NO. 10 HARRISBURG, 1982, Appeal from the Order of December 14, 1982 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 282-S of 1981.
Jerome Gamburg, Philadelphia, for appellants.
Wiley P. Parker, Lebanon, for Pugliese, appellee.
Peter J. Curry, Harrisburg, for Silver, appellee.
Wickersham, Beck and Montemuro, JJ. Wickersham, J., concurs in the result.
[ 317 Pa. Super. Page 597]
Juana D. Johnson died of hepatitis at the age of nineteen in November 1977. Her parents and co-administrators of her estate, Appellants Richard and Rosalie Walker, filed a complaint in trespass averring medical malpractice against Peter Pugliese, M.D. and Dr. I.O. Silver, appellees, who attended Juana before her death. The Walkers appeal from an order of the Court of Common Pleas, Dauphin County, which denied their Petition to Open a judgment of non pros entered against them for failure to provide full answers to interrogatories issued by appellees Pugliese and Silver. The principal issue presented in this appeal is whether the lower court abused its discretion in refusing to grant the Petition to Open.
Juana D. Johnson, a heroin addict, was placed in a detoxification program in the Berks County prison in 1976. She was seen by Dr. Pugliese, an employee of Berks County, while she was in Berks County prison and also once at the Reading Hospital emergency room, at which time he prescribed certain medication. Juana was transferred to Dauphin County prison in September 1976. After a stay of four days she was transferred back to Berk County prison. On her return she told a matron at Berks County that she had requested medical treatment while at Dauphin County and been refused. Juana was sent back to Dauphin County on October 7, 1976, and seen by Dr. Silver. She developed chest pains on November 3, and was seen by Dr. Silver again, at which time he prescribed medication for the chest pains. Juana was taken to the emergency room of Harrisburg Hospital on November 5, and died there the next day. The Walkers claim that Drs. Pugliese and Silver failed to
[ 317 Pa. Super. Page 598]
diagnose and treat Juana's hepatitis, and that her death resulted from their malpractice.
The Walkers filed their original action against Pugliese and Silver with Arbitration Panels for Health Care on August 22, 1977. The case was transferred to the Court of Common Pleas, Dauphin County, in January 1981.*fn1 Pugliese filed interrogatories to be answered within 30 days on February 11, 1981, and the Walkers filed answers on April 13. Silver filed interrogatories on February 9, 1981 that have not been answered. On April 30 a rule was issued (returnable within 20 days) upon the Walkers to show cause why they should not be compelled to answer fully the interrogatories of the doctors. The rule was made absolute on June 16 and the Walkers were ordered to file full and
[ 317 Pa. Super. Page 599]
complete answers. On August 13, 1981, Pugliese filed a Motion for Sanctions against the Walkers in their suit against Pugliese and Silver. Argument was scheduled for October 26. The Walkers' counsel forwarded the matter to co-counsel William Proctor, a member of the Dauphin County bar. Mr. Proctor did not appear for argument and a judgment of non pros was ...