refers to persons who, like manufacturers of drugs and medical instruments, are kindred to health care providers. Staub v. Southwest Butler County School District, No. 500 April Term 1978 (filed Feb. 15, 1979).
Also, Therm-O-Rite clearly falls within the scope of "nonhealth care providers" as defined by Judge McGlynn in Dings. We agree that in the context of the Act, the legislature obviously intended certain persons or entities to fall within the class of "nonhealth care providers" as it provided that the panel should have original exclusive jurisdiction to hear and decide any claim asserted against a nonhealth care provider who is made a party defendant, 40 P.S. 1309.309. Under the Statutory Construction Act, 1 Pa.C.S. § 1922, it is presumed that the legislature does not intend an absurd result and that it intends an entire statute to be effective. We think the Act's coverage includes manufacturers and sellers of drugs compounded and sold for use by health care providers in the treatment of patients, and in this case the manufacturer of medical equipment that was used as an integral part of a patient's treatment. If these groups were not included, the provisions of the Act concerning "nonhealth care providers" would simply have no meaning.
We next turn to the question of whether the panel has exclusive jurisdiction over this "nonhealth care provider". We find that it does. The Act provides that the panel has original and 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. Therefore, if the Plaintiffs in the state action would have made Therm-O-Rite a defendant there, instead of proceeding with this action, the panel's jurisdiction over Therm-O-Rite would have been clearly exclusive. Therm-O-Rite, as noted above, was joined in the state proceeding as an additional party defendant. Under 40 P.S. 1301.502, the panel is also given jurisdiction over any additional parties who are joined, whether they be health care providers or nonhealth care providers, as long as they may be necessary and proper to a just determination of the claim. Therefore, there is no question that the panel has jurisdiction over Therm-O-Rite, the only question is whether the jurisdiction is exclusive.
Our reading of the Act requires us to hold that the panel has exclusive and original jurisdiction over Therm-O-Rite, as any other interpretation would be an anomaly. A number of reasons support our conclusion. First, under the Pennsylvania Rules of Civil Procedure, an additional party can be held solely liable to a plaintiff. Pa.C.R.P. No. 2252; Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206, 444 Pa. 299 (1971). Pursuant to the regulations adopted by the administrator, the Pennsylvania Rules of Civil Procedure govern under the Act, 37 Pa. Code 171.11, unless specifically stated otherwise. Thus it appears that Therm-O-Rite could be held solely liable to the Plaintiffs in the arbitration proceeding.
Second, as construed by the Commonwealth Court in Gillette, the jurisdiction of the panel pursuant to the joinder section is identical with that provided under the jurisdiction section, 40 P.S. 1301.309. The Court in Gillette implied that the panel could hear and decide any claim asserted against a "nonhealth care provider" who was kindred to a health care provider. Third, we note that under the powers and duties section of the Act, 40 P.S. 1301.508(a), the panel is authorized and empowered to "make determinations as to liability and award of damages", without any noted limitations.
Finally, it must be pointed out that the state action and this action concern the identical issues. In the state proceeding the Defendants are charged with improper use of the medical equipment while in this proceeding the wrong is alleged to be with the equipment itself. If both actions were permitted to proceed, the possibility of inconsistent verdicts of course would be present. We do not believe Pennsylvania law provides for two separate suits for the same tortious act which would lead to possible inconsistent verdicts, a waste of judicial resources, and cause a procedural quagmire. Hence, like Judge McGlynn, we find that the panel has original exclusive jurisdiction of this action.
Since the panel has such jurisdiction and as we are bound to follow the state substantive law in this diversity action, this case must be dismissed. As was stated in Marquez v. Hahnemann Medical College and Hospital, 435 F. Supp. 972 (E.D.Pa.1976), we cannot proceed with this action in which the sole source of the Plaintiff's claim is state law, when the cause of action is temporarily barred in the state court by a compulsory arbitration statute. Id. at 973. See also Van Horn v. State Farm Mutual Automobile Insurance Co., 283 F. Supp. 260 (E.D.Mich.1966). Until the arbitration proceeding has been completed, the complaint fails to state a claim under the law of Pennsylvania and thus must be dismissed. Botwin v. Loewenberg, Civil No. 78-2305 (E.D.Pa., Jan. 19, 1979) (Judge Fullam); Flotemersch v. Bedford County General Hospital, 69 F.R.D. 556 (E.D.Tenn.1975).
We also note that this case is different in many respects from Gillette upon which the Plaintiffs rely. Gillette dealt with the joinder of an additional defendant who allegedly committed a separate, remote, and unrelated tort from that of the furnishing of medical services. Unlike the alleged acts of malpractice and the throwing of the snowball, the wrong in the present case concerns the same event, the use of the thermal equipment. Like in Dings, the claims against the health care providers arise from the use of the product manufactured and supplied by the Defendant. Only by joining all of these claims in one proceeding will the purpose of the Act be fulfilled.
In sum, we hold that the arbitration panel has the exclusive jurisdiction to hear and decide this claim against Therm-O-Rite, a "nonhealth care provider" that is kindred to "health care providers" as defined by the Act. The motion to dismiss will be granted.
An appropriate order will be entered.
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