Appeal from the Order entered on February 8, 1988, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5898 August Term, 1981.
Germaine Ingram, Philadelphia, for appellant.
John T. Quinn, Philadelphia, for appellees.
Beck, Hoffman and Cercone, JJ.
[ 386 Pa. Super. Page 265]
The issue presented for decision is whether the trial court abused its discretion in refusing to strike off a discontinuance in this wrongful death and survival action where the discontinuance was mistakenly filed by plaintiff-appellant's counsel of record without the knowledge of appellant or of the attorney who was actually litigating the case, the petition to strike the discontinuance was filed within thirty days of appellant's discovery of the error, there has been no demonstration of prejudice to the defendants-appellees and the statute of limitations on appellant's cause of action has expired.
We find that the trial court did abuse its discretion and reverse.
On January 25, 1981, Kenneth Hopewell was struck and killed by an automobile driven by defendant Steven Hendrie and owned by defendants-appellees Daniel and Patricia Hendrie. On September 5, 1981, plaintiff-appellant, sister of the decedent and administratrix of his estate, instituted suit. Appellant's original counsel and counsel of record in the case, Mr. Friedman, later engaged co-counsel, Mr. Ross, to assume responsibility for discovery, negotiations and trial of the case. Inexplicably, on March 25, 1987, Mr. Friedman filed a praecipe to mark the case settled, discontinued and ended. Neither appellant nor Mr. Ross authorized the filing, nor did they have knowledge of it. Although
[ 386 Pa. Super. Page 266]
Mr. Friedman acknowledged by affidavit that his signature appears on the praecipe, his affidavit also states that he does not recall filing it and can only conclude that the filing of the praecipe was an error.
Despite the discontinuance, several months later the case appeared on the Major Jury Trial List and Mr. Ross contacted counsel for defendants-appellees, Mr. Quinn. Mr. Quinn then informed Mr. Ross that the docket reflected that the case had been discontinued and refused to consent to removal of the discontinuance. Within thirty days, on December 30, 1987, appellant filed a Petition to Strike Discontinuance.
The trial court denied the Petition, finding that appellant had inexcusably waited nine months from the date of the filing of the praecipe to seek to strike the discontinuance and that appellees would be prejudiced by striking it. The court did not specify what prejudice appellees would suffer.
Pennsylvania Rule of Civil Procedure 229 governs both the filing and the striking of a discontinuance. As to striking a ...