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EDWARD COOK v. COMMONWEALTH PENNSYLVANIA ET AL. (07/27/81)

decided: July 27, 1981.

EDWARD COOK, PRESIDENT, COUNTY COMMISSIONERS OF SCHUYLKILL COUNTY, PA. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in the case of Edward Cook, President, County Commissioners of Schuylkill County, Pennsylvania; John Reese, Mayor, Shenandoah, Pennsylvania; Martin J. Todd, President, Board of Trustees, Locust Mountain State General Hospital, Pennsylvania; Honorable James J. Rhoades, Senator, 29th Senatorial District, Pennsylvania; Honorable Edward J. Lucyk, Representative, 123rd House District, Pennsylvania; Donald C. Michaels, taxpayer; Council 13, American Federation of State, County and Municipal Employees, AFL-CIO, by its Trustee ad Litem, Gerald W. McEntee v. Commonwealth of Pennsylvania; Honorable Richard Thornburgh, Governor, Commonwealth of Pennsylvania; Department of Public Welfare; Helen B. O'Bannon, Secretary of Public Welfare, Commonwealth of Pennsylvania.

COUNSEL

Richard Kirschner, with him Alaine S. Williams, Kirschner, Walters & Willig, for petitioners.

David H. Allshouse, Deputy Attorney General, with him Gregg H. S. Golden, Deputy Attorney General, Allen C. Warshaw, Chief, Civil Litigation, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish and Judges Rogers, Blatt, MacPhail and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by Judge Blatt.

Author: Macphail

[ 61 Pa. Commw. Page 154]

Petitioners*fn1 have filed a petition for review in the nature of a complaint in equity (hereinafter referred to as the complaint) pursuant to this Court's original jurisdiction as found in Section 761(a) of the Judicial Code, 42 Pa. C.S. § 761(a). The action seeks to prevent the Respondents*fn2 from closing Locust Mountain State Hospital, a state general care hospital operated by the Commonwealth since 1923. Respondents have filed preliminary objections in the nature of a demurrer and a petition raising a question of jurisdiction.

An order of this Court entered June 9, 1981 has granted Petitioners a preliminary injunction.

Petitioners' complaint, the material facts of which are deemed to be admitted for the purpose of this decision, is set forth in three separate causes of action. The first cause of action alleges that the decision to close the hospital is in violation of Section 4 of the Act of May 11, 1923 (Enabling Act), P.L. 199, as amended,

[ 61 Pa. Commw. Page 15535]

P.S. § 123. The second cause of action alleges a) that the decision to close the hospital violates Article I, Section 1 of the Constitution of Pennsylvania because it denies patients the right to enjoy life and liberty, and b) that the decision violates the 14th Amendment to the United States Constitution because it denies patients life and liberty without due process of Law. Petitioners' brief indicates that this second cause of action has been withdrawn, presumably in recognition of the decision of our Pennsylvania Supreme Court in Bell v. Thornburgh, 491 Pa. 263, 420 A.2d 443 (1980). The third cause of action alleges that the decision to close the hospital was made unilaterally without the agreement of the employees' bargaining representative.

Petition Raising A Question of Jurisdiction

Respondents contend that the third cause of action charges them with an unfair labor practice. They argue that under statutory and case law, the exclusive forum for the adjudication of unfair labor practice disputes is the Pennsylvania Labor Relations Board. Section 1301 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.1301 states that:

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair practice listed in Article XII of this act. This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that have been or ...


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