*1 insofar as re- Application quests prohibition, a writ of and a writ of is issued. prohibition portion February joining trial court’s 2006 order her party freezing hereby Petitioner as a assets vacat- ed. The Application is denied extent that it asks this jurisdiction stay plenary underlying litigation pleas the common court. The previous stay issued this Court on June is lifted as it moot. is now a joining Justice files concurring opinion CASTILLE above matter.
Justice concurs in NEWMAN the result. CASTILLE, concurs. The Per Curiam Opinion tracks the standard governing issuance of a Writ of Prohibition as I in my set forth Dissenting Opinion in Public Venango Defender’s Office of County Venango Pleas, County Court Common J., (Castille, 1282-1291 dissenting). Because the Per Curiam Opinion explains why this Court’s exercise of jurisdiction under that standard appropriate, explains prohibition issue, why must join. view exercise of jurisdiction in Venango County as aberrational.
Allen S. COMMONWEALTH OF MEDICAL PENNSYLVANIA PROFES-
SIONAL LIABILITY CATASTROPHE LOSS FUND and Penn- sylvania Property Casualty Associa- tion, Appellees.
Supreme Pennsylvania. Court of
Dec.
ORDER PER CURIAM. of the Commonwealth AFFIRM the Order
We Court. *2 in which Justic dissenting a statement
Justice BAER filed joins. BAER, dissenting. curiam the affirming per order I dissent from the Court’s and Court instead would Commonwealth raised, has never review of the issue further permit this case involves Specifically, been addressed Error and Reduction of Availability Medical Care whether the Fund) (the statutorily the coverage to use obligated Fund judgment a an insured doctor available to physi- him and two co-defendant severally against and jointly background as follows. cians. did maintain required to and Gabroy Allen S! was
Appellant $200,000 occurrence for a policy per insurance primary addition, primary professional liability,1 PIC, surcharge a collected and remitted $1,000,000 occurrence.2 per $1,200,000 Gabroy therefore insured for between was and Fund. primary policy insurance in medical two other defendants were sued Gabroy and liable and found $142,467 $665,000. added Delay damages were $807,467. thereto, Although total amount of for a co-defendant William J. negligent, Manella, M.D., and co-defendant percent negligent, twenty (SSA) negligent,3 ten Surgical Suburban Associates 3301.701(a)(l)(i)(ii), practic- repealed, Pursuant to 40 Pa.C.S. primary professional ing physician was maintain a $600,000 occurrence, $200,000 policy per with a aggregate. annual 1301.701(e), repealed. 40 Pa.C.S. maintained 3. Both of co-defendant Gabroy’s through Fund. PIC and the identical chose to collect the entire Gabroy.4
PIC, Gabroy’s declared provider, insolvent, Pennsylvania Property requiring Causality (PIGA) $200,000 Association Thereafter, plaintiffs. paid limits to the $334,868, the plaintiffs the amount of 70% of the representing ($465,000) plus delay damages post-judg- 70% of ($200,000). paid by ment interest minus the amount PIGA $100,000 Manella, paid PIGA also an additional leaving unpaid delay damages balance of $172,599. refusal
Upon the balance of the verdict on behalf, Gabroy initiated suit the Fund in the against course, Commonwealth Court. due filed motion because, judgment, arguing $665,000 verdict, *3 Fund, as his a statutory additional insurer with limit of $1,000,000, due, to the entire balance required $1,000,000. undisputedly joined was less than The Fund defendant, PIGA as additional filed both cross-motions for summary judgment. argued The Fund that the language of the Act to limit to payment entitled it its share of assigned fault Gabroy. to The Commonwealth Court denied Gabroy’s motion for for summary judgment
motions filed by Fund and PIGA. Court, to Gabroy appealed this review follow- ing issue: whether the to responsible Fund is Gabroy an amount in excess his of basic insurance coverage up legal joint tortfeasor, his or liability whether the Fund is only required on an equal behalf his percentage of causal negligence as determined jury, thereby exposing Gabroy personal liability. (pertaining tortfeasors). among See 42 Pa.C.S. 8323 to contribution ACandS, Inc., Baker also A.2d 669 ("the plaintiff may damages recover the entire one of paying tortfeasors. That tortfeasor's recourse for more proportionate nonpaying joint than its share of the verdict is to sue the contribution.''). in provided as the Fund argues that of his not his legal
insurance for Because, legally as ACandS, Inc., see Baker of percent for (2000), argues Pa. A.2d in him the entire verdict Fund is for $200,000. Gabroy coverage excess of his position supported by language, Act’s argues that hand, history, legislative On the other intent. those claims argues obligation that its limited provider, of the health care primary coverage that exceed the seventy case share of in this limited to Gabroy. assigned fault arguments by Gabroy may advanced least, very at warrant this Court’s further
merit states, in The relevant the Act provision consideration. pertinent part: contingency purpose
There created a for the fund awards, or all and settlements loss paying judgments provider health care entitled to .against partici- consequence profes- in the fund as a claim pate provider such health care brought against sional extent such additional defendant defendant an its basic provider’s health care exceeds in in of occurrence as effect the time (a)(1). subsection added). (repealed) (emphasis P.S. 1301.701 The word Act.
“share” is not defined do makes clear that afforded care to be limited to the each health *4 Rather, that designated by jury.5 the the the refers to the amount for which liable. “share” case, to enforce the entire In this due to decision Gabroy, that court, discretion, Indeed, noteworthy the trial in its could it that general eliminating slip with have If that would have determination occurred, appears irrefutable that undifferentiated been would have had 100%. certainly verdict. It is not clear from this trump princi- Act to legislature long-standing intended liability.6 ple and several
Further, I argument find merit Gabroy’s that Rather, support intent does position. Fund’s legislature up intended Fund to to their doctors See, i.e., (Pa.), legal liability. Legislative Journal —Senate (remarks October p. of Senator Freeman Hankins indicating that the Fund will all liability in excess of coverage); the basic insurance Hershey Milton S. Med. Ctr. v. Med. 'lLiab. Catastrophe Loss 573 Pa. 821 A.2d Prof (“[The 1205, 1211 will be Fund] available claims ... the basic awards above medical carried the health Legisla care provider.”) (quoting (Pa.), (remarks tive July p. Journal —House Berson)). Rep. at all
Finally, is not clear that to have “drop properly down” amounts attributable to Rather, or to PIC co-defendants Manella and SSA.
simply seeking to invoke his excess insurance where his exceeds the As coverage. presents a strong argument that the Fund was created to provide such coverage, this Court whether, should determine in a case of and several the provider where is liable for 100 percent of the may its obli- properly limit gation negligence jury, where the statutory implicated. maximum is not joins in this dissenting statement. Pennsylvania, joint tortfeasors are liable. Baker, Thus, long 755 A.2d plaintiff may at 669. we have held that the recover one of the tortfeasors. Incollingo Ewing, (holding joint tortfeasor is liable the entire amount of the plaintiff).