*1 accept will four of Candidate’s The Court The PENNSYLVANIA MEDICAL SO signatures of
proffered rehabilitations CIETY, on of behalf itself and all of the past electors who moved within Members, Daloni, and Peter M. signa- the 229 year. finding This reduces MD, Rizzo, Karen A. MD Martin However, tures at issue to 225. Trichtinger, MD, D. Petitioners Objector must be stricken for signatures prevail. v. signatures The Court strikes 225 from The DEPARTMENT OF WEL PUBLIC petition. nomination This Candidate’s FARE Commonwealth of Penn 1,899 signa- leaves Candidate with valid sylvania Budget and Office of tures, 2,000 signa- which is fewer than the Pennsylvania, the Commonwealth of 912.1(2) required under Section tures Respondents. 2872.1(2). Code, the Election Hospital Healthsystem The & Associa- Accordingly, Objector’s petition to set Pennsylvania, Geisinger tion petition nomination must aside Candidate’s System, Health St. Vincent Health granted. Abington Hospi- Center and Memorial tal, Petitioners ORDER v. NOW, day April, AND this 13th of Public Welfare of found that the being Nomination Peti- Pennsylvania, the Commonwealth of Joseph tion of as a Vodvarka candidate of Office of the of the Common- Party the Democratic the United Pennsylvania, Respondents. wealth of Primary States Senate in the Election of 2,000 May contains fewer than of Pennsylvania. Commonwealth Court signatures, hereby valid it is ORDERED Argued Feb. 2010. that the Petition to Set Aside the Nomina- Sestak, by Joseph tion Petition filed A. Jr. April Decided is GRANTED. party
It is further ORDERED that each
shall bear his own costs. hereby
The Chief ORDERED Clerk notify parties hereto and their coun- certify
sel of this order and also to a copy Secretary
hereof Common- Pennsylvania.
wealth of 6; page page ago; year 3. The electors at line all moved far more than a one 2; 2; page page actually years ago. line line line 10 elector moved 15 *2 follow, grant we Petitioners’ applica- summary
tion relief. 711(d) Under Section of the Medical *3 Availability Care and Reduction of Error (MCARE) Act,1 providers are, care health certain exceptions, required with to main- minimum tain medical professional liability addition, coverage. In Section 712 of the MCARE Act2 establishes medical pro- liability commonly fessional known as the MCARE The Fund. MCARE Fund is providers used to against claims for McKeon, Harrisburg, Kevin J. and or damages losses awarded medical Loder, Philadelphia, E. for petition- David liability fessional actions excess of their ers. coverage. basic insurance The MCARE Fund is by funded an “assessment” on Segal Dylan Steinberg, Daniel and J. each participating provider. health care Philadelphia, respondents. for
The amount of the assessment is deter- PELLEGRINI, BEFORE: Judge, by provider’s prior mined claim history JUBELIRER, SIMPSON, Judge, private COHN malpractice and medical insurance Judge, McCULLOUGH, Judge, and premiums. Accordingly, Pennsylvania BUTLER, Judge. providers required health care private
maintain professional liability in- Judge OPINION BY BUTLER. and surance contribute the MCARE Fund. Pennsylvania Society, Medical on members; 2003, behalf of itself and all In General enacted Daloni, M.D., Rizzo, M. Karen A. Peter the Health Care Provider Retention (HCPR) (Abatement Trichtinger, M.D.; Law) M.D. and Martin D. Program3 the Hospital Healthsystem & many Associa- alleviate the physicians threat Pennsylvania, Geisinger tion of Health leave if Pennsylvania would the exorbitant System, St. Vincent Health professional liability Center and cost of insurance was (Petitioners) Abington Hospital Memorial not addressed. The Abatement Law application filed an summary relief to provide served to physicians based the Court’s 2009 en July banc and other participating providers MCARE opinion disposing preliminary objections (excluding thereby hospitals), reducing by filed of Public Welfare their annual MCARE assessments. The (DPW) and the Office of the eligible of the Abatement Law provided physi- (collective- Commonwealth of in high practices cians risk 100% abate- Commonwealth). ly, assessment, For the ment of their reasons annual and other 20, 2002, Act 1. of March P.L. as amend- amendment Act to the MCARE the Act ed, 1303.711(d). P.S. of December P.L. §§ 1303.1101-1115. Citations herein are 2. 40 P.S. 1303.712. provisions made to the Abatement Law Act, subsequently as reenacted in the MCARE Originally enacted Act of December repealed by Act of October P.L. 537. 237, formerly §§ P.L. P.S. 443.7 and 1310-A, repealed and reenacted as 1301-A— a total of ated to DPW 50% of their care health eligible retention. provider health care origi- When assessment. annual enacted, Law the Abatement funds to nally Assembly raised The General assess- 2003-2004 MCARE increasing limited the abatements pay for however, Subsequent legislation, per pack by 25 cents cigarettes ments. tax on tax). program (18.52% abatement cigarette extended Law,7 assess- that a required 2007 MCARE Tax Cigarette deposited tax collected be portion of the ments.4 Account: into the HCPR program fund the abatement order in the General established There is *4 Fund as- providers’ and reduce known as account to be special Fund a sessments, Assembly estab- fif- Eighteen and Account. the [HCPR] as the account known special a lished per cent ty-two hundredths Account, abate- which the HCPR by section 1206 imposed of the tax ceeds 1112(a) of Section paid. were to be ments in the account. deposited shall provides: Law5 the Abatement subject to in the account shall be Funds (a) There is estab established. Fund and shall be appropriation an annual special the General Fund within lished by law. provided as administered the [HCPR] to be known as account addition, violation sur- In motor vehicle in the account shall be Funds Account. available, pursuant to charge revenue was by appropriation to an annual subject 712(m) help Act to of the MCARE Section Assembly to [DPW]. [DPW] General See Section 6506 of the program. fund the un appropriated funds administer shall Code, § 6506. Vehicle 75 Pa.C.S. its duties consistent with der this section 2004, Secretary ap- was 201(1) ... the Public under section make transfers from pointed to Code.[6] Welfare Fund, and to de- Account to MCARE up to termine the amount of such transfers of these funds the administrator DPW was Specifically, limit. Section specified could, receive thought, it was because 1112(c) provides: of the Abatement Law8 federal Medical Assistance matching Secretary Budget may annual- “The 201(1) According to Section funds. ly from the account [HCPR] transfer Code, power has the DPW Public Welfare up an amount [MCARE] for, receive and use duty apply granted amount of abatements aggregate in financing funds “for the such federal under sec- by the Insurance in in part programs fields whole or 1104(b).” tion responsibility.” has department which the that, 2004, 2005, undisputed 2006 It is that the Commonwealth undisputed It is 2007, physicians partici- and other Assembly appropri- granted General has 31, amended, 2004, 13, 1967, P.L. 6. Act of June as 4 the Act of November 4. Section of 201(1). formerly § § P.S. 1301-A and P.L. 62 62 P.S. 2005); (extending program Section 1302-A 22, 2005, P.L. 2 of the Act of December amended, 4, 1971, 7. Act of March P.L. (extending pro- formerly § 1303-1102 40 P.S. 2006); 23, 2003, P.L. added the Act of December gram of the Act of Octo- subsequently repealed § 72 P.S. § 1303-1102 P.L. ber 9, 2009, P.L. 537. Act of October 2007). (extending program to 1303.1112(c). 8. 40 P.S. 1303.1112(a). P.S. (if health care pating providers abatements and possibly as much as million $616 from their 2003-2007 MCARE assess- none of the motor vehicle surcharge viola- ments the amount of million as $946 available) tion revenue was deposited was follows: abatements, into the HCPR Account for Calendar Year Value of Abatements but was not transferred to the MCARE $203,000,000 $245,000,000 $208,000,000 $158,000,000 $132,000,000 2003 2004 2005 2006 2007 Commonwealth, Fund.9 The on the other
hand, that, has stated to the extent that it was required fund the MCARE the Budget Secretary made transfers suffi- ¶ Pet. for Rev. 19. undisputed It is also cient to allow the MCARE Fund to meet that, million was transferred $100 (the statutory expenses claims and from the to the MCARE transfer in being the last one neces- Fund. In an additional sary), and that there no requirement Thus, was transferred. the Common- that dollar-for-dollar transfers be made in wealth has transferred million from the total amounts of granted. the HCPR Account to the MCARE Fund. *5 Although abatements continued to be 11, 2008, On December Petitioners filed granted, and revenues to fund the awarded petitions for review in this original Court’s abatements continued to accumulate in the jurisdiction in the complaint nature of a for HCPR, no funds were transferred to the declaratory judgment seeking a declara- MCARE Fund after 2005. From 2004 tion that the Commonwealth required 2007, through approximately million fully fund the HCPR and to transfer those of motor vehicle surcharge violation reve- funds to MCARE under the applicable nue deposited was into the MCARE Fund. statutes, abatement and that the Common- Account, 31, The 2009, July as of wealth’s failure to do so awas violation of had approximately million in it. the Uniformity Clause unclear, It according Petitioners, how petitions Constitution.-10 The for review much of the motor vehicle violation sur- sought injunctive also relief against charge revenue deposited into Commonwealth, ordering that it refrain MCARE Fund was available and used to from using funds dedicated for abatement claim, abatements. Petitioners’ for facts, any other upon purpose, provide based an these at least $446 (if all accounting of the of the motor vehicle sur- MCARE Fund and available) charge violation revenue was HCPR Account since 2004.11 precise may 14, 2009, 9. The by amount September be determined 11.On Petitioners also accounting application an filed special of the MCARE an Fund and for relief in the preliminary injunction nature of a HCPR Account on the ba- since 2004. then-ongoing budget negotiations sis that the might depletion result in a of the funds in Separate petitions by were filed the Penn- question. hearing September After a on sylvania Society Medical on behalf of itself preliminary this Court denied the in- Members, Daloni, and all of its and Peter M. junction on the basis that the action was M.D., Rizzo, M.D., Karen A. and Martin D. premature, may and the courts not interfere M.D., Trichtinger, at 584 M.D. and the legislative process. with the In reaction to Hospital Healthsystem & Association of Penn- budget legislation signed the enactment of sylvania, Geisinger System, Health St. Vin- 9, 2009, into law on October on October cent Abington Health Center and Memorial application Petitioners renewed their Hospital at January 585 M.D. 2008. On special relief in the prelimi- nature of a 2009, these cases were consolidated. which, nary injunction argument, after was 12, 2009, disagree Fund abatements. We with Peti- January
On contention, objections asserting light of the fact that preliminary filed tioners’ failed as a matter of law Petitioners’ claims July opinion examined dif- (1) to adminis- obligation DPW’s because: pre- what question ferent than has been fund MCARE abatements ter and application. the instant The sented securing contingent upon its success July on opinion issued this Court funding, which it was ul- matching federal disposed 2009 considered and of the Com- (2) do; unable to Sec- timately objections in the preliminary monwealth’s funds is dis- retary’s authority transfer demurrer, merely which tested nature of a (3) cretionary mandatory; and not sufficiency complaint. The legal authority an- Budget Secretary’s to make pleadings held that Petitioners’ Court 31, 2008, expired December nual transfers legally to allow the case to con- sufficient (4) law; and, assessments by operation of case, however, tinue. merits Act are akin to levied under conclusively upon were not ruled at that and are not taxes. premiums insurance time. The Honorable Bernard J. McGin- above, Court, sitting As en stated ley clear in his October made this banc, unreported memorandum issued denying re-application order Petitioners’ 24, 2009, opinion July sustaining on special prelimi- relief the nature of preliminary objections as Commonwealth’s that, nary injunction when he stated Clause, Uniformity overruling but overruling most of the Commonwealth’s preliminary objec- the Commonwealth’s objections July preliminary duty tions as Commonwealth’s underly- “leaving open the Court was *6 subject failure fund the accounts. its to ing question whether Commonwealth [the 9, 2009, September On Petitioners filed duty Ac- legal to use the HCPR has] relief, summary application stating this for fully previously grant- count funds to on the that this Court ruled merits of J., McGinley, ed abatements.” Order dat- 24, July Petitioners’ claims its 2009 ¶ ed October 4. The will Court opinion, when it held that the Common- proceed question. now to close that mandatory statutory duty to wealth had a transfer sufficient funds from the HCPR Currently appli- before this is an Court fully Account to fund the MCARE Fund summary cation relief. an ruling for on abatements; stating that since the summary application for relief we must dispute, facts are not in are Petitioners “view the light evidence record to in their judgment entitled favor as a non-moving party most favorable matter of law. judgment only and enter if there are no genuine as to material facts issues
Petitioners aver that this Court ruled on right is clear as a matter judgment to July the merits of Petitioners’ claims in its Com., McSpadden Dep’t of law.” v. opinion, 2009 when it that held (Pa.Cmwlth.2005). 886 A.2d 325 “The mandatory statutory Commonwealth had a duty moving party proving to transfer sufficient has the burden of funds from fully genuine HCPR Account to fund the MCARE that there is no issue of material application special denied Court on a third October 2009 on tioners filed for relief; however, the basis that Petitioners failed to demon- there is no indication on the filing strate that would suffer immediate and Court’s docket that the occurred. There harm, irreparable requested hearing or that the in- a notation on the docket that a junction adversely application special public would not affect the for relief was cancelled application. interest. The Commonwealth that Peti- when Petitioners withdrew their states
39 fact.” v. Thomas make transfers from the Bigansky HCPR Account to Jefferson 442 Hosp., Pa.Super. fully 658 A.2d the MCARE Univ. fund the abate- (1995). “A fact is one 425 material ments awarded to in 2003-2007 directly that affects the outcome of the program. the HCPR The former Benjamin v. Kuney case.” Franklin Clin- question is a of statutory interpre- matter (cit- ic, (Pa.Super.2000) 751 A.2d 664 July tation. In its opin- en banc ing Painton Corp. Stevens v. First State ion, this Court stated: (Pa.Su Co., Ins. 746 A.2d When conjunc- is read in per.2000)). statute, tion with the rest of the HCPR title, argue including description first and the Petitioners facts purpose funding claimed the Commonwealth as neces- mechanisms for sary program, give claims are establish Petitioners’ Secretary not in or are dispute, complete immaterial unfettered discretion all, factual at and the fact that there are decide whether fund the MCARE outstanding discovery requests regardless does not of the need for the funds, preclude summary obviously relief. Pe- Specifically, inconsistent with the Pennsylvania statutory titioners aver “the In- scheme. It certainly appears surance has credited has mandat- abatements, ed that receipt without of HCPR Ac- Account pay for the funds, against count already funds in the abatements. Fund, thereby improperly paying Med. Soc’y Dep’t v. the assessment abatements with MCARE (Pa.Cmwlth. Pub. Nos. Welfare Petitioners, part by funds supplied rath- M.D.2008, 24, 2009) July filed Penn- {The er than with funds transferred from the sylvania Soc’y), Med. slip op. at 14. On Society HCPR Account.” PA Med. Pet. hold, reasoning, the same we now as a ¶ Rev., 61; see also & Health- Hospital matter of of statutory interpreta- law and ¶ Rev., system Pet. Assoc. 5. The tion, that the Commonwealth duty had a that, argues in establishing make from the transfers HCPR Account to *7 the program, HCPR the MCARE Fund in the amount neces- “did not link the directly, HCPR Account sary for abatements paid by to be the exclusively, much less to the Abatement providers. not Program,” and that appropriations the Thus, the only remaining issue is wheth- be, made to the MCARE Fund need not there er genuine issues of material not, and were related to the abatements prevent fact which establishing whether
previously granted. Comm. Answer and the Commonwealth failed to make trans- New to PA Society Matter Med. Pet. for from fers the HCPR to Account the ¶¶ Rev., agree with We MCARE fully Fund to the fund abate- Petitioners. providers ments awarded to in 2003-2007. directly that, The factors that affect point, the On that is undisputed in (1) outcome of this case relate to: whether million was transferred from $100 the duty Commonwealth had a to make the HCPR to Account the Fund. MCARE the transfers from HCPR Account to the million was transferred. Thus, MCARE in the necessary Fund amount to the Commonwealth has transferred fully providers fund the abatements in to the HCPR Account to 2003-2007 the program, and the MCARE Fund. Comm. Answer (2) whether the Commonwealth failed to New Matter to PA Med. Pet. Society for ¶ Facts, pay The ability ques- filed had the its bills.
Rev., 25; Stip. October us, ¶ however, tion is not whether it has also ad- before 9. The Commonwealth claims, can but the that, pay abatements contin- current whether although mitted fund failed to make transfers and revenues to granted, to be ued ac- from the HCPR Account to the MCARE continued to the awarded HCPR, fully none those the abatements award- the Fund cumulate This ed to 2003-2007. is transferred MCARE funds were fact, underlying- issue as to which the Answer and after 2005. Comm. Fund Society remain undisputed.12 Pet. for material facts to PA Med. New Matter Rev., f 117. claims that there The Commonwealth argues that trans- are numerous additional material facts
The Commonwealth
dispute
litigation,
in this
and there
out-
fers from
discovery,
necessary after
such that
standing
Fund
not
Court
MCARE
genuine
Fund
be assured there is no
“has been
cannot
2005 since
MCARE
obligations
pay
issue of material fact. See Commonwealth
to fulfill its current
able
Application
Br.
expenses”
Opp.
without
further
Petitioners’
claims and
Relief,
clear,
A. It
Summary
App.
from the HCPR Account.
how-
transfers
¶¶
ever,
36, citing
dispute”
at
Adams Decl.
4-
that those facts “in
do not
Br.
Comm.
5;
directly
and New Matter to PA
affect
outcome of
case.
Answer
Comm.
¶
Rev.,
contrary,
On
Society
undisputed
Pet. for
117. There
facts and
Med.
Fund has
of record reflect that the
dispute
is no
MCARE
admissions
Com-
(40
position
is that the
administration of MCARE Fund
P.S.
12. The Commonwealth's
1303.712(a)).
obligations
cuirent
Fund can meet its
MCARE Fund is man-
aged
funds. That
not
"pay-as-you-go”
without the transfer of
does
It
not
basis.
does
reserves,
genuine
present
of material fact in this
issue
maintain
collect and
so
annual
position
merely
notwith-
case. The Commonwealth’s
assessment
collects funds needed to
standing,
did
the Commonwealth
not address
expenses
cover claims
assessment
ability
However,
prospective
to meet
year.
the MCAREFund's
being
claims are
made on an
obligations
until the time
its termi-
ongoing
paid
basis
must be
into the fu-
obligations
prospective
nation. Since
by the MCARE
until it has
ture
Fund
satisfied
jeopardy
MCARE Fund are in
due to the
Thus,
all of its liabilities.
the MCARE Fund
it,
fully
failure to
fund we
Commonwealth's
project
It
what
has unfunded liabilities. must
here.
will address
issue
necessary
monies will be
for claims
reported
yet paid,
but not
and for
in-
those
The MCARE Fund consists of monies from
yet reported.
curred but not
Since the abate-
Liability Catastrophe
Medical
Professional
fully
ments were
funded between 2003
Fund)
(CAT
(40
P.S.
Loss
*8
money
and
the MCARE Fund has less
1303.712(b));
(40
provider
§
assessments
P.S.
obligations
to meet its
available
must,
future
and
1303.712(1));
1303.712(d),
§§
abatements
scheme,
statutory
current
by taxpayers in the form
funded
of motor
time,
over
increase
in
provider assessments
surcharges
vehicle violation
and
in
monies
future,
order to meet them. Providers in the
(40
cigarette
the HCPR Account from
taxes
therefore,
assessments,
pay
will
increased
1303.712(m), 1303.1112(c);
§§
Act of
P.S.
meaning
they
amended,
that
have re-
March
P.L.
actually
only
payment
ceived were
mere
de-
by
§
added
the Act of December
ferrals,
250;
and,
6506);
rather than abatements. When the
§
P.L.
Pa.C.S.
and
liabilities,
(40
1303.712(Z)).
MCAREFund has
all of its
satisfied
§
investments
P.S.
The mo-
(40
1303.712(k)).
It
pay
will terminate
P.S.
nies in the MCARE Fund must be
to
used
statutorily
against
providers
mandated that
claims
care
for
has been
monies
medical
time,
remaining
any,
damages
professional
in the fund
that
if
will
in medical
lia-
at
awarded
(40
bility
providers
in
then
returned
cases
excess of their basic insurance
be
to
P.S.
cases),
(and
1303.712(k)).
coverage
CATFund
and costs of
duty
fully
had a
fund the
ry
monwealth
must have an interest in the litigation
monies from
substantial,
with
that
is
direct and immedi-
HCPR,
hold,
but
so.
failed to do
We
ate....
interest
is ‘substantial’
[A]n
therefore,
genuine
that there are no
issues
when there is a discernable adverse ef-
fact.13
of material
fect to an
of the aggrieved
interest
indi-
vidual which differs from the abstract
argue
Petitioners
further
that
general citizenry
interest of the
in hav-
record,
on the
they
based
entitled to
ing
comply
others
with the law. An
as a matter
law. The
judgment
of
Com
interest
when an aggrieved
‘direct’
monwealth, however, contends that Peti
person can
causal
show a
connection be-
tioners have no clear
to relief
right
since
tween
harm
alleged
to his or her
lack standing
bring
Petitioners
this ac
interest and the matter of which he or
tion;
reading
pre-2009
Petitioners’
she complains. Finally, the interest
statutory
fundamentally flawed;
scheme is
‘immediate’ when the causal connection
is a far
reading
there
more reasonable
of
between the
and
injury
the matter com-
than that presented
statute
Peti
plained of is not too remote.
tioners;
there is no
support
Petition
that the
ers’ claim
Commonwealth was re
Ass’n,
Pennsylvania Sch. Bds.
Inc. v.
quired to make a dollar-for-dollar transfer
Adm’rs,
Commonwealth Ass’n
Sch.
of
abatements;
amounts of
DPW
Teamsters Local
696 A.2d
868-
required
was not
no authority
has
(Pa.Cmwlth.1997) (citations omitted).
money
transfer
to the MCARE Fund to Petitioner, Pennsylvania Medical Society,
abatements;
the recently-en
members,
has specifically
that
averred
budget legislation
acted
contradicts Peti
Daloni,
Drs.
Trichtinger,
Rizzo and
have
claims,
tioners’
the relief they
makes
harm
suffered
received
seek unavailable to them.
abatements of
50% their assess
incorrectly
The Commonwealth
ment amounts
argues
between 2003 and 2007.
¶¶
Rev.,
that Petitioners do
have standing
to PA
Society
Med.
Pet. for
2-6.
bring
action.
Court has
This
held:
It
is clear
alleged
the interest
have
association,
adversely affected these
well
medical
It is
settled that an
as a
care
members,
differs
that of the
representative
may
of its
have
addition,
general citizenry.
In
standing
bring
there is a
cause
action even
causal connection between the
injury
the absence of
to itself.
failure of
fully
order
have
Commonwealth to
standing,
association
fund the
allege
must
that at
one of
MCARE Fund
harm
least
its mem-
and the
claimed to
is suffering
bers
or
have been
immediate
threat-
suffered
these individuals.
injury
Finally,
ened
as a result
the challenged
the causal connection between
Moreover,
action.
member of
failure to
Commonwealth’s
fulfill its
who
inju- duty
association
is threatened with
purposes
is not too remote for
may
13. While Petitioners
unable
mortgage,
at this
amount
of debt owed
where
time,
accounting
without an
accounting
provided
prop
funds
could be
when the
*9
Moreover,
question,
sold).
erty
to determine the exact amount that
was
since the crux of
issue,
forthcoming by
purely legal
must
the Commonwealth
this case involves a
the fact
actions,
not a
upon
proceed
correct
that is
basis
that
the
wishes to
deny summary
which this Court
discovery
should
with
relief.
is not
basis on which this
Bank,
Landau v. W.
deny summary
See
Nat’l
Court should
relief. See Meier
(1971)
Maleski,
(Pa.Cmwlth. 1996),
(summary
445 Pa.
14. Again, provides Law Assembly Abatement [i]f General increased the cigarette twenty-five tax provider requirements directed meets the per pack deposited cents be in the HCPR program, the Insurance 'shall 1112(a), Account. grant applicable ... abatement of the Assembly stated 'the the ac funds in notify Depart- assessment' 'shall subject appro count to an shall annual ment of Public Welfare’ of the abatement. priation General *11 44 operate prospectively[, construed to
Moreover,
and]
issue
this Court addressed
clearly
be
unless
24,
retroactive
and
[not]
2009
albeit
terms
shall
opinion,
July
in its
pro- manifestly
by
so
the General As
the abatement
intended
expiration
Borough
Hills
sembly.”
this Court is
v.
reasoning
gram, but
of Jefferson
Wage
repeal
Dep’t
virtue
Hills
& Poli
to the
Police
applicable
equally
Jefferson
(Pa.Cmwlth.
Comm.,
61,
The Court
budget legislation.
904
cy
A.2d
64-65
2009
of the
(citations
2006)
omitted). Pennsylvania
explained:
specifically protects
law
vested interests
posi-
Commonwealth’s]
Contrary
[the
being
by subsequent
extinguished
only
Program
tion,
end
Krenzelak,
Krenzelak v.
503
legislation.
that
Insurance
means
(1983).
A.2d
A
eligi-
Pa.
469
987
vested
longer grant abatements
nowill
right
completely
that
and
right
It does not
is
so
providers.
“[a]
care
health
ble
belongs
can
Budget Secretary
definitely
person
DPW
to a
and
mean
or
without
statutory responsibili-
impaired
away
their
not be
taken
avoid
may
specif-
from the
Law
program
fund the
consent.” Black’s
Dictio
person’s
ties
(9th
2009);
Account while
ically designated HCPR
1438
ed.
In the Interest
nary
K.A.P., Jr.,
If
was in effect.
indeed it
program
(Pa.Super.2007),
added). 1104(b) for, of the Abatement plied together Section read with this Court’s that in provides enacting Law16 that: conclusion pro- gram, established receipt completed application, of a Upon abatements, mandatory mandatory a ac- shall Department the Insurance review count from which to fund those abate- information grant applicant’s and two mandatory funding ments sources applicable abatement of the assess- abatements, for the makes it clear that year previous ment for the calendar health qualified providers’ rights care specified application on the accor- the abatements are fixed and without con- all following: dance with Thus, they dition. are more than mere (1) Department The Insurance shall expectations, and rise to the level legal of a notify Department of Public Welfare title, equitable or subject present or applicant has self-certified as future enforcement of a demand. More- a eligible for 100% abatement of the over, purposes “[f]or of Article Section imposed assessment if the health care 11 ... enough say that the moment provider was under section assessed a cognizable legal injury is befallen po- 712(d).... tential plaintiff, whatever that injury may (2) The Insurance Department shall n be, a cause of action has ‘accrued’ and notify Department of Public Welfare cannot be subsequently eliminated or al- applicant has self-certified as tered retroactive act the legislature.” eligible for a 50% abatement of the im- Konidaris, 598 Pa. at at A.2d posed assessment if the health care hold, therefore, We the abatements vider was assessed section are rights vested that cannot be extin- 712(d).... guished by budget the October 2009 legis- added). (Emphasis lation. a provider pays If his assessment for the Based on foregoing, viewing the rec- year prior calendar applying for abate- light ord most favorable to the Com- ment, 1104(c) of the Abatement monwealth, it is clear that Petitioners are provides Law17 also that: judgment entitled to in their favor aas provider health care inmay, [T]he addi- matter of law. Since the Petitioners have tion to the completed application re- established that there genuine are no is- (a), quired subsection submit a re- sues of material fact and that quest for a refund.... If the Insurance judgment law, entitled to as a matter of Department grants the health care pro- application their summary relief is vider abatement of the assessment granted. year for the calendar in accordance with (b), Depart- subsection the Insurance Judge President LEADBETTER and ment shall either refund to the health Judge BROBSON did participate provider care the portion of the assess- decision this case. ment which was abated or issue a credit ORDER provider’s
to the health care professional liability insurer. NOW, AND day April, this 15th The absence of Insurance dis- Petitioners’ application summary relief deny cretion to properly ap- granted. 1303.1104(b). 1303.1104(c).
16. 40P.S. 17. 40P.S. history and prior claim upon each doctor’s Judge BY OPINION DISSENTING pre- malpractice insurance private medical PELLEGRINI. miums.3 relief, majori- summary granting *13 medical mal- high Due to the costs of the Gen- million from ty $800 directs coverage in the Commonwealth practice to the transferred MCARE Fund be eral physicians would perception and the have been the abatements Fund. Because if some- purportedly leave everything have received paid and doctors costs, these thing was not done to alleviate majority result of the the net “promised,” Assembly the Health the General enacted personal wind- is an $800 decision (HCPR) Program Provider Retention Care doctors, ef- consequential with the fall to (Abatement Law) pro- in 2003.4 This law budget out of making 2009-2010 fect participating vided subsidies to MCARE I dis- Accordingly, respectfully balance. of them the amount providers reduce sent. Fund to the MCARE annual assessments malpractice insurance.5 for their medical I. by were increases The subsidies funded Availability and the Medical Care Under First, ciga- in certain taxes. the tax on (MCARE) Act,1 physi- of Error Reduction by per pack.6 was raised 25 cents rettes cians, care and health hospitals, Second, surcharge motor vehicle violation required in the Commonwealth revenue was also to be made available to liability medical cover- maintain minimum Law, if neces- help fund the Abatement to the must also contribute age. Providers sary. See Section 6506 of the Vehicle provides which second- MCARE Code, § 6506. Pa.C.S. coverage used to claims ary layer of 1112(a) Section of the Abatement malpractice awards Under against doctors Law, in the placed basic cover- the funds to be excess of doctors’ insurance by “subject ap- to an annual age.2 The Fund is funded doctors, by Assembly the General against propriation annual assessments levied determined based of Public Welfare.”7 the amount of which is 23, 2003, 20, 2002, 154, P.L. amend- Act of December P.L. 250. Section 1. Act of March as ed, Cigarette §§ 40 P.S. 1303.101-1115. Tax Law stated: 1211 of Fund There is established in the General Act, 2. the MCARE 40 P.S. Section 712 of special account to be known as the 1303.712(a). § fifty-two Eighteen Account. [HCPR] Act, 3. Section 712 of the MCARE 40 P.S. per proceeds hundredths cent of the 1303.712(d). § by imposed the tax section 1206 shall be deposited in the account. Funds 23, Originally 4. enacted as Act of December subject account shall be to an annual 237, formerly §§ P.L. 62 P.S. 443.7 and appropriation and shall be administered 1301-A, by seq., repealed the Act Decem- et provided by as law. 22, 2005, 458, and reenacted an ber P.L. as § 72 P.S. 8211. Act, to the MCARE amendment § § 1303.1101-1115. 1303.1112(a), by repealed § Act of 7.40 P.S. legislation only provided 7(5). 5. While the initial § P.L. No. October years abatements for the calendar 1112(a) the Abatement Law later extended follows: vides as through program (a) There is established Fund established. special Fund a account within the General 6. Act P.L. amended 72 of March Law), Account. (Cigarette [HCPR] to be known as the P.S. 8211 Tax added (iv)Provide Budget Secretary authority given was a reserve that shall be from the HCPR Account 10% (i), to make transfers of the sum of subparagraphs (ii) (iii). to determine the to the MCARE Fund and up of such to a certain amount transfers Act, Section 1303.712 of the MCARE 1112(c) Specifically, Section limit. 1303.712(a). P.S. before the Secretary Law “The provides, Abatement Program affect, went into health annually Budget may transfer from providers paid care Million in assess- $348 account [HCPR] [MCARE] ments. Program When the HCPR up aggregate amount extant, health providers paid care assess- granted amount the In- ments of Million Million *14 surance under section 2004, 2005, in in million $216 Million $162 1104(b).” 1303.1112(c). (Empha- 2006, in and in Million 2007. $120 After added). sis ended the HCPR a special The MCARE Fund fund is to 2007, Program in provider health care as- claims pay against participating health sessments rose to Million for 2008. $229 doctors, providers, including care loss- noting 2007, Worth is that from 2002 to the damages against es or them in excess of MCARE Fund balance was between $11 coverage the basic insurance that the Million, 2008, and but in it rose $59 to $104 Act to requires purchase. MCARE them Million. In period, that same paid claims 1303.712(a) Act, Section of the MCARE malpractice were Million in $346 1303.712(a). P.S. The MCARE Fund is: Million in Million in $379 $320 by an par- funded assessment on each in Million Million in $232 $210 ticipating health care provider.... Million in and Million in $174 shall pre- assessment be based the
vailing primary premium par- for each Because the Program was re- ticipating shall, provider health care in pealed all to doctors the aggregate, produce amount have been paid, and it has been asserted sufficient to do all following: money that no further is needed in the (i) fund for pay- Reimburse the the MCARE pay malpractice Fund to claims. reported ment of which claims became Therefore, at of the center this case is during preceding final the claims peri- happens money what tax the that was od. previously Account. Specifi- (ii) Pay expenses in- cally, money does all in that Account have
curred during preceding claims be transferred to the MCARE Fund period. though even that result in will the Fund
(iii) Pay principal being interest on overfunded hundreds of millions moneys transferred into the fund in dollars? question The answer to that 713(c).8 important accordance with section because the Abatement Law Fund, subject Funds be ic account shall to an Loss Benefits Continuation or such appropriation by the annual General As- may appropriate, other funds as be such mon- sembly to shall [DPW]. administer [DPW] ey necessary pay as is in order to the liabili- appropriated this funds under section con- ties of the fund until sufficient revenues are 201(1) with sistent its duties under section Any realized the fund. transfer made un- ... Public Welfare Code. repaid der this subsection shall be with inter- est. ...” 713(c) provides 8. Section that "Governor may Catastroph- transfer to the fund from transfers, it is also lack of Despite monies in any excess that provides of December undisputed as termination upon MCARE to the doctors obligations back all given expenses to be after program all the received had Fund still though doctors the MCARE paid year, even for that to re- they were entitled Ac- abatement million. had a balance of over $104 there Program and (Commissioner the HCPR ceive to Peter J. Adams cording malpractice pay funds are sufficient Adams), De- Pennsylvania Insurance 1303.712(k) provides claims. Deputy Insurance Commission- partment’s follows: MCARE, Fund has the MCARE er for (k) satisfaction Upon able to fulfill its obli- continually been Termination. — fund, the fund shall
all liabilities since expenses claims and gations remaining Any balance terminate. in 2002. Commissioner inception termination shall such upon the fund after the also averred “[e]ven Adams par- department by the returned to the General transfer of par- care who health ticipating have suffi- Fund will proportion fund in in the ticipated obligations fulfill its current cient funds to *15 cal- preceding in the their assessments expenses.” pay claims and year. endar overfunding and Despite apparent 1303.712(k). any give for the funds to lack of need II. mal- abatements for their medical doctors (collective- claims, practice the Petitioners that from 2003 to undisputed It is to have ly, Society”) sought “Medical $731,517,112 deposited into was a total of million and somewhere between $616 $446 during that time- Account HCPR Ac- million transferred from HCPR frame, granted $946 the Commonwealth so, Fund. To do count to the MCARE to health care in abatements for review Society petition Medical filed 2005, Executive In 2004 and viders. (collectively, “Execu- Respondents alleging approximate- transferred Agencies Branch required un- Agencies”) tive Branch the HCPR Account ly million from $330 to transfer funds der the Abatement Law that had the net effect Fund the MCARE Account into the MCARE from the HCPR made previously paying loans the abate- equal Fund in an amount Fund to MCARE Motor Vehicle Branch and that Executive granted ments addition, approximately In $170 Fund.9 Medical had failed to do so. The Agencies surcharge revenue million in motor vehicle Society declaratory judgment requested Fund into the MCARE deposited was Agencies’ Executive Branch regarding were trans- to 2007. No funds from 2004 the Abatement statutory duties Account to the ferred from the HCPR Law, directing trans- of mandamus a writ though after 2005 even Fund MCARE Account into fer of funds from HCPR awarded continued be needed Fund in the amount the MCARE through 2007. was a transfer from the HCPR Fund there In the Motor License was Again, $220 $230 Million loan to the Fund to Million. source of Account to the Fund of the Motor License liabilities. In repayment Vehicle Fund received the Motor provided $207 Million loan and another $214.6 Million. After of its loan of $100M the first transfer of was transferred Vehicle were no loans from the Motor there Fund, $225.4 MCARE but Million into the transfers from other accounts. Fund or In repaid to the Motor Vehicle Fund. abatements, and an order count to the General Fund in fully help order to Agencies the Executive Branch alleviate the directing Commonwealth’s financial dis- money transfer the in the not to use or compromise tress and reach a to the bud- purpose. other Account for addition, HCPR get impasse. In million was accounting They also demanded and transferred from the Fund to alleged Agencies’ that Executive Branch appropriated General Fund to be for other Account vio- administration so, purposes. doing the General As- Uniformity of the Penn- lated the Clause sembly implicitly legislative made the de- sylvania because it shifted the Constitution termination that those funds were long- no funding the burden of MCARE abate- provide er needed to subsidies to doctors. in a non- ments onto doctors and resulted Notwithstanding Assembly’s the General uniform tax burden.10 Executive Branch abolishing actions objections in Agencies preliminary filed transferring money all of the at issue to the nature of a demurrer. Society Medical did not amend its Petition for Review. It still July
On this Court issued an alleges that it is entitled to the entire unreported opinion agreeing memorandum amount transferred out of these accounts Branch Agencies with Executive be- and that approximately million must cause the abatements were not taxes the transferred to the MCARE Fund be- Uniformity apply did not Clause Society cause the Medical has vested was, therefore, petition II of the Count rights to these funds under the Abatement All Agen- dismissed. of Executive Branch Law. remaining objections preliminary cies’
were overruled and the case was scheduled gravamen The of this case then is not argument Society’s on applica- Medical whether paid doctors’ subsidies will be be- summary regarding tion for relief the is- they cause all have been paid. It is not Branch Agencies sue of whether Executive judgments against whether those doctors legal duty had the the Ac- use who committed malpractice paid, will be fully count funds to the abatements. they paid. because will be Instead it is whether doctors in the Commonwealth are However, the underlying issue of wheth- entitled to the million in excess funds. Agencies er the Executive Branch were statutorily required to transfer funds from III. the HCPR Account to the MCARE Fund Assembly was vitiated when the General majority, mainly relying on this Agencies relieved the Executive Branch unreported opinion of Court’s dismissing the obligation objections, to do so. On October preliminary grants summary argument before oral was even relief agreeing held with the Medical Soci- us, on the matter before ety’s the General As- claim that the Executive Branch sembly “Budget”11 Agencies duty enacted the which abol- still have to make trans- money ished the HCPR Account and transferred fers of tax from the HCPR Ac- count, remaining exists, the million from that ac- longer an account which no preliminary injunction 10. Given the dire temporary Commonwealth's financial and a re- order, during straining the status summer of Medical both of which denied as premature. Society were concerned the Governor and Assembly General would utilize funds help budget HCPR Account alleviate 11. Act of October P.L. No. 7(5). applications crisis. So also filed for a Fund, suggests, Program not name the HCPR which does need to the MCARE retain health provid- established to care though the Abatement money. Even Pennsylvania by reducing ers require Budget Law does paying professional liability burden transfers, make such Secretary “shall” ” premiums insurance under the MCARE money transfer tax “may that he program. Assembly The General estab- to the abatements, mandatory lished a manda- goes require on to Majority tory account from which to fund the million be transferred approximately $808 mandatory funding abatements and two rather than to where to those accounts abatements, (footnote for the sources Assembly directed it—the General General omitted) Majority’s effect of the Fund. The net in conjunc- is read When Pennsyl- the 2009-2010 holding is twofold: statute, tion with the rest of the HCPR balance, is out of and the Budget vania title, including description and the eligible doctors of this Commonwealth purpose funding mechanisms for $808,000,000 windfall from to receive program, give the HCPR ordinary imposed taxes citizens Secretary complete unfettered discretion which is not needed to whether to to decide fund the MCARE for the doctors’ malpractice vide subsidies Fund, regardless of the need for the assessments. funds, obviously inconsistent with the statutory certainly scheme. It appears IV. Assembly that the General has mandat- decision, In at its arriving majority that the ed HCPR Account for the mainly previous July relies on our out, point abatements. As Petitioners overruling decision Executive Branch provision there is no for the [Insurance preliminary Agencies’ objections which Department] to refuse to award abate- agencies found those had an affirma- or decline notify ments DPW when obligation tive transfer funds from the addition, abatements are awarded. HCPR Account MCARE Fund to has taken meas- *17 arriving fund abatements. at that con- ures to assure that the abatements are clusion, majority mainly relies on the Fund, paid by the providers. not If a following portion previous opinion of our provider already has paid the assess- regarding preliminary objections where we prior ment to the award of the abate- stated, pertinent part: in ment the General has directed
Here, in Section 1110 the Abatement Law [the Commonwealth] reifies] 1112(c) Insurance Department “[t]he Section of the shall Abatement Law either issue refunds or credits for mo- which that ‘the Secretary states nies due health care under Budget may annually transfer from the (citation omitted) chapter. this [”] account Fund an [MCARE] up aggregate amount to the amount of Soc’y Dep’t Med. v. granted by (Nos. the Insurance Pub. 585 M.D. Welfare 1104(b).’ Department under section 40 24, 2009), July filed at slip op. 13—14. 1308.1112(c). added). (Emphasis P.S. Ignoring that this decision was based on extant, The language appears of this section longer disagree law no I with the give Budget Secretary to majority misinterprets discretion because it both what, transfer funds from the Account any HCPR effect of that if vested decision— However, rights to the Fund. as its doctors have—and is based on the MCARE Third, misimpression payment obli- there are disputed facts. To the gations is what is at issue this case. extent that there are insufficient funds to reasons, following For that reason and the claims, pay Commissioner Adams has filed I with the disagree majority decision. stating affidavit after “[e]ven transfer of million to the General
First, the already doctors have received Fund, the MCARE will have suffi- they all the they benefits which claim cient funds to fulfill its obligations current are entitled. In dismissing pre- certain pay expenses.” claims and Under Sec- liminary objections, all we held was that 1303.71(c) Law, tion Act, the Abatement MCARE sufficient transfers had to be made from the doctors’ cumulative HCPR assessment is statuto- Account to the rily MCARE Fund fund fixed and will change not if even abatements, nothing more. Because the transfer of the Million taken to Program ended in abate- the 2009-2010 budget ultimately is deposit- granted ments to subsidize doc- ed in the MCARE Fund. Given that those malpractice up tors’ assessments assessments are excess of the current they long ago have received those amount needed to cover all MCARE obli- That part abatements. of the deal has gations, including the payout of malprac- already been completed, and doctors have claims, tice appears there to be sufficient received all of they the abatements funds to obligations current to, entitled vested or not. event, Fund. In because genu- this is a fact, ine issue
Second, of material application doctors do not have a vested summary right to receive relief hundreds of must denied for millions money dollars from tax Kaiser, Ac- reason alone. v. Sherman money (Pa.Cmwlth.1995). count. The that used to be in the A.2d needed because doctors Fourth, because have not been have received all the abatements to which harmed, doctors, hence, the Medical they were By entitled. directing the Society have no standing to maintain this transfer of funds from the HCPR Account seeking judicial action. “In resolution of a majority will controversy, a party must establish as a overfund the MCARE Fund hundreds threshold matter that he has standing to which, of millions of dollars under 40 P.S. maintain the Stilp action.” v. Common- 1303.712(k), go will then to the doctors wealth, 596 Pa. 940 A.2d upon termination of the Fund. That why (2007). As our Supreme Court explained 1112(c) Law, of the Abatement *18 in William Penn Parking Garage, Inc. v. Assembly only the General stated that the City Pittsburgh, 464 Pa. 346 A.2d must, Budget Secretary “may,” of not trans- (1975), 280-81 (plurality), the core fer funds to the MCARE Fund. If the concept standing of is person that a who is Assembly General designated wanted all adversely not any way affected in by the tax funds transferred to the MCARE matter he Fund, challenge seeks to is ag- it not just placed would have the taxes grieved thereby and has no directly standing into that to Fund. If doctors have judicial obtain a any resolution of his rights challenge. vested under the Abatement Law, case, themselves, to In this is the because the doctors have more; nothing they have no received all that right vested were to entitled re- having those subsidies any funded from ceive and the amount of their statutory particular source. what, assessment is fixed no matter their
52
Agencies,
Society,
the
the Executive Branch
not the
Medical
does
representative,
to
standing
appropriate
maintain this action.
or the
officials
have
not
Assembly needed to enact
of the General
Fifth,
ordering
Executive Branch
the
the
legislation.12 Because
failure
remedial
from the HCPR
to transfer funds
Agencies
indispensable
to a
join
party
to
lawsuit
Fund,
majori-
the
to the MCARE
Account
matter
subject
juris-
the
deprives
court of
something
them
ordering
to do
is
ty is
diction, Pennsylvania Game Commission
the pre-
for them
After
to do.
impossible
Co., Inc.,
Miller
654 A.2d
v. K.D.
Lumber
decided, the Gen-
liminary objections were
O’Hare,
(Pa.Cmwlth.1994);
9
III v.
Bud-
Assembly enacted the 2009-2010
eral
A.2d
County
Northampton, 782
13
of
which
the HCPR
get legislation
abolished
(Pa.Cmwlth.2001),
must
this action
be dis-
Account,
directed that
tak-
missed.
from the MCARE
and trans-
en
all of those funds to the General
ferred
Finally,
non-justieiable.
the matter
is
The
these
Fund.
Secretaries of
Executive
question
is
political
doctrine
consid-
authority
Agencies
Branch
have no
legal principle
to derive
ered
of
Fund
make a transfer from the General
powers
separation
notion that the
—the
having
other account
first
ex-
without
branch,
judiciary,
executive
authorization from the General As-
press
legislature
co-equal,
independent
Moreover,
so.
sembly to do
State
government. Pennsylvania
branches of
not
Treasurer would
allow such transfer
Association,
v.
School Boards
Inc.
Com-
place.
to take
monwealth Association
School Admin-
istrators,
(1977)
569 Pa.
judicially manageable discoverable powers granted when enacted the it; resolving impos- for or the standards legislation last October. The sibility deciding an initial poli- without facing an Commonwealth was enormous clearly determination of a kind cy financial crisis. In order to enact a budget discretion; nonjudicial impossibil- or the deficit, make up huge and for our of a ity undertaking independent court’s Assembly General authorized the transfer without lack expressing resolution million from the HCPR Account respect due coordinate branches of the million from the MGARE Fund government; or an unusual need for un- appropriated General Fund to be questioning political adherence to deci- purposes. if other Even the Common- made; already the potentiality sion or obligated wealth is somehow to place more embarrassment multifarious funds in the it is not for departments nouncements various particular this court to direct tax be question. one dedicated fund some indefinite obli- case before this Court involves gation; purview it is within the sole than merely interpreting more the laws of Assembly General to determine how that the Commonwealth determining obligation will be satisfied. Judicial inter- constitutionality legislative action. It vention in legislative process is not requires appropriate money us and dic- goes warranted because it to the core to the Assembly tate General how to bud- question process of the budgeting making get, functions which have been constitu- problematic. the enforcement of order tionally committed to the Executive and VIII, Legislative branches. Article Sec- Accordingly, for of the foregoing all rea- tion 12 Constitution sons, I respectfully dissent. that every year mandates the Governor submit a shall proposed, operat- balanced budget
ing General outlin- expenditures in detail
ing proposed exists, deficiency
estimated revenues. If a
the Governor spe- must also “recommend
cific additional sources of revenue suffi-