Procedure

July 23rd, 2019 by Rieders Travis in Procedure

PROCEDURE-SERVICE OF PROCESS-LAMP RULE Flanigan v. The Ellwood City Hospital, No. 30007 of 2017 (C.P. Lawrence February 6, 2019) Cox, J.  Plaintiff reached age of majority June 18, 2015.  The statute of limitations expired June 18, 2017.  The attorney, on June 16, 2017, filed a praecipe for writ of summons.  There was no sheriff’s return docketed against defendant Grudziak.  There was one attempt at service.  No additional sheriff’s return indicated service until October 27, 2017, a gap of 3-1/2 months where Grudziak was served through an agent of UPMC Risk Management.  The court found that the statute of limitations was not tolled.  The matter should have been raised in new matter and it was not, but that issue was never raised.  After a writ of summons is issued, a plaintiff has 30 days to serve the writ.  After the initial 30-day period, the writ may be reissued any number of times and the tolling effect is continued along with the reissuance of the writ.  The continued tolling, however, occurs only so long as a good faith effort is made to effectuate service.  Plaintiff frequently asked his attorney to serve Gruziak. …

PROCEDURE-FORUM NON CONVENIENS-MEDICAL MALPRACTICE

January 25th, 2018 by Rieders Travis in Procedure

Paige Moody and Khalil Tomlinson v. Lehigh Valley Hospital – Cedar Crest, 2018 Pa. Super. LEXIS 28 (January 18, 2018) Bowes, J.  Wrongful death and survival action sounding in medical malpractice was filed in Philadelphia.  The trial court transferred the case to Lehigh Valley on forum non conveniens grounds.  The Superior Court reversed and remanded for further proceedings consistent with the opinion.  A 17-month-old presented at Lehigh Valley Hospital with a history of vomiting and coughing.  She came under the care of physicians there.  After further doctor and hospital visits to various doctors and Lehigh Valley Hospital, the child was transferred to Children’s Hospital of Philadelphia by helicopter.  The doctors at Children’s Hospital performed a cardiac procedure and administered an overdose of versed, 10 times the proper dose.  The child died at Children’s Hospital eight (8) days later.  The burden to transfer on forum non conveniens grounds is a heavy one.  It must be shown that the chosen forum is either vexatious or oppressive.  Vexatious means that the plaintiff’s choice was intended to harass the defendant, even at some inconvenience to the plaintiff himself.  Oppressiveness requires a detailed factual showing…

DRAGONETTI-DAMAGES-PROOF OF WRONGFUL USE OF CIVIL PROCEEDINGS

October 19th, 2016 by Rieders Travis in Procedure

Miller v. St. Luke’s Uiv. Health Network, 142 A.3d 884 (Pa. Super. 2016).  “The question before us, therefore, is whether the trial court properly declined to instruct the jury that Dragonetti Act damages are presumed to flow from a defendant’s wrongful use of civil proceedings in favor of instructing, instead, that a plaintiff who proves wrongful use still carries the burden of proving resultant damages…We, therefore, dismiss Appellant’s challenge to the jury charge as meritless.”  In spite of the jury’s finding of a violation of the Dragonetti Act, the jury had the right to find that there were no damages.  The court did not disturb the jury’s determination that there was no probable cause in pursuing the claim of wrongful use of civil proceedings.