Court Refuses to Strike a Discontinuance Entered in a Medical Malpractice Case

In the case of Eubank v. Ing, Nov. Term, 2023, No. 0926 (C.P. Phila. Co. Feb. 7, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s denial of a Plaintiff’s Motion to Strike a Discontinuance that was filed in a medical malpractice action.

According to the Opinion, the Plaintiff alleged that his former attorney acted without the Plaintiff’s understanding or consent when the attorney filed the Discontinuance.

However, evidence was produced from the former attorney that specifically confirmed that the Plaintiff gave authorization to the former attorney to discontinue the matter.

Accordingly, the trial court concluded that the Discontinuance was not filed without the Plaintiff’s consent. The court also found that there were no grounds to support any finding of any confusion or misunderstanding by the Plaintiff about what was taken place relative to the filing of the Discontinuance.

The court ruled that, where a party fails to show that the entry of a Discontinuance with the result of fraud, imposition, or mistake, it is not an abuse of discretion by the trial court to deny a Petition to Strike a Discontinuance.

Moreover, the trial court noted that the Plaintiff commenced the lawsuit within the two (2) year statute of limitations but then discontinued the matter. It was noted that the Plaintiff’s Petition to Strike the Discontinuance was not filed until after the expiration of statute of limitations. The court found this to be an additional reason for the Superior Court to find that there was no abuse of discretion by the trial court to deny the Plaintiff’s request to reopen the matter.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (June 11, 2025).

Source of image:  Photo by Wesley Tingey on www.unsplash.com.  

Statute of Limitations Argument Can Be Made By Preliminary Objections In Some Cases

In the case of Weisberg v. Bansley, No. 20-CV-4432 (C.P. Lacka. Co. May 20, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections in a convoluted civil litigation, which Preliminary Objections were based, in part, upon a statute of limitations defense.

The court noted that this matter began as an ejectment action in 2006 and had since spawned three (3) additional lawsuits, with the current lawsuit being an action claiming wrongful use of civil proceedings that were instituted in an earlier lawsuit asserting wrongful use of civil proceedings.

In the pending case, a lawyer sued his ex-client, that client’s former attorneys, and the attorney who represented the ex-client’s former lawyer in the prior action alleging wrongful use of civil proceeding.

The Defendants filed Preliminary Objections asserting that the current case was barred by the statute of limitations since it was not commenced within two (2) years of the date that the prior lawsuit under the Dragonetti Act was voluntarily discontinued with prejudice as to all parties.

The Plaintiff countered with the argument that the current lawsuit was timely filed and that the discovery rule operated to extend the statute of limitations period.

After reviewing the records before him, Judge Nealon found that it was free and clear from doubt that the underlying Dragonetti action was voluntarily discontinued as to all parties “with prejudice” more than two (2) years and twenty-six (26) days before the current action was commenced.

Judge Nealon also noted that the question of whether a voluntary Discontinuance under Rule 229 constitutes a final termination for purposes of the question presented in this case depended upon whether the Discontinuance was with prejudice or without prejudice and whether it was a global Discontinuance as to all parties, as opposed to a mere dismissal of less than all Defendants. The court cited other case law confirming that, when an action is voluntarily discontinued with prejudice, the resulting dismissal with prejudice finalizes the parties’ rights as would a judgment on the merits and binds the parties with the same force and effect as if a final decree had been rendered after a full hearing on the merits.

In contrast, if a matter is voluntarily discontinued without prejudice, the Plaintiff is at liberty to commence, pursuant to Pa. R.C.P. 231(a), a second action based upon the same cause of action, provided that the statute of limitations had not expired. See Op. at 16.

The court also addressed the fact that the statute of limitations defense was raised in this matter by way of Preliminary Objections as opposed to by way of an Answer and New Matter, which is ordinarily the correct way to assert such a defense. 

The court reviewed the law confirming that, where the statute of limitations defense is clear on the face of the pleadings and the record and where a Plaintiff did not file Preliminary Objections to the Defendants’ assertion of that affirmative defense by way of Preliminary Objections rather than New Matter, the merits of a statute of limitations defense could be addressed by the court.

As more than two (2) years had passed since the previous litigation at issue had been terminated, the court found that the current lawsuit was clearly time-barred. As such, the Defendants’ Preliminary Objections in the nature of a demurrer based upon the expiration of the statute of limitations was sustained.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Nathan Dumlao on Unsplash.com.

Pennsylvania Superior Court Holds that Defendants Can Pursue Cross-Claims Even After Plaintiff Settles Out

In the case of Bollard & Assoc., Inc. v. PA Assoc., 2019 Pa. Super. 345 (Pa. Super. Nov. 19, 2019) (Op. by Collins, J.), the Pennsylvania Superior Court found that a trial court committed reversible error when it marked the case discontinued in its entirety based upon the settlement and the discontinuance of the Plaintiff’s claims against all Defendants where there is no evidence that the settlement of the Plaintiff’s claims resolved or barred the Defendants’ cross-claims.

This case arose out of allegations of fraudulent transfers.

The appellate court noted that the Defendants should have been able to continue to pursue their cross-claims for indemnity and contribution even though the Plaintiff had settled out.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).

Plaintiff Permitted to Discontinue Post-Koken Action Against Tortfeasor Over Objection of UIM Carrier

In a trial court Order entered by the Dauphin County Court of Common Pleas in the case of Phaler v. Ray and Westfield Insurance Company, No. 2014-CV-7332 (C.P. Dauph. Co. May 17, 2016 Bratton, J.), the court granted a Plaintiff’s Motion to Discontinue the post-Koken action against the tortfeasor Defendant over the objection of the UIM carrier. 

According to reports on the case, the UIM carrier attempted to compel the inclusion of the tortfeasor even though the tortfeasor had tendered his limits.  The argument raised was that the UIM carrier would be prejudiced during depositions and at trial if the tortfeasor was not forced to remain a party to the matter.  

In this Order issued by the court, the Plaintiff’s Motion for Partial Discontinuance in favor of the tortfeasor Defendant was granted and the tortfeasor Defendant was discontinued from the action with prejudice and his name was ordered removed from the caption.  

 

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

 

I send thanks to Attorney Stephen Franko for bringing this case to my attention.

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"):  beghelliusa.com

Notable Rules of Civil Procedure Amendments by the Pennsylvania Supreme Court

The Pennsylvania Supreme Court has issued two recent notable Rule changes.

Pa.R.C.P. 229 Discontinuance

Relative to Pa.R.C.P. 229, the Pennsylvania Supreme Court has amended the Rule to specifically state that, whenever a Discontinuance is sought to be entered as to less than all of the Defendants, the Discontinuance can be entered with the consent of all parties or, if that total consent is not forthcoming, a motion can be filed by the Plaintiff or the Defendant whom the Plaintiff has agreed to dismiss.  Previously the Rule was silent as to who could file such a motion.

Here are Links to the Amended Rule and the Explanatory Note:

http://www.pacourts.us/assets/opinions/Supreme/out/619civ-attach.pdf?cb=1

http://www.pacourts.us/assets/opinions/Supreme/out/619civ-rpt.pdf?cb=1

 

 

 

Pa.R.C.P. 234.1 Subpoena to Attend and Testify

 

The Pennsylvania Supreme Court amended Pa.R.C.P. 234.1 to require that reasonable notice of a need to appear and testify be given to non-party witnesses who are subpoenaed.  The Rule was previously silent in this regard.

 

Below are Links to the Amended Rule and the Explanatory Note:

 

http://www.pacourts.us/assets/opinions/Supreme/out/618civ-attach.pdf?cb=1

 

http://www.pacourts.us/assets/opinions/Supreme/out/618civ-rpt.pdf?cb=1

 

 

 

The above changes are in effect.