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ANTHONY BANDES AND MARGARET BANDES v. JOSEPH KLIMOSKI (11/08/78)

decided: November 8, 1978.

ANTHONY BANDES AND MARGARET BANDES, HIS WIFE
v.
JOSEPH KLIMOSKI, APPELLANT V. OSWALD BERRIOS AND BROWNSVILLE GENERAL HOSPITAL



NO. 526 APRIL TERM, 1977, Appeal from the Order of the Court of Common Pleas of Fayette County, Civil Action--Law, at No. 567 June Term, 1975

COUNSEL

Behrend and Aronson, Pittsburgh, for plaintiffs.

William D. Phillips, Washington, for appellant.

William M. Radcliff, Uniontown, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former P. J., and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 260 Pa. Super. Page 139]

Suit was instituted in Fayette County by plaintiffs on July 18, 1975, for alleged personal injuries arising out of medical malpractice. The defendant-appellant, Joseph Klimoski, was served on July 25, 1975. Plaintiffs, in September, 1975, instituted a separate action in the same county against Brownsville General Hospital*fn1 (hereinafter referred to as the "Hospital") as well as an action in the United States District Court for the Western District of Pennsylvania against Oswald Berrios, M. D. (also spelled "Berios" at some places in the record and hereinafter referred to as "Berrios").

On September 24, 1975, the defendant-appellant filed a praecipe for a writ to join additional defendants Berrios and the Hospital. The writ was issued by the Prothonotary on the same day. It had not been served by January 19, 1976, when a praecipe to reissue the writ was filed. The Hospital was served with the reissued writ on January 20, 1976, and Berrios was served on January 30, 1976.

On February 13, 1976, the Hospital filed a motion to quash*fn2 the writ to join additional defendants based upon the failure of defendant-appellant to serve within thirty (30) days and/or the failure of defendant-appellant to make an application to the court to extend the time for cause shown. See Pennsylvania Rule of Civil Procedure 2254(b).*fn3 On

[ 260 Pa. Super. Page 140]

February 18, 1976, Berrios filed preliminary objections raising similar contentions. On March 26, 1976, the defendant-appellant filed a motion for extension of time to join additional defendants nunc pro tunc.

The various motions came before the lower court, and by Opinion and Order dated May 17, 1976, the lower court ruled in favor of the Hospital and Berrios. The Order of the lower court provided:

"AND NOW, May 17, 1976, the motion to quash the writ joining Brownsville General Hospital as an additional defendant is hereby granted and the preliminary objections of A. Berios, M.D. are hereby sustained. The complaint as to Brownsville General Hospital ...


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