Appeal from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1970, No. 346, in case of Gasperina Ann Ianni v. Frank A. Pantalone, M.D., and Jeannette District Memorial Hospital.
David H. Trushel, with him Wayman, Irvin, Trushel & McAuley, for appellant.
H. Mark Mendel, with him Harris T. Bock, Joseph K. Bonidy, and Mendel and Schwartz, and Bonidy and Bonidy, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 238 Pa. Super. Page 550]
The instant litigation was commenced in January, 1970 when appellee Gasperina Ann Ianni instituted a suit in trespass by Writ of Summons against appellant Frank A. Pantalone, M.D. and Jeannette District Memorial Hospital. A complaint was filed on November 4, 1970, alleging that appellee-plaintiff's left shoulder was improperly operated on and treated by Dr. Pantalone and by the hospital. A $78,000.00 verdict was returned on January 31, 1973, following a jury trial, against defendant-appellant Dr. Pantalone and judgment was entered thereon following denial of post-trial motions. Appellant here contends that a new trial should be granted, based on three allegations of error below.
The first of appellant's arguments is that the trial court erred when it did not permit appellant to join Jeannette District Memorial Hospital as an additional defendant after plaintiff-appellee Ianni took a voluntary non-suit as to the hospital just after the conclusion of Judge Mihalich's opening remarks to the jury. We agree that appellant should have been allowed to join the hospital as an additional defendant and we therefore reverse and grant appellant a new trial.*fn1 The basis for our decision follows a brief statement of additional relevant facts.
[ 238 Pa. Super. Page 551]
Plaintiff-appellee's alternative theories of liability, as disclosed by her complaint and amended complaint, were that appellant was liable based on his individual negligence, that the hospital was liable based on a principalagent relationship between it and appellant, and that the hospital was independently liable by virtue of actions of other unnamed agents, servants, workmen or employees. Appellant Pantalone's answers to appellee's complaint and amended complaint did not join the hospital as an additional defendant under the heading of new matter, as might have been done pursuant to Pa.R.C.P. 2252(d). The hospital's answers denied that appellant was its agent and denied that agents of the hospital were in any way responsible. The hospital did not join appellant as an additional defendant.
Trial of the action against the co-defendants began on January 15, 1973. Following some preliminary remarks by the trial judge, court was adjourned, then reconvened on January 16, 1973, at which time the court's opening remarks were completed. Immediately thereafter counsel for appellee moved to take a voluntary non-suit as to co-defendant Jeannette District Memorial Hospital, which motion was granted. Counsel for appellant objected. Pleading that he was surprised by appellee's motion, appellant requested that a juror be withdrawn and the case continued (on the ground that the motion should not have been made in front of the jury), or, alternatively, that the court grant leave for appellant to join the hospital as an additional defendant. Both requests were denied. Appellant argued in post-trial motions, as he does here, that the latter request should have been granted under the circumstances then existing. We agree.
Appellee contends that appellant waived any right he may have had to join the hospital by failing to effect joinder through assertion of a claim against the hospital in his answer under new matter, as provided for by Pa.R.C.P. 2252(d). This court has refused to strictly
[ 238 Pa. Super. Page 552]
interpret Rule 2252(d) under similar circumstances in Martinelli v. Mulloy, 223 Pa. Superior Ct. 130, 299 A.2d 19 (1972) and Ragan v. Steen, 229 Pa. Superior Ct. 515, 331 A.2d 724 (1974), ...