Appeal from the Order of Arthur S. Frankston, Administrator of the Commonwealth of Pennsylvania, Arbitration Panels, for Health Care, in the case of Armand D'Alonzo, et al. v. James D. Garnet, M.D., No. M-77-0138.
James Lewis Griffith, with him Kevin H. Wright, Griffith & Burr, P.C., for petitioner.
M. Mark Mendel, for respondents.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer.
[ 55 Pa. Commw. Page 264]
Armand D'Alonzo and Anita S. D'Alonzo, his wife, commenced an action on June 7, 1977 under the provisions of the Health Care Services Malpractice Act,*fn1 alleging that James D. Garnet, M.D., failed to diagnose a carcinoma in the right breast of Anita S. D'Alonzo. The plaintiffs contend that, as a result of the alleged failure of Dr. Garnet to properly diagnose the wife plaintiff's condition, she was required to undergo a surgical procedure whereby her right breast was removed.
On December 5, 1977, a pretrial conference was held before the Honorable Harry A. Takiff. At this conference, the plaintiffs were represented by their counsel, Leonard Silver and Arnold J. Silvers. Settlement negotiations reached an impasse and the conference was concluded.
On September 11, 1978, the case was again listed for a pretrial conference before Judge Takiff. Although several specific dollar amounts were discussed, the conference again concluded without a settlement being reached. Several days later, Attorney Silvers telephoned Judge Takiff and advised him that his clients would accept $35,000 in settlement of their claims.*fn2 After consulting with Dr. Garnet's counsel,
[ 55 Pa. Commw. Page 265]
Judge Takiff called Attorney Silvers and advised him that the $35,000 was available and that the case was now settled.
Sometime after September 20, 1978, Dr. Garnet's counsel was advised by plaintiffs' counsel that they did not consider the case settled and that the plaintiffs would not execute the required release. Defendant then filed a motion for summary judgment which the Administrator for Arbitration Panels for Health Care denied and this appeal from that denial followed.
Dr. Garnet contends here that Attorney Silvers was cloaked with apparent authority to enter a settlement agreement on behalf of plaintiffs and that a settlement was reached in this case, the terms of which are binding upon the plaintiffs.
The vital question is simply this: Could Attorney Silvers bind the plaintiffs by his action without ...