Fox Chase Cancer Center changes legal counsel

In its legal battle to expand into Burholme Park, Fox Chase Cancer Center has hired the former president judge of Commonwealth Court to appeal its case to that court.

After a Philadelphia judge ruled last month that Fox Chase cannot expand into the neighboring public park, the hospital dropped its former lawyers at Pepper Hamilton L.L.P., and retained James Gardner Colins at the Philadelphia firm Cozen O'Connor.

Cozen filed a notice of appeal Dec. 31, stating Colins would handle the appeal before Commonwealth Court where he served 23 years and was president judge for two five-year terms until last January.

Colins joined Cozen in June as a member of the general litigation department, focusing on insurance and public-utility regulation matters, according to the firm's Web site.

Colins was on vacation and unavailable yesterday.

Philadelphia Orphans Court Judge John W. Herron ruled Dec. 9 that public parks are protected by a common law rule, known as the "public trust doctrine," part of Pennsylvania law since the early 1900s.

Herron said that Fox Chase cannot use 19.4 acres of the 65-acre city park in a long-term lease.

Fox Chase vowed to appeal.

"We've had a range of legal support all along," said Franklin Hoke, Fox Chase senior director of public affairs. "I don't know that we are dropping one in favor of the other. We've had different counsel for different things."

"The reasoning on things like this, of course, is these are people who know the issues and the structure of the courts well," Hoke said. "It's part of how it works."

Cozen attorney Robert G. Katz filed the appeal notice and said yesterday he knew of "no impediment to a former judge acting as an attorney in a court where he had served."

"It certainly is not uncommon that former judges who have come off the bench and go into practice will file matters in front of the court where they had served," Katz said.

Burholme Park was bequeathed to the city more than 100 years ago. Fox Chase wanted an 80-year lease for a $1 billion expansion over 25 years that would create more than 4,000 jobs, proponents said.

Mayor Nutter, City Council, and the Fairmount Park Commission approved the park lease. Orphans Court was asked by the city to break the will of philanthropist Robert W. Ryerss, who in 1895 donated his farm and mansion as a park for "the use and enjoyment of the people forever."

Fox Chase says it urgently needs a new hospital to keep pace with cancer care, research, and the burgeoning increase in patients, but has said it would look elsewhere, if the city said no.

Lawyer Samuel Stretton, representing neighbors wanting to save the park, said yesterday the legal issues, based on Herron's ruling and the law, "are very strong."

The public trust doctrine "clearly precludes selling actively used parkland," and the judge also found the city "abused its discretion," Stretton said.

Herron, in a 61-page opinion, found evidence of "capricious and arbitrary conduct" by the city in the drafting of the Fox Chase lease, involving a $4 million payment for Councilman Brian J. O'Neill's district, where the park is located.

City Council voted last March to give Fox Chase an 80-year lease. Nutter signed the bill a few days later. Fox Chase agreed to pay the city $12.25 million. Of that, $4 million was earmarked for O'Neill's district for improvements in existing facilities.