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FRANCIS M. POWERS v. COMMONWEALTH PENNSYLVANIA (11/25/88)

decided: November 25, 1988.

FRANCIS M. POWERS, JR., M.D. AND CANCER TREATMENT ASSOCIATES, P.C., A PENNSYLVANIA PROFESSIONAL CORPORATION, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH ET AL., RESPONDENTS



Original Jurisdiction and Appeal in the case of Re: No. CON-86-F-6156-B, North Central Health Services, Williamsport, PA, Outpatient Radiation Therapy Services, dated September 17, 1986.

COUNSEL

Allen E. Ertel, with him, Pamela L. Shipman, Reed, Smith, Shaw & McClay, for petitioners.

Darius G. C. Moss, Assistant Counsel, for respondent, Department of Health.

H. Lee Roussel, with him, Alan R. Boynton, Jr., McNees, Wallace & Nurick, for respondent, Robert M. McNair, Jr.

Seymour J. Schafer, Markel, Schafer & Means, P.C., for respondents, North Central Health Services Corporation et al.

J. David Smith, McCormick, Reeder, Nichols, Sarno, Bahl & Knecht, for respondents, The Williamsport Hospital and Donald R. Creamer.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge MacPhail.

Author: Doyle

[ 121 Pa. Commw. Page 322]

Before us for our consideration are preliminary objections and, alternatively, motions to quash which were filed in response to a petition for review filed by Francis M. Powers, Jr., M.D. and Cancer Treatment Associates, P.C. (collectively Petitioners). Petitioners' petition contains three counts; the first is addressed to our original jurisdiction and seeks declaratory and injunctive relief; the second is addressed to our appellate jurisdiction and seeks review of a determination of the Department of Health (Department) and the third is ancillary to count one and seeks declaratory and injunctive relief.

Petitioners have alleged that Cancer Treatment Associates (CTA) operates a cancer treatment facility in Williamsport, Pennsylvania; that Dr. Powers is a physician specializing in cancer treatment, and that he practices in the Williamsport area. He is also the president and principal shareholder in CTA. It is further alleged

[ 121 Pa. Commw. Page 323]

    that on August 4, 1986 the North Central Health Services Corporation (NCHS), a respondent in this case, sent a letter of intent to the Department in which it set forth a proposal to operate a program of out-patient therapy for cancer patients. The letter sought a preliminary determination from the Department that NCHS' proposed program would not require review under the certificate of need (CON) process as established by the Health Care Facilities Act (Act), Act of July 19, 1979, P.L. 130, as amended, 35 P.S. ยงยง 448.101-448.904. According to Petitioners' petition the proposed cancer treatment center will provide the same type of medical services as does CTA. Petitioners aver that the program proposed by NCHS is undertaken by or on behalf of Williamsport Hospital, another respondent herein. NCHS allegedly will operate its cancer treatment center at space leased from Williamsport Hospital. Petitioners further allege that Williamsport Hospital has advanced substantial sums to NCHS to finance various costs associated with this project. Further, they contend that Donald Creamer, President of Williamsport Hospital, has participated in the solicitation and selection of employees for the proposed cancer treatment center; that employees of Williamsport Hospital have been and will be available to lend assistance to NCHS; that Williamsport Hospital will exercise significant control over NCHS; and that development of the cancer program will benefit the Williamsport Hospital.

On September 17, 1986 the Department issued a determination of "nonreviewability" in which it informed NCHS, in response to its August 4, 1986 letter of inquiry, that NCHS was not required to file an application for a CON. Petitioners allege that the Department made its determination of nonreviewability prior to consulting with the ...


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