of three claims: (1) the Zielinskis' claim that Zappala negligently injured Joan Zielinski; (2) Zappala's claim that Joan Zielinski's injury, if any, is attributable to Berman; and (3) Zappala's further claim that Amster was guilty of malpractice in treating Joan Zielinski. But this case seems to have an added procedural ingredient likely to generate a hitherto unexpected scenario. To that added ingredient, its implications, and what curative steps should be pursued, it is now appropriate to turn.
The added procedural ingredient is this: It appears that on August 29, 1978 four days after Judge Davis granted Zappala's motion to join Amster the Zielinskis commenced a malpractice suit against Amster before the statutorily mandated malpractice arbitration panel.
What are the implications of this event? In Taglieri v. Logansport Machine, supra, Judge Finkelhor had before her a case identical in posture except that there the plaintiff had initiated his malpractice arbitration proceeding against certain health care providers concurrently with a product liability suit in the Court of Common Pleas, and hence prior in time to the joinder of the health care providers as third-party defendants in the Court of Common Pleas. Relying on her ruling in Simko v. Bob Smith Ford, supra, Judge Finkelhor denied a motion to dismiss the third-party complaint. But she then went on to say that "the liability of said health care providers to plaintiff shall be governed by the Pennsylvania Health Care Services Malpractice Act." 6 D. & C.3d at 720. Under Erie, this Court is required to defer to Judge Finkelhor's pronouncement of substantive law, and accordingly, Amster's liability will "be governed by the Pennsylvania Health Care Services Malpractice Act."
After announcing this substantive rule, Judge Finkelhor went on to lay out two possible litigation scenarios designed to implement the rule "As a practical matter, the pending action could be continued until the malpractice claim before the arbitration panel was completed, or, in the alternate (Sic ), the liability over claim of the original defendant could be severed for purposes of trial." Severing the third-party claim for trial would seem a counter-productive device, since it would negate the very economies gained by joinder. One may surmise, therefore, that continuance will prove to be the dominant state court practice.
Limitations on federal court jurisdiction make continuance a less satisfactory procedure here. While Judge Finkelhor had grounds for confidence that review of the decision of the malpractice arbitration panel would be in her Court,
the malpractice proceeding initiated by the Zielinskis cannot be reviewed here, for the reason that the Zielinskis and Amster are all Pennsylvania citizens. See Johnson v. Better Materials Corporation, 556 F.2d 131 (3d Cir. 1976). Piecemeal litigation may be inevitable. Nonetheless, it may prove desirable to follow what appears to be an authorized state court scenario and continue this action until the arbitration of the Zielinskis' malpractice claim against Amster is complete. It may be, for example, that the findings of the arbitration panel will be admissible on the third-party claim under Taglieri's doctrine that the third-party defendant's liability is governed by the Malpractice Act. See P.S. 40 § 1301.510.
However, none of the parties has been heard on the desirability of continuing this action until arbitration of the Zielinskis' claim against Amster is complete. For that reason, all parties will be given thirty days from the date of this Opinion to file written submissions on whether this action should be continued until the Zielinskis' malpractice arbitration is complete. In addressing this question, the parties would be well advised to consider, in the light of whatever competent evidence is available, the extent of the delay such a continuance might entail.
On February 7, 1979, I issued an opinion, denying Dr. Amster's motion to dismiss the third-party complaint filed against him in the above-captioned case. The opinion concluded that the compulsory arbitration provisions of the Pennsylvania Medical Malpractice Act did not embrace claims for contribution brought by a non-patient defendant against an alleged medical malpractitioner. Subsequently, on February 15, 1979, the Pennsylvania Superior Court reached the same result. Staub v. Southwest Butler City School District, 263 Pa. Super. 413, 398 A.2d 204 (1979).
This case has a complicating ingredient not found in Staub: the plaintiffs here have lodged a separate malpractice claim against Dr. Amster, and that claim (which does not involve parties of diverse citizenship and hence could not be made part of this lawsuit) is now awaiting arbitration. In my February 7 opinion, I noted this complicating factor and invited counsel's views on the advisability of continuing this action until the arbitration was complete. After reading supplemental briefs submitted by counsel and holding a conference in chambers, I have concluded that such a continuance is unwarranted.
Two considerations inform that decision: First, I am persuaded that my suggestion that the findings of the arbitration panel could be introduced in this case to aid the jury in determining the merits of the third-party claim (see February 7 opinion at 8) was probably unsound. Since the third-party plaintiff would not be a party to the arbitration proceeding, panel findings favorable to his adversary (the physician who is the third-party defendant here) would be of no weight as against the third-party plaintiff. Second, I am not persuaded that any gain in judicial economy would result from a continuance. Since the plaintiffs' malpractice claim cannot be litigated in this forum, see Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978), piecemeal litigation seems inevitable. Better that trial of this lawsuit get under way soon rather than wait on an arbitration process that may require an extended period of time to complete. n*