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AMMLUNG v. PLATT (03/27/73)

decided: March 27, 1973.

AMMLUNG, APPELLANT,
v.
PLATT



Appeal from judgment of Court of Common Pleas of Delaware County, No. 13817 of 1970, in case of Dorothy G. Ammlung, Administratrix of Estate of Russell G. Ammlung, Jr. v. City of Chester and officer Lawrence Platt, Chester Police Department et al.

COUNSEL

Michael T. McDonnell, Jr., with him George C. Brady, III, for appellant.

Louis J. Sinatra, with him Arthur Levy, and Levy and Levy, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J. Wright, P. J., and Watkins, J., would affirm on the opinion of the court below.

Author: Jacobs

[ 224 Pa. Super. Page 49]

This is an appeal by the plaintiff from judgment entered on an order sustaining preliminary objections in the nature of a demurrer to her amended complaint in a survival and wrongful death action and dismissing the amended complaint.

Initially, it should be noted that the plaintiff has discontinued her action against two of the original eight defendants -- the City of Chester and Magistrate Irvin Lawrence. They were intentionally omitted as defendants from her amended complaint*fn1 and were treated

[ 224 Pa. Super. Page 50]

    as being no longer parties to the action by the lower court,*fn2 without objection by the remaining defendants.*fn3 Although, strictly speaking, a discontinuance of an action against one of several defendants should be effected under Pa. R. C. P. No. 229, with notice to all parties (see Pa. R. C. P. No. 229(b)), and although an amendment of a complaint under Pa. R. C. P. No. 1033, as occurred here, is not a proper means for the dropping of a party (see 2B R. Anderson, Pennsylvania Civil Practice ยง 1033.10 (1969)), the pertinent requisites for discontinuance were not designed to afford protection to the plaintiff seeking discontinuance, but rather to the other parties to the action, who are not here objecting to the discontinuance; no substantial rights of the plaintiff would be affected by a disregarding of the defect of procedure.*fn4 Consequently, we shall not consider the plaintiff's arguments as to the liability of either the City of Chester or Magistrate Irvin Lawrence.

In an appeal from an order sustaining preliminary objections to a complaint in the nature of a demurrer, the Court must accept as true the well-pleaded facts of

[ 224 Pa. Super. Page 51]

    the complaint. Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962). In her amended complaint, the plaintiff alleges the following: At about 11:00 p.m. on January 24, 1970, Russell G. Ammlung, Jr., an 18-year-old, of whose estate plaintiff is administratrix, was discovered out of doors in subfreezing weather, semi-clothed and only partly conscious. He was arrested by an officer of the Chester City Police Department, defendant Lawrence Platt, for being drunk and disorderly, in spite of the fact that he was, and appeared to be, simply ill.

Mr. Ammlung was removed to the Chester City Police Station by Officer Platt and Officers Joseph Friel and Michael Brown of the Chester Police Department, also defendants, and there confined to a cell. No medical examination was afforded him; no effort was made to ascertain his identity or to notify his ...


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