Appeal, No. 293, Jan. T., 1962, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1960, No. 1381, in case of Robert Schaffer, administrator of estate of Margaret Stuchko, deceased, v. Dr. Henry B. Larzelere and Episcopal Hospital. Judgment reversed.
Louis Kassarich, for appellant.
Francis E. Shields, with him Pepper, Hamilton & Scheetz, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from a judgment entered on the pleadings in a wrongful death action.
The historical facts in chronological order may be summarized as follows:
Plaintiff, as administrator of the Estate of Margaret Stuchko, deceased, filed a complaint in trespass on October 13, 1960, alleging a cause of action against the defendants based on the Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601.*fn1 It alleged that the decedent was admitted to the defendant hospital in December 1958, for treatment of injuries received in a beating and while so hospitalized was under the treatment and care of the defendant doctor; that death occurred on December 24, 1958, due to the careless premature release of the decedent from the hospital by the defendants. The defendants, in answer, denied any responsibility for decedent's demise and properly raised the defense of the Statute of Limitations, the action having been instituted well over the one year period allowed in such actions.*fn2 In reply, the plaintiff alleged that the running of the statute did not bar the action because the negligence of the defendants did not come to his knowledge until December 29, 1959.
The defendant doctor then filed a motion for judgment on the pleadings. The plaintiff countered with a motion to amend the reply which would add in substance the allegations: (1) That the plaintiff could not have gained knowledge of the defendants' negligence until December 29, 1959, because information of the facts was within the defendants' sole knowledge and they had deliberately concealed the circumstances surrounding the cause of death; (2) That the defendants being in a confidential relationship with the decedent and next of kin had violated their duty in concealing the relevant circumstances.
Oral depositions of the plaintiff administrator and Henry Elesser, father of the decedent, were then taken. The substance of their testimony was that prior to December 29, 1959, neither made any attempt to ascertain the facts as to what ...