J-A03017-24

2024 PA Super 124

G.K., A MINOR, BY AND THROUGH 

HIS PARENT AND NATURAL 

GUARDIAN, BRITTANY KUGEL AND 

BRITTANY KUGEL AND KENNETH 

KUGEL, IN THEIR OWN RIGHT

v.

CHRISTINA M. LABELLA, M.D., 

ALLEGHENY CLINIC D/B/A WESTERN 

PENNSYLVANIA OB/GYN 

ASSOCIATES AND ALLEGHENY 

HEALTH NETWORK 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 367 WDA 2023

Appeal from the Order Entered March 7, 2023

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD 18-000478

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

DISSENTING OPINION BY BOWES, J.: FILED: June 10, 2024

I respectfully dissent. I believe that my esteemed colleagues have taken 

out of context a footnote from my opinion in U.S. Bank Tr. Nat'l Ass'n as 

Tr. of Lodge Series III Tr. v. Unknown Heirs Under Brolley, 278 A.3d 

310 (Pa.Super. 2022) (“U.S. Bank Trust”), to reach an incorrect ruling in this 

case. In my view, the appellants’ (hereinafter “AHN”) motion to strike the 

discontinuance had no impact on the appealability of the final order granting 

the appellees’ motion to voluntarily discontinue the minor plaintiff’s claims 

without prejudice. For the reasons stated below, rather than quashing the 
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appeal, I would review the questions presented by AHN and vacate the trial 

court’s order. 

I begin with our jurisdiction over this appeal. The Majority holds that, 

while a voluntary discontinuance that disposes of all claims and all parties 

constitutes a final judgment, AHN’s filing of a motion to strike the 

discontinuance converted the final judgment into an unappealable 

interlocutory order. See Majority Opinion at 3-4. I disagree. 

By way of background, our Supreme Court has explained that leave of 

court, express or implied, is required in all instances of a discontinuance:

A discontinuance in strict law must be by leave of court, but it is 

the universal practice in Pennsylvania to assume such leave in the 

first instance. This was stated to be the established practice as 

long ago as 1843[.] All the cases show that a discontinuance must 

be founded on the express or implied leave of the court. In 

England this leave is obtained on motion in the first instance, and 

here it is taken without the formality of an application, but subject 

to be withdrawn on cause shown for it; that is the whole 

difference. The causes which will move the court to withdraw its 

assumed leave and set aside the discontinuance are addressed to 

its discretion, and usually involve some unjust disadvantage to the 

defendant or some other interested party, such as a surety.

Fancsali ex rel. Fancsali v. Univ. Health Ctr. of Pittsburgh, 761 A.2d 

1159, 1161–62 (Pa. 2000) (cleaned up). 

With the promulgation of Pa.R.Civ.P. 229, our High Court specified when 

court involvement is necessary before the discontinuance is filed and when 

the leave is presumed. That Rule provides is as follows in relevant part:

(a) A discontinuance shall be the exclusive method of voluntary 

termination of an action, in whole or in part, by the plaintiff before 

commencement of the trial.
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(b)(1) Except as otherwise provided in subdivision (b)(2), a 

discontinuance may not be entered as to [fewer] than all 

defendants except upon the written consent of all parties or leave 

of court upon motion of any plaintiff or any defendant for whom 

plaintiff has stipulated in writing to the discontinuance.

(2) In an action governed by Rule 1042.3, a plaintiff may enter a 

discontinuance as to a defendant if a certificate of merit as to that 

defendant has not been filed.

. . . . 

(c) The court, upon petition and after notice, may strike off a 

discontinuance in order to protect the rights of any party from 

unreasonable inconvenience, vexation, harassment, expense, or 

prejudice.

Note: Court approval of a discontinuance must be obtained 

in any action in which a minor is a party, Rule 2039(a), an 

action for wrongful death in which a minor is beneficially 

interested, Rule 2206(a), an action in which an 

incapacitated person is a party, Rule 2064, and a class 

action, Rule 1714.

Pa.R.Civ.P. 229.

Hence, if the plaintiffs or wrongful death beneficiaries are all adults, are 

not incapacitated, and do not represent a class, and they either wish to 

discontinue the whole action or have the consent of the remaining defendants 

to dismiss fewer than all, then leave of court is presumed, and the court will 

not examine the propriety of the discontinuance unless presented with a 

petition to strike. However, if the interests of minors, incapacitated persons, 

or a class are involved, or one or more defendants objects to fewer than all 

of them being discontinued, then the court examines the equities of the 
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discontinuance and any objections thereto before the discontinuance is 

permitted. 

Significantly, our Supreme Court has indicated that “the question is 

the same whether it is placed before the court by the plaintiff 

requesting express leave to discontinue or by the defendant seeking 

to have a discontinuance stricken.” Fancsali, 761 A.2d at 1162

(emphasis added). “Moreover, it is clear that the question is addressed to the 

court’s discretion” in either event. Id. 

U.S. Bank Trust, the case relied upon by the Majority, presented an 

unusual factual pattern. There, the question of the propriety of the plaintiff’s 

unilateral discontinuance was placed before the trial court for the first time 

when the plaintiff’s successor-in-interest, not a defendant, filed a petition to 

strike the continuance seven years after it was entered. On appeal from the 

denial of the petition to strike, this Court questioned the timeliness of the 

appeal filed well beyond the time for appealing the judgment since it was wellsettled that the initial discontinuance was a final, appealable judgment. See 

U.S. Bank Trust, 278 A.3d at 315 n.3. 

We ultimately concluded that the court’s consideration and denial of 

praecipe to strike the discontinuance constituted new proceedings in the case 

that resulted in a new appealable order. Id. Therefore, we proceeded to 

examine whether the trial court’s refusal to strike the discontinuance was an 

abuse of discretion and concluded that it was because the praecipe to 
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discontinuance was “improper, invalid, and erroneous.” Id. at 319. We 

explained that the discontinuance was in effect “a collateral assault on the 

judgment and an attempt to circumvent its preclusive effect.” Id. Holding 

that Pennsylvania law must not tolerate a “practice that would allow one party 

to a litigation to discharge a final judgment on its own authority,” we reversed 

the trial court’s denial of the motion to strike. 

In my view, U.S. Bank Trust speaks only to instances in which a party 

seeks to discontinue its case to avoid an unfavorable final judgment. At most, 

the decision stands for no broader a proposition than that a motion to strike 

amounts to a new proceeding in a case, and results in a new appealable order, 

where the plaintiff unilaterally discontinued the action by praecipe and the 

court had its first opportunity to exercise discretion about the propriety of the 

discontinuance in ruling on the petition to strike it. In such cases, an appeal 

may be properly taken from the dispositional order to allow appellate review 

of the trial court’s decision. 

By contrast, in the instant case, the trial court exercised discretion 

concerning the propriety of the discontinuance before it was entered in the 

first place. Thus, the petition to strike did not add anything new to the case, 

but merely asked the court to revisit a question it had already answered and 

reach a different result. In other words, AHN’s petition to strike was for all 

practical purposes a motion for reconsideration, the pendency of which has no 

impact upon the appealability of an underlying appealable order. See, e.g., 
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Gardner v. Consol. Rail Corp., 100 A.3d 280, 283 (Pa.Super. 2014) (“[I]t 

is well-settled that a motion for reconsideration, unless expressly granted 

within the thirty-day appeal period, does not toll the time period for taking an 

appeal from a final, appealable order.”). 

Accordingly, I would not quash this appeal as premature, but rather 

examine AHN’s challenges to the trial court’s exercise of its discretion. In this 

vein, I observe:

When the trial court reaches a conclusion calling for the 

exercise of its discretion, the party complaining on appeal has a 

heavy burden. It is not sufficient to persuade the appellate court 

that it might have reached a different conclusion under the same 

factual situation. An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly unreasonable, 

or the result of partiality, prejudice, bias or ill-will, as shown by 

the evidence or the record, discretion is abused.

Fancsali, 761 A.2d at 1162 (cleaned up).

In ruling on the propriety of a discontinuance, “[t]he trial court must 

consider all facts and weigh equities, while bearing in mind the benefits or 

injuries which may result to the respective sides if discontinuance is granted.” 

U.S. Bank Trust, 278 A.3d at 317 (cleaned up). Those factors enumerated 

in Rule 229, i.e., unreasonable inconvenience, vexation, harassment, 

expense, or prejudice, pertain whether the trial court is asked to strike a 

discontinuance taken with implied leave of court, or “where the court is asked 

to give express permission for a discontinuance.” Fancsali, 761 A.2d at 1162. 

Where express court approval is required pursuant to Pa.R.Civ.P. 2039
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because a minor is involved, there are “additional elements for the court’s 

deliberation.” Id. As our Supreme Court has explained:

Rule 2039 was adopted to ensure that the interests of minor 

litigants are protected above all other conflicting interests. Of 

course, the context of this statement is not to be overlooked. In 

[the] setting [of a settlement], where the Rule operates as a 

mechanism for trial courts to prevent unfair settlements, the 

interests of the minor are bound to be of primary if not preclusive 

effect. In the context of cases not involving a compromise and 

settlement, however, it may be appropriate to accord somewhat 

lesser weight to the interests of the minor. Nevertheless it is clear 

that in deciding whether to allow the discontinuance of an action 

involving a minor, the court must give some consideration to the 

interests of the minor in addition to considering unreasonable 

inconvenience, vexation, harassment, expense and prejudice.

Fancsali, 761 A.2d at 1162–63 (cleaned up).

AHN’s chief argument is that the trial court did not “properly analyze, 

identify, and weigh the required factors that affect [AHN’s] rights and 

interests,” and instead focused solely on the interests of the minor, in 

particular the possibility that he could realize additional damages in the future. 

AHN’s brief at 27. AHN contends that the instant case is materially 

indistinguishable from our decisions in Foti v. Askinas, 639 A.2d 807 

(Pa.Super. 1994), and Gray ex rel. Gray v. Magee, 864 A.2d 560 (Pa.Super. 

2004), in which we deemed voluntary discontinuances of minors’ claims 

without prejudice to be improper. 

In Foti, this Court held that the trial court abused its discretion in 

allowing the minor’s claims to be discontinued without prejudice for the 

following reasons:
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In the present case, the combination of the discontinuance 

without prejudice and the Minority Tolling Statute provides the 

appellee-minor with an advantage. A suit was initiated by the 

appellee-minor’s parents, on behalf of the appellee-minor. 

However, appellees were unable to present an expert witness to 

establish that appellants were negligent, and, therefore, appellees 

filed a motion to discontinue. The trial court’s order to discontinue 

without prejudice, in essence, allows the appellee-minor to have 

twelve years to locate expert testimony needed to proceed with 

her case.

. . . .

We must also consider the effect that a discontinuance without 

prejudice has on appellants. At the time of the discontinuance, 

this case had been pending for almost five years. We note that 

this period was protracted by appellee’s resistance to appellants’ 

discovery efforts. Depositions had been taken, interrogatories 

exchanged and several motions ruled on by the court. Appellants 

were prepared to go forward with the case. Much of the effort and 

expense appellants have already expended will have to be 

repeated if the appellee-minor chooses to file suit again.

. . . .

We find that a discontinuance without prejudice would provide an 

advantage to the appellee-minor and would prejudice appellants. 

Accordingly, we hold that the trial court abused its discretion by 

granting the appellee-minor’s motion to discontinue without

prejudice. If we held otherwise, appellants, who endured the 

burden of litigating the initial suit for almost five years, may again 

be subjected to the same litigation. The appellee-minor, however, 

would benefit immeasurably by the extended period she would 

have to prepare her case for a second time. 

Foti, 639 A.2d at 809–10 (cleaned up).

Notably, our Supreme Court in Fancsali expressly disapproved the Foti

Court’s reliance upon a supposed advantage a minor in such a situation would 

realize by having an additional decade to hope the science was developed and 

to find a favorable expert witness:
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We fail to see how [the minor] would be in any better position visà-vis the [defendant] than any other minors would vis-à-vis their 

defendants simply because an action on her behalf was 

commenced by writ of summons and later discontinued. Similarly, 

we cannot attribute as prejudice the fact that the [defendants] 

would have the threat of a potential lawsuit hanging over their 

heads for many years. This “threat” is in no way connected to the 

commencement or discontinuance of the action. It is, rather, 

entirely a function of the Minority Tolling Statute. The 

[defendants] would be subject to the same “threat” of a potential 

lawsuit by [the minor] if the action filed on her behalf were 

discontinued without prejudice as they would have been had that 

action never been filed.

Fancsali, 761 A.2d at 1164 (cleaned up). Nonetheless, our High Court 

declined to overrule Foti “because the Superior Court in Foti applied the 

correct standard, and its conclusion that the common pleas court abused its 

discretion was supported by other, valid considerations specific to the 

circumstances of the case[.]” Id. at 1164 n.6. 

Turning to the merits of that case, the Fancsali Court reversed the trial 

court’s denial of the discontinuance without prejudice:

Here, the action was commenced by writ of summons, but no 

complaint was ever filed. Counsel entered appearances on behalf 

of the [the defendants], but there was little or no court activity on 

behalf of the [the defendants] beyond ruling the plaintiffs to file a 

complaint. Medical records were forwarded to the [plaintiffs’] 

counsel shortly after the action was commenced, but there was 

no further discovery as such. Finally, the [plaintiffs] did not 

concede that no expert could be found to establish negligence. 

Rather, they asserted that neither they nor their attorney could 

afford to advance the money necessary to have an expert examine 

their records, a representation the common pleas court apparently 

accepted. Thus, the [defendants] demonstrated neither 

unreasonable inconvenience, expense, nor any of the other 

considerations identified in Rule 229 as considerations weighing 

against allowing a discontinuance. On the other side of the 

balance is the minor’s interest in being able to seek legal redress 
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for damages within the time and according to the procedures 

established by law.

Id. at 1165 (footnote omitted).

Subsequently, this Court in Gray deemed a discontinuance without 

prejudice inappropriate in a case more factually similar to Foti than to

Fancsali. In Gray, the medical malpractice action brought on behalf of a 

minor was pending for five years and, despite repeated discovery extensions, 

the parents were unable to secure an expert report after their initial expert 

died. See Gray, 864 A.2d at 565. When the defendants moved for summary 

judgment, the plaintiffs sought to discontinue the action rather than have 

judgment entered against them and the minor. The trial court granted 

summary judgment without ruling upon the discontinuance request. On 

appeal, the plaintiffs contended that the trial court erred in granting summary 

judgment before addressing their discontinuance petition. This Court held 

that no relief was due because “the granting of a discontinuance in this case 

would have been improper” based upon Foti. See Gray, 864 A.2d at 565-

66. 

The case sub judice is firmly in line with Foti and Gray and not 

Fancsali. Here, the minor’s parents initiated the case shortly before he 

reached two years of age, alleging that AHN was negligent in their prenatal 

care, causing the child to be born prematurely and suffer developmental 

delays and related conditions, as well as an increased risk of suffering future 

damages. The plaintiffs obtained a certificate of merit, “conducted extensive 
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medical research, and undertook discovery including filing and responding to 

several sets of interrogatories and requests for production” in addition to 

conducting or participating in the depositions of four physicians and plaintiffs. 

See Petition to Discontinue without Prejudice, 3/7/23, at ¶ 4. After five years, 

and only two months before their trial date, the parents expressed a 

unexplained desire not to pursue the litigation, but sought to dismiss the 

minor’s claims without prejudice because he might wish to pursue an action 

in his own right should he develop future injuries related to his premature 

birth. Id. at ¶¶ 8-9.

The trial court granted the plaintiffs’ petition without explanation. In its 

opinion for this appeal, the court stated its reasoning as follows:

In this case, this [c]ourt weighed the stated factors and 

determined overwhelmingly that the potential prejudice to the 

minor child should he not be able to file a cause of action in the 

future due to later found injuries that he suffered as a result of his 

premature birth far outweighed the prejudice to the physicians 

and the hospital in possibly defending an action by the minor child 

in the future. The [c]ourt does not find any vexation or 

harassment to be present. While it may be inconvenient and 

cause expense to [AHN] in the future, such can be significantly 

reduced by preserving the previously-conducted discovery (i.e., 

medical records and, deposition transcripts) in a safe/secure 

location pending expiration of the statute of limitations. Also, 

[AHN] can record statements, which could later be used to refresh 

their recollection, if necessary.

Trial Court Opinion, 5/1/23, at 3. 

In light of the precedent detailed above, I am constrained to agree with 

AHN that the trial court’s ruling is an abuse of discretion. This case is not akin 

to Fancsali where a writ of summons was filed and nothing else was done. 
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Here, as in Foti and Gray, the plaintiffs litigated the minor’s claim for five 

years and conducted extensive discovery, including interrogatories and at 

least six depositions. Plaintiffs further caused AHN to prepare for trial by filing 

a praecipe to place the case at issue and obtaining a trial date. Under these 

circumstances, I would apply the analogous precedent and rule that a 

discontinuance without prejudice is improper. 

Accordingly, I would vacate the trial court’s March 7, 2023 order and, 

as did the Foti Court, remand to allow the plaintiffs to withdraw their petition 

and proceed with the minor’s claims in the instant action. If they declined, I 

would instruct the trial court to order the case discontinued with prejudice. 

See Foti, 639 A.2d at 810. Since the majority quashes this appeal as 

premature instead of reaching that result, I respectfully dissent. 

DATE: 06/10/2024