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decided: December 11, 1972.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 8239 of 1968, in re Marie Belfiglio Martinelli v. Sandra Fry Mulloy and Rose Christaldi.


Richard L. Raymond, with him Schroeder, Jenkins and Raymond, for appellant.

Anthony A. Raffo, for Marie Belfiglio Martinelli, appellee.

Francis T. Sbandi, with him Charles F. Knapp, and Fronefield, deFuria and Petrikin, for Rose Christaldi, appellee.

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

Author: Spaulding

[ 223 Pa. Super. Page 132]

Appellant Sandra Fry Mulloy and Rose Christaldi were sued as defendants in an action brought by Marie Belfiglio Martinelli to recover for injuries sustained in a 1966 collision of automobiles driven by Mulloy and Christaldi.*fn1 Immediately after the case was called to trial in 1970 by Judge Paul R. Sand of the Court of Common Pleas of Delaware County, but prior to the selection of a jury, counsel for plaintiff Martinelli moved orally in chambers to discontinue the suit against Christaldi. He claimed that evidence obtained in discovery indicated that the negligence of appellant alone caused the injuries sued upon. After hearing a summation of deposition testimony in chambers, the trial judge granted the discontinuance against Christaldi over objections of counsel for appellant and his request for additional time in which to join the former co-defendant Christaldi as an additional defendant. The jury trial, with appellant as the sole defendant, resulted in a verdict against appellant in the amount of $75,000.*fn2 Appellant appeals from the denial of her motion for a new trial, contending that the granting of the discontinuance without allowing her to join the dropped party as an additional defendant was a violation of the

[ 223 Pa. Super. Page 133]

Rules of Civil Procedure as well as an abuse of discretion by the trial judge.

Rule 229 of the Pennsylvania Rules of Civil Procedure provides for a discontinuance as "the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial." A discontinuance may be entered as to less than all defendants, but not "without leave of court after notice to all parties." Pa. R. C. P. 229(b).*fn3 Decisions as to the granting of such requests for discontinuances rest in the discretion of the trial judge and can be reviewed only as to the abuse of that discretion. See Brown v. T. W. Phillips Gas and Oil Co., 365 Pa. 155, 74 A.2d 105 (1950); Pesta v. Barron, 185 Pa. Superior Ct. 323, 138 A.2d 690 (1958). A discontinuance, however, may be stricken off ". . . in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice." Pa. R. C. P. 229(c).

Although the striking of the discontinuance would thus require appellant to show actual prejudice or the substantial denial of rights,*fn4 there is an additional factor present here which requires the granting of a new trial. When counsel for appellee Martinelli moved for a discontinuance against one of the defendants, counsel for appellant, surprised at the motion, responded: "It comes as a surprise to me that [plaintiff Martinelli wants] to discharge this Christaldi as a defendant. My

[ 223 Pa. Super. Page 134]

    position is that if Christaldi were discharged and a verdict rendered against my client, I would seek contribution from Christaldi and, therefore, it seems to me in the interests of the Court to keep Christaldi as a defendant particularly in view of the fact that Christaldi's in the case as a plaintiff, anyway. If your Honor sees fit to permit the withdrawal of the action against Christaldi, then I would request time to join Christaldi as an additional defendant, even if it means a continuance of the case." What counsel for appellant thus sought was merely that to which she was entitled as a matter of right.*fn5 Rule 2252(a) of the Rules of Civil Procedure provides: "In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with ...

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