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Emergycare, Inc. v. Millcreek Township

Commonwealth Court of Pennsylvania

May 23, 2013

EmergyCare, Inc., a Pennsylvania non-profit corporation; Gary M. Calabrese, an individual; and Mary Jackson, an individual
v.
Millcreek Township, a Pennsylvania municipal corporation, Appellant

Argued: April 15, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

ROCHELLE S. FRIEDMAN, Senior Judge

Millcreek Township (Township) appeals from the October 24, 2011, order of the Court of Common Pleas of Erie County (trial court) that permanently enjoined the Township from enforcing Township Ordinance No. 2010-3 (Ordinance). We affirm.

On April 27, 2010, the Township Board of Supervisors (Supervisors) enacted the Ordinance, which requires individuals seeking emergency medical services (EMS) to dial 911, bans advertising of 911 alternatives, prevents undesignated entities from providing EMS, and prescribes fines for engaging in these prohibited activities.[1] Pursuant to the Ordinance, the Supervisors expressly designated Millcreek Paramedic Service (MPS) as the provider of EMS in the Township. (N.T., 5/6/10, at 19-21.)

EmergyCare, Inc. (EmergyCare) has been providing EMS for 25 years. EmergyCare offers a yearly subscription to Township residents, under which EmergyCare provides medical care and transportation while paying the balance of an individual's financial responsibility after all insurance benefits have been billed and collected. EmergyCare operates an "870-1000" telephone number (alternative number) and encourages citizens to call the alternative number instead of 911.[2]Between 2007 and 2009, EmergyCare received between 3, 000 and 4, 000 calls annually from Township residents generating around $1 million in annual revenue.

The Ordinance became effective on May 3, 2010. That same day, EmergyCare, Gary M. Calabrese, and Mary Jackson[3] filed a complaint in the trial court seeking a preliminary injunction declaring the Ordinance null and void. The trial court issued an order suspending the Ordinance pending disposition of the preliminary injunction hearing. The trial court held a hearing on May 6, 2010, that both parties attended. After the hearing, the trial court issued a preliminary injunction.

On October 24, 2011, the trial court issued an order permanently enjoining the Township from enforcing the Ordinance. On November 21, 2011, the Township appealed to this court.[4]

First, the Township argues that the trial court erred in declaring that the Ordinance violates the United States Constitution and the Pennsylvania Constitution.[5]We disagree.

We begin by noting that we previously addressed a similar ordinance designating a primary EMS provider in Mars Emergency Medical Services, Inc. v. Township of Adams, 704 A.2d 1143, 1145 (Pa. Cmwlth. 1998), affirmed in part, remanded in part, 559 Pa. 309, 740 A.2d 193 (1999). In Mars, we held that the Emergency Medical Services Act (EMSA)[6] did not prohibit local involvement in the regulation of EMS and actually encouraged local involvement.[7] Id. at 1147.

Moreover, The Second Class Township Code (Township Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701, provides the authority for a township to pass an ordinance designating a primary EMS provider. See Section 1527 of the Township Code, 53 P.S. §66527 (providing township supervisors with authority to adopt ordinances to secure the safety of persons within the township); Section 1528 of the Township Code, 53 P.S. §66528 (granting township supervisors the power to contract for and appropriate money toward ambulance and life-saving services); Mars, 704 A.2d at 1148. Therefore, the Township's authority to enact such an ordinance is not in question. However, unlike the ordinance in Mars, which designated a primary EMS provider, the Ordinance here, which authorizes the Supervisors to expressly designate an EMS provider, effectively excludes all other EMS providers. Additionally, the Ordinance bans alternative numbers to 911, prohibits advertising of alternatives, and imposes fines for engaging in this prohibited activity.

The United States Constitution states that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." U.S. Const. art. I, §10. The Pennsylvania Constitution provides similar protection. Pa. Const. art. I, §17 ("No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.").

"Although the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State 'to safeguard the vital interests of its people.'" Energy Reserves Group, Inc. v. Kansas Power and Light Company, 459 U.S. 400, 410 (1983) (citation omitted).

If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem. . . . The requirement of a legitimate public purpose guarantees that the State is ...

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