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POLUKA ET AL. v. COLE (09/15/72)

decided: September 15, 1972.

POLUKA ET AL., APPELLANTS,
v.
COLE



Appeal from order of Court of Common Pleas of Montour County, Feb. T., 1956, No. 32, in case of Stephen Poluka and Emily Poluka, in their own right, and Stephen Poluka, administrator of the estate of Stephen Poluka, Jr., deceased v. James M. Coles.

COUNSEL

Louis G. Feldmann, with him Anthony J. Ciotola, and Feldmann & Ciotola, for appellants.

F. Porter Wagner, with him Marks & Wagner, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J.

Author: Watkins

[ 222 Pa. Super. Page 501]

This is an appeal from the judgment of non pros entered by the Court of Common Pleas of Montour County in favor of the defendant-appellee, James M. Cole, and against the plaintiffs-appellants, Stephen Poluka and Emily Poluka in their own right and Stephen Poluka, Administrator of the Estate of Stephen Poluka, Jr., deceased, in a trespass action alleging malpractice by a physician.

The history of this case is a long one and under ordinary circumstances calls out for the judgment entered by the court below. However, circumstances as set forth in this opinion give the appeal substance that at first blush does not appear.

The facts are briefly as follows. On September 30, 1955, Stephen Poluka, Jr. died in the St. Joseph Hospital of Hazleton after an emergency operation following a bronchoscopic examination made by the defendant on September 29, at the Geisinger Memorial Hospital

[ 222 Pa. Super. Page 502]

    in Danville, Montour County. The plaintiffs complained that the boy's death was due to the negligence of the defendant.

The case began on March 27, 1956, by the filing of the Praecipe for Summons. On April 6, 1956, counsel for the defendant entered an appearance and on February 18, 1957, the plaintiffs filed written interrogatories on the defendant. On July 12, 1957, defendant's answers to the interrogatories were filed.

On August 21, 1957, the defendant filed a rule on the plaintiffs to file a complaint; on October 29, 1957, service of complaint was accepted by defense counsel and on November 30, 1957, by agreement of counsel the date for filing an answer was extended to the first Monday in January, 1958. Preliminary objections were filed by the defendant on February 27, 1958, and service accepted on March 7, 1958; the preliminary objections were sustained and permission granted to the plaintiffs to file an amended complaint on December 18, 1959.

The amended complaint was filed on January 11, 1960; on January 22, 1970, interrogatories to the amended complaint were filed by the defendant; on September 30, 1970, defendant moved for sanctions under Pennsylvania Rules of Civil Procedure, Rule No. 4019(a). On November 4, 1970, answers to the interrogatories were filed. This answer contained names of witnesses including medical experts which plaintiffs expected to call as witnesses. On June 30, 1970, counsel for the plaintiff forwarded to local counsel these answers to the interrogatories ...


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