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08/04/97 MARCIA GALE v. MERCY CATHOLIC MEDICAL

August 4, 1997

MARCIA GALE, APPELLANT
v.
MERCY CATHOLIC MEDICAL CENTER EASTWICK, INC. FITZGERALD MERCY DIVISION AND NIKOLAOS TSIRAKOGLOU, MD AND DEBRA BASEMAN, MD AND BRIAN BERGER, MD AND MERCY HEALTH PLAN AND KEYSTONE HEALTH PLAN EAST, APPELLEE



Appeal from the Order entered December 17, 1996 Docketed December 24, 1996 In the Court of Common Pleas of Philadelphia County, Civil Division, No. 1353 October Term, 1994. Before COHEN, J.

Before: Mcewen, P.j., Cavanaugh, J. And Montemuro, J.

The opinion of the court was delivered by: Montemuro

Filed August 4, 1997

OPINION BY MONTEMURO, J.:

This appeal arises from the December 24, 1996 Order of the Philadelphia Court of Common Pleas sustaining Appellees' preliminary objection to venue and transferring the action to Delaware County. We reverse.

Appellant/Plaintiff, Marcia Gale, commenced the underlying medical malpractice action *fn1 by writ of summons on October 11, 1994 against the following Appellee/Defendants: Mercy Catholic Medical Center, Fitzgerald Mercy Hospital; *fn2 Mercy Health Plan; Keystone Health Plan East; and three doctors employed by Mercy Catholic Medical Center. A complaint was filed approximately two months later. Defendant Keystone Health Plan East removed the action to federal court on January 13, 1995, based on federal subject matter jurisdiction. However, once in federal court, Appellant entered into Stipulations of Dismissal with Defendants Keystone Health Plan East and Mercy Health Plan, which were both removed as parties. *fn3

Appellant then petitioned to remand the case to the Philadelphia Court of Common Pleas, which the district court granted on April 18, 1995. In a letter addressed to counsel for Mercy dated June 8, 1995, Appellant's counsel indicated that he would be filing an Amended Complaint to delete the references to and counts against the two dismissed defendants, Mercy Health Plan and Keystone Health Plan East. However, Appellant did not attempt to file this Amended Complaint until August 28, 1996, at which time it was rejected by the prothonotary for failure to secure a stipulation from opposing counsel or court approval to file an amended complaint. On September 17, 1996, Appellees filed preliminary objections to the Amended Complaint which they believed had been filed, alleging improper venue. The court granted Appellees' objection based on improper venue by Order dated October 30, 1996, and transferred the action to Delaware County. However, the court subsequently vacated that Order based on a stipulation by counsel.

On November 8, 1996, Appellees filed preliminary objections to Appellant's original complaint, again claiming, inter alia, that venue was improper. Appellant filed preliminary objections and a motion to strike Appellees' preliminary objections, contending that Appellees' preliminary objections were untimely filed and that venue was proper in Philadelphia County. By Order dated December 17, 1996, and docketed December 24, 1996, the court partially granted Appellees' preliminary objections, transferring venue to Delaware County. *fn4 This timely appeal follows.

Appellant raises two issues for our review:

I. Whether venue in Philadelphia County was proper where one of the defendants maintained several medical facilities in Philadelphia County and regularly and habitually used the Philadelphia court system to enforce its legal rights[?]

II. Whether preliminary objections are improperly granted where they are filed almost two years after the complaint was filed[?]

(Appellant's Brief at 3). We will address Appellant's second issue first.

Appellant contends that the trial court erred in entertaining Appellees' preliminary objections because they were filed almost two years after the complaint. Although Rule 1026(a) of the Pennsylvania Rules of Civil Procedure states that all pleadings subsequent to the complaint must be filed within 20 days after service of the preceding pleading, this Rule has been interpreted as permissive rather than mandatory. Francisco v. Ford Motor Co., 397 Pa. Super. 430, 433-34, 580 A.2d 374, 376 (1990), allocatur denied, 527 Pa. 633, 592 A.2d 1301 (1991). It is left to the sound discretion of the trial court "to permit a late filing of a pleading where the opposing party will not be prejudiced and Justice so requires." Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 10, 602 A.2d 864, 868 (1992). Accord Peters Creek Sanitary Auth. v. Welch, 545 Pa. 309, 681 A.2d 167 (1996). Therefore, our review is limited to determining whether or not the trial court abused its discretion; "we may not substitute our judgment for the judgment of the trial court[.]" Francisco, 397 Pa. Super. at 433, 580 A.2d at 375.

Recently, in Peters Creek Sanitary Auth. v. Welch, (supra) , our Supreme Court outlined the standard by which we determine whether a trial court has abused its discretion ...


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