Appeal from the Order of Superior Court Docketed at No. 926, Philadelphia, 1984, Entered on June 7, 1985, Vacating the Order of the Court of Common Pleas of Delaware County, at No. 81-16457, Entered on march 19, 1984. Pa. Superior Ct. , 499 A.2d 404 (1986).
Robert F. Rossiter, Daniel P. Finegan, Philip M. Colicchio, Philadelphia, for Taylor Hosp.
Kathleen M. Kramer, Philadelphia, for appellant.
Raymond J. Quaglia, Philadelphia, for Molineux.
James J. McEldrew, Philadelphia, for E.M.A., Baker & Zee.
John S.J. Brooks, Media, for other appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. Larsen, J., files a dissenting opinion.
The facts in this case are as follows: Appellee, Barbara Molineux, is the Administratrix of the estate of her brother, Michael T. Dalton. Mr. Dalton died at Taylor Hospital on October 20, 1979, some ten hours after admission for injuries sustained in an automobile accident. Appellee instituted suit against Appellants in the Court of Common Pleas of Delaware County on November 6, 1981, two years and seventeen days after Mr. Dalton's death. Appellee sought to recover damages, pursuant to the Pennsylvania Wrongful Death and Survival Statutes, for the alleged negligent treatment and wrongful death of the decedent. Defendants in the suit, Appellants herein, included four doctors, Emergency Medical Associates, and Taylor Hospital. Defendant-Appellants all responded to the Complaints filed against them by raising as New Matter, pursuant to Pa.R.C.P. 1030, the defense of the current two-year statute of limitations.*fn1 Appellee's Reply asserted that the reason the action was not filed within two years from the date of death was that Taylor Hospital "refused" to make the records of decedent's treatment available even after "repeated" requests (R. 44a). Defendant-Appellants moved for summary judgment on the grounds that the action was barred by the statute of limitations, but the trial judge, the Honorable
Dominic D. Jerome, initially declined to dismiss the Complaints since there were factual issues in dispute.
Counsel for each party stipulated that the trial judge alone would determine the applicability of the statute of limitations as to all of the defendants (R. 149a). A hearing was held before Judge Jerome on March 19, 1984, at which the testimony of two sworn witnesses (both testifying for Appellee) was taken in open court on the disputed factual issues (R. 148a-216a). At the conclusion of this hearing, Judge Jerome dismissed the action and entered judgment in favor of all defendants on the grounds that the action was time-barred (R. 233a-225a). Judge Jerome subsequently filed a Memorandum Opinion confirming his decision of March 19, 1984, 346 Pa. Super. 639, 499 A.2d 404, to dismiss the Complaints. Appellee argues (and Superior Court agreed) that the hearing Judge Jerome conducted was on the motions for summary judgment, and that Judge Jerome, in fact, granted summary judgment to ...