*1 prior interrogation informed adult on involved charge that an adult her presume here. We do not knows his or on encounters rights previous police. the basis with the a presumption should not make such about a juvenile. We A less juvenile presumed knowledgeable is about these an adult. matters than We established the McCutch- rule with in mind. en rule advocated “totality of circumstances” an over-
majority would to the burdens of opinion add judicial an examination of system by requiring worked not offer majority in each case. The does circumstances may it be determined applicable criteria readily which a admissible without by juvenile when confession will be an had an to consult with juvenile having opportunity interested informed It would be preferable and adult. rule, provides a definite McCutchen which retain of a easily applicable protecting means interests applied I to the previously would adhere juvenile suspect. requirement that the of consultation finding McCutchen necessary protect adult all cases is with interested such interests. Superior
I of the would reverse Order Court reinstate the Court of Common Pleas. Order A.2d HELLER, Simone, Esquire and Robert F. Martin
Esquire, Appellees, v. FRANKSTON,
Arthur S. Arbitration Administrator Care, Appellants. for Health Panels Pennsylvania.
Supreme Court of Argued Jan. 18, 1984. April
Decided *3 Warshaw, Allen C. Andrew S. Mosley, T. Gwendolyn Gen., Gordon, appellants. for Atty. Deputy Kunkel, Jr., for ami- Harrisburg, Lewis S. Speaker, Fred curiae. cus Lore, Philadelphia, appellees. for
Harry FLAHERTY, C.J., LARSEN, McDER- NIX, and Before PAPADAKOS, JJ. HUTCHINSON, ZAPPALA and MOTT, OPINION NIX, Justice. Chief minor, his Marquez, Dionisia a Marquez,
Carmello in her own Marquez Dionisia guardian, and mother and for Arbitra- with the Administrator complaint filed a right, (Administrator), pursuant Care tion Panels for Health (Act), Act of October Malpractice Act Health Care Services amended, seq. 1301.101 et 40 P.S. P.L. as matter, of the filing complaint At the time of the a over “original jurisdiction had exclusive panel or for loss representative claim a or his brought by patient of medical services damages furnishing from the resulting provided.” or should have been which were which Act, of the 1301.309. P.S. formed, the parties panel Before an arbitration was dollars, one million one-third reached a settlement of a attorneys’ as fees. Because go settlement to to counsel action, minor in the Martin Heller Robert was involved Simone, Marquez family, petitioned F. for the as counsel compromise the action.1 pleas court of common leave fees, approved attorneys’ The court the settlement and in excess of the fees although attorneys’ fees were 604(a) pursuant allowed to section § 1301-604(a), that: provided which in the
(a) represented by attorney When a is plaintiff plaintiffs attorney of his claim the fees from prosecution $100,000 may made from the first not exceed any award $100,000 30%, fees not attorney may from the second 25%, not exceed on the attorney may exceed 20% award.2 balance 2039(a) provides: of Civil Procedure
1. Pa.Rule party compromised, is shall be No action to which a minor settled pursuant except approval or discontinued after court to a guardian petition presented by of the minor. *4 regulations adopted by pursuant Additionally, the administrator the Act, 1301.307, provided: the 40 P.S. § section 307 of Requirement Approval Court Settlements of fiduciaries, Approval involving incompe- of a settlement minors or panel parties by shall not tent the Administrator or the arbitration obtaining approval by appropriate parties court relieve the required by Pennsylvania where is the Rules of Civil Proce- such dure. Pa.Code, 171.130, adopted July § fees, 604(a), regulating language 2. We of section counsel note that the specifically by panels, directed to "awards” the arbitration was Act, 1301.307, Pursuant to section 40 P.S. Administrator,3 the also the parties sought approval of the declined to initially approve proposed who the settlement as because the fees attorneys’ greater permit- were than those 604(a) ted section the Act.4 The Administrator subse- Act; fee the quently approved portion the allowed however, question because Heller and Simone raised a as to constitutionality attorneys’ provision, the fees the ($110,610.77) Administrator ordered that the disputed placed pending judicial disposition. be into escrow final The filed a in the court of common Attorney petition General pleas by sought modify which he the court’s order the approving attorneys’ granting settlement fees and distribution of the settlement fund.5 On October the common entered an pleas denying court order petition modify disputed and directed that attorneys’ fees from the escrow account remitted to appellees. be appealed
The
Attorney General
Commonwealth
Court,
appeal
pending,
and while that
was
our
handed
Court
(Mattos),
decision Mattos v.
Thompson
down
491 Pa.
Fetchko,
Pa.Super.
did not refer to "settlements”. Cf. Chiesa v.
however,
parties,
Thereafter,
on the Commonwealth
relying
Court’s deci-
sion,
appellees
relinquish
the Administrator directed the
The action of
in
disputed
fees.
the Administrator was
to the
appealed
turn
Commonwealth Court. That court
604(a)
unconstitutional, finding
section
of the Act
declared
legislative interference
impermissible
responsi-
with
Frankston, 76
bility
judiciary.
Heller v.
Pa.Commw.
is
appeal
have assumed ques They after our decision Mattos. have framed imposed as fees limitation being attorneys’ tion whether the 604(a) impermissible section of the Act constitutes an the activi judicial authority supervise interference with However, the effect of it is our view that attorneys. ties nullify was to all of holding Mattos 604(a). including section procedures of the purposes it is instructive to review the At the outset make available were to objectives the Act. The stated cost, at and to liability insurance a reasonable professional had a victim who sus- through which system establish result of tort or breach or death as a injury tained prompt could obtain a provider a health care contract claim and fair compensa- of his and reasonable adjudication *6 losses. 102 of the 40 P.S. resulting tion for the § effectuate designed The heart of the scheme 1301.102. the dispute compul- fair resolution was prompt and the 604(a) ancillary is clear that section was arbitration. It sory The Act’s scheme. component to and a arbitration professional liability making other available objective implemented through cost was insurance at a reasonable Professional Liability of the Medical Ca- the establishment Fund.6 tastrophe Loss challenges constitutional confronted with
We were first
the Act in Parker v.
under
system
to the arbitration
created
483 Pa.
394 A.2d
Philadelphia,
Hospital
Children’s
on
of our attention then and now was
The focus
scheme, Articles
to the arbitration
relating
those provisions
alia,7 in
III, IV, V,
argued,
It
inter
Parker
and VI.
was
an impermissi
constituted
requirement
that the arbitration
accorded
right
by jury
to trial
upon
onerous
bly
burden
I,
Pennsylvania
6 of the
Consti
to Article Section
pursuant
of the Act with the
constitutionality
upheld
tution. We
government
coequal
to a
branch
caveat that “deference
of ...
time to
period
a reasonable
requires that we accord
Id.,
at
483 Pa.
legislation.”
of the
test the effectiveness
121,
The
raised in
again
was
upon
right
jury
infringed
Act
that the
had demonstrated
experience
that time
By
Mattos.
under
scheme
by
occasioned
lengthy delays
decision,
do not consider
Todays
as the decision of Mattos
as well
6.
VII, VIII, IX,
I, II,
and X of the Act.
Articles
Hospital
in Parker v. Children's
issues raised
The other constitutional
7.
(1978), include whether the
Philadelphia,
that the arbitration determination and incapable providing “prompt claims was the adjudication” malpractice of medical which goal 1301.102. Nor has Act. See the last system improved year. the arbitration within Papers analysis filed included a statistical with Court 1980. These panels up May health care 3,452 May documents reveal that as of a total of only cases had filed the Administrator and that been with resolved, or terminat- 936 of these cases had been settled *7 per ed. This means that 73 cent of the cases filed with worse, the Administrator have not resolved. Even been six 48 filed in remain unre- original cases 1976 solved, the of four No extraordi- despite passage years. explain circumstances have offered to nary been Furthermore, 38 May as of delay. intolerable cent of the per per cent of the claims filed in 65 in the claims filed in per claims filed and 85 cent of are unconscionable delays 1979 remain unresolved. Such irreparably rip public the fabric of confidence the efficiency judicial system. and effectiveness of our Most importantly, amply these statistics demonstrate that “the achieving scheme is its stated legislative incapable purpose.” 395-96, (footnote
Mattos,
Despite repeated the arbi- “system”, “procedure”, the arbitration arbitration “scheme”, to ineffec- legislative and the be panels, tration is still contended that oppressive, being tive and it However, in of the Act is viable. Mat- system arbitration tos, expressly we held: therefore, unconstitution- to declare compelled,
We are § 1301.309, giving al section 309 of the 536 panels
health care “original arbitration exclusive jurisdic- malpractice claims, tion” medical delays over because the prescribed these processing involved claims under set procedures up under Act result in an oppressive delay impermissibly infringes upon the constitutional right a jury. merely
Our conclusion indicates the of this inability scheme statutory provide an effective alternative dis- pute resolution forum in the medical malprac- area of tice.
Mattos, 396-97, 491 Pa. at 196 (emphasis at A.2d added).8
The “original fact that reference made to the exclu- was jurisdiction” sive section 309 over medical malpractice not mean unconstitutionality claims does that the of section Rather, only aspect. to its exclusivity refers since “the of, legislative incapable achieving scheme was its stated purpose”, Parker v. Pa. at Hospital, supra Children’s 121, 394 A.2d at Mattos rendered the entire inherently scheme, malpractice only medical not exclu- sivity jurisdiction, unconstitutional.9
Nevertheless, is argued it should inter- Mattos allowing panels to preted jurisdic- as the arbitration retain Opinion tion concurrent with the courts. Official 80-2, Attorney General No. Pa.D. & C.3d 585 attempts fallacy underlying to read Mattos narrow- *8 Act, declaring system In the the unconstitutional arbitration of III, IV, VI provide Mattos nullified Articles V and of the which the procedural relating pro- details to the arbitration administrative cess. Mattos, meaning my colleague of to redefine the see 9. Efforts of 1299, Dissenting Opinion at fail of Mr. Justice Hutchinson 1297 and attempt upon scrutiny. to retrieve While the dissent makes a valiant upon power Panels rule for the Administrator for Arbitration some fees, jurisdictional attorney's the section vital seminal Panels, authority the Administration for Arbitration enforcement Therefore, regulate attorneys’ longer power state’s no exists. the (cid:127) through for may the of the Administrator not be exercised action Arbitration Panels. decision declared the ly only “exclusivity” is that that of the conferred the Act unconstitutional. by jurisdiction However, that in emphasize striking we down Section 309 indicated, in the possible language, we clearest that the constitutional resulted from the objection arbitration scheme. We did not or limit our action expressly implicitly to the aspect “exclusive” of the panels’ jurisdiction. Our in holding only legislative grant Mattos rendered invalid the jurisdiction panels. the The only body competent to jurisdictional predicate confer new for the panels would legislature. have been the legislature This the has not done.
Moreover, this argument would assume that
provide
Court intended to
an alternative for the scheme
fashioned
by
legislature. Where a legislative scheme is
mandate,
determined to have run afoul of constitutional
it is
not the role of this
to design
Court
an alternative scheme
which may pass constitutional muster. See
v.
Mayhugh
Coon,
(1975);
Pa.
arbitration had “exclusive original jurisdiction”. The exclusivity jurisdiction was crucial to the legislative in design that the Act could accomplish its stated purpose prompt dispute and fair resolution if only parties were compelled to proceed through the system. Mattos, properly
Since
interpreted, did
fact
strike
process,
down the arbitration
it necessarily follows
604(a)
that section
no longer has
vitality. While
statute
may
invalid,
be partially
partially
valid and
only
can
occur where the provisions are distinct and not so interwov
en as to
inseparable.
Saulsbury
Co.,
v. Bethlehem Steel
(1964);
Pa.
HUTCHINSON, J., files a dissenting opinion. HUTCHINSON, Justice, dissenting. not majority today only eliminates the optional, two
tier system, arbitration —court but also throws the substan- governing tive law medical malpractice into confusion and plants doubts as to the continuing viability the Medical Professional Liability Catastrophe Loss Fund and the statu- tory procedures disciplining doctors who fail to meet professional standards. I would not lament the elimination panels optional we held in Mattos v. (1980), 491 Pa. Thompson, A.2d 190 if it were done body panels which created these part as a of its effort professional to make liability insurance at a available *10 However, if reasonable cost.1 even we assume this Court in right step has to and eliminate the panel system because its wasteful I am impracticality, unable to follow majority in its reasoning that the difficulties with arbi- tration necessarily destroy the substantive control our legis- placed lature on in contingent 604 of Section the Act. The majority reaches out to these results in spite of the fact that the only argued issue briefed and before this Court was the constitutionality single of a section of the Health Care Services Malpractice Section on ground that it violates separation powers Y, under Article Sec- 10(c) tion of our Pennsylvania Constitution. This constitu- tional provision grants us power regulate to the practice of The presented law.2 issue us process was not due or the ineffectiveness of the system. It power was the legislature of the to control reasonably legal fees.
The majority opinion avoids treating the conflict between so, coordinate poses. however, branches this issue It does casting into confusion the status of other substantive sections of the Health Care Services Malpractice Act. Those other sections directly implement the legislature’s 15, 1975, (Health 1. Act of October P.L. 1301.102 Act). Malpractice Care Services V, 10(c) provides: 2. Article Supreme power prescribe Court general shall have the rules governing practice, procedure courts, justices and the conduct of all peace orders, of the serving process and all enforcing officers or judgments any justice or decrees of or peace, including court of the power provide assignment reassignment of classes of actions or appeals among classes of the several courts as the needs justice require, shall and for admission practice to the bar and to law, and the supervision administration of all courts and of all Branch, officers of the Judicial if such rules are consistent with this abridge, Constitution enlarge modify and neither nor the substan- rights any litigant, tive right nor affect the of the General Assembly jurisdiction any justice determine the court or of the peace, suspend nor repose. nor alter statute of limitation or All suspended they laws shall be to the extent that are inconsistent with prescribed provisions. rules under these Court, This word, paraphrasing language, repeatedly has added the note, word, "exclusive”, again, "exclusive”. I that the is not case, being contained in the text. That I would think considera- comity stay tions of would our hand in this case. what it goal meeting profession over-all and the medical as a health care crisis. That crisis out saw arose high malpractice prospect cost of medical insurance and the unavailability of its as insurers threatened to absolute with- field, contending they draw from could not write safely such insurance even at rates. ever-spiraling One legislature’s Catastrophe substantive creations is the Loss coverage. Fund for excess Presumably, majority does However, not find the its requires Constitution elimination. its opinion this case does not address the effect that removal of the fee Catastrophe limitation will have on the Fund.3 Loss
The practical problems incident to the inefficient and system wasteful arbitration are indeed Hindsight serious. procedural shows this system was unwise. Its problems cannot, however, obscure the fact that the majority’s result destroys the Assembly’s General substantive effort to rea- and, sonably regulate legal fees incidentally, carves out a privileged status for the legal profession. 7, 1976, February son, Carmello,
On Dionisia Marquez’s was treated in a Philadelphia Hospital for bronchopneumo- treatment, nia. it, As result of that lack or the child suffered severe He damage. requires brain now twenty- four hour care and should adjudged incompetent. Administrator, Opinion 3, 1981, of the February p. 2. Car- mello’s mother sought legal representation from a Philadel- phia attorney. apparently signed She a contingent fee agreement provided attorney’s which for an fee amounting to a flat thirty-three percent plaintiffs’ recovery, notwithstanding express limitation on attorneys’ fees Act,4 cases. malpractice Section 604 limits such fees Fund, Liability Catastrophe 3. The Medical Professional Loss created Act, $800,000.00 $1,000,- provided Record, in Articles VI and VII of the Abrams, 000.00 settlement in this case. Order of Paul F. Administrator, Care, 2, 11, p. January Arbitration Panels for Health 1978. 15, 1975, 390, 604, 1301.604, 4. Act of October P.L. 40 P.S. effective § 13, January by 20%, a scale with a and a high low of depending 30% recovery. on the amount of 13th, August
On counsel complaint filed a with the Arbitration Panels for Health Care in the City Philadel- phia. Late in the defendants and their insurers agreed pay one million dollars in settlement of the Marquez’s claims. Eighty per cent of this amount paid was by Catastrophe Loss Fund created other provisions of this Act. See note supra. Plaintiff’s counsel then submitted that settlement for approval by Philadelphia Court of Common submitting Pleas instead of first it to the 307(b) provided Administrator as the Health Malpractice 1301.307(b).5 Care Services See Marquez C., v. Hahnemann M. 56 Pa. Commonwealth Court 188, 424 A.2d 975
Philadelphia Common Pleas approved the settlement on December 1977 and authorized attorneys’ fees $333,333.00. Thereafter, amount of counsel submitted the settlement to the Administrator who approved the settle- ment among parties on January but directed $110,610.776 counsel to hold in escrow the which exceeded fees, the statutory limit on pending judicial a final determi- plaintiffs nation whether or their counsel were entitled to *12 15, 1976, 5. Section July 307 of the Act was amended on effective immediately January and retroactive to as follows: (b) power The approve shall have the administrator to consider and fiduciaries, offers of settlement for incompetent parties minors and prior meeting at panel. time to the first of the arbitration The may represented any negotiation fund at exceeding of settlement coverage the basic liability. insurance carrier limit of promulgated by 37 Pa.Code 171.130 was § the Administrator effective 10, July 1976. 6 Pa.B. 1632. It read: Approval fiduciaries, involving a settlement incompe- minors or parties by tent panel Administrator or the arbitration shall not parties relieve the obtaining approval by appropriate an court required by where such Pennsylvania is Rules of Civil Proce- dure. regulation subsequently This was amended and renumbered in 1979. (November 17, 1979). See 9 Pa.B. 3811 Record, Abrams, Administrator, Order of Paul F. 6. Arbitration Panels Care, 2, 11, p. January Health 1978.
542
request of plaintiffs attorney
these funds. At the
a Certifi-
cate of Discontinuance was issued on
January
Subsequently,
petition
the Administrator filed a
with
Philadelphia
seeking
Court of Common Pleas
a modification
approved
thirty-three percent
order which had
fee.
Pleas
attorney’s
petition
Common
denied
and
directed release of the
plaintiffs’
escrowed funds to
counsel.
The
appealed
Administrator then
to Commonwealth Court.
order,
That court vacated the lower court
holding that
courts have “jurisdiction over minors’ settlements only
has
appeal
been effected under the
provisions
after
Section 509 of the
Act,
1301.509,
and the case has
for the first time come
jurisdiction
...
within the
Hahnemann,
court.” Marquez v.
supra.
Common-
(footnote
at
omitted).
wealth Ct.
A.2d at 979
Although Marquez v.
was
Hahnemann
decided four
opinion
months after our
Thompson, supra,
Mattos v.
Commonwealth Court did not fail to
recognize Marquez
originally
properly
was
filed under the
sys-
tem and settled under the then
provisions
constitutional
Hospital
the Act. Parker v. Children’s
Philadelphia,
(1978). Mattos, moreover,
483 Pa.
less two after the child was and more years than three before this Court decided Mattos. Mattos did not address 307 and the authority gives it to. Administrator “to consider and approve offers of settlement *13 fiduciaries, for minors and incompetent parties any at time
543 meeting to the first prior panel.” 40 P.S. § 1301.307(b). Court, in Commonwealth plaintiff’s
Rebuffed counsel at- in 1981 to transfer his tempted year three old discontinued case to the court of common pleas. attempt This was rejected by the Administrator. Counsel then appealed to Commonwealth directly Court challenging constitution- ality Section 604 of the Act.7 That Section sets forth the limitations on attorneys’ fees in the following language: challenge, V, 7. Counsel’s Pennsylvania based on Constitution Article 10(c), question would cast into a host of fee limitations areas, enacted Assembly the General among in other them: (a) Pennsylvania limiting attorney’s statutes fees cases based on previously causes of action that existed at common law include: Act, 28, 1947, 1110, Motor Vehicle Sales Finance Act of June P.L. as 1, 1978, 725, 130, July amended Act of (Supp. P.L. No. 69 P.S. § 1983-84) (relating attorney’s to limitation legal prior $50 for fees to 30, repossession); commencement of January action for Act of 1974, 13, 6, P.L. (Supp.1983-84) No. (relating P.S. 406 § to limita- attorneys tion prior $50 for fees to commencement of foreclosure action); 30, legal 1974, 13, 6, or January other Act of P.L. No. 41 P.S. (Supp.1983-84) (relating § to determination of reasonable attor- borrower, ney’s debtor, fees when mortgage residential or other debt- prevails); Act, Improvement 14, 1963, or Home August Finance Act of 1082, (relating contracts, P.L. 73 P.S. 500-209 § to home installment delinquencies, payment collection of attorney’s of court costs and fees exceeding due); 22, 1964, not 84, 20% amount Act of June P.L. 610, 29, 1971, 640, 169, § added Act of December P.L. No. 26 P.S. (Supp.1983-84) (relating § 1-610 reimbursement for owners of rights, property, titles or interest in real attorney’s with fees not to $500). exceed (b) Pennsylvania limiting Other attorney’s statutes fees include: Pennsylvania Act, 19, No-fault Motor July Vehicle Insurance Act of 1974, 489, 176, P.L. No. (Supp.1983-84) 40 P.S. (relating § 1009.107 limiting attorney’s reasonable fees to that based on actual time ex- pended claimant); on Pennsylvania behalf of a No-fault Motor Vehi- Act, 19, 1974, 489, July 176, cle Insurance Act of P.L. No. (Supp.1983-84) (relating 1009.602 charges § to misdemeanor for legal fees in by Pennsylvania excess of amount authorized No-fault Act); 15, 1959, 1774, 672, Motor Vehicle Act of' December P.L. No. (relating attorney’s P.S. 7445 municipal § fees of 5% for collection of liens for 19, 1913, 535, improvement); Act of June P.L. as amended 1915, 9, 67, April (relating Act of P.L. attorney’s 53 P.S. 53402 municipal of 5% for collection of grading, paving, assessments for or curbing public highways); 15, 1980, Adoption Act of October P.L. No. as amended Act of June P.L. No. (relating attorney’s 23 Pa.C.S.A. 2313 representing to limitation of fee to $150 for involuntary child in proceeding); termination The Work- *14 544
(a) plaintiff represented When a is in the attorney prosecution plaintiffs attorney of his claim the fees from $100,000 first any award made from the not exceed may 30%, $100,000 from may the second fees not attorney 25%, attorney may exceed not exceed on the 20% balance of any award.
(b) A plaintiff right has the to elect for pay attorney’s services on a mutually satisfactory per diem election, however, The basis. must be exercised writ- ten form at the time of employment. §
40 P.S. 1301.604. Act, In that determining Section 604 of the 40 P.S. § 1301.604, is not from the severable now unconstitutional III, V, sections of Articles IV and does not majority Act, mention Section 1925 of the 1 Statutory Construction § provides: Pa.C.S. 1925 which provisions of statute shall every be severable. If any provision of statute or the application any thereof Act, 1915, 2, 736, Compensation men's Act of June P.L. as amended 29, 1972, 159, 61, (Supp.1983-84) Act of March P.L. No. 77 P.S. § 998 awarded); (relating attorney's to limitation of fees to 20% of amount 16, 1923, 207, May (Supp.1983-84) (relating Act of P.L. 53 P.S. 7271 § plaintiff's attorney to assessment of 5% fee for collection to in munici- claims); 16, 1923, 207, pal judgment May Act of on P.L. 53 P.S. 7187 § (relating plaintiffs attorney's up to limitation of fees to $50 5% to claims); Code, municipal collection of tax and The Administrative Act 9, 1929, 177, 9, 1976, 574, April July of P.L. as amended Act of P.L. No. 139, (Supp.1983-84) (relating attorney’s 71 P.S. 180-7.2 to award of § 15%); fees to crime victims in an amount not to exceed Act of 13, 1982, 1127, 257, (Supp.1983-84) December P.L. No. 71 P.S. 2032 § attorney’s agency (relating to fees for administrative actions of not $250, per if $75 more than $10,000); hour —none total less than no more than 20, 1961, 1548, September Credit Union Act of P.L. 283, as 14, 1982, 1240, amended Act of December P.L. No. 15 P.S. (relating outstanding to limitation 20% loan balance for Code, 24, 1931, fees); Township attorney's Class Act The First of June 31, 1206, 1955, 56, 27, May Act of P.L. P.L. as amended No. 53 P.S. (relating attorney's to 5% commission on assessments for street Code, 1, 1933, Township May lighting); Act The Second Class P.L. 11, 575, 103, 69, 1980, 120, July Act P.L. No. as amended No. 53 P.S. (Supp.1983-84) (relating attorney’s to 5% commission on § 65702 Code, lighting); Township for street The Second Class Act assessments 20, 1949, May May amended Act P.L. P.L. No. as (relating attorney’s to 5% commission No. protection). police on assessments for person invalid, or circumstance is held the remainder of statute, application and the such provision to other circumstances, or persons shall not be affected thereby, unless the court finds provisions that the valid with, statute are so essentially inseparably connected depend upon, and so the void provision application, or it cannot presumed Assembly General would have remaining enacted the valid provisions without the void one; or unless the court finds that remaining valid provisions, standing alone, are incomplete and are incapa- *15 of being ble executed in legislative accordance with the intent.
For the reasons which I find follow do not Section 604 or essentially inseparably connected with the voided now provisions of the Act. Neither Ido find that Section 604 standing alone is either incomplete or of execution incapable in accordance with the legislative intent.
The Health Care Services Act enacted in Malpractice was 1975 for the purpose making of
available professional insurance at a reason- liability cost, able and to establish a a system through which person who has as injury sustained or death a result of tort or of provider breach contract a health care can obtain a prompt adjudication determination and of his and claim the determination and reasonable of fair compensation. added). (emphasis 1301.102 The title of the Act the discrete it
specifically subjects describes addresses: insurance”, malpractice “powers “medical and health and Department”; duties of the Insurance “a joint underwriting Care, Health plan”; compulsory “Arbitration Panels for “limitation screening”; requirement”; “collateral sources contingent “establishing fee a Catastro- compensation”; on Fund”; from the title phe “penalties”. Loss It is evident legislature the intended to construct multifaceted professional liability to insure the of program availability cost,8 insurance at reasonable for combining provisions: particular powers duties of the Department, Insurance for the joint underwriting plan, for the collateral source requirements, contingent limitation on compen- fee sation, for the establishing Catastrophe of a Loss Fund for the of imposition penalties, in of addition the creation arbitration panels achieve that goal.
In fashion, a similar structure the Act demon- strates the several distinct areas legislature sought address. II sets Article forth the liability non-qualifying III, health care providers. Articles IV and V create panels arbitration and the office of Administrator. Article VI deals with awards. It contains six sections. two Only refer to panels. The other sections of this (a) Article deal with: reduction awards by any public compensation collateral source of or benefits and the denial (b) of subrogation, award, (c) attorney’s fees from liability statute of on the limitations the Catastrophe (d) Loss Fund require- established Article VII and ment of a contract in special writing to create a guaranty cure. Article creates the Liability VII Medical Professional Catastrophe Loss Fund and for the provides liability excess carriers. Article VIII the Insurance requires Com- *16 a of plan, missioner to create all insurers autho- consisting rized Company to write insurance under The Insurance Law § 1921, 17, 1921, 682, May seq., Act of P.L. 40 382 P.S. et equitable which would of the finan- “provide apportionment cial all provided applicants burdens of insurance ... and among the costs of all operation plan participating insurers____” Medical, Article IX Osteopathic directs the licensing and boards to at- Podiatry appoint investigators, torneys hearing fully examiners to their implement revoke, authority suspend, regulate limit or otherwise X physicians. Finally, licenses Article contains six mis- 30, 101, 1974, 13, January 8. We note that the title to the Act of P.L. § 101, which sets forth the maximum lawful interest for § rate mortgages parallel including "provision loans and contains a list for attorney's payment regard mortgage fees with to residential obligations”.
547 for from for the provisions immunity liability cellaneous boards, notice to cancellation of licensing requiring prior the act’s policies, establishing prospec- professional liability setting penalties non-pay- forth for application only, tive establishing joint of assessments and committee. ment legislative designed devices ad- panoply Given insurance crisis in I do malpractice dress the medical not see it can now said either that the entire act is how panels unconstitutional because the arbitration are unwork- able, in or that the section fees is so tied with controlling legislature that the would not have system arbitration it if it not created the system. included had arbitration § 1925,9 Judged the standards of Pa.C.S. neither our 1 original conclusion in that the jurisdiction Mattos arbitra- exclusive, Mattos, panels today’s tion is not nor revision of act, all of the nullifying procedures pro- arbitration for a excision of the on judicial vides basis limitation in contingent fee Article VI. The compensation language refers to plaintiff repre- P.S. “a 1301.604, attorney prosecution sented an of his claim” and limits fees from plaintiff’s attorneys “any award”. There is panels anywhere no reference to in this section. argued legislature’s Plaintiff’s counsel has that the au- thority attorney’s applies only to limit to statutory claims, not to actions derived from common law. I believe argument his is merit. The has for legislature without setting centuries enacted statutes fees for attor- almost two most of these statutes en- neys-at-law. Admittedly, were fee, an a minimum guarantee attorney acted as measures to February the Act of P.L. example as for entitled “An Act to Sm.L. P.S. § 2, (1962), bill”, attorney-at- alter and amend the fee which entitled an suit” every prosecuted judgment, law to receive for $3.00 discontinuance, pros” “issuing praecipe or non $1.50 any suit, entering appearance for the commencement *17 docket, if the suit is ended on or prothonotary’s on the The Act of of the first term.” June day before the first 11, Supra, p. 10. 9.
548 § §
1885, 107, 1, (1952) P.L. Supple- 12 3000 entitled “A P.S. prevent ment to an Act entitled ‘an Act to vexatious attach- ments, thereof,’ regulate approved April and to the costs however, three,” did, twenty-second, one thousand and sixty fee, exceeding “a ten dol- specify reasonable counsel not lars”.
Where, attachment, in execution or scire facias on any in court of record foreign any attachment issued out state, in his garnishee this shall be found to have personal property or no real or possession control debt, defendant, garnishee him the said nor to owe in plaintiff, from the addition shall be entitled to recover law, a reasonable counsel already to the costs allowed dollars, fee, exceeding not ten to be determined the costs. part court and taxed as § 12 P.S. particular repealed by
While the acts cited have been August Act of legislature Repealer the Judicial Act 28, 1978, 202, 27, 1978, P.L. effective June 42 P.S. §§ 20001-20004, [88] [733], the Laws of Pennsylvania (a) in for attorney’s still for limits on fees: actions provide vehicle, derived from the old action repossession of a motor actions,11 (c) in (b) in foreclosure actions on replevin,10 mortgage,12 only a to name a few. Even the Judicial Code regulates negotiating contingent itself the manner of fee § in a case. 42 I find no personal injury C.P.S. basis concluding or that common torts are logic law law If beyond legislative policy. somehow the reach of Article V, 10(c) distinction, requires itself issue faced. should be equal protection argument
Counsel’s that Section 604 against plaintiff’s discriminates con- attorneys by limiting 28, 1947, 1110, amended, 1, 1978, July 10. Act of June P.L. as Act of (1983-84 Supp.). supra. P.L. 69 P.S. See note § 30, 1974, January (1983-84 Supp.). 11. Act of P.L. 41 P.S. 8, supra. See note (1983-84 January Supp.). 12. Act P.L. 8, supra. See note *18 includ- profession, must also fall. The tingent fee awards bar, what the also ing legislature the bench and well knows knows, contingent counsel never make that defense almost clients, to preferring with their much be agreements fee expended. time and compensated in relation to their effort plain- The latter of is also the compensation open form to tiff’s practical. 1301.604(b), bar where supra, See 40 P.S. p. course, at 1300. Of fees are contingent necessary often protection of legal system. individuals under our here, question however, elimination, The is not their but their regulation. reasonable “separation
Commonwealth Court evoked the doctrine of of its powers” opinion support to that holding legislature lacks to set fees. It any authority attorney’s strange argument applied seems that this has never to been guarantee statutes which a reasonable minimum fee or some other professional perquisite. Separation powers of is not just dragged a mechanism to out be on occasion to protect special interests or the prerogatives particular of a branch of government. It is a coherent policy underlying all American theory. requires constitutional It the courts actively protect prerogatives to of all three branches our government, not supinely permit the aggrandizement branch, profession, one or one at the expense of the other V, 10(c) two. Article of the Pennsylvania Constitu- gives tion Court “the power prescribe rules general governing, practice, procedure and the conduct of all courts power ... including provide ... for to the admission law, bar and practice ... such rules are consistent with if this Constitution and abridge, neither enlarge modify nor ” rights litigant. added). substantive (Emphasis I would right find it inconceivable litigant of a to a greater or proportion lesser his should recovery be viewed procedure as a matter of and thus outside the realm of legislative policy. majority Court has in this instance avoided the
shoals of a distinction legislature’s dubious between the authority over common law and the siren statutory not, powers”. opinion Its should
song “separation however, of the whole Health Care jettisoning lead to the Administrator, Catastrophe Loss Malpractice Services Fund and all. Mattos, in fact strike interpreted, did down properly
Since
that section
necessarily
it
follows
process,
604(a)
longer
vitality.
may
no
has
While a statute
invalid, that can
occur
partially
only
valid and
partially
*19
are distinct and not so interwoven as
provisions
where the
Corp.,
v. Bethlehem Steel
inseparable. Saulsbury
to be
(1964);
Pa.
A.2d 664
Railroad
Pennsylvania
196
Schwartz,
Pa.
power panel to arbitrate the basic Where lost the the resolution of the claim itself jurisdiction over in obviously regulate it cannot counsel fees such matters. in original jurisdic- With our decision Mattos exclusive in argument tion these cases reverted to the court. Any 604(a) suggesting severability patent- section would be erroneous. ly Opinion p. at 538.
Majority suggest I 1925 of our Statutory Construction § 1925, requires Act at quoted p. severance. Pa.C.S. 1300, supra.
The record in this case shows that the claim was basic then program settled under the constitutional arbitration in Marquez’s statute 1975. The claim was established filed in settled in 1977 and with Administrator in request January discontinued at the counsel of 1978. Thus, the 1980 decision in should not read to Mattos original jurisdiction Philadelphia create an exclusive at a time had Court Common Pleas when Court Malpractice found the Health Care Services Act explicitly Parker, constitutional. procedures supra. and its to be single presented Rather than address the issue to this legislature’s power attorneys’ to set limits on Court: part remedy perceived fees as of a broad program care, of health providers majority financial crisis for exegesis has resorted to a its own cases to revisionist bring down the limitation fee the ruin of system13 undermine the the Health foundations of Care Malpractice Act itself. Services
v. ANTHONY, Appellant.
Curtis L. Supreme Pennsylvania. Court of Jan.
Submitted
1984.
April 24,
Decided
*20
noting
recently approved
It
is worth
that this Court has
a local
Pleas,
Philadelphia
regulation
impos-
issued
Court of Common
ing
system
a similar
on
two-tier
the settlement of asbestosis claims.
Pittsburgh Corning
Bradley,
Corporation v.
499 Pa.