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TERESA M. GALLAGHER AND JOSEPH P. GALLAGHER v. JOSEPH V. CALIGUIRI (05/15/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 15, 1981.

TERESA M. GALLAGHER AND JOSEPH P. GALLAGHER, HER HUSBAND, APPELLANTS,
v.
JOSEPH V. CALIGUIRI

No. 1134 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. GD 78-2577.

COUNSEL

Louis C. LaLumere, Pittsburgh, submitted a brief on behalf of appellants.

J. Israel, Pittsburgh, for appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Per Curiam

[ 287 Pa. Super. Page 251]

Appellants filed an action in the Court of Common Pleas of Allegheny County alleging inter alia medical malpractice. Appellee filed preliminary objections to the complaint requesting its dismissal, based on the assertion that the Health Care Service Malpractice Act*fn1 requires that all cases involving losses to the patient as the result of medical malpractice be filed with the Arbitration Panel for Health Care and not the courts of common pleas. Appellants thereafter requested the transfer of the case to the Arbitration Panel in lieu of dismissal. The court granted the appellee's preliminary objections and dismissed the case. The appellants bring their appeal from the order dismissing the complaint.

Appellants now contend that the court erred in refusing to transfer the case and in dismissing the complaint. In Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), the Supreme Court held Section 309 of the Act violative of the dictates of Article I, Section 6 of the Commonwealth's

[ 287 Pa. Super. Page 252]

Constitution of 1874 (amended May 18, 1971).*fn2 Section 309 purported to give original jurisdiction of medical malpractice cases to the Health Service Arbitration Panel. It follows from the Supreme Court's holding in Mattos that original jurisdiction in such actions has been retained in the courts of common pleas, see 42 Pa.C.S. ยง 931, and that it was error for the lower court to dismiss the complaint.

Accordingly, we reversed the order of the lower court, reinstate the complaint, and remand the case for proceedings consistent with this opinion.


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