Heller v. Frankston

HUTCHINSON, Justice,

dissenting.

The majority today not only eliminates the optional, two tier arbitration — court system, but also throws the substantive law governing medical malpractice into confusion and plants doubts as to the continuing viability of the Medical Professional Liability Catastrophe Loss Fund and the statutory procedures for disciplining doctors who fail to meet professional standards. I would not lament the elimination of the arbitration panels we held optional in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), if it were done by the body which created these panels as a part of its effort to make professional liability insurance available at a *539reasonable cost.1 However, even if we assume this Court has the right to step in and eliminate the panel system because of its wasteful impracticality, I am unable to follow the majority in its reasoning that the difficulties with arbitration necessarily destroy the substantive control our legislature placed on contingent fees in Section 604 of the Act. The majority reaches out to these results in spite of the fact that the only issue briefed and argued before this Court was the constitutionality of a single section of the Health Care Services Malpractice Act, Section 604, on the ground that it violates separation of powers under Article Y, Section 10(c) of our Pennsylvania Constitution. This constitutional provision grants us power to regulate the practice of law.2 The issue presented to us was not due process or the ineffectiveness of the arbitration system. It was the power of the legislature reasonably to control legal fees.

The majority opinion avoids treating the conflict between coordinate branches this issue poses. It does so, however, by casting into confusion the status of other substantive sections of the Health Care Services Malpractice Act. Those other sections directly implement the legislature’s *540over-all goal of meeting what it and the medical profession saw as a health care crisis. That crisis arose out of the high cost of medical malpractice insurance and the prospect of its absolute unavailability as insurers threatened to withdraw from that field, contending they could not safely write such insurance even at ever-spiraling rates. One of the legislature’s substantive creations is the Catastrophe Loss Fund for excess coverage. Presumably, the majority does not find the Constitution requires its elimination. However, its opinion in this case does not address the effect that removal of the fee limitation will have on the Catastrophe Loss Fund.3

The practical problems incident to the inefficient and wasteful arbitration system are indeed serious. Hindsight shows this procedural system was unwise. Its problems cannot, however, obscure the fact that the majority’s result destroys the General Assembly’s substantive effort to reasonably regulate legal fees and, incidentally, carves out a privileged status for the legal profession.

On February 7, 1976, Dionisia Marquez’s son, Carmello, was treated in a Philadelphia Hospital for bronchopneumonia. As a result of that treatment, or lack of it, the child suffered severe brain damage. He now requires twenty-four hour care and should be adjudged an incompetent. Opinion of the Administrator, February 3, 1981, p. 2. Carmello’s mother sought legal representation from a Philadelphia attorney. She apparently signed a contingent fee agreement which provided for an attorney’s fee amounting to a flat thirty-three percent of the plaintiffs’ recovery, notwithstanding the express limitation on attorneys’ fees in malpractice cases. Section 604 of the Act,4 limits such fees *541by a scale with a high of 30% and a low of 20%, depending on the amount of recovery.

On August 13th, 1976, counsel filed a complaint with the Arbitration Panels for Health Care in the City of Philadelphia. Late in 1977, the defendants and their insurers agreed to pay one million dollars in settlement of the Marquez’s claims. Eighty per cent of this amount was paid by the Catastrophe Loss Fund created by other provisions of this Act. See note 4, supra. Plaintiff’s counsel then submitted that settlement for approval by the Philadelphia Court of Common Pleas instead of first submitting it to the Administrator as provided by Section 307(b) of the Health Care Services Malpractice Act, 40 P.S. § 1301.307(b).5 See Marquez v. Hahnemann M. C., 56 Pa. Commonwealth Court 188, 424 A.2d 975 (1981).

Philadelphia Common Pleas approved the settlement on December 15, 1977 and authorized attorneys’ fees in the amount of $333,333.00. Thereafter, counsel submitted the settlement to the Administrator who approved the settlement among the parties on January 11, 1978, but directed counsel to hold in escrow the $110,610.776 which exceeded the statutory limit on fees, pending a final judicial determination whether plaintiffs or their counsel were entitled to *542these funds. At the request of plaintiffs attorney a Certificate of Discontinuance was issued on January 5, 1978.

Subsequently, the Administrator filed a petition with the Philadelphia Court of Common Pleas seeking a modification of the order which had approved the thirty-three percent attorney’s fee. Common Pleas denied the petition and directed release of the escrowed funds to plaintiffs’ counsel. The Administrator then appealed to Commonwealth Court. That court vacated the lower court order, holding that courts have “jurisdiction over minors’ settlements only after an appeal has been effected under the provisions of Section 509 of the Act, 40 P.S. § 1301.509, and the case has ... for the first time come within the jurisdiction of the court.” Marquez v. Hahnemann, supra. 56 Commonwealth Ct. at 195, 424 A.2d at 979 (footnote omitted).

Although Marquez v. Hahnemann was decided four months after our opinion in Mattos v. Thompson, supra, Commonwealth Court did not fail to recognize that Marquez was originally and properly filed under the arbitration system and settled under the then constitutional provisions of the Act. Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978). Mattos, moreover, held only that Section 309 of the Act, 40 P.S. § 1301.309, was unconstitutional because, in giving the health care arbitrator panels “original exclusive jurisdiction” over medical malpractice claims, “the delays involved in processing these claims under the prescribed procedures set up under the Act result in an oppressive delay and impermissibly infringes [sic] upon the constitutional right to a jury.” Mattos, 491 Pa. at 396, 421 A.2d at 196. I do not quarrel with that decision.

The Marquez’s claim was filed, settled and discontinued less than two years after the child was injured and more than three years before this Court decided Mattos. Mattos did not address Section 307 and the authority it gives to. the Administrator “to consider and approve offers of settlement for fiduciaries, minors and incompetent parties at any time *543prior to the first meeting of the arbitration panel.” 40 P.S. § 1301.307(b).

Rebuffed in Commonwealth Court, plaintiff’s counsel attempted in 1981 to transfer his three year old discontinued case to the court of common pleas. This attempt was rejected by the Administrator. Counsel then appealed to Commonwealth Court directly challenging the constitutionality of Section 604 of the Act.7 That Section sets forth the limitations on attorneys’ fees in the following language:

*544(a) When a plaintiff is represented by an attorney in the prosecution of his claim the plaintiffs attorney fees from any award made from the first $100,000 may not exceed 30%, from the second $100,000 attorney fees may not exceed 25%, and attorney fees may not exceed 20% on the balance of any award.
(b) A plaintiff has the right to elect to pay for the attorney’s services on a mutually satisfactory per diem basis. The election, however, must be exercised in written form at the time of employment.

40 P.S. § 1301.604.

In determining that Section 604 of the Act, 40 P.S. § 1301.604, is not severable from the now unconstitutional sections of Articles III, IV and V, the majority does not mention Section 1925 of the Statutory Construction Act, 1 Pa.C.S. § 1925 which provides:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any *545person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

For the reasons which follow I do not find Section 604 essentially or inseparably connected with the now voided provisions of the Act. Neither do I find that Section 604 standing alone is either incomplete or incapable of execution in accordance with the legislative intent.

The Health Care Services Malpractice Act was enacted in 1975 for the purpose of making

available professional liability insurance at a reasonable cost, and to establish a system through which a person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation.

40 P.S. § 1301.102 (emphasis added). The title of the Act specifically describes the discrete subjects it addresses: “medical and health malpractice insurance”, “powers and duties of the Insurance Department”; “a joint underwriting plan”; “Arbitration Panels for Health Care, compulsory screening”; “collateral sources requirement”; “limitation on contingent fee compensation”; “establishing a Catastrophe Loss Fund”; “penalties”. It is evident from the title that the legislature intended to construct a multifaceted program to insure the availability of professional liability *546insurance at reasonable cost,8 combining provisions: for particular powers and duties of the Insurance Department, for the joint underwriting plan, for the collateral source requirements, for the limitation on contingent fee compensation, for the establishing of a Catastrophe Loss Fund and for the imposition of penalties, in addition to the creation of arbitration panels to achieve that goal.

In a similar fashion, the structure of the Act demonstrates the several distinct areas the legislature sought to address. Article II sets forth the liability of non-qualifying health care providers. Articles III, IV and V create the arbitration panels and the office of Administrator. Article VI deals with awards. It contains six sections. Only two refer to arbitration panels. The other sections of this Article deal with: (a) the reduction of awards by any public collateral source of compensation or benefits and the denial of subrogation, (b) attorney’s fees from any award, (c) the statute of limitations on the liability of the Catastrophe Loss Fund established in Article VII and (d) the requirement of a special contract in writing to create a guaranty of cure. Article VII creates the Medical Professional Liability Catastrophe Loss Fund and provides for the liability of excess carriers. Article VIII requires the Insurance Commissioner to create a plan, consisting of all insurers authorized to write insurance under The Insurance Company Law of 1921, Act of May 17, 1921, P.L. 682, 40 P.S. § 382 et seq., which would “provide equitable apportionment of the financial burdens of insurance provided to all applicants ... and the costs of operation of the plan among all participating insurers____” Article IX directs the Medical, Osteopathic and Podiatry licensing boards to appoint investigators, attorneys and hearing examiners to fully implement their authority to revoke, suspend, limit or otherwise regulate the licenses of physicians. Finally, Article X contains six mis*547cellaneous provisions for immunity from liability for the licensing boards, requiring notice prior to cancellation of professional liability policies, establishing the act’s prospective application only, setting forth penalties for non-payment of assessments and establishing a joint committee.

Given this panoply of legislative devices designed to address the medical malpractice insurance crisis in 1975, I do not see how it can now be said either that the entire act is unconstitutional because the arbitration panels are unworkable, or that the section controlling fees is so tied in with the arbitration system that the legislature would not have included it if it had not created the arbitration system. Judged by the standards of 1 Pa.C.S. § 1925,9 neither our original conclusion in Mattos that the jurisdiction of arbitration panels is not exclusive, nor today’s revision of Mattos, nullifying all of the arbitration procedures of the act, provides any basis for a judicial excision of the limitation on contingent fee compensation in Article VI. The language in Section 604, 40 P.S. § 1301.604, refers to “a plaintiff represented by an attorney in the prosecution of his claim” and limits plaintiff’s attorneys fees from “any award”. There is no reference to arbitration panels anywhere in this section.

Plaintiff’s counsel has argued that the legislature’s authority to limit attorney’s fees applies only to statutory claims, not to actions derived from common law. I believe his argument is without merit. The legislature has for almost two centuries enacted statutes setting fees for attorneys-at-law. Admittedly, most of these statutes were enacted as measures to guarantee an attorney a minimum fee, as for example the Act of February 22, 1821, P.L. 50, 7 Sm.L. 367, § 2, 17 P.S. § 1635 (1962), entitled “An Act to alter and amend the fee bill”, which entitled an attorney-at-law to receive $3.00 for every suit” prosecuted to judgment, discontinuance, or non pros” and $1.50 for “issuing praecipe for the commencement of any suit, entering an appearance on the prothonotary’s docket, if the suit is ended on or before the first day of the first term.” The Act of June 11, *5481885, P.L. 107, § 1, 12 P.S. § 3000 (1952) entitled “A Supplement to an Act entitled ‘an Act to prevent vexatious attachments, and to regulate the costs thereof,’ approved April twenty-second, one thousand and sixty three,” did, however, specify “a reasonable counsel fee, not exceeding ten dollars”.

Where, in any attachment, execution or scire facias on foreign attachment issued out of any court of record in this state, the garnishee shall be found to have in his possession or control no real or personal property of the defendant, nor to owe him any debt, the said garnishee shall be entitled to recover from the plaintiff, in addition to the costs already allowed by law, a reasonable counsel fee, not exceeding ten dollars, to be determined by the court and taxed as part of the costs.

12 P.S. § 3000 (1952).

While the particular acts cited have been repealed by the legislature in the Judicial Act Repealer Act, Act of August 28, 1978, P.L. 202, effective June 27, 1978, 42 P.S. §§ 20001-20004, [88] and [733], the Laws of Pennsylvania still provide for limits on attorney’s fees: (a) in actions for repossession of a motor vehicle, derived from the old action of replevin,10 (b) in foreclosure actions,11 and (c) in actions on a mortgage,12 to name only a few. Even the Judicial Code itself regulates the manner of negotiating a contingent fee in a personal injury case. 42 C.P.S. § 7102. I find no basis in law or logic for concluding that common law torts are somehow beyond the reach of legislative policy. If Article V, Section 10(c) itself requires this distinction, that issue should be faced.

Counsel’s equal protection argument that Section 604 discriminates against plaintiff’s attorneys by limiting con*549tingent fee awards must also fall. The profession, including the bench and bar, well knows what the legislature also knows, that defense counsel almost never make contingent fee agreements with their clients, much preferring to be compensated in relation to their time and effort expended. The latter form of compensation is also open to the plaintiff’s bar where practical. See 40 P.S. § 1301.604(b), supra, at p. 1300. Of course, contingent fees are often necessary for the protection of individuals under our legal system. The question here, however, is not their elimination, but their reasonable regulation.

Commonwealth Court evoked the doctrine of “separation of powers” in its opinion to support a holding that the legislature lacks any authority to set attorney’s fees. It seems strange that this argument has never been applied to statutes which guarantee a reasonable minimum fee or some other professional perquisite. Separation of powers is not just a mechanism to be dragged out on occasion to protect special interests or the prerogatives of a particular branch of government. It is a coherent policy underlying all American constitutional theory. It requires the courts actively to protect the prerogatives of all three branches of our government, not supinely to permit the aggrandizement of one branch, or one profession, at the expense of the other two. Article V, Section 10(c) of the Pennsylvania Constitution gives this Court “the power to prescribe general rules governing, practice, procedure and the conduct of all courts ... including the power to provide ... for admission to the bar and to practice law, ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant. ” (Emphasis added). I would find it inconceivable that the right of a litigant to a greater or lesser proportion of his recovery should be viewed as a matter of procedure and thus outside the realm of legislative policy.

The majority of the Court has in this instance avoided the shoals of a dubious distinction between the legislature’s authority over common law and statutory fees and the siren *550song of “separation of powers”. Its opinion should not, however, lead to the jettisoning of the whole Health Care Services Malpractice Act, Administrator, Catastrophe Loss Fund and all.

Since Mattos, properly interpreted, did in fact strike down the arbitration process, it necessarily follows that section 604(a) no longer has vitality. While a statute may be partially valid and partially invalid, that can only occur where the provisions are distinct and not so interwoven as to be inseparable. Saulsbury v. Bethlehem Steel Corp., 413 Pa. 316, 196 A.2d 664 (1964); Pennsylvania Railroad Co. v. Schwartz, 391 Pa. 619, 139 A.2d 525 (1958).
The power to regulate counsel fees was ancillary to the power to arbitrate the basic claim. Where the panel has lost the jurisdiction over the resolution of the claim itself it obviously cannot regulate counsel fees in such matters. With our decision in Mattos the exclusive original jurisdiction in these cases reverted to the court. Any argument suggesting severability of section 604(a) would be patently erroneous.

Majority Opinion at p. 538.

I suggest that Section 1925 of our Statutory Construction Act requires severance. 1 Pa.C.S. § 1925, quoted at p. 1300, supra.

The record in this case shows that the basic claim was settled under the then constitutional arbitration program established by statute in 1975. The Marquez’s claim was filed with the Administrator in 1976, settled in 1977 and discontinued at the request of counsel in January of 1978. Thus, the 1980 decision in Mattos should not be read to create an exclusive original jurisdiction in the Philadelphia Court of Common Pleas at a time when this Court had explicitly found the Health Care Services Malpractice Act and its procedures to be constitutional. Parker, supra.

Rather than address the single issue presented to this Court: the legislature’s power to set limits on attorneys’ fees as part of a broad program to remedy a perceived financial crisis for the providers of health care, the majority *551has resorted to a revisionist exegesis of its own cases to bring down the fee limitation in the ruin of the arbitration system13 and undermine the foundations of the Health Care Services Malpractice Act itself.

. Act of October 15, 1975, P.L. 390, § 102, 40 P.S. § 1301.102 (Health Care Services Malpractice Act).

. Article V, Section 10(c) provides:

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.

This Court, in paraphrasing this language, has repeatedly added the word, "exclusive”. I note, again, that the word, "exclusive”, is not contained in the text. That being the case, I would think considerations of comity would stay our hand in this case.

. The Medical Professional Liability Catastrophe Loss Fund, created in Articles VI and VII of the Act, provided $800,000.00 of the $1,000,-000.00 settlement in this case. Record, Order of Paul F. Abrams, Administrator, Arbitration Panels for Health Care, p. 2, January 11, 1978.

. Act of October 15, 1975, P.L. 390, § 604, 40 P.S. § 1301.604, effective January 13, 1976.

. Section 307 of the Act was amended on July 15, 1976, effective immediately and retroactive to January 13, 1976, as follows:

(b) The administrator shall have the power to consider and approve offers of settlement for fiduciaries, minors and incompetent parties at any time prior to the first meeting of the arbitration panel. The fund may be represented at any negotiation of settlement exceeding the basic coverage insurance carrier limit of liability.

37 Pa.Code § 171.130 was promulgated by the Administrator effective July 10, 1976. 6 Pa.B. 1632. It read:

Approval of a settlement involving fiduciaries, minors or incompetent parties by the Administrator or the arbitration panel shall not relieve the parties of obtaining approval by an appropriate court where such is required by the Pennsylvania Rules of Civil Procedure.

This regulation was subsequently amended and renumbered in 1979. See 9 Pa.B. 3811 (November 17, 1979).

. Record, Order of Paul F. Abrams, Administrator, Arbitration Panels for Health Care, p. 2, January 11, 1978.

. Counsel’s challenge, based on Pennsylvania Constitution Article V, Section 10(c), would cast into question a host of fee limitations enacted by the General Assembly in other areas, among them:

(a) Pennsylvania statutes limiting attorney’s fees in cases based on causes of action that previously existed at common law include: Motor Vehicle Sales Finance Act, Act of June 28, 1947, P.L. 1110, as amended Act of July 1, 1978, P.L. 725, No. 130, 69 P.S. § 623 (Supp. 1983-84) (relating to limitation of $50 for attorney’s fees prior to commencement of legal action for repossession); Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. § 406 (Supp.1983-84) (relating to limitation of $50 for attorneys fees prior to commencement of foreclosure or other legal action); Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. § 503 (Supp.1983-84) (relating to determination of reasonable attorney’s fees when borrower, residential mortgage debtor, or other debt- or prevails); Home Improvement Finance Act, Act of August 14, 1963, P.L. 1082, 73 P.S. § 500-209 (relating to home installment contracts, collection of delinquencies, payment of court costs and attorney’s fees not exceeding 20% of amount due); Act of June 22, 1964, P.L. 84, § 610, added by Act of December 29, 1971, P.L. 640, No. 169, 26 P.S. § 1-610 (Supp.1983-84) (relating to reimbursement for owners of any rights, titles or interest in real property, with attorney’s fees not to exceed $500).
(b) Other Pennsylvania statutes limiting attorney’s fees include: Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.107 (Supp.1983-84) (relating to limiting reasonable attorney’s fees to that based on actual time expended on behalf of a claimant); Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.602 (Supp.1983-84) (relating to misdemeanor for charges for legal fees in excess of amount authorized by Pennsylvania No-fault Motor Vehicle Act); Act of' December 15, 1959, P.L. 1774, No. 672, 53 P.S. § 7445 (relating to attorney’s fees of 5% for collection of liens for municipal improvement); Act of June 19, 1913, P.L. 535, as amended Act of April 9, 1915, P.L. 67, 53 P.S. § 53402 (relating to attorney’s fees of 5% for collection of assessments for municipal grading, paving, or curbing of public highways); Adoption Act, Act of October 15, 1980, P.L. 934, No. 163, as amended Act of June 23, 1982, P.L. 617, No. 174, 23 Pa.C.S.A. § 2313 (relating to limitation of attorney’s fee to $150 for representing child in involuntary termination proceeding); The Work*544men's Compensation Act, Act of June 2, 1915, P.L. 736, as amended Act of March 29, 1972, P.L. 159, No. 61, 77 P.S. § 998 (Supp.1983-84) (relating to limitation of attorney's fees to 20% of amount awarded); Act of May 16, 1923, P.L. 207, 53 P.S. § 7271 (Supp.1983-84) (relating to assessment of 5% fee for collection to plaintiff's attorney in municipal judgment on claims); Act of May 16, 1923, P.L. 207, 53 P.S. § 7187 (relating to limitation of plaintiffs attorney's fees to 5% up to $50 for collection of tax and municipal claims); The Administrative Code, Act of April 9, 1929, P.L. 177, as amended Act of July 9, 1976, P.L. 574, No. 139, 71 P.S. § 180-7.2 (Supp.1983-84) (relating to award of attorney’s fees to crime victims in an amount not to exceed 15%); Act of December 13, 1982, P.L. 1127, No. 257, 71 P.S. § 2032 (Supp.1983-84) (relating to attorney’s fees for administrative agency actions of not more than $75 per hour — none if total less than $250, no more than $10,000); Credit Union Act, Act of September 20, 1961, P.L. 1548, as amended Act of December 14, 1982, P.L. 1240, No. 283, 15 P.S. § 12319 (relating to limitation to 20% of outstanding loan balance for attorney's fees); The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended Act of May 31, 1955, P.L. 56, No. 27, 53 P.S. 56513 (relating to 5% attorney's commission on assessments for street lighting); The Second Class Township Code, Act of May 1, 1933, P.L. 103, No. 69, as amended Act of July 11, 1980, P.L. 575, No. 120, 53 P.S. § 65702 (Supp.1983-84) (relating to 5% attorney’s commission on assessments for street lighting); The Second Class Township Code, Act of May 1, 1933, P.L. 103, No. 69, as amended Act of May 20, 1949, P.L. 1562, No. 474, 53 P.S. § 65743 (relating to 5% attorney’s commission on assessments for police protection).

. We note that the title to the Act of January 30, 1974, P.L. 13, § 101, 41 P.S. § 101, which sets forth the maximum lawful interest rate for loans and mortgages contains a parallel list including "provision for the payment of attorney's fees with regard to residential mortgage obligations”.

. Supra, p. 10.

. Act of June 28, 1947, P.L. 1110, as amended, Act of July 1, 1978, P.L. 725, 69 P.S. § 623 (1983-84 Supp.). See note 8, supra.

. Act of January 30, 1974, P.L. 13, 41 P.S. § 406 (1983-84 Supp.). See note 8, supra.

. Act of January 30, 1974, P.L. 13, 41 P.S. § 503 (1983-84 Supp.). See note 8, supra.

. It is worth noting that this Court has recently approved a local regulation issued by the Philadelphia Court of Common Pleas, imposing a similar two-tier system on the settlement of asbestosis claims. Pittsburgh Corning Corporation v. Bradley, 499 Pa. 291, 453 A.2d 314 (1982). I am not yet ready to conclude that such arbitration systems are constitutional when established by judicial fiat, but unconstitutional when enacted by the legislature in accordance with the provisions of Article III of the Pennsylvania Constitution.