Appeals from the Order of the Department of Health, in the case of In Re: Aliquippa CT Associates/Aliquippa Hospital, Project No.: CON-86-H-6072-B, No. NR-86-016.
Reed Hamilton, with him, Kathleen Herzog Larkin and Jan L. Weinstock, Blank, Rome, Comisky & McCauley, for petitioner, Laurel Mobile Health Services, Ltd.
Edward F. Shay, with him, Claire C. Obade and Stanley J. Milavec, Jr., for petitioner, Aliquippa Hospital et al.
Darius G. C. Moss, Assistant Counsel, for respondent.
Judges Craig, McGinley and Smith, sitting as a panel of three. Opinion by Judge McGinley. Judge Smith concurs in the result only. Judge MacPhail did not participate in the decision in this case.
[ 121 Pa. Commw. Page 293]
Laurel Mobile Health Services, Ltd., (Laurel) appeals from an Opinion and Order of the Pennsylvania Department of Health (Department) dated June 9, 1987, dismissing Laurel's appeal from a determination of the Division of Need Review (DNR) of the Department which held that Aliquippa Hospital did not require a Certificate of Need (CON) to acquire a computerized tomography scanner (CT scanner). On July 21, 1987, Aliquippa Hospital (Aliquippa) filed a Cross-petition for Review from the same order. Aliquippa and Aliquippa CT Associates (Associates) intervened in Laurel's appeal on July 29, 1987, and on August 21, 1987, Laurel intervened in Aliquippa's Cross-petition. On August 21, 1987, Laurel also filed a Motion to Quash Aliquippa's Cross-petition. On September 8,
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, this Court denied Laurel's Motion to Quash and on October 27, 1987, sua sponte, consolidated both cases.
Incidents giving rise to this appeal commenced on September 2, 1983, when the Department simultaneously issued a CON to Aliquippa, Ohio Valley Hospital and Mobile Imaging based upon a joint application. The CON authorized Mobile Imaging to acquire a mobile CT scanner and to provide CT scanning services on a shared basis to the two hospitals pursuant to a contract between Aliquippa, Ohio Valley Hospital and Mobile Imaging. Shortly after the CON for the shared arrangement was approved, Mobile Imaging assigned its contract to Laurel. The contract with the hospitals was effective through January 31, 1987. (R. at 124.)
On July 17, 1986, Aliquippa wrote to the Department stating its intent to acquire a CT scanner of its own for its sole use. (Original Record (R.) at 1.) Laurel objected to that request by letter dated August 14, 1986.*fn1 On October 3, 1986, Aliquippa wrote to the DNR of the Department informing it that at the conclusion of its present contract with Laurel, Aliquippa together with Associates would provide the CT scanner service.*fn2 The Department concluded that Aliquippa
[ 121 Pa. Commw. Page 295]
could acquire the CT scanner without first obtaining a CON for the new arrangement. Such a decision of the Department is termed a "Determination of Non-Reviewability." The Department approved the proposal on October 8, 1986.*fn3 On October 16, 1986, Laurel requested that a hearing be held to contest the Department's determination.*fn4 The request was supplemented by a second letter from Laurel dated November 3, 1986. (R. at 12-15.) On December 2, 1986, Aliquippa was formally advised by the Department's legal counsel of Laurel's appeal pursuant to 1 Pa. Code § 35.20 and of its opportunity to file an answer pursuant to 1 Pa. Code §§ 31-35. (R. at 16-17.) Aliquippa did not. On January 5, 1987, the Department notified Aliquippa that pursuant to Section 603(e) of the Health Care Facilities Act (Act), Act of July 19, 1979, P.L. 130, as amended, 35 P.S. §§ 448.101-448.904, no further activity related to the scanning equipment should be undertaken until a final determination was made by the Secretary of the Department. (R. at 20-21.) On January 13, 1987, the Department notified Laurel and Aliquippa of an evidentiary
[ 121 Pa. Commw. Page 296]
hearing to be held on February 10, 1987, pursuant to the provisions of the Code and the Administrative Agency Law (Law), 2 Pa. ...