In his recent January 19, 2016 Opinion in the case of Lapinski v. Schiowitz, No. 2009-CV-4287 (C.P. Lacka. Co. Jan. 19, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of a Defendant seeking to be dismissed from a lawsuit by way of a Discontinuance when the entire lawsuit has not yet concluded.
In Lapinski, the Defendant-hospitals in a malpractice action filed Motions for Discontinuance seeking their dismissal as named defendants pursuant to Pa. R.C.P. 229(b)(1).
|Judge Terrence R. Nealon|
The court noted that the only claim against the Defendant-hospitals was the Plaintiffs’ original allegation that the Defendant-surgeons were ostensible agents of the Defendant-hospitals such that the hospitals were vicariously liable for the surgeons’ negligence. When the Plaintiffs chose to abandon that only claim asserted against the Defendant-hospitals, the hospitals sought the dismissal. The court also noted that the Plaintiff had stipulated in writing their agreement to the dismissal of the Defendant-hospitals.
The Co-Defendant-surgeons opposed the requested Discontinuances. As such, the Defendant-hospitals filed the motion at issue.
Judge Nealon ruled that the Defendant-surgeons had no basis to oppose the Discontinuance of this action against the Defendant-hospitals since the surgeons did not assert any cross-claims against the Defendant-hospitals. The court also ruled that the Defendant-surgeons could not compel the Plaintiff to litigate an ostensible agency claim that the Plaintiffs had elected to withdraw.
The court also ruled that another judge’s denial of the Defendant-hospitals’ previous Motion for Summary Judgment did not serve to preclude the granting of the Motion to Discontinue at issue.
Accordingly, the court granted the Defendant-hospitals’ Motion for Leave of Court to Discontinue under Rule 229(b)(1) and the Defendant-hospitals were removed as parties from the case.
Anyone wishing to read this Opinion by Judge Nealon in the Lapinski case may click this LINK.
Commentary: It would appear that the ruling and reasoning of Judge Nealon in this medical malpractice case could be applied in other types of civil litigation matters where a party Defendant requests a Discontinuance in a multi-Defendant matter where the Plaintiff agrees to forego any claims against that Defendant and where there are no cross-claims asserted by any other Defendant.
Source of image ("Discontinued"): beghelliusa.com