385 A.2d 478 | Pa. Super. Ct. | 1978
This is an appeal by a defendant from an order discontinuing the plaintiff’s medical malpractice action as to a co-defendant.
The procedural history of the case, which involves a number of defendants, is complex, but as to the parties before us the significant part of the history is as follows. In the caption of her complaint the plaintiff named Allegheny General Hospital and Dr. James L. Baker among the defendants. In the body of the complaint, however, she made no allegations as to Baker. Baker therefore filed preliminary objections in the nature of a demurrer. Oral argument was scheduled, but before it was held, the plaintiff on December 5, 1975, petitioned for a rule to show cause why her action should not be discontinued as to Baker. A rule issued, returnable December 29; the lower court also imposed a stay of proceedings. Because of the stay, argument on the demurrer was not held.
On February 6, 1976, the lower court made the rule absolute and discontinued the action as to Baker. Allegheny has appealed that order.
Pa.R.C.P. 229 provides:
(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
(b) A discontinuance may not be entered as to less than all defendants without leave of court after notice to all parties.
(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.
Allegheny now claims prejudice in that the statute of limitations ran “between the time of the commencement of Starr’s [the plaintiff’s] action by Writ, the serving of the Writ on Appellant and the discontinuance of the action against Baker.” Brief for Appellant at 10. We cannot recognize this claim, however, for in its answer to the rule to show cause why the action should not be discontinued as to Baker, Allegheny made no reference to the running of the statute. The effect of this failure is not avoided by Allegheny’s statement in its brief that “[a]t oral argument, the lower court knew that the applicable statute of limitations had expired.” Id. at 9.
The only prejudice alleged of record by Allegheny was that because of the complexity of the case, the medical specialties involved, and the fact that there had been no
Furthermore, we note that Allegheny’s answer to the rule to show cause why the action should not be discontinued as to Baker was not timely filed. Allegheny states in its brief that the plaintiff’s counsel granted an oral extension, Brief for Appellant at 5, but there is no evidence of record to this effect. In any event Allegheny’s cross-claim was filed without leave of court, in violation of Pa.R.C.P. 2253, and also in violation of the court’s stay of all proceedings.
Affirmed.
. It is possible to read the court’s December 5 order staying all proceedings as meant to last only until December 29, 1975, when the rule was made returnable, rather than until the later date when the court made its decision on the Rule. It is unlikely, however, that that is what the court had in mind.