Rosenberg v. Holy Redeemer Hosp.

Decision Date11 March 1986
Citation506 A.2d 408,351 Pa.Super. 399
PartiesDr. Steven ROSENBERG, Appellant, v. HOLY REDEEMER HOSPITAL and Dr. John A. Jakabcin.
CourtPennsylvania Superior Court

H. David Kraut, Lansdale, for appellant.

Michael C. Hemsley, Philadelphia, for Holy Redeemer, appellee.

Stephen C. Baker, Philadelphia, for Jakabcin, appellee.


BECK, Judge:

Dr. Steven Rosenberg appeals the summary judgment granted in favor of defendant Holy Redeemer Hospital. In the original equity action filed by Dr. Rosenberg he sought injunctive relief from the hospital's denial of his application for staff privileges.

Our scope of review in this matter is limited to abuse of discretion of the trial court. After examining the ample record and Judge Brody's excellent opinion, we affirm. Before discussing the substance of the case, however, we must first determine whether this appeal is properly before the Superior Court.

Title 42 Pa.C.S.A. 762 states in relevant part:

(a) General rule.--Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:

* * *

* * *

(5) Certain private corporation matters.--(i) All actions or proceedings relating to corporations not-for-profit arising under Title 15 (relating to corporations and unincorporated associations) ...

(ii) All actions or proceedings otherwise involving the corporate affairs of any corporation not-for-profit subject to Title 15 or the affairs of the members, security holders, directors, officers, or employees or agents thereof, as such.

Holy Redeemer Hospital is a private corporation not-for-profit. Therefore, a controversy to which it is a party could properly have been appealed to the Commonwealth Court or could be transferred thereto by the Superior Court. See 42 Pa.C.S.A. 705; Karpe v. Borough of Stroudsburg, 315 Pa.Super. 185, 461 A.2d 859 (1983).

We note, however, that neither party has objected to the appeal before this court. We are therefore invested with jurisdiction to decide the matter by virtue of 42 Pa.C.S.A. § 704.

§ 704. Waiver of objections to jurisdiction

(a) General rule.--The failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court.

Having decided the jurisdictional question, we turn to the substance of the case. We find that appellant's arguments have been thoroughly discussed in the well reasoned opinion authored by Judge Anita Brody. We therefore adopt as our own that portion of Judge Brody's opinion which follows.


"On September 9, 1980, Dr. Rosenberg applied for appointment to the active medical staff of defendant Holy Redeemer Hospital ('Hospital'). On January 31, 1981, the Hospital's Board of Directors notified Dr. Rosenberg of its decision to deny his application. Dr. Rosenberg then requested an appeal of that decision. The Hospital's Medical Staff Ad Hoc Appellate Committee then held hearings on April 9, April 29 and June 4 of 1981, subsequently denying the doctor's appeal on July 30, 1981. Dr. Rosenberg next appealed to the Appeal Review Committee of the Hospital's Board of Directors, which, after a hearing, upheld the denial of his application.

"Thereafter, Dr. Rosenberg filed suit against Holy Redeemer Hospital and Dr. John A. Jakabcin, seeking injunctive relief as well as compensatory damages. The suit against Dr. Jakabcin was severed by the Court for disposition, and is not involved in the instant appeal.

"Initially, the Hospital filed Preliminary Objections to the Complaint, which were denied. Dr. Rosenberg then filed a Motion for Summary Judgment relating to the procedures followed by the Hospital in considering Dr. Rosenberg's application, and on this motion Dr. Rosenberg prevailed. By order of January 30, 1984 the Court remanded the case to the Appellate Review Committee of the Hospital, insisting that they afford Dr. Rosenberg a de novo hearing in accordance with specific procedures. 1

"On March 22, 1984, the Hospital's Appellate Review Committee conducted a hearing at which, in accordance with the Court's order, Dr. Rosenberg was present, was accompanied by his attorney, and presented testimony and witnesses on his behalf. This hearing was transcribed by a certified court reporter. On April 3, 1984, the Appellate Review Committee recommended to the Hospital's Board of Directors that the denial of Dr. Rosenberg's application be affirmed. This recommendation was adopted by the Board on April 4, 1984, and notice thereof was sent to the doctor on April 5, 1984, stating that the basis for his application's denial was the Hospital's moratorium on new appointments.

"Subsequently, Dr. Rosenberg filed a Motion to Lift the Stay or in the alternative Reconsider the Stay of Proceedings against Holy Redeemer Hospital, and a Petition for Contempt and for Supplemental Injunctive Relief; the Hospital filed a Motion for Summary Judgment. These motions were consolidated for hearing on October 1, 1984.

"On November 1, 1984, this Court issued an order granting the defendant Hospital's Motion for Summary Judgment; on November 28, 1984, orders dismissing both plaintiff's Motion to Lift or Reconsider the Stay, and Petition for Contempt or Supplemental Injunctive Relief were entered. It is from these orders that Dr. Rosenberg appeals.



A motion for summary judgment should be granted only where the record shows that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. As stated by the Superior Court:

'The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt.'

Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983), citing Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979).

"In the instant case, the record clearly shows that Holy Redeemer Hospital is entitled to summary judgment. The Hospital has complied with the necessary procedural requirements in making its decision concerning Dr. Rosenberg's application, and this Court has determined that as a matter of law it is without authority to review the substance of that decision.

"Dr. Rosenberg complains on appeal that the court erred in determining that the actions of Holy Redeemer Hospital are not subject to judicial review on a substantive level. Dr. Rosenberg first alleges that such review is permissible in the instant case due to the quasi-public nature of the Hospital.

"Presumably, Dr. Rosenberg is claiming this quasi-public status for the Hospital in order to subject the Hospital's decision to due process scrutiny. Dr. Rosenberg does not allege that the Hospital's decision amounts to state action; indeed, the parties have stipulated that Holy Redeemer Hospital is not a public hospital and that the state has not commanded or directed the Hospital to deny Dr. Rosenberg's application. Thus, the direct state action which would trigger constitutional review is not present in this case.

"Although it is clear that the due process clause 'applies only to 'state action' and not to private conduct ...', Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 68-69, 311 A.2d 634, 639 (1973), it has also been held that 'private hospitals with certain public characteristics, so called 'quasi-public' hospitals, are deemed to be engaged in state action,' Miller v. Indiana Hospital, 277 Pa.Super. 370, 378, 419 A.2d 1191, 1194 (1980). Thus, if Holy Redeemer Hospital is a 'quasi-public' hospital, its decision here is subject to scrutiny pursuant to the due process clause.

"The test for assessing whether a hospital is to be considered quasi-public is whether that hospital receives tax benefits, is funded mainly from public sources, and holds a monopoly in the area which it serves. Id., 277 Pa.Super. at 379, 419 A.2d at 1194. We note that the Miller Court pointed to dicta in Adler v. Montefiore Hospital, 453 Pa. at 60, 311 A.2d 634 (1973), whereby the Pennsylvania Supreme Court indicated that a hospital which received Hill-Burton construction funds from the federal government might also be considered quasi-public. The Superior Court in Miller declined to apply this dicta, noting that although the Supreme Court in Adler had relied on a series of cases from the Fourth Circuit Court of Appeals, the Third Circuit Court of Appeals and the majority of circuits have held that the receipt of Hill-Burton funds by a hospital does not make its action state action, citing Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3rd Cir.1978).

"Since the Superior Court's decision in Miller, the Fourth Circuit Court of Appeals, on which our Supreme Court relied in Adler, has reevaluated this issue and has concluded that state action is not created by a hospital's receipt of Hill-Burton funds. Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023 (4th Cir.1982). In view of this, and in light of the...

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