Opinion
Nos. 584 M.D. 2008, 585 M.D. 2008.
Argued: April 1, 2009.
Filed: July 24, 2009.
BEFORE: LEADBETTER, President Judge; McGINLEY, Judge; SMITH-RIBNER, Judge; JUBELIRER, Judge; SIMPSON, Judge; LEAVITT, Judge; BUTLER, Judge.
OPINION NOT REPORTED
Before this Court in its original jurisdiction are the preliminary objections of the Department of Public Welfare (DPW) and the Office of Budget (Budget Office) (collectively, Respondents) to the Pennsylvania Medical Society's and the Hospital and Healthsystem Association of Pennsylvania's (collectively, Petitioners) petitions for review.
Petitions for Review
On December 11, 2008, Petitioners, on behalf of member hospitals and physicians and other healthcare providers, petitioned in the nature of a complaint for declaratory judgment and injunctive relief against Respondents. Petitioners request that this Court require Respondents to fully fund health care provider payment obligation abatements granted under a program known as the Health Care Provider Retention Program (HCPR) and to refrain from diverting the dedicated funds for budgetary or other purposes.
Providers Required to Maintain Medical Professional Liability Coverage and Contribute to the MCARE Fund
Under Section 711(d) of the Medical Care Availability and Reduction of Error Act (MCARE Act), 40 P.S. §§ 1303.711(d) , physicians, hospitals and health care providers are, with certain exceptions, required to maintain minimum medical professional liability coverage per claim and primary insurance. In addition, Section 712 of the MCARE Act, 40 P.S. § 1303.712, requires that physicians and hospitals contribute to a medical professional liability fund commonly known as the MCARE Fund. The MCARE Fund is used to pay claims against providers for losses or damages awarded in medical professional liability actions in excess of their basic insurance coverage. The MCARE Fund is funded by an "assessment" on each participating health care provider. The amount of the "assessment" is determined by the provider's prior claim history and private medical malpractice insurance premiums. So, in Pennsylvania, providers are required to maintain private professional liability insurance and contribute to the MCARE Fund.
Act of March 20, 2002, P.L. 154, as amended.
Health Care Provider Retention Program (Abatement Law)
In 2003, the General Assembly enacted the Health Care Provider Retention Program (Abatement Law) to abate the threat that many physicians would leave Pennsylvania if the exorbitant cost of professional liability insurance was not alleviated. The HCPR Program provided abatements to physicians and other participating MCARE providers (excluding hospitals) to reduce MCARE providers' annual MCARE assessments. The abatements were intended to recruit physicians and to provide incentive for physicians to stay in Pennsylvania. The HCPR Program provided eligible physicians in high risk practices 100% abatement (reduction) of their annual assessment and other eligible health care providers 50% of their annual MCARE assessment. When originally enacted, the HCPR Program was limited to the 2003-2004 MCARE assessments. Subsequent legislation extended the abatement program to 2005, 2006, and 2007 MCARE assessments.
Originally enacted as Act of December 23, 2003, P.L. 237, formerly 62 P.S. §§ 443.7 and 1301-A, et seq, repealed by the Act of December 22, 2005, P.L. 458, and reenacted as an amendment to the MCARE Act, 40 P.S. §§ 1303.1101-1115.
In this context, "abatement" refers to a reduction, a decrease, or a diminution of malpractice liability insurance assessments.
Section 4 of the Act of November 29, 2004, P.L. 1272, formerly 62 P.S. § 1301-A and 1302-A (extending program to 2005); Section 2 of the Act of December 22, 2005, P.L. 458, formerly 40 P.S. § 1303-1102 (extending program to 2006), Section 2 of the Act of October 27, 2006, P.L. 1198, 40 P.S. § 1303-1102 (extending program to 2007).
Funding of the Abatement Program
In order to fund the abatement program and reduce providers' MCARE Fund assessments, the General Assembly established a special account known as the Health Care Provider Retention Account (HCPR Account) from which the abatements (assessment reductions) were to be paid. Section 1112(a) of the Abatement Law provides:
(a) Fund established. There is established within the General Fund a special account to be known as the Health Care Provider Retention Account. Funds in the account shall be subject to an annual appropriation by the General Assembly to the Department of Public Welfare. The Department of Public Welfare shall administer funds appropriated under this section consistent with its duties under section 201(1) of the act of June 13, 1967 (P.L. 31, No. 21) known as the Public Welfare Code.
The General Assembly raised funds to pay for the abatements by increasing the tax on cigarettes by 25 cents per pack. Section 1211 of the Cigarette Tax Law required that a portion of the tax collected be deposited into the HCPR Account:
Act of March 4, 1971, P.L. 6, as amended 72 P.S. § 8211 (Cigarette Tax Law), added by the Act of December 23, 2003, P.L. 250.
There is established in the General Fund a special account to be known as the Health Care Provider Retention Account. Eighteen and fifty-two hundredths per cent of the proceeds of the tax imposed by section 1206 shall be deposited in the account. Funds in the account shall be subject to an annual appropriation and shall be administered as provided by law.
In addition, motor vehicle violation surcharge revenue was available to help fund the program.
Transfers from the HCPR Account to the MCARE Fund
The Budget Secretary was appointed to make transfers from the HCPR Account to the MCARE Fund and to determine the amount of such transfers up to a specified limit. Section 1112(c) of the Abatement Law provides: [t]he Secretary of the Budget may annually transfer from the [HCPR] account to the Medical Care Availability and Reduction of Error (MCARE) Fund an amount up to the aggregate amount of abatements granted by the Insurance Department under section 1104(b)." 40 P.S. § 1303.1112(c).
For the four year period the HCPR Program was in existence from 2003-2007, $731,517,112 was deposited into the HCPR Account. In 2004, $100 million was transferred from the HCPR Account to the MCARE Fund. In 2005, $230 million was transferred. Although abatements continued to be granted and sufficient revenues to fund the awarded abatements continued to accumulate in the HCPR, no funds were transferred to the MCARE Fund after 2005. Thereafter, as a result, at least $446 million and possibly as much as $616 million for abatements were deposited into the HCPR Account but not transferred to the MCARE Fund.
Petitioners' Petition for Review (in the Nature of a Complaint for Declaratory Judgment and Injunction)
Petitioners allege that Respondents failed to fully fund the abatements. They allege that Respondents are required under the Abatement Law and the Cigarette Tax Law to make transfers from the HCPR Account into the MCARE Fund in an amount equal to the annual abatements granted to certain qualified Providers to reduce the malpractice liability insurance assessments that all Providers were required to pay. They aver that the abatements have been paid by funds supplied in part by Petitioners, rather than with the funds from the HCPR Account. Petitioners allege that Respondents' failure to transfer the cigarette tax revenue to the MCARE Fund caused a deficit in the MCARE Fund that will cause the total coverage through MCARE assessments to increase, which will severely jeopardize the recruitment and retention of physicians in Pennsylvania.
In Count I, Petitioners request a declaratory judgment that the Respondents must transfer from the HCPR Account to the MCARE Fund the amount needed to fully fund the assessment abatements and not use or transfer the appropriation for any other purpose. Petitioners allege:
45. Revenues from the cigarette tax imposed by 72 P.S. § 8211 must be deposited in the HCPR Account and used to fully reimburse the MCARE Fund for abatements of assessments that were awarded in the years 2003-2007.
46. DPW must transfer funds out of the HCPR Account to fund MCARE assessment abatements for each of the years in which the abatements were in effect and in the full amount of those abatements.
47. The Office of Budget is obligated to transfer funds from the HCPR Account to the MCARE Fund as necessary to fund the full aggregate amount of abatements granted.
48. DPW has not transferred sufficient funds to pay for assessment abatements out of the HCPR Account. As a result, the MCARE Fund is underfunded in the aggregate amount of the unreimbursed assessment abatements.
49. Since 2005, the Office of the Budget has not transferred any funds from the HCPR Account to the MCARE Fund. As a result, the MCARE Fund is underfunded in the aggregate amount of the unreimbursed assessment abatements.
50. The failure of DPW and the Office of Budget to properly fund the MCARE Fund by transferring sufficient funds from the HCPR Account into the MCARE Fund to fully reimburse the fund for MCARE assessments not paid due to abatements violates the letter and the intent of the abatement law, 40 P.S. §§ 1303.1101-1115, the cigarette tax law, 72 P.S. § 8211, and the appropriation acts.
51. The failure of DPW and the Office of Budget to transfer funds from the HCPR Account in the full amount of the abatements injures each of the Medical Society Petitioners by causing them to fund other providers' assessments and by reducing the amount available in the MCARE Fund to pay future liabilities.
52. Commonwealth officials have denied that DPW and the Office of Budget are required to allocate and use sufficient HCPR Account resources to fully fund the MCARE abatements, and have asserted that those funds may be used for other purposes.
Petitioners' Petition for Review, ¶¶ 45-52 at 8-9.
In Count II, Petitioners request a declaratory judgment that Respondents' administration of the HCPR Account is in violation of the Uniformity Clause of the Pennsylvania Constitution. Petitioners allege that Respondents' failure to fund the HCPR Account has shifted the burden of funding the MCARE abatements onto them. This has resulted in a non-uniform tax burden on Petitioners. Count II of the Petition for Review states:
PA. CONST. art. VIII, § 1.
54. As enacted by the legislature, the HCPR Program is funded by a tax on cigarettes uniformly imposed within the Commonwealth of Pennsylvania.
55. By failing to transfer to the MCARE Fund the cigarette taxes that should have been used to fund MCARE assessment abatements, the DPW and the Office of Budget have caused the abatements to be funded out of MCARE assessments paid by Petitioners and other providers who did not receive 100% abatements, resulting in the improper imposition of a tax only on participating health care providers not receiving complete abatements under the HCPR Act.
56. As implemented, the funding of the HCPR Program abatements out of MCARE Fund assessments constitutes the levying on a non-uniform tax upon certain providers and not others within the same class, contrary to the intent of the legislature and without a reasonable basis for the lack of uniformity.
57. Therefore, the actions of DPW and the Office of the Budget constitute and contribute to a program of unequal taxation that violates the Uniformity Clause of the Pennsylvania Constitution, and injures Petitioners by taxing them to fund MCARE assessment abatements for other health care providers.
Petitioners' Petition for Review, ¶¶ 55-57 at 9.
In Count III, Petitioners seek to require Respondents to transfer the appropriated funds from the HCPR Account to the MCARE Fund and Petitioners demand an accounting.
59. DPW has failed to transfer the amounts appropriated to it from the HCPR Account to the MCARE fund to pay for the full amount of MCARE assessment abatements, as required under 40 P.S. §§ 1303.1102(a) and 1303.1112.
60. The Office of the Budget has failed to transfer from the HCPR Account to the MCARE Fund an amount up to the aggregate amount of the abatements as necessary to fully fund the abatements, as required by 40 P.S. § 1303.1112(c).
61. As a result, the Pennsylvania Insurance Department has credited the abatements, without receipt of HCPR funds, against funds already in the MCARE Fund, thereby improperly paying the assessment abatements with MCARE funds supplied in part by Petitioners, rather than with the funds transferred from the HCPR Account.
62. The MCARE Fund, which is intended for the benefit of the Medical Society Petitioners and other providers to pay professional liability claims and thereafter return any surplus to participating providers upon full payment of the unfunded liability, is being unlawfully reduced and diverted to other purposes in violation of the HCPR Act.
63. Commonwealth officials have been informed of these violations of the HCPR Act and have been requested to make the required transfers, but no such transfers have been made.
64. Petitioners have a clear legal right to the performance by DPW and the Office of the Budget of their statutory duties, and have no other appropriate or adequate remedy to obtain this requested relief.
Petitioners' Petition for Review, ¶¶ 59-64 at 12-13.
Respondents' Preliminary Objections
Respondents have filed preliminary objections in the nature of a demurrer.
First, Respondents assert that Counts I and III fail as a matter of law because DPW's obligation to administer the annual appropriations and fund the MCARE abatements was contingent upon its success in securing matching federal funds for the Program. Because it was unable to secure federal funds it had no duty to transfer funds from the HCPR Account to the MCARE Fund.
Second, Respondents assert that Counts I and III fail as a matter of law because the Budget Secretary's authority to transfer funds from the HCPR Account to the MCARE Fund is discretionary, not mandatory because the statutory language is "may transfer." It does not state that the Budget Secretary "shall" or "is obligated to" or other similar mandatory language that limits the Budget Secretary's discretionary authority.
Third, Respondents assert that Counts I and III fail as a matter of law because the Budget Secretary's authority to make annual transfers expired by operation of law on December 31, 2008.
Fourth, Respondents assert that Petitioners have failed to state a cause of action under Count II for violation of the Uniformity Clause. The assessments levied under the MCARE Act are not taxes. Rather, the assessments paid by providers under the MCARE Act for professional liability coverage are akin to insurance premiums which are not subject to the Uniformity Clause. White v. Commonwealth Med. Prof'l Liab. Catastrophe Fund, 571 A.2d 9 (Pa.Cmwlth. 1990).
Standard of Review
A demurrer tests the legal sufficiency of the complaint. Harding v. Stickman, 823 A.2d 1110 (Pa.Cmwlth. 2003). The issue to be resolved by a demurrer is whether the facts in the pleadings are sufficient to entitle a claimant to relief. Internat'l Union of Operating Engr's v. Linesville Constr. Co., 457 Pa. 220, 322 A.2d 353 (1974). In ruling on preliminary objections in the nature of a demurrer the Court must accept as true all well-pleaded allegations of material fact and all inferences reasonably deducible from those facts, though it need not accept as true unwarranted inferences, conclusions of law, argumentative allegations, or expressions of opinion. Christ the King Manor v. Dep't of Pub Welfare, 911 A.2d 624 (Pa.Cmwlth. 2006). Although any doubt as to whether a demurrer should be sustained is to be resolved against the moving party, the Court should sustain preliminary objections in the nature of a demurrer when it appears with certainty that, upon the facts averred, the law will not permit recovery, where the law is clear and free from doubt and states with certainty that no recovery is possible. Heck v. Penn Lake Park Borough, 786 A.2d 336 (Pa.Cmwlth. 2001).
DPW's Authority Contingent Upon Receiving Matching Federal Funds
In support of their demurrer, Respondents assert that DPW's responsibility to administer the funds is contingent upon its success in securing matching federal funds for the Program. According to Respondents, because the DPW was unsuccessful in that effort, it was powerless to fulfill its statutory duty.
Again, Section 1112(a) of the Abatement Law, 40 P.S. § 1303.1112(a), requires that DPW shall administer funds appropriated consistent with its duties under section 201(1) of Public Welfare Code. Respondents contend Section 201(1) of the Public Welfare Code provides that DPW shall have the following limited power and duties: "With the approval of the Governor, to act as the sole agency of the State when applying for, receiving and using Federal funds for the financing in whole or in part of programs in fields in which the department has responsibility." 62 P.S. § 201(1) (Emphasis added).
Act of June 13, 1967, P.L. 32, added by Act of December 5, 1980, P.L. 1112, as amended.
This Court does not agree with Respondent that the General Assembly's reference in Section 1112(a) of the Abatement Law to Section 201 of the Public Welfare Code was necessarily intended to place a condition precedent on the transfer of funds. Section 201 of the Public Welfare Code, titled "State participation in cooperative federal programs" lists powers and duties of the DPW and subsection (1) merely established DPW as the single department responsible for the application and receipt of federal matching funds. Section 201(1) of the Public Welfare Code provides no limitation on DPW's authority to transfer funds in the absence of federal funding, but only states, as is required by federal law, that if the Commonwealth decides to apply for and use federal funds for programs administered by DPW, the DPW is the only State agency that may do so.
Respondents' position that the DPW may not act unless it receives federal funds has no basis in statute, and is, in fact, contrary to the plain meaning of the statute. Respondents' First Preliminary Objection to Counts I and III is overruled.
Mandatory duty under the Abatement Law to transfer funds to the MCARE Fund
Next, Respondents assert that Counts I and III of the complaint fail to state a cause of action because the Abatement Law does not require the Budget Secretary to transfer funds from the HCPR Account to the MCARE Fund. They contend the Budget Secretary's authority is discretionary. This raises an issue of statutory construction and legislative intent.
The object of statutory construction is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921. When the language of the statute is clear, that language is dispositive of legislative intent and so vitiates the need for further interpretation.Lynnebrook Woodbrook Assoc., L.P. v. Borough of Millersville, ___ Pa. ___, 963 A.2d 1261 (2008). Importantly, the plain language reading of a statute requires that "sections of a statute must be construed with reference to the entire statute and not apart from their content."Snyder v. Commonwealth of Pa., 441 A.2d 494, 496 (Pa. Cmwlth 1982). See also Commonwealth of Pa. Water Power Res. Bd. v. Green Spring, Co., 392 Pa. 1, 8, 145 A.2d 178, 182 (1958) (clear legislative intent of the statute "not in any single section of the statute, but from an examination of the statute in its entirety").
Here, Respondents rely on Section 1112(c) of the Abatement Law which states that "the Secretary of the Budget may annually transfer from the account to the . . . [MCARE] Fund an amount up to the aggregate amount of abatements granted by the Insurance Department under section 1104(b)." 40 P.S. § 1303.1112(c). (Emphasis added). The language of this section appears to give the Budget Secretary discretion to transfer funds from the HCPR Account to the MCARE Fund. However, as its name suggests, the HCPR Program was established to retain health care providers in Pennsylvania by reducing the burden of paying professional liability insurance premiums under the MCARE program. The General Assembly established mandatory abatements, a mandatory account from which to fund the abatements and two mandatory funding sources for the abatements.
Again, the General Assembly increased the cigarette tax and directed that twenty-five cents per pack be deposited in the HCPR Account. 72 P.S. § 8211. In Section 1112(a), the General Assembly stated that "the funds in the account shall be subject to an annual appropriation by the General Assembly to the Department of Public Welfare." 40 P.S. § 1303.1112(a) (Emphasis added). Section 1104(b) of the Abatement Law provides [i]f a provider meets the requirements of the program, the Insurance Department "shall . . . grant the applicable abatement of the assessment" and "shall notify the Department of Public Welfare" of the abatement. 40 P.S. § 1303.1104(b) (Emphasis added).
When Section 1112 is read in conjunction with the rest of the HCPR statute, including its title, and the description of the purpose and funding mechanisms for the HCPR program, to give the Budget Secretary complete unfettered discretion to decide whether to fund the MCARE Fund, regardless of the need for the funds, is obviously inconsistent with the statutory scheme. It certainly appears that the General Assembly has mandated that the HCPR Account pay for the abatements. As Petitioners point out, there is no provision for the DPW to refuse to award abatements or decline to notify DPW when abatements are awarded. In addition, the General Assembly has taken measures to assure that the abatements are paid by the Fund, not providers. If a provider has already paid the assessment prior to the award of the abatement the General Assembly has directed in Section 1110 of the Abatement Law that "[t]he Insurance Department shall either issue refunds or credits for monies due health care providers under this chapter. 40 P.S. § 1303.1110 (Emphasis added).
Given the statutory scheme and well-pleaded facts, this Court is unable to conclude at this juncture that Respondents are not entitled to relief as a matter of law. Respondent's Second Preliminary Objection to Counts I and III is overruled.
Expiration of the Abatement Program
Next, Respondents assert that Counts I and III of the complaint fail to state a cause of action because the Budget Secretary has no authority to transfer money from the HCPR Account to the MCARE Fund because that authority expired with the discontinuation of the abatement program as of December 31, 2008.
Contrary to Respondents' position, the end of the HCPR Program only means that the Insurance Department will no longer grant abatements to eligible health care providers. It does not mean that DPW and Budget Secretary may avoid their statutory responsibilities to fund the program from the specifically designated HCPR Account while the program was in effect. If indeed it is determined that the funds were inappropriately withheld, then it is entirely proper and consistent with the Abatement Law to direct the Respondents to transfer the appropriated funds to the MCARE Fund.
It is settled law in Pennsylvania that public officials who fail to perform tasks assigned to them during the relevant time period may nevertheless be ordered by the court to fulfill their previously required duties. Commonwealth ex rel. Eagen v. Petrusefski, 338 Pa. 278, 12 A.2d 3 (1940).
Respondent's Third Preliminary Objection to Counts I and III is overruled.
Uniformity Clause
Last, Respondents contend that no recovery is possible under Count II of Petitioners' complaint.
In Count II, Petitioners characterize the abatements as a tax and essentially claim that the abatements were to be funded by dedicated tax and surcharge revenues. By failing to fully fund the MCARE Fund the obligation to pay for the abatements has shifted from the State to those providers who paid MCARE assessments, thereby frustrating the legislature's intended use of the cigarette tax. Petitioners argue that this results in a non-uniform tax in violation of Article VIII, Section I of the Pennsylvania Constitution.
Petitioners assert that this Court is required to accept the "factual claim" that the assessment operates as a non-uniform tax under the circumstances presented. However, as previously noted, this Court need not, in ruling on a demurrer, "accept as true unwarranted inferences, conclusions of law, argumentative allegations or expression of opinion." Christ the King, 911 A.2d at 633. Whether the assessment is a tax is a conclusion of law, not a factual question.
The Uniformity Clause provides, in relevant part: "All taxes shall be uniform, upon the same classes of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." Taxes must be applied with uniformity upon similar kinds of businesses or property and with substantial equality of the tax burden upon all members of the same class. Lee Hospital v. Cambria County Board of Assessment Appeals, 638 A.2d 344 (Pa.Cmwlth. 1994). A taxpayer who alleges a violation of the Uniformity Clause must show either that there is a deliberate discrimination in the application of the tax or that the tax has a discriminatory effect. Id. The purpose of requiring all tax laws to be uniform is to produce equality of taxation. Delaware, L. W.R. Co.'s Tax Assessment, 224 Pa. 240, 73 A. 429, 430 (1909).
Again, the cigarette tax was imposed, in part, to fund the abatements for the benefit of Petitioners. Petitioners claim that since those funds were not transferred to the MCARE Fund, the obligation to fund the abatements has been shifted to them rather than the public. This shift of burden, Petitioners contend, converts those payments into taxes for purposes of the Uniformity Clause. This Court does not agree.
Taxes are "burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes, and to defray the necessary expenses of government." Woodward v. Philadelphia, 333 Pa. 80, 86, 3 A.2d 167, 170 (1938) (Emphasis added). The distinguishing feature of a tax is that it is imposed to raise revenue. Nat'l Biscuit Co. v. Philadelphia, 374 Pa. 604, 98 A.2d 182 (1953).
The Abatement Law is not a tax statute, and the Uniformity Clause, therefore, does not apply because no tax is involved. Bensalem Tp. School Dist. v. County Com'rs of Bucks County, 303 A.2d 258 (Pa.Cmwlth. 1973).Burkley v. Philadelphia, 339 Pa. 426, 15 A.2d 201 (1940); Walsh v. Philadelphia School District, 19 A.2d 598 (Pa.Super. 1941); aff'd, 343 Pa. 178, 22 A.2d 909 (1941). There is nothing in the Abatement Law that indicates that its purpose is other than to alleviate the cost of medical professional liability insurance. It does not directly or indirectly impose any tax on Petitioners.
This Court held in White v. Commonwealth v. Med. Prof'l Liab. Catastrophic Fund, 571 A.2d 9 (Pa.Cmwlth. 1990), that monies paid by providers into a Commonwealth professional medical malpractice insurance fund were not taxes.
There, the Court considered whether the surcharge imposed under Section 701(e)(1) the former Health Care Services Malpractice Act, predecessor to the MCARE Act, was a tax. In determining the purpose of the surcharge, the Court pointed to specific language which provided that all funds raised by the surcharge would be held in trust, deposited in a segregated account, invested and reinvested, and not become a part of the General Fund of the Commonwealth. Rejecting the providers' argument in that case, this Court also noted that the Medical Professional Liability Catastrophic Fund (CAT Fund) created by the Malpractice Act regulated physician practices because it "demand[ed] participation and contribution to the program designed . . . to alleviate a shortage of available medical malpractice coverage in Pennsylvania. White, 571 A.2d at 12. The Court pointed out that the CAT Fund actually paid claims to patients on behalf of physicians. Id. The Court concluded that the surcharge imposed by the Malpractice Act was a license fee, not a tax, and the Uniformity Clause did not apply.
Act of October 15, 1975, P.L. 390, as amended, formerly 40 P.S. § 1301.701(e)(1) (repealed).
This Court discerns no difference between the surcharges in the White case and the abatements involved in this controversy. And, even if the burden to pay the abatements was shifted to Petitioners, it would not "convert" those abatements into a tax. Again, the abatements were intended to provide assistance to providers by reducing their MCARE Fund assessments. Like the surcharges which were used to fund the CAT Fund inWhite, the specific purpose of the abatements is to provide revenue to the MCARE Fund to reduce the high costs of insurance premiums, not to raise revenue for the Commonwealth. The abatements are placed in a "special fund" with the Treasury and not into the General Fund. The Commonwealth does not realize any income accrued by the interest on the MCARE Fund and all claims and expenses paid are deemed to be against the Fund itself, not the Commonwealth. See 40 P.S. § 1303.712(l).
Accordingly, this Court must agree with Respondents that the abatements are not taxes. Because the Uniformity Clause only applies to taxes, Petitioners' Count II must be dismissed.
To summarize, Respondents' First, Second, Third Preliminary Objections to Counts I and III are overruled. Respondents' Fourth Preliminary Objection to Count II is sustained. Count II of Petitioners' Petition for Review is dismissed.
ORDER
AND NOW, this 24th day of July, 2009, Respondents' preliminary objections to Counts I and III are overruled. The preliminary objection to Count II alleging a cause of action under the Uniformity Clause is sustained. Count II of Petitioners' Complaint is hereby dismissed.