Wednesday, February 3, 2016

Judge Nealon of Lackawanna County Grants Request for Discontinuance in Favor of One Defendant in a Case Not Entirely Resolved

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
Lackawanna County
Judge Nealon confirmed that no cross-claims were asserted against the Defendant-hospitals by any Co-Defendant under Pa. R.C.P. 1031.1.   Moreover, no expert report had been produced in the case by any party alleging any liability on the part of the Defendant-hospitals who were seeking dismissal by way of a Discontinuance. 

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")

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