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SAMUEL E. KNIGHT v. WALTER T. ANNON (09/22/78)

decided: September 22, 1978.

SAMUEL E. KNIGHT, ADMINISTRATOR OF THE ESTATE OF SHARON M. KNIGHT, DECEASED, PETITIONER
v.
WALTER T. ANNON, STEPHEN I. FOLDES AND FRANKFORD HOSPITAL, RESPONDENTS



Appeal from the Order of the Administrator for Arbitration Panels for Health Care in case of Samuel E. Knight, Administrator of the Estate of Sharon M. Knight, deceased v. Walter T. Annon, Stephen I. Foldes and Frankford Hospital.

COUNSEL

John M. Hickey, for petitioner.

David J. Griffith and Daniel T. McWilliams, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman. Dissenting Opinion by Judge DiSalle. Judge Rogers joins in this dissent.

Author: Bowman

[ 38 Pa. Commw. Page 2]

Petitioner, Samuel E. Knight (Knight), Administrator of the Estate of Sharon M. Knight, deceased, is seeking leave to appeal an order issued by the Administrator for Arbitration Panels for Health Care

[ 38 Pa. Commw. Page 3]

(Administrator) sustaining in part respondents' motion for judgment on the pleadings and dismissing Knight's wrongful death action filed under the procedures set forth in the Health Care Services Malpractice Act (Act).*fn1

Knight initially filed suit with the Philadelphia County Court of Common Pleas on February 15, 1977, alleging that respondents' negligence had been the cause of his spouse's demise. Upon preliminary objections premised upon Section 309 of the Act, 40 P.S. § 1301.309, which vests exclusive jurisdiction of such a cause of action in the Arbitration Panel for Health Care (Arbitration Panel), the cause of action was dismissed by the Philadelphia County Court on May 23, 1977.

Knight in the meantime refiled his complaint with the Administrator on March 17, 1977. Respondents answered that the action was barred by the one year limitation period set forth in Section 2 of the Act of April 26, 1855, P.L. 309, as amended, 12 P.S. § 1603. Knight replied to the effect that fraud and concealment on the part of respondents should toll the running of the statute. Respondents then moved for partial judgment on the pleadings.

On February 21, 1978, the Administrator sustained the limitations defense to Knight's wrongful death action and directed that damage testimony be limited to those items of damages recoverable under the Pennsylvania Survival Act, 20 Pa. C.S. § 3371 et seq.

[ 38 Pa. Commw. Page 4]

It is from this order that Knight has proceeded to this Court by way of a petition for permission to appeal an interlocutory order, see Pa. R.A.P. 1311, 1312, invoking as a basis for our jurisdiction Section 403 of ...


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