Hoeke v. Mercy Hospital of Pittsburgh
| Decision Date | 28 April 1978 |
| Parties | Maria L. HOEKE and Jonathan Hoeke, her husband, v. MERCY HOSPITAL OF PITTSBURGH, Pennsylvania, Dr. Leo R. Kairys, Dr. William J.Cushing and Dr. Charles E. Copeland. Appeal of Dr. Leo R. KAIRYS and Dr. Charles E. Copeland. Appeal of MERCY HOSPITAL. Appeal of Dr. William J. CUSHING. |
| Court | Pennsylvania Superior Court |
Submitted Nov. 10, 1976.
Janet N. Valentine, Pittsburgh, for appellants, at No. 598.
Charles H. Alpern, Pittsburgh, for appellant, at No. 614.
Robert J. Pfaff and Frederick N. Egler, Pittsburgh, for appellant at No. 616.
Murray S. Love, and Sikov & Love, Pittsburgh, for appellees.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
In the instant appeal the defendants below challenge the lower court's denial of their preliminary objections which questioned the validity of the court's jurisdiction over their persons. In particular defendant-appellants argue that the writ of summons in trespass and assumpsit which was served upon them did not comply with the provisions of Rule 1010 of the Pennsylvania Rules of Civil Procedure. For reasons which will later become apparent, sustaining their argument would be tantamount to terminating plaintiffs-appellees' cause of action in trespass. On the facts present in the instant case, that is a result we are not inclined to reach. Therefore, we will affirm the order of the lower court denying appellants' jurisdictional objection, albeit for reasons different from those which persuaded the court below.
In June of 1971 Mrs. Marie Hoeke entered Mercy Hospital in Pittsburgh for surgery. Allegedly as a result of such surgery Mrs. Hoeke suffered through an unfortunate recuperation which resulted in the amputation of her "lower right extremity" and removal of her right kidney. For these and related injuries she and her husband sought to hold Mercy Hospital and Drs. Kairys, Copeland and Cushing liable in both assumpsit and trespass. Consequently, on June 13, 1973, Mrs Hoeke and her husband, through their counsel, filed a praecipe for a writ of summons in trespass and assumpsit. The record indicates that although the writ issued it was never claimed at the prothonotary's office by plaintiffs' counsel and delivered to the sheriff for service. Obviously the praecipe was only filed to toll the statute of limitations until such time as plaintiffs were prepared to proceed further with the suit, a common practice at that time which has since been prospectively abolished by our Supreme Court. See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Approximately one year later, on June 11, 1974, plaintiffs were prepared to proceed in earnest and filed the ordinarily appropriate praecipe to reissue the writ of summons, well within the time limit prescribed by Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). It was at this point that matters went awry because the original writ had been lost, misplaced or destroyed; in any event, the prothonotary's office could not locate it. When this has occurred the appropriate procedure for plaintiffs is to praecipe for the issuance of a substituted writ pursuant to Pa.R.C.P., Rule 1010(c). Instead, the writ clerk, who was a relative novice in the prothonotary's office drafted a new "original" writ rather than insisting that plaintiffs' counsel praecipe for a substituted writ. Her error became obvious when she improperly dated the writ "June 13, 1974 " rather than "June 13, 1973." This writ was then stamped "reissued" and served on defendants. Defendants' suspicions concerning the verity of the "reissued original" writ were subsequently confirmed when the employment records of the prothonotary established that the writ clerk, who prepared the purported "original" writ which was served, was not an employee in June, 1973. Hence, she could not possibly have prepared the original writ.
Soon after the writs were served counsel for the various defendants entered appearances. Counsel for Drs. Kairys and Copeland filed a demand for a jury trial contemporaneously with entering their appearances, and counsel for Mercy Hospital included its jury trial demand in the appearance form itself. The docket reflects no further action in the case until November, 1975 when Drs. Kairys, Copeland and Cushing filed praecipes ruling plaintiffs to file a complaint. It should be noted that more than two years had elapsed since the issuance of the original writ in June, 1973, so that, at least with respect to the cause of action in trespass, if defendants' argument is correct that the writ is defective, plaintiffs could not have cured the defect in service of the writ of June, 1974 and complied with Zarlinsky v. Laudenslager, supra. When plaintiffs' complaint was filed shortly thereafter, the four defendants filed their preliminary objections challenging in personam jurisdiction.
At the hearing on the objections plaintiffs argued, first, that defendants had waived the jurisdictional objection by entering appearances, demanding a jury trial, and filing a praecipe to rule plaintiffs to file a complaint; and, second, that on the merits plaintiffs should prevail because the error in the "reissued" writ was both clerical and trivial of the type which fell within the intendment of Pa.R.C.P. 126. The hearing court agreed that defendants had waived the jurisdictional argument because of their action, but added that the court would have sustained the preliminary objections if it had been necessary to reach the merits.
In some respects this case is one of first, and one would hope last, impression in this Commonwealth. While we disagree, without overwhelming conviction, with the rationale of the court below, we do agree with its conclusion that appellants' preliminary objections were properly denied.
With regard to the threshold question of waiver, we find the defendants took no action prior to their filing preliminary objections which precluded them from advancing their jurisdictional claim. First, it is indisputable that entering an appearance without more does not bar a party from questioning whether the court has jurisdiction over his person. Rule 1012 of the Pennsylvania Rules of Civil Procedure provides:
Plaintiffs more or less agree with this general rule, but argue that incorporating a demand for a jury trial in the appearance form as did Mercy Hospital, or filing a separate demand for a jury trial and an appearance simultaneously as did Drs. Kairys and Copeland, constitutes such additional action necessary to find a waiver of an in personam jurisdictional claim. [1] We disagree.
The landmark in Pennsylvania for guidance in determining whether and at which stage an objection to in personam jurisdiction has been waived is Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965). In an important footnote to the Court's opinion in that case the Court stated:
417 Pa. at 139, n. 1, 208 A.2d at 254.
Following Monaco v. Montgomery Cab Co., to find a waiver of in personam jurisdiction the courts ordinarily have looked for "some other and further action on the merits " beyond the mere filing of an appearance by the party seeking not to be bound. See 1 Goodrich-Amram 2d § 1012:1 (1976). Exemplary of such "further action on the merits" are cases like O'Barto v. Glossers Stores, Inc., 228 Pa.Super. 201, 324 A.2d 474 (1974). In that case this court had little difficulty finding a waiver of a jurisdictional objection when the third party defendant served interrogatories on the original plaintiff, filed an answer to the third party complaint, and sought to join another defendant before questioning the propriety of service. Similarly the courts have found waiver when there has been a demurrer prior to raising the jurisdictional objection as in Yentzer v. Taylor Wine Co., 409 Pa. 338, 186 A.2d 396 (1962), or, when the defendant takes the case to a master before challenging the court's power to adjudicate his rights vis a vis the plaintiff. Hohlstein v. Hohlstein, 223 Pa.Super. 348, 296 A.2d 886 (1972).
The foregoing cases establish far stronger bases for finding waiver than do the facts in the instant case, and we find the differences to be fatal to this aspect of plaintiffs' waiver argument. There are no cases which we have found discussing the collateral consequences of a jury trial demand in an appearance form, but we are certain that if such cases existed they would...
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