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HomeMy WebLinkAbout99-5680 civilNICHOLAS RHODES, Plaintiff Vo MS. LAW, HEALTH CARE ADMINISTRATOR; : JOHN PALAKOVICH; : MR. KYLER, : SUPERINTENDENT; SCHEIN EYE ASSOCIATES, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · o ' 99-5680 CIVIL TERM · CIVIL ACTION - LAW IN RE' DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS BEFORE GUIDO, J_. AND NOW, this ORDER OF COURT day of AUGUST, 2000, for the reasons set forth in the accompanying opinion the Motion for Judgment of Non Pros filed on behalf of Defendants Law, Palakovich and Kyler is GRANTED. Further, the Motion for Judgment of Non Pros filed on behalf of Defendant Schein Eye Associates is GRANTED. By the Court Edward E. Guido, J. Nicholas Rhodes, Pro Se Steven C. Gould, Esquire For MS Law Colleen E. Ehresman, Esquire For Schein Eye Associates :sld NICHOLAS RHODES, Plaintiff Vo MS. LAW, HEALTH CARE ADMINISTRATOR; : JOHN PALAKOVICH; : MR. KYLER, : SUPERINTENDENT; SCHEIN EYE ASSOCIATES, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · o · NO. 99-5680 CIVIL TERM · · CIVIL ACTION- LAW · IN RE: DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS BEFORE GUIDO, J.~ _OPINION AND ORDER OF COURT Plaintiff is an inmate in the State Correctional Institution at Waynesburg, Pennsylvania. While incarcerated at the State Correctional Institution at Camp Hill he was treated for an eye problem. Unfortunately, the treatment was not successful and his eye had to be surgically removed. On September 16, 1999, the plaintiff instituted the current action by filing a pro se complaint. The complaint was served upon defendants Law, Palakovich and Kyler (hereinafter "Commonwealth defendants") on September 29, 1999. It was served upon defendant Schein Eye Associates (hereinafter "Schein") on October 1, 1999. On November 10, 1999 the Commonwealth defendants filed preliminary objections alleging that "Plaintiff's Complaint fails to state the date of his surgery that caused the loss of his eye, therefore, failing to reveal whether Plaintiff filed his complaint 99-5680 CIVIL TERM within the applicable statute of limitation.''~ After briefs and argument, the preliminary objections were resolved on January 11, 2000 when the Honorable Edgar B. Bayley ordered plaintiff "to file an amended complaint within sixty (60) days of this _d_ate setting forth the date of the surgery that he maintains occurred as pleaded in paragraph 4 of his complaint.''2 The plaintiff never filed an amended complaint. Coincidentally, on the same date as Judge Bayley's order, defendant Schein ill'ed.. an answer with new matter. Attached as Exhibit A to the answer was a copy of certain medical records which indicated that plaintiff's eye had been surgically removed on January 4, 1996. Defendant Schein raised the statute of limitations as a defense in its new matter. On March 22, 2000 the Honorable Edgar B. Bayley granted plaintiff a sixty (60) day extension of time within which to file a response to the new matter. Despite the extension of time, the plaintiff never filed a response. Currently before us are the separate motions for non pros filed by each defendant based upon plaintiff's failure to file the amended complaint and answer to new matter referred to above. For the reasons hereinafter set forth, each motion will be granted. DISCUSSION All defendants base their request for judgment of non pros upon Pennsylvania Rule of Civil Procedure 1037(c) which provides as follows' In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon a default or admission. They point out that a showing of prejudice is not necessary for entry of a judgment of non pros under that rule. All that is needed is a showing that a party has failed to act within Paragraph 10 of the Preliminary Objections of the Commonwealth Defendants to Plaintiff's Complaint. Order of the Honorable Edgar B. Bayley dated January 11, 2000. 99-5680 CIVIL TERM time frames as set forth in a court order. See Broglie v. Union Township, 319 Pa. Super. 141,465 A.2d 1269 (1983)3 and _Sporer v. Commonwealth Dept. of Transportation, 122 Pa. Commonwealth 263,552 A.2d 313 (1988). In such cases "due diligence'j_is "defined o ~;.~-. .., by reference to the calendar rather than by reference to the circumstances of the case." .. Broglie v. Union Township, supra, 465 A.2d at 1272. We recognize that Rule 1037(c) involves an exercise of discretion in determining whether to enter an "appropriate judgment". For the reasons hereinafter set forth, we choose to exercise that discretion to enter a judgment of non pros against plaintiff and in favor of all defendants. The statute of limitations applicable to this action is set forth in 42 Pa. C.S.A. § 5524 which provides' § 5524. Two year limitation 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. (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter. Plaintiff' s eye was surgically removed on January 4, 1996.4 No complaint was filed in this matter until more than 3 ½ years later. While the "discovery role" may be 3 The Broglie Court specifically held that judgment of non pros was appropriate where the plaintiff failed to file an amended complaint within the time directed by the court. 4 See Exhibit A to Defendant Schein's Answer with New Matter. 99-5680 CIVIL TERM sit is incumbent available to toll the statute of limitations in a medical malpractice action, upon plaintiff to plead sufficient facts to avail himself of the role. Prevish v. Northwes_t Medical Center, 692 A.2d 192 (Pa. Super. 1997). As the Prevish Court noted_:_ A plaintiff who wishes to assert the discovery rule may do so in one of two ways' 1) by pleading in the complaint sufficient facts to sustain application of the rule; or 2) by waiting until the defendant asserts a . statute of limitations defense in new matter and then raising the discovery role in a responsive pleading. " Id. at 197. Failure to assert the discovery role in either of those ways results in a waiver of the role. Id. Plaintiff was given ample opportunity to assert the discovery role after he became aware that the statute of limitations would be asserted by the defendants. On January 11, 2000 he was given 60 days by Judge Bayley to file an amended complaint after the Commonwealth defendants made it clear that the statute of limitations was an issue. Additionally, he was given a sixty (60) day extension to respond to Defendant Schein's new matter which raised the statute of limitations as a defense. To date, he has done neither. Under those circumstances we feel that the entry of a judgment of non pros against plaintiff pursuant to Pa. Rule of Civil Procedure 1037(c) would be appropriate. ORDER OF COURT AND NOW, this 23~__~v day of AUGUST, 2000, for the reasons set forth in the accompanying opinion the Motion for Judgment of Non Pros filed on behalf of Defendants Law, Palakovich and Kyler is GRANTED. Further, the Motion for Judgment of Non Pros filed on behalf of Defendant Schein Eye Associates is GRANTED. See Hayward v, Medical Center of Beaver County_, 530 Pa. 320, 608 A.2d 1040 (1992). 4 99-5680 CIVIL TERM By the Court, Nicholas Rhodes, Pro Se Steven C. Gould, Esquire For MS Law Colleen E. Ehresman, Esquire For Schein Eye Associates :sld /s/Edward E. Guid_o Edward E. Guido, J.