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11/21/97 KENNETH E. DOHNER v. THOMAS CLEMENS

November 21, 1997

KENNETH E. DOHNER, APPELLANT
v.
THOMAS CLEMENS, M.D. AND LEBANON INTERNAL MEDICINE ASSOCIATES, P.C.



Appeal from the Order in the Court of Common Pleas of Lebanon County, Civil Division, No. 90-01381. Before TYLWALK, J.

Before: Cavanaugh, J., Tamilia and Hudock, JJ. Opinion BY Tamilia, J.

The opinion of the court was delivered by: Tamilia

OPINION BY TAMILIA, J.:

FILED November 21, 1997

Appellant *fn1 takes this appeal from the Order of September 11, 1996 which dismissed his action with prejudice. The dismissal was entered upon the trial court's consideration and grant of appellees' petition for abatement of appellant's action for failure to take out letters of administration.

The relevant facts of the case have been recounted by the trial court as follows:

This medical malpractice action was initiated by Plaintiff by Writ of Summons on September 24, 1990. On January 3, 1991, Plaintiff filed a Complaint against Defendants Thomas Clemens, M.D. and Lebanon Internal Medicine Associates, P.C. alleging Plaintiff sustained personal injury as a result of Defendants' negligent treatment of a cardiovascular condition.

On February 1, 1991, Defendants filed an Answer to the Complaint and New Matter. Plaintiff filed a Reply to the New Matter on February 28, 1991. On July 22, 1992, Plaintiff's counsel, Eric J. Wiener, Esquire, filed a Petition for Leave to Withdraw as Counsel. This Petition was granted by Opinion and Order dated January 22, 1993. Barton A. Haines, Esquire, entered his appearance on behalf of Plaintiff on February 4, 1993.

On February 26, 1993, Defendants filed a Motion to Compel Discovery and Answers to Interrogatories. Plaintiff filed a response to the Motion on March 22, 1993. By an Opinion and Order dated April 14, 1993, Defendants' Motion was granted and Plaintiff was ordered to produce an expert's report and to answer Defendants' March 4, 1992 interrogatories within thirty days.

On April 26, 1993, Plaintiff filed a Notice of Taking Deposition. On May 12, 1993, Plaintiff filed supplemental answers to Defendants' interrogatories. On June 7, 1993, Plaintiff filed another notice of taking deposition.

The action then languished until Defendants filed a Motion to Dismiss for Want of Prosecution on April 17, 1995. On April 24, 1995, Plaintiff responded by filing an answer and a Motion to Compel Answers to Interrogatories. By an Opinion and Order dated October 3, 1995, Defendants' Motion to Dismiss for Want of Prosecution was denied on the ground that Plaintiff's June 7, 1993 filing of a notice of taking deposition was found to constitute positive docket activity within two years prior to the filing of Defendants' Motion.

On October 30, 1995, Defendants filed a Motion and Suggestion of Death asserting that Plaintiff Kenneth E. Dohner died on July 27, 1993. By an Order filed October 30, 1995, the Suggestion of Death was made effective April 21, 1995, the date Plaintiff filed an answer to Defendants' Motion to Dismiss and admitted the allegation of Plaintiff's death.

On April 24, 1996, Defendants filed the instant Petition for Abatement and Motion to Dismiss. On May 2, 1996, a praecipe was filed to withdraw the appearance of Barton Haines Esquire and enter the ...


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