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filed: September 22, 1980.


No. 124 E.D. Misc. Docket 1979, Plenary Jurisdiction Assumed by the Supreme Court over a Petition for Declaratory Judgment filed in the Commonwealth Court at No. 1262, C.D. 1979, Plenary Jurisdiction Assumed by the Supreme Court over an Appeal Pending in the Superior Court at No. 1372, October Term, 1979 from the Order of June 5, 1979, of the Court of Common Pleas of Northampton County, Civil Trial Division, at No. 1979-C-2679


Stephen M. Feldman, Philadelphia, George A. Halalis, Bethlehem, for petitioner.

Boyd H. Walker, Allentown, Lewis S. Kunkel, Jr., Susan J. Forney, Arthur S. Frankston, Harrisburg, for respondents.

Robert L. Pratter, Philadelphia, for intervenor.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a concurring and dissenting opinion. Roberts, J., filed a dissenting opinion in which Eagen, C. J., joined.

Author: Nix

[ 491 Pa. Page 387]


This case presents us with a renewed challenge to the Pennsylvania Health Care Services Malpractice (Act).*fn1 We upheld the constitutionality of this Act in Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978), with the caveat that "[i]t is an accepted principle of constitutional law that deference to a coequal branch of government requires that we accord a reasonable period of . . . time to test the effectiveness of legislation." Id., 483 Pa. at 121, 394 A.2d at 940.

After our decision in Parker, petitioner Mattos filed an action in trespass in the Court of Common Pleas of Northampton County against Dr. Thompson, respondent, seeking damages for the death of her husband allegedly resulting from the negligence of Dr. Thompson. That court dismissed the action on the ground that the Act deprived the court of subject matter jurisdiction, notwithstanding the fact that both parties were prepared for trial. Petitioner reasserted constitutional objections to the Act, and appealed to the Superior Court.

On August 20, 1979, petitioner asked our Court to assume plenary jurisdiction over her appeal pending in the Superior Court and her action for declaratory judgment then before the Commonwealth Court. We granted this request on September 21, 1979, consolidated both actions and transferred them to the Commonwealth Court with the directions that an evidentiary hearing be held, that findings of fact be made, and to certify the record to this Court upon the conclusion of the proceedings in order that we might make a final determination of the legal claims advanced. The Commonwealth Court has made an exhaustive analysis of the workings of the Act and has now transmitted the record with its findings to us for our consideration. For the reasons that follow, we must agree with petitioner that the

[ 491 Pa. Page 388]

Act has failed in its goal to render expeditious resolution to medical malpractice claims and consequently imposes an oppressive burden upon the right to jury trial guaranteed by our state constitution.*fn2

Petitioner Mattos raises three grounds in support of her contention that the Act is unconstitutional. These are:

(1) The arbitration process created by the Act is filled with such interminable delay that it violates the guarantees in the state constitution of access to the courts, justice without delay and the right to jury trials.*fn3

(2) By requiring litigants to try a complicated and expensive malpractice action in arbitration prior to being permitted a jury trial, the Act places an onerous and impermissible condition on the right to jury trials.

(3) The Act and its procedures deny medical malpractice victims procedural due process guaranteed by the fourteenth amendment to the United States Constitution because the physician member of the panel has an impermissible financial interest in the outcome of the litigation.

This last issue need not detain us for long. We carefully considered the same challenge to the Act in Parker and concluded that the Act fully complied with the basic elements of due process and was not unconstitutional on that account. See 483 Pa. at 128-130, 394 A.2d at 943-44. As petitioner Mattos has failed to bring forth persuasive authority to cause us to question our reasoning in Parker on this point, we reject her due process challenge and reaffirm our holding in Parker.

[ 491 Pa. Page 389]

The remaining two issues also were presented to us in Parker. Our resolution proceeded upon a two-level approach. First, we found that on the theoretical plane, the Act and its procedures did not violate any guarantees of the constitution. Second, we held that the Act was too new to properly determine whether the Act's actual operation resulted in an unconstitutional infringement upon the right to jury trial. The following portions of our Parker opinion will help put today's decision into perspective:

All of the parties here accept the applicability of the right to jury trial provision of Art. I, section 6 to the instant tort actions thus we need only consider whether there has been such an infringement upon that right, by the legislation in question, as reach constitutional proportions. Under our case law it is clear that our constitutional provision does not require an absolutely unfettered right to trial by jury. In this Court's decision in Emerick v. Harris, 1 Binney 416 (1808), Justice Yeates ruled that an increase in the jurisdiction of justices of the peace which caused certain matters which previously required resolution by a jury to be disposed of in a summary proceeding was not violative of Article I, section 6 since the right of trial by jury was available on appeal, "though the party may be subjected to some inconvenience in making his election." Id. at 425. Moreover, it is clear that arbitration as a condition precedent to trial does not, per se, violate Article I, section 6. Smith's Case, 381 Pa. 223, 112 A.2d 625 (1955), appeal dismissed, 350 U.S. 858, 76 S.Ct. 105, 100 L.Ed. 762 (1955). In Smith's Case, supra, the Court was called upon to consider the constitutionality of a legislative enactment and a rule of court promulgated pursuant to it, which required submission to compulsory arbitration of cases where the sums claimed were under a certain stated amount. In passing upon the legislation's compatibility with the constitutional provision guaranteeing the right of trial by jury that decision stressed:

'The only purpose of the constitutional provision is to secure the right of trial by jury before rights of persons or

[ 491 Pa. Page 390]

    property are finally determined.' (emphasis in original text) Id., 381 Pa. at 230, 112 A.2d at 629.

Thus the teaching of Smith's Case, supra, instructs us that a legislative requirement that a claimant seek redress through an alternative procedure, e. g. arbitration, in the first instance does not offend Article I, section 6 provided the right to trial by jury is available prior to a final determination of the respective rights of the parties. However, Smith's Case, supra further cautioned:

'All that is required is that the right of appeal for the purpose of presenting the issue to a jury must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically available.' Id., 381 Pa. at 231, 112 A.2d 629.

Appellants herein mold their constitutional objection from this language and contend that malpractice cases are complicated, expensive and difficult to try, and thus a prerequisite which would require two trials imposes in these cases an onerous condition, making the right to trial by jury practically unavailable. The first weakness in appellants position is the assumption that there will necessarily be a need for the second proceeding to obtain a fair recovery for the injured party's loss. The legislative intent was to provide a more expeditious disposition to enable the victim to avoid the interminable delays that all too frequently occur in the regular court process. Nor is there any basis for concluding that the awards rendered in arbitration would not fairly compensate the victim to the full extent to which he or she is entitled. Further, the Act mandates the necessary insurance that virtually assures the satisfaction of the award of damages that are determined to be appropriate. Rather than imposing a burden, this legislation is designed to afford the plaintiff a swifter adjudication of his claim, at a minimal cost and guarantees the satisfaction of the judgment obtained. The Act further discourages dilatory and frivolous appeals by parties by providing for the imposition of all costs of both arbitration and trial, which includes the expenses of

[ 491 Pa. Page 391]

    expert witnesses on the losing party if the trial court finds that the basis for the appeal was capricious, frivolous and unreasonable. We are therefore satisfied that any theoretical burden upon the victim's right to trial by jury is counterbalanced by the substantial advantages provided to him or her under the Act and is not the type of 'onerous' restriction alluded to in Smith.

We are not here concerned with a question of curtailing a constitutionally conferred right because of the existence of a competing constitutional right or duty. See e. g. Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973). Here it is only the postponement of the availability of the right that is in question. Where the reason for the postponement of the right results from the effort on the part of the state to achieve a compelling state interest and the procedure is reasonably designed to effectuate the desired objective, it cannot be said that there has been a constitutionally impermissible encroachment upon that right. The acceptance in this jurisdiction of arbitration as a viable, expeditious, alternative method of dispute-resolution is no longer subject to question. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 662-63, 331 A.2d 184, 185 (1975); Capecci v. Joseph Capecci, Inc., 392 Pa. 32, 139 A.2d 563 (1958); Children's Hospital of Philadelphia v. American Arbitration Ass'n., 231 Pa. Super. 230, 234, 331 A.2d 848, 850 (1974). Nor does the fact that the arbitration here is ...

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