Appeal From Order of Court of Common Pleas, Civil Division, Philadelphia County at No. 2948 February, 1981
Lewis Kates, Philadelphia, for Roseman.
Joseph H. Foster, Philadelphia, for Hosp. of University of Pennsylvania.
Charles B. Burr, II, Philadelphia, for Dr. Richard Davis.
Joseph G. Manta, Philadelphia, for Abbott Laboratories.
Cavanaugh, Rowley and Popovich, JJ.
[ 377 Pa. Super. Page 411]
In the consolidated appeals before this court the issue at Appeal No. 02077, Philadelphia, 1987, is whether the court below properly entered judgment of non pros in favor of the Hospital of The University of Pennsylvania (HUP) and Dr. Richard A. Davis, defendants below and against Mark A. Roseman, Executor of the Estate of Hyman A. Roseman, Deceased, the plaintiff below and appellee herein. With respect to the appeal at No. 02287 Philadelphia, 1987, we must initially determine whether the appeal should be quashed as from an interlocutory order.
Because of the complexity of the case, it is necessary to set forth the factual and procedural background. Hyman A. Roseman was injured in May, 1976, and was confined to the Hospital of the University of Pennsylvania. At the hospital he was under the care of Richard A. Davis, M.D., a neurosurgeon, who operated on Mr. Roseman. Allegedly, a contaminated saline solution, which was used in the operation, had been manufactured by defendant, Abbott Laboratories.
[ 377 Pa. Super. Page 412]
As a result of the operation and use of the solution, Mr. Roseman suffered an infection in his brain. His condition deteriorated and he remained in a coma until he died on May 5, 1978.
In May, 1978, plaintiff, Hyman A. Roseman, filed a summons in a medical malpractice action against the Hospital of the University of Pennsylvania, Dr. Richard A. Davis, and Abbott Laboratories.
In June, 1978, The Hospital of the University of Pennsylvania issued a rule on the plaintiff to file a complaint, and a complaint was not filed until September 24, 1979. A number of witnesses were subsequently deposed.
On June 3, 1987 the court below by Lehrer, J. entered a judgment of non pros in favor of HUP and the other two defendants in the case, Dr. Richard A. Davis, and Abbott Laboratories. Shortly thereafter, the court below vacated the judgments of non pros and subsequently entered non pros as to HUP and Dr. Davis and refused to enter a non pros as to Abbott Laboratories. The decision to enter a judgment of non pros is within the sound discretion of the trial court and its decision may be set aside only if there is a manifest abuse of discretion. First Valley Bank v. Steinmann, 253 Pa. Super. 8, 384 A.2d 949 (1978); ...