Pennsylvania Ass'n of State Mental Hospital Physicians v. Commonwealth

520 A.2d 909, 103 Pa. Commw. 422, 1987 Pa. Commw. LEXIS 1902
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 3, 1987
DocketNo. 2287 C. D. 1986
StatusPublished
Cited by4 cases

This text of 520 A.2d 909 (Pennsylvania Ass'n of State Mental Hospital Physicians v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Ass'n of State Mental Hospital Physicians v. Commonwealth, 520 A.2d 909, 103 Pa. Commw. 422, 1987 Pa. Commw. LEXIS 1902 (Pa. Ct. App. 1987).

Opinion

Opinion by Judge Craig,

The Pennsylvania Association of State Mental Hospital Physicians (association) filed a petition for review and request for preliminary and permanent injunctive relief against the Department of Corrections (department) to void a contract executed by the department and Correctional Medical Systems, Inc. (CMS) and to seek damages for the departments allegedly improper furlough of four of the associations members. This court denied the associations request for a temporary re-straining order and, in a later proceeding, the request for a preliminary injunction. We now consider the associations petition and request for permanent injunctive relief and the departments preliminary objections.

The department formerly employed four of the associations members as staff physicians at the State Correctional Institution at Graterford. On July 2, 1986, department Commissioner Glen R. Jeffes notified the four physicians that, “because of the Institutions historical problem in recruiting and retaining medical staff,” the Commonwealth had executed an agreement with CMS for that company to render comprehensive health care services at the Graterford facility. As a consequence, the department furloughed the physicians for lack of work, effective July 31, 1986.

The associations petition for review recites three counts: Count I, that the department lacked statutory authority to contract with CMS; Count II, that the departments contract with CMS “violates the letter and spirit of the State Civil Service Act”; and Count III, that the departments furlough of the physicians violates section 802 of the Civil Service Act1 because the furloughs were not based on a legitimate lack of work.

[425]*425The department preliminarily objects to the associations claims on the grounds that: (1) the association failed to state a cause of action because the department is statutorily authorized to contract with CMS; (2) this court lacks jurisdiction because the association failed to exhaust its administrative remedies; and (3) the association failed to join CMS as an indispensable party to the suit. We will assess each of the associations claims against the departments objections.

Count I: Lack of Statutory Authority; Demurrer

Initially, we must determine if jurisdiction exists for this court to entertain the associations claim that the department lacked statutory authority to contract with CMS for health care for the Graterford facility. The department argues that, to the extent that the association seeks to enforce the terms of the collective bargaining agreement, it must first follow the grievance procedure outlined in it. Additionally, the department contends that, if the association is claiming an unfair labor practice, the case should go first to the Pennsylvania Labor Relations Board.

However, the associations claim does not foil within either of the two categories described by the department. The association is attacking a contract executed by the department and a third party provider. Specifically, the association seeks to have this court declare the departments contract with CMS unlawful. In Parker v. Pennsylvania Department of Public Welfare, 49 Pa. Commonwealth Ct. 619, 411 A.2d 897 (1980), we held that this court has jurisdiction over a petition for review for a declaratory judgment as to the validity of an “Agreement and Authorization to Pay Claim,” involving the Department of Public Welfare. Because Parkers petition was not to enforce a contract claim against the Commonwealth, which would have been within the ju[426]*426risdiction of the Board of Claims, but was rather a petition to rule on the validity of the contract, the case was within the original jurisdiction of this court.

Similarly, the associations request here is essentially one for declaratory judgment as to the validity of the departments contract. Because the association does not aver an unfair labor practice or breach of employment contract, neither the Labor Relations Board nor the grievance procedures in the employment contract provide an appropriate avenue for the associations claim. Therefore, Count I may not be dismissed for a lack of exhaustion of administrative remedies because no administrative forum has jurisdiction over that particular claim.

Additionally, because virtually all of the associations members face injury to a substantial legal interest, i.e. their employment, if the department illegally contracts out such services, the association, acting in its representative capacity, has standing to challenge the departments contract. Pennsylvania Association of State Mental Hospital Physicians v. State Employees' Retirement Board, 25 Pa. Commonwealth Ct. 632, 361 A.2d 449 (1976), opinion noted 31 Pa. Commonwealth Ct. 151, 375 A.2d 863 (1977), aff'd 484 Pa. 313, 399 A.2d 93 (1979).

Turning to the merits of the departments objection,2 we note that section 507 of the Administrative Code of 1929,3 71 P.S. §187, provides:

[427]*427Notwithstanding any of the foregoing provisions of this section, any department, board or commission may:
(4) Employ professional or skilled labor, on a temporary basis, in instances where the Department of Property and Supplies does not have an applicable contract, but all such employment shall be approved by the Governor except in the case of a State institution, when it shall be approved by the head of the department having supervision over the institution;

A two-year contract with an independent health care provider is precisely the sort of temporary employment of professional labor contemplated and authorized by section 507. The whole context of section 507 indicates that it deals with contracting for services, as distinguished from employment in the sense of placing persons on the payroll. The above-quoted subsection (4) itself refers to “an applicable contract” with respect to professional services, and the other subsections deal with the purchase of materials and contracting for services.

We therefore cannot conclude that the Commonwealth lacked authority to enter into the CMS contract, and we consequently sustain the departments preliminary objection in the form of a demurrer to Count I of the associations petition.

Count II: Negation of Contracting Authority by the Civil Service Act; Demurrer

Count II of the associations petition alleges that the departments contract with CMS “violates the letter and spirit of the state Civil Service Act, which requires that public employees be afforded civil service status, and which intends to create a stable core of publicly ac[428]*428countable employees who are paid by and accountable to the Commonwealth of Pennsylvania.” The count also avers that contracting for professional services is a circumvention of the civil service system.

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Related

Commonwealth v. State Employes' Retirement Board
617 A.2d 93 (Commonwealth Court of Pennsylvania, 1992)
Mcnally v. Etnoyer (No. 1)
1 Pa. D. & C.4th 372 (Lancaster County Court of Common Pleas, 1988)

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Bluebook (online)
520 A.2d 909, 103 Pa. Commw. 422, 1987 Pa. Commw. LEXIS 1902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-assn-of-state-mental-hospital-physicians-v-commonwealth-pacommwct-1987.