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IRVIN BERMAN AND SELMA BERMAN v. DR. N. HENRY MOSS (10/09/79)

decided: October 9, 1979.

IRVIN BERMAN AND SELMA BERMAN, HIS WIFE
v.
DR. N. HENRY MOSS, DR. FREDERICK URBACH AND DR. MARVIN S. GREENBERG. MARVIN S. GREENBERG, M.D., PETITIONER



Appeal from the Order of the Administrator of Arbitration Panels for Health Care, in case of Irvin Berman and Selma Berman, husband and wife v. Dr. N. Henry Moss and Dr. Frederick Urbach and Dr. Marvin S. Greenberg, No. M 77-0338.

COUNSEL

James Lewis Griffith, with him Jane B. Porcelan, and Obermayer, Rebmann, Maxwell & Hippel, for petitioner.

Myron H. Deutsch, with him Dale G. Larrimore, for respondents.

Judges Blatt, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 46 Pa. Commw. Page 365]

Plaintiffs in the underlying suit initiated proceedings under the Health Care Services Malpractice Act (Act),*fn1 on November 11, 1977 by filing a notice complaint with the administrator for Arbitration Panels for Health Care (Administrator), alleging negligent medical treatment by the defendants. Plaintiffs also commenced a second suit on November 18, 1977, in Philadelphia Court of Common Pleas on the same cause of action.

Because the alleged medical malpractice occurred before January 13, 1976, the effective date of the Act, the Administrator, on Dr. Greenberg's preliminary objections, ordered the case transferred to the court of Common pleas, and we now have an appeal by a defendant from that transfer order.

Most of the arguments presented here have been resolved by our decision in Kim v. Estate of Heinzenroether, 37 Pa. Commonwealth Ct. 328, 390 A.2d 874

[ 46 Pa. Commw. Page 366]

(1978). We held that the Administrator has the power to transfer a proceeding from arbitration to the appropriate court of common pleas in a case where the arbitration panel would not have had subject-matter jurisdiction over the cause of action because it accrued before January 13, 1976, the effective date of the Act. We found the Administrator's authority in Pa. R.C.P. No. 213(f).*fn2

The only newly-claimed basis for challenging the Administrator's transfer in this case is appellant's argument that the Administrator violated the "spirit" of Pa. R.C.P. No. 126 because the transfer prejudices a defense based on the statute of limitations.

Appellant-defendant asserts that the date of the malpractice was November 10, 1975, arguably 2 years and one day before the commencement of the transferred proceedings, but two years and eight days before the commencement of the action in common pleas court. Appellee-plaintiffs counter that the date the statute began to run is at least as late as November 19, 1975, and that they would be prejudiced if we reversed the Administrator's order.

We think that the very existence of such a dispute indicates how we should decide. Because R.C.P. 126 requires liberal construction of the rules of civil procedure and provides that errors or defects of procedure which do not affect the substantial rights of the parties may be disregarded, we should avoid an ...


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