Chiesa v. Fetchko

• Decision Date: 12 August 1983
• Parties: Dana A. CHIESA v. A.M. FETCHKO, M.D., George F. Edmonston, M.D., and Joseph Ragheb, M.D. Appeal of PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE.
• Court: Pennsylvania Superior Court

Page 1293

464 A.2d 1293

318 Pa.Super. 188

Dana A. CHIESA v. A.M. FETCHKO, M.D., George F. Edmonston, M.D., and Joseph

Ragheb, M.D.

Appeal of PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE.

Superior Court of Pennsylvania.

Argued June 16, 1982.

Filed Aug. 12, 1983.

Bradford Dorrance, Harrisburg, for appellant.

William S. Schweers, Pittsburgh, for appellees.

Before BROSKY, JOHNSON and MONTGOMERY, JJ.

JOHNSON, Judge:

The Pennsylvania Department of Public Welfare (the Department) appeals the Order of the trial court entered January 19, 1982, denying their Petition to Intervene.

The record indicates that plaintiff Dana A. Chiesa filed a medical malpractice complaint against the defendant doctors in February of 1980 under the Health Care Services Malpractice Act (HCSMA), 40 P.S. § 1301.101 et seq. ¹ The action was subsequently transferred to the Court of Common Pleas in December of 1980. Plaintiff, who was receiving both Medicaid and cash assistance from the Department, did not notify the Department of the pendency of this action. By letter dated July 14, 1981, the Department requested information from plaintiff's counsel concerning any personal injury claim and informing counsel of his duty to notify the Department of such a claim. ² A reply dated September 4, 1981 was sent by plaintiff's counsel to the Department, stating that the HCSMA, specifically section 602, ³ required no notice to the Department, nor was the Department entitled to any right of subrogation.

Following this exchange of correspondence, the claim was settled and, on October 16, 1981, the docket marked "settled and discontinued." The Department then presented a Petition to Intervene ⁴ to the court. The trial court ordered the settlement monies, $50,000, placed in escrow. The parties then stipulated to the Department's claims of $5,807.95 for medical assistance and $3,996.50 in cash assistance. The Department's Petition was denied by court order entered January 19, 1982.

The Department on appeal seeks review of the trial court's determination that (1) no irreconcilable conflict exists between section 1409 of the Fraud Abuse and Control Act and section 602 of the HCSMA, (2) that section 602 of the HCSMA prevails over section 1409 of the Fraud Abuse and Control Act and (3) that said section 602 does not conflict with sections 1974 or 1975 of the Support Law. ⁵

We must first determine whether the Order appealed from is final or interlocutory. ⁶

An order denying intervention is not appealable unless it "would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way." Frey's Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912). See Annot., 15 A.L.R.2d 33.

Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101, 103, 403 A.2d 113, 114 (1979); see also Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982).

Unless we consider the merits--or "ramifications"--of a case, we cannot tell whether an order denying a petition to intervene is "a practical denial of relief to which the petitioner for intervention is entitled." See, e.g., Taub v. Merriam, 251 Pa.Superior Ct. 572, 380 A.2d 1245 (1977) (deciding appeal); Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Superior Ct. 101, 403 A.2d 113 (1979) (quashing appeal).

Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. at 282, 446 A.2d at 615 (footnote omitted).

The record indicates that the trial court ordered the settlement monies placed into escrow and that the parties stipulated to the sums paid to the plaintiff by the Department by way of medical and cash assistance. Therefore, as a practical matter, the undisputed res in controversy is being held by the court pending this appeal. The trial court, pursuant to its opinion dated January 11, 1982, ⁷ held that the Department was not entitled to the monies as a matter of law. The Order of the trial court denying the Department's Petition to Intervene is therefore a practical denial of relief.

The second part of the test for appealability is whether the Department can obtain relief by any other method. The Department has the right, under 62 P.S. § 1974, to sue a beneficiary for reimbursement of benefits paid by the Department. See Commonwealth of Pennsylvania, Department of Public Welfare v. Livingood, 22 Pa.Commw. 530, 349 A.2d 816 (1976); see also Shearer v. Moore, 277 Pa.Super. 70, 419 A.2d 665 (1980) (Commonwealth, in furtherance of efforts to obtain reimbursement for medical assistance payments, may sue recipient of assistance in court of common pleas). Also, the Fraud Abuse and Control Act, 62 P.S § 1409(b)(1), ⁸ states that the Department may sue a tortfeasor or his insurer directly for recovery of benefits paid on behalf of a beneficiary who has suffered injury. However, as stated previously, the trial court held that the Department was not entitled to recover benefits from the plaintiff in the instant case. We hold that, as a practical matter, the Department has no legal alternative ⁹ to intervention in the instant case. The order denying the Department's Petition to Intervene is, therefore, appealable.

We now turn to the issues raised on appeal.

Initially, it must be noted that all three issues raised by the Department involve the force and effect of section 602 of HCSMA. The record indicates the action was transferred to the Court of Common Pleas, pursuant to an Election of Jurisdiction, by the plaintiff. ¹⁰ The record also indicates that the controversy was settled after the transfer.

We therefore must initially determine whether section 602 of the HCSMA is applicable in a situation involving the settlement of a malpractice action after transfer of the action from the jurisdiction of the HCSMA to the common pleas court.

It is clear that since the holding in Mattos v. Thompson, supra, the HCSMA no longer has original exclusive jurisdiction over claims for loss or damage, arising from the furnishing of medical services, against health care providers in Pennsylvania. Therefore, where such an action is either originally instituted in the court of common pleas or transferred to said court from the jurisdiction of the HCSMA pursuant to the Opinion of the Attorney General, 15 D & C 3d 585 (1980), certain other provisions of the HCSMA will no longer apply to the action. ¹¹

The provision in question states:

§ 1301.602 Reduction of award by other benefits

The loss and damages awarded under this act shall be reduced by any public collateral source of compensation or benefits. A right of subrogation is not enforceable against any benefit or compensation awarded under this act or against any health care provider or its liability insurer. (Emphasis added)

An award has been defined as the decision or determination rendered by arbitrators or commissioners upon a controversy submitted to them. Black's Law Dictionary (5th ed. 1979). See also 3 P.L.E. Arbitration § 12 (an award is the final judgment or decision pronounced by the arbitrators in settlement of the controversy submitted to them). Also, it has been held that an award is a judgment of a tribunal selected by the parties to determine matters actually in variance between them. Keiser v. Berks County, 253 Pa. 167, 97 A. 1067 (1916).

In the instant case, the settlement was made while jurisdiction was held by the court of common pleas, not the HCSMA. Although certain provisions of the HCSMA remain in force in such circumstances, we hold that section 602 is inapplicable to the instant case, as no award was involved.

In Marquez v. Hahnemann Medical College and Hospital of Philadelphia, 56 Pa.Cmwlth. 188, 424 A.2d 975 (1981), an action for damages under the HCSMA was settled. Plaintiff's attorneys sought approval of the settlement and the fixing of counsel fees from the court of common pleas, which was granted by order of court. The settlement was then submitted to the Administrator of the HCSMA for approval, pursuant to section 307(b) ¹² of the Act, because the action involved a minor. The Administrator declined to approve the settlement until attorneys' fees were put into conformance with section 604(a) of the Act. On appeal, the commonwealth court held that the court of common pleas had no jurisdiction over the case because the action was within the exclusive jurisdiction of the HCSMA and that the common pleas court's application of the Rules of Civil Procedure concerning settlement did not apply.

We believe the inverse of this holding to be applicable to the instant appeal; where the court of common pleas has jurisdiction over a medical malpractice claim, those sections of the HCSMA which concern only actions for arbitration within the ambit of the Act are inapplicable.

As set forth in footnote 8 supra, 62 P.S. § 1409(b)(1) clearly gives the Department of Public Welfare the right to recover the reasonable value of benefits provided a beneficiary from a tortfeasor or tortfeasor's insurer.

Section 1409(b)(5) states:

(5) If either the beneficiary or the department brings an action or claim against such third party or insurer, the beneficiary or the department shall within thirty days of filing the action give to the other written notice by personal service, or certified or registered mail of the action or claim. Proof of such notice shall be filed in such action or claim. If an action or claim is brought by either the department or beneficiary, the other may, at any time before trial on the facts, become a party to, or shall consolidate his action or claim with the other if brought independently.

The instant action never reached trial on the facts. Therefore, section 1409(b)(5) appears to permit the Department to become a party to or to consolidate their action with that of the plaintiff.

Furthermore, section 1409(b)(9) states that "[n]o judgment, award or settlement in any action where the department has an interest, shall be satisfied...