Appeals from the Order of the Administrator of the Arbitration Panels for Health Care in the cases of George Lesho and Mary Lesho, Individually and as Administrators of the Estate of Rosemary Lesho v. Henry B. Friedman, M.D.; Charles E. Meyers, M.D.; David B. Lucchino, M.D.; Associate Internists of Kingston, P.C., and Wilkes-Barre General Hospital, No. M78-0515.
Howard M. Levinson, Rosenn, Jenkins & Greenwald, for petitioner, Wilkes-Barre General Hospital.
Joseph P. Mellody, Jr., Hourigan, Kluger & Spohrer, for petitioners, Henry B. Friedman, M.D., Charles E. Meyers, M.D., and Associated Internists of Kingston, P.C.
Joseph R. Rydzewski, with him Paul A. Barrett, Nogi, O'Malley & Harris, P.C., for petitioner, David B. Lucchino, M.D.
Frank J. McDonnell, with him Joseph J. O'Brien, Jr., Haggerty, McDonnell and O'Brien, for respondents, George Lesho and Mary Lesho.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 62 Pa. Commw. Page 223]
Our Court has permitted this appeal from an interlocutory order because the order from which the appeal was taken specified that it involved a controlling question of law as to which there was a substantial ground for difference of opinion and because an immediate appeal would materially advance the ultimate termination of the matter. 42 Pa. C.S. § 702(b) and Pa. R.A.P. 1311(a).
In the instant case the subject order was issued by Arthur S. Frankston, Administrator of Arbitration Panels for Health Care (Administrator) which order denied motions for summary judgment filed by the Petitioners.*fn1
[ 62 Pa. Commw. Page 224]
The relevant facts as set forth in the pleadings are that Rosemary Lesho died June 19, 1977, allegedly as the result of negligent acts of one or more of the Petitioners. Approximately two months later George and Mary Lesho (Leshos) parents of the decedent, filed a petition in the Orphans' Court of Luzerne County to settle their daughter's estate under the provisions of Section 3102 of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S. § 3102, which petition was granted. On June 14, 1978, a "Notice Complaint" was filed by the Leshos in the filing office of the Arbitration Panels for Health Care, the caption of which identified the Leshos as "Administrators". On August 14, 1978 the Leshos filed their complaint in the same office identifying themselves in the caption and body of the complaint as individuals and as Administrators of the Estate of Rosemary Lesho. Preliminary objections were filed to the complaint whereupon an amended complaint was filed under the same caption. Thereafter, answers and amended answers were filed which raised, inter alia, the issue of the bar of the statute of limitations.
Within the appropriate time period, motions for summary judgment were filed by all defendants (Petitioners here) alleging that since letters of administration had not been applied for nor granted to the Leshos until October 3, 1979, their complaint*fn2 should be dismissed because not filed ...