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HAYES v. RIDGE

November 5, 1996

TIMOTHY HAYES, M.D., et al., Plaintiffs
v.
TOM RIDGE, et. al., Defendants



The opinion of the court was delivered by: YOHN

 Yohn, J.

 November 5, 1996

 Plaintiffs are sixty-six physicians licensed to practice medicine in Pennsylvania. The defendants are the Governor, the Director of the Medical Professional Liability Catastrophe Loss Fund, ("the CAT Fund"), the Inspector General, the Insurance Commissioner, the Secretary of State of Pennsylvania, and members of the State Boards of Medicine, Osteopathic Medicine, and Podiatry.

 Nineteen of the plaintiffs have requested a preliminary injunction against the CAT Fund officials and the three licensing boards to restrain the boards from taking any further steps to suspend plaintiffs' licenses because of non-payment of the 1995 emergency surcharge for medical malpractice insurance in excess of their basic coverage insurance under 40 Pa. C.S.A. § 1301.701 ("the Act"). Defendants have opposed the plaintiffs' request for a preliminary injunction. *fn1" The motion for a preliminary injunction will be denied.

 I. PROCEDURAL HISTORY

 In December, 1995, plaintiffs filed suit in the Commonwealth Court and requested that the court issue a preliminary injunction restraining the state's medical boards from continuing to take any steps to suspend the plaintiffs' licenses because of the plaintiffs' non-payment of their emergency surcharges. The Commonwealth Court denied plaintiffs' application because plaintiffs had failed to add as parties some of the government officials and/or boards essential to their requested relief. The court also determined that the plaintiffs had not proven all four required elements of a preliminary injunction. See Gueson v. Reed, 679 A.2d 284, 285 (Pa. Commw. 1996). *fn2"

 On May 8, 1996, plaintiffs filed in Commonwealth Court a "Third Amended Complaint in the Form of Third Amended Petition for Review Seeking Injunctive, Declaratory, and Other Relief" which included the following counts: Count I stated that "Participation in the CAT Fund is Voluntary, Not Mandatory." Count II claimed "Breach of Fiduciary and Statutory Duties/ Abuse of Agency Discretion/ Negligence, Request for Injunctive, Declaratory, and Mandamus Relief." Count III alleged "Violations of Due Process Under Administrative Agency Law and the Pennsylvania Constitution." Count IV alleged "Section 1983 Claims Against respondents in Their Official Capacities." Gueson v. Reed, 679 A.2d 284 (Pa. Commw. 1996).

 Subsequent to the filing of that amended complaint, plaintiffs again requested that the Commonwealth Court issue a preliminary injunction. Specifically, the second request sought to:

 
1. Preliminarily enjoin Director of the CAT Fund and the Insurance Commissioner from certifying those Petitioners not yet certified for alleged failure to comply with the Health Care Services Malpractice Act ("the Act") to the respective State Boards for suspension or revocation of their license to practice medicine, osteopathy or podiatry; and
 
2. Preliminarily enjoin the respective State Boards and the Department of State's Bureau of Professional and Occupational Affairs from taking any steps to suspend, revoke or otherwise impair Petitioners' licenses until such time as [court] makes a final determination on the merits.

 Gueson v. Reed, 679 A.2d at 287.

 The Commonwealth Court denied the plaintiffs' second request for a preliminary injunction finding that the plaintiffs had again failed to satisfy the criteria necessary for the grant of a preliminary injunction. *fn3"

  On July 12, 1996, immediately after the Commonwealth Court denied the plaintiffs' request for a preliminary injunction, plaintiffs filed a wide-ranging complaint in this court alleging multiple violations of due process and equal protection under the Fourteenth Amendment to the U.S Constitution by the CAT Fund. The complaint states (1) that plaintiffs have no prior notice through administrative rule-making procedures that failure to pay the CAT Fund surcharges is an offense punishable by license suspension or revocation, and (2) that plaintiffs have no real hearing/opportunity *fn4" to argue about (a) their status as CAT Fund participants (they claim participation is voluntary, not mandatory), (b) the surcharge amount determination, (c) the certification by the CAT Fund to the state boards, or (d) justifiable nonpayment due to financial hardship, and (3) that the "unfettered discretion" of the Director of the Fund to investigate, accelerate, settle, terminate, etc., claims against the Fund violates their substantive due process rights, as does requiring their participation in the Fund (because they should be allowed to obtain private insurance).

 Further, plaintiffs claim that the Fund administration violates the Equal Protection Clause, because self-insured hospitals have not been contributing their pro rata share, as required by § 1301.701(e)(2). Further, plaintiffs raise due process claims under the Pennsylvania Constitution and the state's administrative agency law.

 Plaintiffs also present claims for breach of statutory and fiduciary duties, abuse of agency discretion, and negligence against the Director of the Fund and the Insurance Commissioner. Plaintiffs contend that the Director failed to promulgate clear standards as to participant status, the procedures for investigation, settlement, and termination of claims, the validity of surcharges, and procedures for notice and opportunity for a hearing. The Director also allegedly breached his duties to plaintiffs by failing to prudently manage the Fund in terms of payment of claims and administrative expenses. He also allegedly failed to correct the known mismanagement of his predecessors. Plaintiffs contend that the Insurance Commissioner failed to regulate and license the CAT fund as state statutes require with regard to excess insurers, and approved surcharges without investigating the operations of the Fund.

 Finally, plaintiffs invoke the Constitution's "guarantee of a republican form of government" clause and present a charge of conspiracy to deny civil rights under 42 U.S.C. § 1985(3).

 Plaintiffs request injunctive relief to prevent further certifications and further suspension hearings because of plaintiffs' failure to pay the emergency surcharges. As provisional relief, plaintiffs ask for a preliminary injunction *fn5"

 
(1) prohibiting Defendant John H. Reed, Director of the Medical Professional Liability Catastrophe Loss Fund of the Commonwealth of Pennsylvania ("CAT Fund") from certifying Plaintiff health care providers to the Defendant State Licensing Boards for license suspension or revocation proceedings on grounds of alleged or actual non-payment of CAT Fund surcharges until this Court can decide this case on the merits; and
 
(2) prohibiting Defendant State Licensing Boards from proceeding with license suspension or revocation hearings against nineteen (19) of the Plaintiffs on grounds of alleged non-payment of CAT Fund surcharges . . . . *fn6"

 The grounds for the preliminary injunction are that the Act "violates both procedural and substantive due process under the Fourteenth Amendment in (1) failing to give reasonable notice and opportunity for a hearing at key points in the CAT Fund administrative process; and (2) operating in an arbitrary and capricious fashion with respect to investigation, evaluation, settlement or termination of claims against the CAT Fund, determination of CAT Fund surcharges, levy of those surcharges, collection of those surcharges, and commencement of disciplinary proceedings against health care providers for alleged or actual non-payment of CAT Fund surcharges." Plaintiffs' Application for Preliminary Injunction, p.2.

 On August 29, 1996, the court held a hearing on the plaintiffs' preliminary injunction request. The parties submitted proposed findings of fact and conclusions of law through October 14, 1996 and the matter is now ripe for disposition.

 II. FACTS7

 Plaintiffs Allon, Armento, Ash, Banmiller, Brennan-Weaver, Digiovanni, Greenhalgh, Gueson, Isajiw, Karandy, Kutney, Lariiew, Lynch, Mahoney, McGuckin, Meier, Muller, Noble and Sharer ("plaintiffs") are all "health care providers" required to pay the 1995 emergency surcharge under the provisions of the ...


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