Appeal No. 77 W.D. Appeal Docket 1983, from the Order of the Superior Court dated August 12, 1983, entered at 117 Pittsburgh 1982, reversing the Order of the Court of Common Pleas of Allegheny County, Civil Division, dated January 18, 1982, entered at G.D. No. 81-00477. Case Below:
Robert N.c. Nix, Jr., C.j., and Larsen, Flaherty, McDermott, Hutchinson Papadakos and Zappala, JJ. Hutchinson, J., filed a dissenting opinion. Papadakos, J., did not participate in this case.
The parties in the instant appeal frame the issues as being whether Section 602 of the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.602 (Supp.1983-84), applies to medical malpractice cases settled within the exclusive jurisdiction of the common pleas courts. We need not address this issue, however, inasmuch as the arbitration process in the area of medical malpractice has been declared unconstitutional. Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980). The statutory section in question, entitled "Reduction
of award by other benefits," is no longer viable. Heller v. Frankston, supra; Mattos v. Thompson, supra.
Accordingly, the Order of the Superior Court is hereby affirmed.
HUTCHINSON, Justice, dissenting.
For the reasons set forth in my dissenting opinion in Heller and Simone v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984), I also dissent in this case. I would reach the merits, determine whether an irreconcilable conflict exists between Section 602 of the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.602 (Supp.1983-84) and Section 1409 of the Fraud and Abuse Control Act, Act of June 13, 1967, P.L. 31, added July 10, 1980, P.L. 493, 62 P.S. § 1409, and, if so, resolve it.