Hileman v. Morelli

9 Pa. D. & C.4th 390, 1991 Pa. Dist. & Cnty. Dec. LEXIS 377
CourtPennsylvania Court of Common Pleas, Blair County
DecidedJanuary 30, 1991
Docketno. 2126 C.P. 1989
StatusPublished

This text of 9 Pa. D. & C.4th 390 (Hileman v. Morelli) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Blair County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hileman v. Morelli, 9 Pa. D. & C.4th 390, 1991 Pa. Dist. & Cnty. Dec. LEXIS 377 (Pa. Super. Ct. 1991).

Opinion

CARPENTER, J.,

Before the court are preliminary objections in this medical malpractice action filed by both defendants relevant to plaintiffs’ amended complaint. The amended complaint was filed pursuant to this court’s prior order of May 11, 1990 which granted the prior motions of both defendants for more specific plead[391]*391ing. Defendant Morelli now objects, both on the basis that the amended complaint unilaterally discontinues the cause against Nason Hospital without leave of court as required by Pa.R.C.P. 229(b), and also on the basis that certain of plaintiffs’ allegations fail to meet the level of specificity required by Pa.R.C.P. 1019(a). Defendant Nason Hospital has filed objections on the basis that, since plaintiffs have omitted from the amended complaint all of the allegations against the hospital appearing previously in the original complaint, a demurrer should be granted.

We agree with defendant Morelli to the extent that plaintiffs may not unilaterally discontinue their action against Nason Hospital merely by deleting its name from the caption on their amended complaint and by omitting all allegations of negligence against it previously appearing in the original complaint. Rule 229 provides that a discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of trial. Martinelli v. Mulloy, 223 Pa. Super. 130, 299 A.2d 19 (1972); Pa.R.C.P. 229(a). A discontinuance as to less than all defendants may not be entered without leave of court after notice to all parties. Pa.R.C.P. 229(b).

In order to comply with this rule, however, plaintiffs presented an oral motion to discontinue their action against the hospital during the argument on these objections. While this eleventh-hour motion was not formally raised in plaintiffs’ brief and lacks the formality generally required, we believe it should nevertheless be considered at this time. In this regard, defendant Morelli may not claim prejudice by any lack of notice under Rule 229(b), since she herself raised and discussed the issue in her brief. Additionally, defendant Morelli may not chai-[392]*392lenge the lack of formality, since Rule 229(b) makes no requirement for the filing of a formal petition. (Cf. Rule 229(c), “upon petition and after notice.”) We therefore consider plaintiffs’ motion to be properly before us.

Generally, discontinuance as to one of several defendants may be permitted where plaintiff discovers that he has no case against him and the other defendants can show no prejudice. Martinelli v. Mulloy, supra. In the case at bar, plaintiffs assert that their expert can find no reason to suspect negligence on the part of the hospital — an assertion uncontested by defendants. As to any possible prejudice, defendant Morelli asserts that she will suffer prejudice by losing the opportunity to plead against the hospital and charge it with sole liability for plaintiffs’ injuries. According to this argument, Rule 2252(d) provides her with the only procedure to file such a cross-claim against the hospital and requires that such cross-claim be made through the filing of an answer as new matter. However, since the complaint was filed only 14 days prior to the running of the applicable statute of limitations,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pastierik v. Duquesne Light Co.
526 A.2d 323 (Supreme Court of Pennsylvania, 1987)
Symbula v. Johns-Manville Corp.
526 A.2d 328 (Supreme Court of Pennsylvania, 1987)
Wnek v. Boyle
96 A.2d 857 (Supreme Court of Pennsylvania, 1953)
Kitchen v. Grampian Borough
219 A.2d 685 (Supreme Court of Pennsylvania, 1966)
Lexington Ins. Co. v. PA. INS. DEPT.
541 A.2d 834 (Commonwealth Court of Pennsylvania, 1988)
DICKSON v. LEWANDOWSKI
323 A.2d 169 (Superior Court of Pennsylvania, 1974)
Richards v. ALSTON
553 A.2d 488 (Commonwealth Court of Pennsylvania, 1989)
Svetz for Svetz v. Land Tool Co.
513 A.2d 403 (Supreme Court of Pennsylvania, 1986)
Bendas v. Upper Saucon Township
561 A.2d 1290 (Commonwealth Court of Pennsylvania, 1989)
Martinelli v. Mulloy
299 A.2d 19 (Superior Court of Pennsylvania, 1972)
DiLauro v. One Bala Avenue Associates
515 A.2d 939 (Supreme Court of Pennsylvania, 1986)
Connor v. Allegheny General Hospital
461 A.2d 600 (Supreme Court of Pennsylvania, 1983)
Usner v. Duersmith
31 A.2d 149 (Supreme Court of Pennsylvania, 1943)
Greenberg v. Aetna Insurance
235 A.2d 576 (Supreme Court of Pennsylvania, 1967)
Borough of Huntingdon v. Dorris
78 Pa. Super. 469 (Superior Court of Pennsylvania, 1922)
Ragan v. Steen
331 A.2d 724 (Superior Court of Pennsylvania, 1974)
Ianni v. Pantalone
361 A.2d 772 (Superior Court of Pennsylvania, 1976)
Marquez ex rel. Marquez v. Hahnemann Medical College
424 A.2d 975 (Commonwealth Court of Pennsylvania, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
9 Pa. D. & C.4th 390, 1991 Pa. Dist. & Cnty. Dec. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hileman-v-morelli-pactcomplblair-1991.