Original jurisdiction in case of Hospital Association of Pennsylvania, Abington Memorial Hospital, Greene County Memorial Hospital, Lebanon Valley General Hospital, Aliquippa Hospital, Episcopal Hospital, Hamot Medical Center, Lock Haven Hospital, Monongahela Valley Hospital, Inc., Oil City Hospital, Presbyterian-University of Pennsylvania Medical Center, Saint Vincent Health Center, Sharon General Hospital, Soldiers & Sailors Memorial Hospital, The Washington Hospital, Waynesboro Hospital, Western Pennsylvania Hospital, Wilkes-Barre Hospital, The Williamsport Hospital, Wyoming Valley Hospital, York Hospital, Pennsylvania Hospital v. Leonard Bachman, M.D., Secretary of Health, and the Department of Health of the Commonwealth of Pennsylvania.
James H. Stewart, Jr., with him Michael C. Fox, and Nauman, Smith, Shissler & Hall, for petitioners.
John G. Knorr, III, with him Jeffrey B. Schwartz, for respondent.
President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and MacPhail. Judges Crumlish, Jr. and Craig did not participate. Opinion by Judge Wilkinson, Jr. Judge MacPhail dissents. Dissenting Opinion by President Judge Bowman. Judge Mencer joins in this dissent.
[ 40 Pa. Commw. Page 264]
The petitioners would have us enjoin the Secretary and the Department of Health (Department) from implementing and enforcing its regulations concerning general and public hospitals as published in 7 Pa. B. 3631, December 10, 1977, effective June 10, 1978. We must decline to do so.
After a hearing on an application for a preliminary injunction, the enforcement of certain paragraphs was enjoined temporarily until final determination on the merits. This temporary injunction will be dismissed.
Fortunately for the brevity of this opinion, the interesting and complicated history of hospital supervision and regulation in Pennsylvania was recently set forth by Edward F. Shay, Esq. in 51 Temp. L.Q. 187 (1978) under the title, "Pennsylvania Law of Hospital Supervision: Its Origin and Present Meaning."*fn1 No attempt will be made to briefly recapitulate this history. Suffice it to say that the regulations in issue were the result of a redraft of regulations originally adopted by the Department of Public Welfare and last revised in 1966. Pursuant to Reorganization Plan No. 2 of 1973, Approved May 22, 1973, 71 P.S. § 755-2, the Department of Health continued the revision, culminating in the publication of the very comprehensive rules and regulations here in issue. Section 1 of Reorganization Plan No. 2 of 1973 provided:
The functions, powers and duties of the Department of Welfare with regard to the supervision and licensing of special and general hospitals, as set forth in Articles 9 and 10 of the act of
[ 40 Pa. Commw. Page 265]
June 13, 1967 (P.L. 31, No. 21) known as the 'Public Welfare Code' are hereby transferred to the Department of Health.
Although much time has been devoted by both counsel in developing the precise source of authority for the respondents to publish rules and regulations governing the operation of hospitals in Pennsylvania, the issue here is not whether there is authority to issue rules but whether the authority has been exceeded by publishing overly broad and unreasonable rules.
Just as the Temple Law Quarterly article, supra, has set forth the history of the regulation and supervision of hospitals in Pennsylvania, so has Justice Pomeroy's opinion in Girard School District v. Pittenger, Pa. , 392 A.2d 261 (1978) set forth the law regarding the perimeter of the rule making authority. See also, Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156 (1973); Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967). These cases establish that the yardstick by which we measure the limits of authority is essentially whether the rules are reasonable. The following statement from Uniontown Area ...