dissenting.
I dissent.
I.
The Medical Malpractice Act of 1976 is an unworkable mess and the Majority of this Court is perpetuating this sad condition. It is a piece of social legislation which has not achieved a single one of its purposes. One thousand two hundred and seventy cases (1,270)1 have been filed with the administrator of the Act yet only two of the cases have been disposed of by trial by the seven person arbitration panel. This backlog is growing by leaps and bounds each year. The backlog will soon be greater, time wise, than any one of Pennsylvania’s sixty-seven county court backlogs. The only thing this Act has successfully done is create a bureaucracy which impedes the resolution of disputes of its citizens. The poor citizens (both plaintiffs and defendants) must now undergo two lengthy trials, endure two court backlogs and pay double the expenses which are not uncommonly in the $20,000 to $30,000 range. Additionally, it is humanly impossible for one person (administrator) to manage, control and make all legal rulings on the pleadings of well over one thousand cases — hence the cases will not be disposed of. Lastly, as a practical matter, it is almost impossible to form an arbitration panel. Two health care providers (Doctors, etc.,) are required to sit on the arbitration panel and no doctor, worth' his salt, will be able to devote the necessary two or three weeks plus serve on the panel. The legislature sincerely meant well when they created this Act;. but it just hasn’t worked out and yet, its burdens and unworkability will continue. As Mr. Justice Blackmun of the United States Supreme Court stated in a reference to an aspect of Pennsylvania Law, “The law is a ass — a idiot.” Estate of Wilson v. Aiken Industries, Inc.,-U.S.-, 99 S.Ct. 216, 58 L.Ed.2d 191 (1978) (Blackmun, J., concurring in denial of cert.)
*133II.
The Malpractice Act is unconstitutional for the following reasons:
A) Article I Section 6 of the Pennsylvania Constitution provides:
“Trial by jury shall be as heretofore, and the right thereof remain inviolate.”
The Malpractice Act violates this section of the Pennsylvania Constitution in two respects: (1) as the Act provides that the arbitrators’ decision shall be admissible as evidence in the “de novo” jury trial, a true de novo trial is not provided; and (2) even if a de novo jury trial is provided, the requirement of first trying one’s case completely before the arbitration panel is such a burden as to impose “onerous conditions, restrictions or regulations which would make the right [to a jury trial] practically unavailable.” Smith Case, 381 Pa. 223, 112 A.2d 625 (1955).
B) The inclusion of two health care providers (doctors, hospitals, etc.) on the seven member panel denies a plaintiff a constitutionally provided fair trial. The health care providers’ contributions to the ‘fund’ are determined by the size of awards granted to plaintiffs. It is like the fox deciding if the chicken should be reimbursed for the fox having raided the chicken coop. See Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972).
C) Plaintiffs are also denied procedural due process because the chairperson of the panel (selected by administrator) retires to deliberate with the other panel members after having instructed the other panel members of the law applicable to the case being decided. It would be the same as permitting a trial judge, after instructing a jury as to the law, to then become the “thirteenth” juror to participate in the jury deliberations. See Argo v. Goodstein, 424 Pa. 612, 228 A.2d 195 (1967) wherein we reiterated “ ‘ We strongly condemn any intrusion by a Judge into the jury room during the jury’s deliberations . . .
*134D) Article I Section 11 of the Pennsylvania Constitution provides: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” (Emphasis added)
The Medical Malpractice Act violates this provision of the Pennsylvania Constitution because the Act creates an intolerable delay by requiring the litigants to endure two long backlogs and two full blown trials.
. Forty-eight (48) cases in 1976; 422 in 1977; 800 in 1978 (as of August 31).