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April 27, 1983


The opinion of the court was delivered by: MANSMANN

 This matter is before the Court on a Motion for Judgment on the Pleadings *fn1" filed by Defendant Indiana Hospital and certain Defendant physicians and administrators *fn2" at Indiana Hospital ("Hospital Defendants"). Also before the Court is a Motion to Dismiss filed by the Secretary of the Pennsylvania Department of Health, Dr. H. Arnold Muller ("Dr. Muller"). *fn3" Plaintiff Dr. Ralph J. Miller brought this action as a result of Indiana Hospital's refusal to accept or consider his application for medical staff privileges. For the reasons set forth below, we are granting Defendants' Motions in part and are reserving judgment on the remainder.

 * * *


 A Motion to Dismiss filed pursuant to Fed.R.Civ.P. 12(b) *fn4" and a Motion for Judgment on the Pleadings filed pursuant to Fed. R.Civ.P. 12(c) *fn5" may, to a certain extent, be used interchangeably as pretrial challenges to an opponent's claim. McIntosh v. Garofalo, 367 F. Supp. 501, 503 (W.D. Pa. 1973). See also C. Wright & A. Miller, 5 FEDERAL PRACTICE AND PROCEDURE § 1369, at 698 (1969). *fn6"

 Theoretically, a Rule 12(b) motion focuses on the defects in Plaintiff's claim for relief and does not seek to determine the merits of the dispute. *fn7" Id. A Rule 12(c) motion, on the other hand, does seek to determine the substantive merits of the controversy. Id. As a practical matter, however, many of the same standards are applicable to both types of motions.

 Both a Rule 12(b) motion and a 12(c) motion may be used to assert lack of subject matter jurisdiction or to assert the failure of Plaintiff to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1) and (6); 12(h)(2) and (3). *fn8" See also Cardio-Medical Assoc. v. Crozer-Chester Medical Center, 536 F. Supp. 1065 (E.D. Pa. 1982); C. Wright and A. Miller, supra at 688. The same standards will apply to the resolution of each of these challenges regardless of which type of motion is used. See Tomarkin v. Ward, 534 F. Supp. 1224, 1228 n.1 (S.D.N.Y. 1982); Warner Co. v. Brann & Stuart Co., 198 F. Supp. 634 (E.D. Pa. 1961). See also C. Wright and A. Miller, supra at 688.

  Dismissal on jurisdictional grounds and for failure to state a claim are analytically distinct, implicating different legal principles and different burdens of proof. Johnsrud v. Carter, 620 F.2d 29, 32 (3d Cir. 1980). The former involves the right to be heard in court while the latter is a disposition of the case on the merits. Id. at 33.

 Motions which challenge subject matter jurisdiction may simply attack the facial sufficiency of the Complaint or they may attack the factual existence of subject matter jurisdiction. *fn9" Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a facial attack, the Court must take the allegations of the Complaint as true. *fn10" Id. Where, however, the Motion creates a factual issue regarding subject matter jurisdiction, "'no presumptive truthfulness attaches to Plaintiff's allegations and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims. Moreover, the Plaintiff will have the burden of proof that jurisdiction does in fact exist.'" *fn11" Enka B.V. of Arnhem, Holland v. E.I. DuPont Nemours & Co., 519 F. Supp. 356, 359 (D. Del. 1981), quoting Mortensen, supra at 891.

 Where a motion asserts the failure of Plaintiff to state a claim, the burden is on the moving party. See Johnsrud v. Carter, supra at 33. The Plaintiff is afforded the safeguard of having all of his allegations taken as true and all inferences which are favorable to him will be drawn. Society Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980); Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980); Mortensen, supra at 891. If the court considers matters outside of the pleadings, the motion is transformed into a Rule 56 Motion for Summary Judgment. See Fed.R.Civ.P. 12(b) and 12(c). *fn12"

 Specifically with regard to a Rule 12(c) motion, we note the following:

Under the orthodox rule, a motion for judgment on the pleadings must be sustained by the undisputed facts appearing in all the pleadings, supplemented by any facts of which the court will take judicial notice. For the purposes of the motion, all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not deemed admitted. Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment.
536 F. Supp. at 1070, quoting 2A MOORE'S FEDERAL PRACTICE para. 12.15, at 2343-44 (1981) (footnotes omitted).

 As a general rule, courts do not favor the summary disposition of cases on their merits. Indeed, the United States Supreme Court has stated that "a complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Nevertheless, in an appropriate case, an early disposition may save the parties needless and often considerable time and expense which otherwise would be incurred during discovery and trial. At minimum, a partial disposition of the case at any early stage will refine the issues which remain for later resolution.

 * * *


 With the above standards in mind, the facts may be summarized as follows:

 Plaintiff is a physician and surgeon duly licensed by the Commonwealth of Pennsylvania. He is a Board-certified urologist. *fn13" Plaintiff was a member of Indiana Hospital's medical staff for approximately 19 years. He remains a resident of Indiana County, Pennsylvania.

 Defendant Indiana Hospital is a general hospital and a non-profit corporation. It is located in Indiana County, Pennsylvania and is the only general hospital in that county. *fn14"

 The 24 individual Hospital Defendants are or were administrators or physicians at the Hospital. Twenty of these Defendants are or were members of the Hospital's Governing Board or the Executive Committee of the medical staff during the events in question. One of these Defendants, William R. McMillen, is or was a Commissioner of Indiana County as well.

 Defendant Dr. Muller is the Secretary of the Pennsylvania Department of Health with offices in Harrisburg, Pennsylvania.

 Plaintiff was first granted staff privileges at Indiana Hospital in 1958. Every subsequent year he applied for and was granted staff privileges for a period of one year. *fn15"

 In 1974 and 1975, Plaintiff became active in the design and creation of the Medical Center. *fn16" Further, Plaintiff openly criticized certain conditions at the Hospital. *fn17" Those conditions allegedly went unremedied.

 According to Plaintiff, the Hospital and certain individual Hospital Defendants objected strenuously to the creation of the Medical Center and to Plaintiff's criticism of Hospital conditions. *fn18"

  In February 1977, a patient who had been under Plaintiff's care died at the Hospital. *fn19" One of the members of the medical staff's Executive Committee, who is a Defendant here, sent a report to the president of the medical staff stating that Plaintiff had rendered unacceptable care to the deceased patient. He later sent another letter to the Executive Committee, citing additional instances of inadequate care rendered by Plaintiff and requesting that Plaintiff's staff privileges be suspended. The Executive Committee held an informal meeting which Plaintiff attended. Plaintiff, however, refused to discuss the allegations against him and abruptly left the meeting.

 In March 1977, the Executive Committee notified Plaintiff in writing that it intended to recommend to the Hospital's Board of Directors that Plaintiff's active staff privileges be revoked. The Executive Committee, through its hearing committee, held a hearing at which Plaintiff was represented by counsel and had the opportunity to present and cross-examine witnesses. The hearing committee recommended the revocation of Plaintiff's staff privileges. The Executive Committee adopted the recommendation and Plaintiff appealed to the Hospital's Board of Directors. After another adversary hearing, a committee of four directors affirmed the Executive Committee's decision and the full Board adopted their recommendation.

 In October 1977, Plaintiff obtained a preliminary injunction ex parte from the Court of Common Pleas of Indiana County, preventing the revocation of his privileges. This injunction was dissolved in February 1978 and a request for a permanent injunction was denied in June 1978.

 Plaintiff appealed the denial of his request to the Superior Court of Pennsylvania. In April 1980, that court affirmed the lower court's decree, finding that the charges against Plaintiff were supported by "sufficient evidence." The Superior Court further determined that Plaintiff was dismissed in a "fair and impartial manner" which was in accordance with the Hospital's bylaws. In October 1980, Plaintiff's Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied.

 During the state court proceedings, Plaintiff continued to exercise his medical staff privileges. In September 1977, however, he submitted his application for 1978 staff privileges which the Hospital *fn20" refused to consider. *fn21"

 In December 1978, Plaintiff applied for medical staff privileges for the year 1979. The Hospital refused to process the application.

 In October 1980, Plaintiff requested, and was denied, the application forms from the Hospital in order to apply for 1981 staff privileges.

 In December 1980, Plaintiff petitioned the Pennsylvania Department of Health for an order directing Indiana Hospital to supply him with an application for medical staff privileges as well as an order directing Indiana Hospital and its officers to process the application.

 Plaintiff's petition was treated by the Department of Health as a formal complaint. A copy of the petition was sent to Indiana Hospital for a response.

 The president of the Hospital sent a letter to Plaintiff advising him that the Hospital would not accept an application for 1981 staff privileges from him based upon the outcome of the state litigation. A copy was sent to the Department of Health.

 Subsequently, the Hospital's counsel sent a copy of the bylaws to the Department of Health and reiterated the Hospital's position that it was not required to provide Plaintiff with an application.

 By letter dated December 31, 1980, the Department of Health notified Plaintiff of its determination to take no further action on the matter. Specifically, the Department stated that neither its regulations nor the Hospital's bylaws required the Hospital to provide him with an application. It also noted that the Department of Health does not enforce federal regulations "for those hospitals accredited by the Joint Commission on Accreditation of Hospitals."

 Plaintiff apparently took issue with the fact that the letter from the Hospital's attorney was sent to the Department of Health without a copy also being sent to him. He sent a letter dated January 5, 1981 to the Secretary of the Department of Health concerning the matter and also requested that the Department withdraw its determination with regard to his petition.

 By letter dated January 21, 1981, the Department notified Plaintiff that upon reviewing his original petition as well as its regulations and the Hospital's bylaws, it remained its determination that the Hospital had no obligation to furnish him with an application for staff privileges. Again, the Department of Health decided that it would take no action on the matter.

 * * *


 Plaintiff filed the present action on July 2, 1981 pursuant to the Fifth and Fourteenth Amendments to the United States Constitution (Count I); the civil rights statutes, 42 U.S.C. §§ 1983 and 1985 (Count I); the federal antitrust laws (Count II) as well as the state antitrust laws (Count III). Plaintiff predicates jurisdiction upon 28 U.S.C. §§ 1331 and 1343 for his federal claims. *fn22" Plaintiff's state claims are based upon the doctrines of ancillary and pendent jurisdiction. *fn23"

 We have carefully reviewed the Complaint and have found many difficulties attendant thereto.

 The Complaint, primarily in Count I, is unclear as to other claims possibly being asserted by Plaintiff. For example, in paragraph 17 of the Complaint, Plaintiff alleges interference with prospective advantage (para. 17(f)), intentional affliction of mental distress (para. 17(g)), defamation (para. 17(h)) and invasion of privacy (para. 17(h)). The pleadings and briefs do not disclose whether or not these allegations are considered separate legal claims. If Plaintiff wishes to retain these allegations as viable legal claims, *fn24" he must amend his Complaint, setting each claim out as a separate count and setting forth the allegations in support thereof with some degree of specificity. *fn25"

 Plaintiff also alleges interference with contractual relations in the same count. The inclusion of this allegation is puzzling. If Plaintiff is referring to the revocation of his staff privileges, the allegation does not belong in this Complaint. Our understanding of Plaintiff's case, based upon our reading of the entire Complaint and the representations of Plaintiff's counsel at oral argument, is that he is contesting the refusal to accept or process his application. Any attempt to relitigate the revocation of staff privileges is barred by the doctrine of res judicata. See discussion infra. Thus, Plaintiff may include in this Complaint only those claims which pertain to the refusal to accept or process his application. *fn26"

 In paragraph 20 of the Complaint, Plaintiff alleges that the Hospital's bylaws have been amended to grant every applicant for admission or renewal of admission "both a fair trial and due process of law procedure before making a determination to grant or refuse the same." In paragraph 25 of the Complaint, Plaintiff alleges a violation of a Pennsylvania statute, 2 Pa.C.S.A. § 504. *fn27" In paragraph 26 of the Complaint, Plaintiff alleges a violation of regulations promulgated by the U.S. Department of Health and Human Services, 42 C.F.R. §§ 405.1920 et seq.

 It is not clear whether Plaintiff intends any of these allegations to be separate claims in his suit. If he does intend these allegations to be separate claims, the claims must be set out in separate counts of the Complaint with specific supporting allegations set forth therein. With respect to the bylaws and the federal regulations, Plaintiff must state the precise section or sections which he alleges to have been violated and must explain the manner in which the violation has occurred. A copy of the bylaws should also be appended to the Complaint.

 Plaintiff further alleges that Defendants have violated the rules and regulations of the Joint Commission on Accreditation of Hospitals ("JCAH") (para. 34). Our instructions with regard to Plaintiff's other allegations apply equally well here. Even more importantly, however, Plaintiff must first show the basis for this Court's jurisdiction over these rules. In other words, Plaintiff must state whether jurisdiction for this claim is predicated upon federal question jurisdiction *fn28" or upon pendent jurisdiction and must allege facts to support the alleged jurisdiction. *fn29"

 Count II of the Complaint is drawn more precisely than count I. Nevertheless, count II is unclear in several respects. Specifically, it is difficult to discern which Defendants are included in count II.

 It appears that Dr. Muller was not made part of count II. Indeed, we question whether the Secretary of the Pennsylvania Department of Health could be made part of the federal antitrust count in light of the antitrust exemption for state agencies and state officials in certain circumstances. See Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943). *fn30" Furthermore, we question whether Dr. Muller's activities have a substantial effect on interstate commerce as required by the Sherman Act. See McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 62 L. Ed. 2d ...

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