noting that in a case brought by a plaintiff, standing in the shoes of the medical malpractice defendant doctor, to challenge the CAT Fund’s denial of coverage (based on the failure to receive a timely surcharge), the “Commonwealth Court has exclusive jurisdiction to hear cases involving the CAT Fund, an agency of the Commonwealth”
How later courts described this case
- noting that in a case brought by a plaintiff, standing in the shoes of the medical malpractice defendant doctor, to challenge the CAT Fund’s denial of coverage (based on the failure to receive a timely surcharge), the “Commonwealth Court has exclusive jurisdiction to hear cases involving the CAT Fund, an agency of the Commonwealth”
- the Commonwealth Court has exclusive jurisdiction to hear cases involving the CAT Fund, an agency of the Commonwealth
Written by the judges who cited it.
The opinion
Justice NIGRO,
dissenting.
As I do not agree with the majority that 31 Pa.Code § 242.17(b) was a valid exercise of the CAT Fund’s rule-making authority, I respectfully dissent.
According to 31 Pa.Code § 242.17(b), “[a] health care provider failing to pay the surcharge or emergency surcharge within the time limits prescribed will not be covered by the Fund in the event of a loss.” In Dellenbaugh v. ■ Medical Professional Liability Catastrophe Loss Fund, 562 Pa. 558 , 756 A.2d 1172 (2000), this Court applied that very regulation to deny coverage to a physician who had failed to pay his surcharge. The majority now asserts that Dellenbaugh “did not present this Court with the opportunity to address whether 31 Pa.Code § 242.17(b) was a valid exercise of the CAT Fund’s rule-making authority.” Op. at 1234. However, in my view, Dellenbaugh presented just that issue and the majority, by denying coverage to a physician who had failed to pay his surcharge, necessarily concluded that the regulation allowing such a denial was valid. In fact, I dissented in Dellenbaugh, specifically opining that coverage should have been provided because 31 Pa.Code § 242.17(b) was not in accord with the plain language of the Health Care Services Malpractice Act, 40 P.S. §§ 1301.701-1301.706, and was therefore invalid and unenforceable. 756 A.2d at 1176-78 (Nigro, J., dissenting). Nevertheless, as the majority now asserts that Dellenbaugh did not resolve the issue of the regulation’s validity, I have no choice but to dissent again, based on the reasons I have already set forth in my Dellenbaugh dissent.
In spite of my disagreement with the majority on the question of the regulation’s validity, I nonetheless concur in its *127 conclusion that the trial court did not err in refusing to permit Lloyd to amend his Petition for Review to assert a claim of bad faith against the CAT Fund. As I believe that Dellenbaugh established the validity of 31 Pa.Code § 242.17(b), and the CAT Fund acted in accordance with the plain language of that regulation, there was simply no basis on which the CAT Fund could be found to have acted in bad faith, and any amendment of the Petition to assert a bad faith claim would therefore have been futile.
For the foregoing reasons, I would reverse the order of the Commonwealth Court insofar as it concluded that 31 Pa.Code § 242.17(b) was a valid exercise of the authority of the Director of the CAT Fund, but affirm that order insofar as it prohibited Lloyd from pursuing a bad faith claim against the CAT Fund.
Justice SAYLOR joins in the dissenting opinion.