The opinion of the court was delivered by: POLLAK
In March 1977, plaintiffs Joan and John Zielinski, wife and husband, commenced this diversity action against defendant Dr. Angelo J. Zappala. According to paragraph 6 of the complaint:
At the time and place described in the foregoing paragraphs of this Complaint (a Christmas Party at the Delaware Valley Hospital), Defendant Angelo J. Zappala was engaging in frolicsome behavior and horseplay which behavior, due to the carelessness and negligence of Defendant, caused Defendant to lose his balance and thereby fall upon Plaintiff Joan Zielinski, who was sitting in a chair.
Paragraph 8 further alleges that "(o)n or about January 3, 1977, Plaintiff Joan Zielinski was admitted to Delaware Valley Hospital whereupon surgery relating to herniated cervical discs was performed."
In April 1977, defendant Zappala filed an answer denying liability, and in June 1977, he joined Joel Berman as a third-party defendant, claiming that it was Berman who fell upon Mrs. Zielinski and who was the proximate cause of the alleged injuries. In August 1978, sixteen months after filing his answer, Zappala was granted leave by Judge Davis to join, as an additional third-party defendant, Dr. Bernard J. Amster, the osteopathic surgeon who performed the January 3, 1977 operation. This second third-party complaint alleges that Mrs. Zielinski's medical problems can be traced to Amster's medical malpractice. The case is now before the Court on Amster's motion to dismiss the third-party complaint filed against him on the grounds that: (1) Zappala's joinder motion was not timely, and (2) this Court is deprived of original jurisdiction to hear medical malpractice claims by the Pennsylvania Health Care Services Malpractice Act, 40 P.S. § 1301.101 Et seq.
A defendant who seeks to file a third-party complaint more than six months after answering bears the burden of justifying the delay. Goodman v. Neff, 251 F. Supp. 562, 564 (E.D.Pa.1966); Delco Wire and Cable Co. v. Keystone Roofing Co., 80 F.R.D. 428 (E.D.Pa.1978). Here, Zappala argues that "because of the seriousness in alleging medical malpractice on the part of Bernard J. Amster, defendant delayed in joining him as a third-party defendant until he received the benefit of two medical opinions." This representation is sufficient to meet defendant's burden; and, as there is no evidence that Amster's joinder will cause significant delay or prejudice, there is no persuasive reason why that joinder should now be overturned.
The Pennsylvania Health Care Services Malpractice Act provides that a patient's medical malpractice claim shall, in the first instance, be channeled to compulsory arbitration:
The arbitration panel shall have original exclusive jurisdiction to hear and decide any claim brought by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided. The arbitration panel shall also have original exclusive jurisdiction to hear and decide any claim asserted against a nonhealth care provider who is made a party defendant with a health care provider. 40 P.S. § 1301.309.
And where a patient brings a diversity action in a Pennsylvania federal court on a malpractice claim arising in Pennsylvania, the federal court must do what a Court of Common Pleas would have done in like case, i. e., stay its hand pending arbitration. Edelson v. Soricelli, No. 78-1580 (E.D.Pa., October 31, 1978); Marquez v. Hahnemann Medical College and Hospital of Philadelphia, 435 F. Supp. 972 (E.D.Pa.1976); Dings v. Mosch, 77-3291 (E.D.Pa., February 1, 1978); Jeffries v. Stitzell, No. 77-164 (E.D.Pa., January 30, 1978). See generally, Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693 (1974). (Following arbitration, the losing party is entitled to take an "appeal" to the appropriate trial court, whether state or federal, for a "trial de novo.")
What distinguishes the present case is a question which apparently has not arisen before in a federal court: whether Section 1301.309 requires a trial court to defer to arbitration where the allegation of medical malpractice is contained in a third-party claim filed by a non-patient defendant seeking contribution from a physician. This question, however, has been considered by the Court of Common Pleas in Allegheny County and answered in the negative. Taglieri v. Logansport Machine Co., Inc., 6 D. & C.3d 716 (1978); Simko v. Bob Smith Ford, Inc., 5 D. & C.3d 538 (1978). For the reasons which follow, that answer also seems appropriate in this diversity action.
The arbitration provisions of the Malpractice Act were designed "to reduce frivolous (medical malpractice) claims and to expedite the disposition of cases in this area." Parker et al. v. Children's Hospital of Philadelphia, et al., 483 Pa. 106, 394 A.2d 932, 936 (1978) (upholding constitutionality of arbitration provisions of the Act). The Malpractice Act embodies a compromise between plans which called for binding arbitration and those in which an arbitration panel was to act only as a screening device. Under the Act, arbitration is mandatory, but not binding; judicial review is by trial De novo, but the findings of the arbitration panel are admissible as evidence; and an appellant whose appeal is found to be "capricious, frivolous and unreasonable" is taxed with the costs, fees, and expenses of the panel. The legislative debates are recorded in the Commonwealth of Pennsylvania Legislative Journal, Session of 1975: House of Representatives, July 21, 1975 at pages 2250-2296 and 2318-2346, and October 15, 1975 at pages 2942-2946; Senate, October 1, 1975, at pages 869-877 and October 2, 1975 at pages 882-884. Nowhere in the debates were actions for contribution against health care providers considered.
While the purpose of the Act might be furthered by requiring arbitration of such third-party claims, the language of the Act will not support such a requirement. Section 1301.309, itself, speaks of "Claims brought by a patient or his representative for loss or damages resulting from the furnishing of medical services," not claims brought by an alleged tort-feasor for contribution. (Emphasis added). And other provisions of the Malpractice Act also contemplate its application to actions brought by patients against health care providers. Section 1301.102 provides:
It is the purpose of this act to make available professional liability insurance at a reasonable cost, and to establish a system through which a Person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his ...