Vol. LVII Allentown, PA Friday, September 16, 2016 No. 12

52 Pages·2016·6.08 MB·English

Vol. LVII Allentown, PA Friday, September 16, 2016 No. 12
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THE COURT
The Hon. Edward D. Reibman, President Judge
The Hon. Carol K. McGinley, Judge
The Hon. Robert L. Steinberg, Judge
The Hon. J. Brian Johnson, Judge
The Hon. Kelly L. Banach, Judge
The Hon. James T. Anthony, Judge
The Hon. Maria L. Dantos, Judge
The Hon. Michele A. Varricchio, Judge
The Hon. Douglas G. Reichley, Judge
The Hon. Daniel K. McCarthy, Judge
The Hon. Alan M. Black, Senior Judge
LEHIGH LAW JOURNAL
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THE BAR ASSOCIATION OF LEHIGH COUNTY
1114 Walnut Street, Allentown, PA 18102
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HON. WILLIAM H. PLATT, President
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MICHELLE M. FORSELL, Vice President
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SARAH M. JOLLY, Treasurer
SUSAN G. MAURER, Historian
THOMAS F. TRAUD, JR., Law Journal Committee
RAY BRIDGEMAN, Executive Director
GRAIG M. SCHULTz, Case Editor
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2
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Noto et al. vs. Radio, M.D. et al. 113
SANDRA A. NOTO eT AL., PLAiNTiffS vs.
GReGORY J. RADiO, M.D. eT AL., DefeNDANTS
Voluntary Discontinuance—Minor Plaintiff—Unreasonable
Inconvenience, Vexation, Harassment, Expense or Prejudice.
The court will permit a minor plaintiff to voluntarily withdraw a case without
prejudice if withdrawal can be accomplished without working unreasonable inconvenience,
vexation, harassment, expense, or prejudice upon the defendants. in this case, the Court
concluded that the Defendants would not suffer unreasonable prejudice because only three
pleadings had been filed by the parties and discovery had not yet been conducted.
in the Court of Common Pleas of Lehigh County, Pennsyl-
vania—Civil Division. No. 2015-C-1394. Sandra A. Noto et al.,
Plaintiffs vs. Gregory J. Radio, M.D. et al., Defendants.
Anthony M. Di MAssA, EsquirE, on behalf of the Plaintiffs.
howArD s. stEvEns, EsquirE, on behalf of the Defendants.
Johnson, J., July 26, 2016
i. iNTRODUCTiON
Before the Court for consideration is Plaintiffs’ Motion for
Permission Pursuant to Pa. R.C.P. Rule (sic) 2039 to Voluntarily
Discontinue the Civil Action identified Above Without Prejudice
Pursuant to Pa. R.C.P. Rule (sic) 229(a) filed on March 16, 2016,
and Defendants’ response thereto. The Court held a hearing on
June 15, 2016. for the following reasons, said motion is GRANT-
eD.
ii. PROCeDURAL BACKGROUND
Plaintiffs commenced this medical negligence action via the
filing of a Writ of Summons on April 30, 2015. Plaintiffs filed their
original Complaint on August 4, 2015. A series of Preliminary
Objections were filed by the Defendants, and thereafter, Plaintiffs
filed a Second Amended Complaint on October 19, 2015. Plaintiffs
filed a Motion to extend the Time to file Certificates of Merit As
to All Defendants on October 5, 2015. This Court granted the
motion and extended the deadline to file to December 1, 2015.
The Defendants filed a Notice of intent to enter Judgment of Non
Pros on November 6, 2015. This Court did not enter an Order
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Lehigh 7-17 op
114 Noto et al. vs. Radio, M.D. et al.
pursuant to the Notice of intent to enter Judgment of Non Pros.
By stipulation, the parties agreed to extend the time to file cer-
tificates of merit until January 6, 2016. Plaintiffs filed the second
Motion to extend the Time to file Certificates of Merit As to All
Defendants on December 31, 2015 requesting an additional sixty
(60) days to file. This Court did not enter an Order granting the
motion, nor did Plaintiffs file certificates of merit within the time
they requested. Subsequently, Plaintiffs filed Plaintiffs’ Motion for
Permission Pursuant to Pa. R.C.P. Rule (sic) 2039 to Voluntarily
Discontinue the Civil Action identified Above Without Prejudice
Pursuant to Pa. R.C.P. Rule (sic) 229(a) on March 16, 2016.
iii. DiSCUSSiON
The pertinent rules of civil procedure applicable to this case
are Pa. R.C.P. No. 229 and Pa. R.C.P. 1042.3. Pa. R.C.P. 229
states, in pertinent part:
(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)(1) except as otherwise provided in subdivision (b)(2),
a discontinuance may not be entered as to less than all de-
fendants except upon the written consent of all parties or
leave of court upon motion of any plaintiff or any defendant
for whom plaintiff has stipulated in writing to the discon-
tinuance.
(2) in an action governed by Rule 1042.3, a plaintiff may
enter a discontinuance as to a defendant if a certificate of
merit as to that defendant has not been filed.
Note: Rule 1042.3 requires the filing of a certificate of
merit as to a defendant against whom a professional liability
claim is asserted.
(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, harass-
ment, expense, or prejudice.
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Lehigh 7-17 op
Noto et al. vs. Radio, M.D. et al. 115
Note: Court approval of a discontinuance must be ob-
tained in any action in which a minor is a party, Rule 2039(a),
an action for wrongful death in which a minor is beneficially
interested, Rule 2206(a), an action in which an incapacitated
person is a party, Rule 2064, and a class action, Rule 1714.
A plaintiff who asserts a cause of action ex contractu and
joins as defendants persons liable to the plaintiff in different
capacities may not discontinue as to a defendant primarily
liable without discontinuing as to all defendants secondarily
liable. Rule 2231(e).
Pa. R.C.P. 1042.3 states, in pertinent part:
...
(d) The court, upon good cause shown, shall extend the
time for filing a certificate of merit for a period not to exceed
sixty days. A motion to extend the time for filing a certificate
of merit must be filed by the thirtieth day after the filing of
a notice of intention to enter judgment of non pros on a pro-
fessional liability claim under Rule 1042.6(a) or on or before
the expiration of the extended time where a court has grant-
ed a motion to extend the time to file a certificate of merit,
whichever is greater. The filing of a motion to extend tolls
the time period within which a certificate of merit must be
filed until the court rules upon the motion.
Note: There are no restrictions on the number of orders
that a court may enter extending the time for filing a certifi-
cate of merit provided that each order is entered pursuant to
a new motion, timely filed and based on cause shown as of
the date of filing the new motion.
The moving party must act with reasonable diligence to
see that the motion is promptly presented to the court if re-
quired by local practice.
in ruling upon a motion to extend time, the court shall
give appropriate consideration to the practicalities of securing
expert review. There is a basis for granting an extension of
9
Lehigh 7-17 op
116 Noto et al. vs. Radio, M.D. et al.
time within which to file the certificate of merit if counsel for
the plaintiff was first contacted shortly before the statute of
limitations was about to expire, or if, despite diligent efforts
by counsel, records necessary to review the validity of the
claim are not available.
The parties have cited several cases which we will now com-
pare and contrast to the subject case.
in Robinson v. Pennsylvania Hospital, 737 A.2d 291 (Pa.
Super. 1999), where a mother whose abortion was ineffective and
subsequently gave birth to a child with a deformed hand, the Su-
perior Court held that the trial court abused its discretion and erred
as a matter of law in permitting the case to be discontinued without
prejudice because the minor plaintiff ’s injuries were ascertainable
at the time of filing the motion and were not speculative or sup-
positional and, therefore, there was no necessity to await their
further implications. furthermore, the court held that the plaintiffs
would be afforded an unfair advantage were they granted an ad-
ditional fifteen (15) years to make out a prima facie case when they
had already begun the process of doing so. Discovery had already
been conducted so the defendants would be forced to re-conduct
discovery, were plaintiffs permitted to withdraw without prejudice.
The facts of the subject case are distinguishable from the facts
in Robinson in that no discovery has been conducted and Defen-
dants do not argue that the minor Plaintiff ’s injuries are not
speculative or not ascertainable. it is noteworthy, but not deter-
minative, that Robinson predates the MCARe Act.
in Gray ex rel. Gray v. Magee, M.D., 864 A.2d 560 (Pa. Super.
2004), where the plaintiffs had engaged an expert who then died
and the plaintiffs could not proffer an expert for over four (4) years
by the scheduled trial date, which was five (5) years after the com-
mencement of the action, and where extensive discovery had been
undertaken and several deadline extensions were granted, the
Superior Court concluded that the granting of a discontinuance
would be improper.
in the subject case, the Praecipe to Discontinue Claims
Without Prejudice was filed within a year of the commencement
10
Lehigh 7-17 op