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ROBERT T. RUSBARSKY v. JOSEPH V. ROCK (01/27/84)

filed: January 27, 1984.

ROBERT T. RUSBARSKY, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, ANDREW V. RUSBARSKY, APPELLANT
v.
JOSEPH V. ROCK



No. 499 Pittsburgh 1982, APPEAL FROM THE ORDER OF APRIL 27, 1982 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL NO. 1868 OCTOBER 1971

COUNSEL

William S. Hays, Pittsburgh, for appellant.

Raymond J. Seals, Pittsburgh, for appellee.

Cavanaugh, Cirillo and Cercone, JJ. Cavanaugh, J., concurs in the result.

Author: Cirillo

[ 324 Pa. Super. Page 30]

This appeal is from an order of the Court of Common Pleas, Allegheny County, entered April 27, 1982, denying appellant's petition for reconsideration of a rule to show cause. Appellant requests the rule in order to supplement a release within a previously settled trespass action to reflect the true intention of the parties. The appellee joins with the appellant in this matter. The lower court denied the petition on the basis that the relief sought was to be instituted in equity. The appellant alleges error. We affirm.

On July 5, 1971, Robert T. Rusbarsky was seriously injured in a boat operated by appellee Joseph Rock. On August 20, 1971, appellant filed a complaint and petition for leave to settle, seeking and obtaining court approval of his claim against appellee in the amount of $100,000. Pursuant to the settlement and prior to receiving the aforementioned sum, appellant signed a receipt, release and discharge, the operative language of which included:

[ 324 Pa. Super. Page 31]

    liable to (Plaintiffs), of and from all liability claims and demands of every name and nature . . .

On June 30, 1973, appellant filed a suit in the Court of Common Pleas, Beaver County, against his attending physicians and hospital, alleging malpractice in the treatment of his injuries. The defendants pleaded the release as a bar to appellant's claim, the result of which is still pending.

On September 18, 1981, the appellant petitioned the court for a rule to show cause why the signed release should not be amended, specifically limiting the applicability of the release to the appellee and appellee's insurance company. The court denied appellant's petition on the basis that the relief sought was a reformation of contract, an action to be instituted in equity.

After several intervening procedures, appellant filed a petition for reconsideration. The appellee joined in the petition, admitting the averments set forth by the appellant and requesting amendment of the release. On April 27, 1982, the lower court denied the petition.

On appeal, the appellant contends that the petition for a rule to show cause was a proper procedure by which to amend the previously signed release. Appellant claims that such a petition is auxiliary to the original trespass action over which the court had jurisdiction. Appellant also contends that should the procedure be improper, the failure of the ...


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