                        [J-15-2014] [MO: Baer, J.]
               IN THE SUPREME COURT OF PENNSYLVANIA
                            MIDDLE DISTRICT


SEIU HEALTHCARE PENNSYLVANIA;      :   No. 38 MAP 2013
MELANIE ZEIGLER; KATHERINE         :
BRODALA; JOANNE NAMEY; JON ANN :       Appeal from the order of the
FREDERICKS; WENDY HOKE; STATE :        Commonwealth Court at No. 150 M.D.
SENATOR TIMOTHY J. SOLOBAY;        :   2013 dated April 25, 2013.
STATE SENATOR JOHN N. WOZNIAK; :
STATE REPRESENTATIVE MICHAEL K. :      ARGUED: March 12, 2014
HANNA; STATE REPRESENTATIVE TED :
HARHAI; STATE REPRESENTATIVE       :
PAM SNYDER,                        :
                                   :
                  Appellants       :
                                   :
            v.                     :
                                   :
COMMONWEALTH OF PENNSYLVANIA; :
THE HONORABLE THOMAS CORBETT, :
GOVERNOR OF THE COMMONWEALTH :
OF PENNSYLVANIA; THE               :
PENNSYLVANIA DEPARTMENT OF         :
HEALTH; MICHAEL WOLF, SECRETARY :
OF HEALTH,                         :
                                   :
                  Appellees        :
                                   :
AMERICAN FEDERATION OF STATE,      :
COUNTY, AND MUNICIPAL              :
EMPLOYEES, COUNCIL 13, AFL-CIO, BY :
ITS TRUSTEE AD LITEM, DAVID R.     :
FILLMAN; KELLY LINKO,              :
                                   :
                  Intervenors      :
                                   :
FEDERATION OF STATE CULTURAL       :
AND EDUCATIONAL PROFESSIONALS, :
LOCAL 2382, AMERICAN FEDERATION :
OF TEACHERS PENNSYLVANIA,          :
AFL-CIO, BY ITS TRUSTEE AD LITEM, :
WILLIAM F. BERTRAND,               :
                                   :
                  Intervenors      :
                                 DISSENTING OPINION


MR. JUSTICE EAKIN                                        DECIDED: November 20, 2014

      As I believe SEIU has failed to demonstrate a clear right to relief, I respectfully

dissent. Section 1403(c)(1) provides:

       With the exception of the three State health centers selected for the review
       program established in paragraph (2) [(expired)], the department shall
       operate those public State health centers and provide at a minimum those
       public health services in effect as of July 1, 1995. Except as provided in
       paragraph (2) [(expired)], the department shall not enter into contracts with
       any additional private providers that would result in the elimination of any
       State health center nor reduce the scope of services currently provided nor
       reduce the number of centers.

71 P.S. § 1403(c)(1). Clearly this statute speaks to two things: health centers and health

services. The two are not synonymous — the former is the location where the latter is

provided. The statute states it is the department that shall operate health centers — it

shall not contract it away to a private provider; it also says the department shall provide

the existing level of health services. As the second sentence makes clear, what the

statute precludes are contracts with private providers that would result in changing

centers or services (again the two are separately enumerated); it does nothing to imply

there cannot be changes in the centers by the department itself, so long as services are

maintained.

       That is, in addition to requiring the maintenance of service levels, what this section

focuses on is the continued operation of health centers by the state, as opposed to private

companies. It does not say the department cannot close or modify a center — it says the

department cannot do so by means of contracts with private providers. It does not say


                              [J-15-2014] [MO: Baer, J.] - 2
the department cannot substitute a mobile unit for a fixed location. It does not set a

minimum number of buildings or employees that must be maintained — it says only that

the department must provide the public health services available as of July 1, 1995.

Clearly, this section was concerned with the preservation of available public health

services, not the perpetual insulation of employees from the normal changes that every

other employee faces. If the centers are sacrosanct, so are the landlords. But times

change, and it cannot be that the legislature meant to lock the state into a series of

locations in perpetuity.   There will always be demographic shifts, lease expirations,

building closures, employee furloughs and transfers, and the advances of technology and

treatment options that make change inevitable. It would be absolutely silly to require the

department to maintain exactly the same building as a center, forever tying the taxpayers’

support to a location that has become an albatross. Why would the legislature demand

such fealty to a “center” when its goal is service? The answer is that it did not do so — it

required a level of service, not an immovable location, and precluded the state from

abdicating responsibility by means of contract with private providers.

       This reading is supported by various aspects of the statutory language. The first

sentence addresses the department’s obligations. It mandates the department continue

its operation of state health centers except those covered by the privatization pilot

program and maintain, at minimum, the current level of health services. The language is

devoid of a specific number of centers that must be operated or language stating the

specific number then in existence must be maintained. Moreover, given the exception of




                              [J-15-2014] [MO: Baer, J.] - 3
three health centers yet to be selected for the privatization pilot program,1 the legislature

showed no intent to set a definitive number of health centers that the department must

operate, nor did it require the department to operate centers within specific counties. As

a matter of fact, had the legislature intended to do so with this language, the magic

number would be 57, not 60, and the continued presence of health centers in Dauphin,

Butler, and Berks Counties would not be required. The only portion of the sentence that

sets a minimum standard concerns the public health services available, not the number,

employment, or location of centers providing them.

       The second sentence concerns actions from which the department must refrain,

specifically, entering into additional contracts, aside from those employed in the

privatization pilot program, with private providers that would result in reduction of the

scope of services or number of centers then available. Here we find the only reference

to maintaining the number of health centers, and such is only protected from privatization

measures. The statute makes no mention of reducing the number of centers for other

reasons.2 Compare this to the scope of public health services, which is protected from

reduction both by a set minimum level in the first sentence and from privatization in the

second.



1 Expired paragraph (2) left it to the department to select the health centers, one center
each from an urban, suburban, and rural area. Id., § 1403(c)(2) (expired pursuant to Act
of July 2, 1996, P.L. 518, No. 87, § 4). The health centers in Dauphin, Butler, and Berks
Counties were selected and, following the expiration of the pilot program, were restored
to public state health centers.

2 Given that there are many potential justifications for the closure of state health centers,
had the legislature intended to preclude closure in toto, it certainly would have employed
broader language to attain this result.



                               [J-15-2014] [MO: Baer, J.] - 4
      Accordingly, I would affirm the preliminary injunction denial, finding SEIU is not

clearly entitled to relief as the Commonwealth’s proposed closures do not blatantly violate

§1403(c)(1).




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