Connor v. Allegheny General Hospital

CIRILLO, Judge,

dissenting.

I respectfully dissent.

Initially, the appellants contend on appeal that the court below erred in failing to allow them to file an amended complaint. In the case of Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981), our Supreme Court stated:

In general, amendments to pleadings are liberally allowed.1 But,
[a]n amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant... However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should *329be allowed even though the Statute of Limitations has already run. (citations omitted).

494 Pa. at 241, 431 A.2d at 239. See also: Kuisis v. Baldwin-Lima Corp., 457 Pa. 321, 319 A.2d 914 (1974).

Pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial so that the opposition may, in turn, prepare to meet such proof with its own evidence.2 Laursen v. General Hospital of Monroe County, 259 Pa.Super. 150, 393 A.2d 761 (1978).

In the original complaint, the appellants alleged negligence in perforating the colon and in not using due care under the circumstances. In the amended complaint, the appellants sought to allege negligence in the undertaking to render services. The statute of limitations had expired by the time the amendments to the complaint were submitted.3 However, the amended complaint submitted to Judge Silvestri did not set forth a new cause of action.

Despite the fact that the information available to the appellants at the outset of this suit was limited, they still were able to frame a cause of action in negligence against the hospital. Dr. Wecht was not able to testify due to circumstances beyond the control of the appellants, therefore, they had to secure Dr. Neff to testify as an expert. Dr. Neff had the benefit of more information than did Dr. Wecht, and was thus able to conclude, more definitely, that the physicians and the hospital were negligent in their care of Mrs. Connor. This allegation is merely an amplification of the original complaint which alleged negligence in failing *330to use due care under the circumstances, and is not the allegation of a new cause of action.4

Additionally, the matters alleged by the appellants in their amended complaint were part of a causally related chain of events which occurred on the same day, November 26,1973, and at the same place, Allegheny General Hospital. The hospital had notice of these events from the very day of this incident and, therefore, was not prejudiced in its defense by the amended complaint. In my judgment, the lower court erred in refusing the appellants’ Motion to Amend.

The appellants next contend that the court below erred in dismissing their complaint.

Judge Silvestri dismissed the complaint, presumably on the basis of the hospital’s Motion for Summary Judgment. See Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980). Under the Pennsylvania Rules of Civil Procedure:

[Summary Judgment] shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.

Pa.R.C.P. No. 1035(b); 42 Pa.C.S.A.

In reviewing the testimony taken at the depositions, as well as the amended complaint which I feel the lower court should have allowed, I am compelled to view the facts as disputed and in issue. Therefore, summary judgment was not proper in this case and the lower court erred in dismissing the complaint. Accordingly, I would reverse the Orders of the court below and direct that the amendment to the *331complaint be granted. Thereafter, the case should proceed to trial.

. See Pa.R.C.P. No. 1033.

. For the contents, as well as the general and specific averments of the Pleadings, see Pa.R.C.P. No. 1019.

. The following actions and proceedings must be commenced within two years:

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 5524.

. In the case of William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 169, 187, 346 A.2d 269, 278 (1975), the Supreme Court (per Mr. Justice Roberts) stated that “hypertechnicality and formalism in pleading are contrary to the modern practice of allowing free amendment in order to promote the resolution of cases on their merit.”