "having due regard to the full and comfortable provision for all such poor persons as may require medical or surgical aid. . . ."*fn6

The Act of February 2, 1854 extended the boundaries of the City of Philadelphia so as to include all of Philadelphia County. Sections 18 and 19 of that Act provided for the continuation of the office of guardian of the poor for the support of indigents in the city and the continuation of "houses of accommodation of the poor." Everything formerly owned, and all activities formerly engaged in, by the "Guardians for the relief and employment of the poor of the City of Philadelphia, the district of Southwark and the townships of Northern Liberties and Penn" were vested in the City of Philadelphia and the now elected guardians of the poor were charged with performing those duties.*fn7 The Act of June 1, 1885 abolished the office of the guardian of the poor and transferred its functions to the Department of Charities and Corrections. At the time of the passage of this Act there existed a municipal hospital for the prevention of contagious diseases which remained under the control of the Board of Health of the city, but the almshouse and general medical services for the poor were entrusted to the Department of Charities and Corrections.

[ 26 Pa. Commw. Page 113]

In Commonwealth ex rel. the Attorney General v. Fitler, 147 Pa. 288, 23 A. 568 (1892), the court, adopting the lower court's opinion, stated:

"'The inference is, therefore, a legitimate one, that when the Department of Charities and Correction was organized, the then existing condition of the hospital administration, including the medical staff, the class of medical practitioners of whom it was composed, the conditions, as well as the nature and amount of gratuitous service performed, entered into the considerations which influenced the creation of the department, under whose care the hospital was placed.

"'There is no intention expressed to change the administration of the hospital in either of its branches of duty. The care of the poor who required medical treatment, and those who did not, were placed in the hands of the Board of Charities and Correction, without direction to depart from or varying the administration of the affairs of the almshouse in any respect. The general purpose set forth in the tenth Article is, to commit to the care and management of the president and four directors, who compose the governing board, the almshouse and other charitable institutions entrusted to the city, with the exception of the lazaretto or hospital, and institutions under the care of the Board of City Trusts.'" 147 Pa. at 294, 23 A. at 570.*fn8

The Act of April 8, 1903, created the Department of Public Health and Charities, abolished the Department of Charities and Corrections, and placed all hospitals belonging to the city under the new department. The Act of June 25, 1919, P.L. 581, as amended, 53 P.S. § 12291 et seq., created the Department of Public

[ 26 Pa. Commw. Page 114]

Health and entrusted it with the "care management, administration, and supervision of city activities relating to public health, including hospitals. . . ."

The Philadelphia Home Rule Charter, 351 Pa. Code, § 1.1-100 et seq., adopted pursuant to the Act of April 21, 1949, P.L. 665, as amended, 53 P.S. § 13101 et seq., continued the functions and duties of the Department of Public Health, created by the Act of 1919, in the Department of Public Health created under the Home Rule Charter, 351 Pa. Code § A-101. The Board of Trustees of Philadelphia General Hospital was placed within the Department of Public Health, 351 Pa. Code § 3.3-101(f), and the Board of Trustees is given the direction and control of the management of the hospital, 351 Pa. Code § 5.5-303, while the Department retains general supervisory powers, 351 Pa. Code § 5.5-300(e).*fn9

[ 26 Pa. Commw. Page 115]

The thrust of appellants' arguments is that the more than two hundred year history of statutes authorizing a hospital for the indigent in Philadelphia creates a duty upon the city to continue to maintain PGH. It is a novel argument for which we find no precedent. The statutes certainly express an intent to benefit the poor of the city, and by extended argument might be construed as imposing a duty upon the city to provide health care for the indigent,*fn10 but we can see no basis in the statutes or in the Home Rule Charter for the proposition that Philadelphia must maintain the PGH as such. Since the Board of Trustees and the city have the power to contract with universities for the provision of medical services at the hospital, Robinson v. Philadelphia, 400 Pa. 80, 161 A.2d 1 (1960), it would seem that, at the very least, the city would have the power to contract for the provision of those same services elsewhere.

The appellants next argue that, even if the city has no duty to maintain PGH, the mayor has no power to unilaterally terminate the operation of PGH. The argument that the mayor and the Board of Trustees of PGH have equal status is untenable. The mayor appoints members of the board, 351 Pa. Code § 3.3-207, and they serve at the mayor's pleasure, 351 Pa. Code § 3.3-404. It is a departmental board, 351 Pa. Code § 3.3-903, subject to the general supervision of the Department of Public Health, 351 Pa. Code § 5.5-300, supra

[ 26 Pa. Commw. Page 116]

    note 9, and the mayor has the specific power to disapprove any expenditure of money by the board, 351 Pa. Code § 8.8-102.*fn11 Again we must note that the appellants failed to present any testimony regarding the reasonableness of the closing of PGH in relationship to the delivery of health care services in the city so that the lower court was unable to make a determination of whether the mayor abused his power by announcing the defunding of the board.

Finally, the appellants argue that the city must receive approval from the State before it can close PGH. The Pennsylvania Department of Health must approve or disapprove all plans for the erection or substantial alteration of any "supervised institution" receiving aid from the Commonwealth. Act of June 13, 1967, P.L. 31, 62 P.S. § 202; Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 604; Reorganization Plan No. 5 of 1973, effective July 1, 1973, 71 P.S. § 755-5. The term "supervised institution" includes all hospitals maintained by any city, Act of June 13, 1967, P.L. 31, 62 P.S. § 901, which would, of course, include PGH.

Once it is closed, PGH will no longer be a supervised institution, nor will it be receiving State aid. Appellants argue that the closing of PGH may mean

[ 26 Pa. Commw. Page 117]

    the loss of substantial State and Federal funds for the provisions of health care in the city. Be that as it may, we cannot hold that an institution receiving state assistance is thereafter precluded from closing its doors and foregoing future assistance.

The Order of the lower court is affirmed.



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