Appeal from the Order of the Administrator for Arbitration Panels for Health Care in the case of James J. Ferenchick et al. v. Lowell C. Yund, M.D. et al., No. M80-1028, County of Berks.
Joseph M. A. Nelabovige, Joseph M.A. Nelabovige, Inc., for petitioners.
Frederick Kraus, with him William F. Sutton, for respondents.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.
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In this appeal, the petitioners, James J. Ferenchick and Camilla Ferenchick, challenge two orders of the Administrator for Arbitration Panels for Health Care, both entered on March 25, 1981.*fn1 By these orders the petitioners were notified that (1) their Election of Jurisdiction to transfer the action to the court of common pleas was dismissed as untimely filed; and (2) as of March 23, 1981 a Judgment of Non Pros had been entered in favor of the present respondents and against them.
An examination of the procedural history is essential to the resolution of this appeal. On September 26, 1980, the Supreme Court in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), declared Section 309 of the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.309, unconstitutional. This section of the Act had vested "original exclusive jurisdiction to hear and decide" medical malpractice claims in the Arbitration Panels for Health Care (APHC). After Mattos, arbitration of these claims was no longer mandatory but could, by voluntary election of the parties, be used in situations where all parties to a claim consented. The court specifically provided in Mattos, however, that
[ 70 Pa. Commw. Page 340]
upon the request of any party, the claim must be transferred to the appropriate court of common pleas.
On October 14, 1980, the Attorney General, in response to a request of the Administrator for an opinion as to how Mattos impacted upon the status of APHC, issued an opinion, Health Care Services Malpractice Act, 15 D. & C.3d 585 (1980) in which he instructed the Administrator to:
[N]otify by mail, as soon as possible, all parties involved in pending claims of the preceding interpretation and the opportunity for voluntary arbitration under the act. They should be advised to respond to you within a time certain whether or not they consent to continued arbitration, and if no response withholding consent is received within the prescribed time period, consent to arbitration will be presumed. . . .
In the meantime, until consent from all parties in a case is obtained or until the prescribed time period has passed, you cannot act on that case except to file and docket a complaint or other papers received or to transfer the case. . . .
Id. at 589. On October 24, 1980, the Administrator implemented these instructions by sending notices to all parties, who had claims pending before the APHC, with Election of ...