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DAWN DOUGHERTY AND JOSEPH P. DOUGHERTY v. COMMONWEALTH PENNSYLVANIA (06/04/87)

decided: June 4, 1987.

DAWN DOUGHERTY AND JOSEPH P. DOUGHERTY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, CATASTROPHE LOSS FUND, RESPONDENT



Original jurisdiction in the case of Dawn Dougherty and Joseph P. Dougherty v. Commonwealth of Pennsylvania, Catastrophe Loss Fund.

COUNSEL

Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for petitioners.

Carl Vaccaro, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig, and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 106 Pa. Commw. Page 425]

Dawn and Joseph P. Dougherty, the petitioners, move for partial summary judgment in this mandamus action brought against the Catastrophe Loss Fund (the

[ 106 Pa. Commw. Page 426]

    fund) to compel the fund's payment of a portion of a judgment rendered against two physicians.

According to the pleadings, on May 7, 1984, a Philadelphia Court of Common Pleas jury returned a verdict in favor of the petitioners for $465,270.44 against Dr. Osorio, Dr. Hoffmeier, and Frankford Hospital, jointly and with right of indemnification against Dr. Miller, one of that hospital's resident physicians. The trial judge entered judgment notwithstanding the verdict in favor of Dr. Hoffmeier and judgment against the remaining defendants holding them jointly and severally liable. The Superior Court, in a memorandum opinion, reinstated the verdict against Dr. Hoffmeier and affirmed the judgment against Drs. Osorio and Miller. The defendants did not petition for allocatur. Consequently, the hospital, with right of indemnification against Dr. Miller, and Drs. Osorio and Hoffmeier, are respectively liable to the petitioners for a one-third share, namely $155,090.21 each.

Insurers of the hospital and Dr. Miller will satisfy that one-third share of liability; private primary insurers have paid $100,000 each for Drs. Osorio and Hoffmeier. The petitioners now seek the remaining $55,090.21 from Drs. Osorio and Hoffmeier ($110,180.42 total) plus post-judgment interest and possible delay damages from the fund as a secondary insurer under the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, 40 P.S. ยงยง 1301.701-1301.811.

In an unreported opinion filed on February 26, 1986, this court overruled the fund's preliminary objections to the petitioners' complaint seeking a writ of mandamus. We now consider the petitioners' motion for partial summary judgment.

This court may grant summary judgment only when the moving party has established that there remains no genuine issue of ...


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