No. 529 April Term 1976, Appeal from Order Entered February 6, 1976, of the Court of Common Pleas of Allegheny County, Pa., Civil Division at G.D. No. 75-16835.
Jerome W. Kiger, Pittsburgh, with him Vincent J. Grogan, Pittsburgh, for appellant.
Bruce R. Martin and David H. Trushel, Pittsburgh, submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 556]
This is an appeal by a defendant from an order discontinuing the plaintiff's medical malpractice action as to a co-defendant.
The procedural history of the case, which involves a number of defendants, is complex, but as to the parties before us the significant part of the history is as follows. In the caption of her complaint the plaintiff named Allegheny General Hospital and Dr. James L. Baker among the defendants. In the body of the complaint, however, she made no allegations as to Baker. Baker therefore filed preliminary objections in the nature of a demurrer. Oral argument was scheduled, but before it was held, the plaintiff on December 5, 1975, petitioned for a rule to show cause why her action should not be discontinued as to Baker. A rule issued, returnable December 29; the lower court also imposed a stay of proceedings. Because of the stay, argument on the demurrer was not held.
[ 253 Pa. Super. Page 557]
On January 16, 1976, Allegheny filed an answer to the rule to show cause. On January 19 it filed supplemental new matter and a cross-claim against Baker alleging that Baker was solely or jointly liable, or liable over, to Allegheny. On January 23 Baker filed preliminary objections to the supplemental new matter and cross-claim.
On February 6, 1976, the lower court made the rule absolute and discontinued the action as to Baker. Allegheny has appealed that order.
(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
(b) A discontinuance may not be entered as to less than all defendants without leave of court ...