De Sisto v. City of Linden

• Citation: 80 N.J.Super. 398,193 A.2d 870
• Decision Date: 13 September 1963
• Docket Number: No. L--5610,L--5610
• Parties: Martha DE SISTO, Plaintiff, v. The CITY OF LINDEN, a Municipal Corporation, and Richard T. Karlinchak, Defendant. The CITY OF LINDEN, a Municipal Corporation, Third-Party Plaintiff, v. Nicholas DI IORIO and Alexander Di Iorio, individually and t/a Di Iorio & Di Iorio, Third-Party Defendants.
• Court: Superior Court of New Jersey

Page 398

80 N.J.Super. 398

193 A.2d 870

Martha DE SISTO, Plaintiff, v. The CITY OF LINDEN, a Municipal Corporation, and Richard T.

Karlinchak, Defendant.

The CITY OF LINDEN, a Municipal Corporation, Third-Party Plaintiff, v. Nicholas DI IORIO and Alexander Di Iorio, individually and t/a Di Iorio & Di Iorio, Third-Party Defendants.

No. L--5610.

Superior Court of New Jersey Law Division.

Sept. 13, 1963.

Bernard Herman, Elizabeth, for plaintiff Martha De Sisto.

Walter A. French, Jersey City, for defendant City of Linden (Doyle, Galvin, French & Melhuish, Jersey City, attorneys). Leon Klein, Clifton, for defendant Richard T. Karlinchak.

Morris R. Zucker, Newark, for defendants Nicholas Di Iorio and Alexander Di Iorio (Kristeller, Zucker, Lowenstein & Cohen, Newark, attorneys).

FULOP, J.C.C. (temporarily assigned).

At the pretrial in this action plaintiff was granted leave to file and serve a complaint against the third-party defendants DiIorio (hereinafter referred to as an entity) within ten days, and said third-party defendant was allowed 20 days after service thereof within which to answer. The complaint has been filed and served and third-party defendant moves to strike it out upon the ground that the cause of action therein asserted is barred by the statute of limitations.

On November 20, 1962 plaintiff instituted her action against the City of Linden and the driver of an automobile in which she was a passenger for personal injuries allegedly resulting from negligence suffered on May 20, 1961. Plaintiff alleged that the city had caused a manhole to be constructed so as to protrude above the level of incompleted street paving and had placed no barriers or warnings to prevent the public from driving over the area. The car in which plaintiff was a passenger drove over the street at night and struck the manhole, causing plaintiff to be thrown against the windshield and injured.

On February 26, 1963 the City of Linden filed a third-party complaint against Di Iorio, the contractor constructing the sewer and paving the street for the city. The third-party complaint is in two counts. The first count sets up the contract between the city and Di Iorio under which the contractor agreed to take all precautions against damage or accident to vehicles and passersby and persons and property generally during the work. It also agreed 'to settle' all suits or claims arising out of such damage or accident and to indemnify and save and hold the city harmless therefrom. Under this contract the city sought a judgment against Di Iorio indemnifying it against plaintiff's claim. The second count alleged negligence by Di Iorio causing the injuries to plaintiff, and sought contribution from Di Iorio as a joint tortfeasor.

Di Iorio answered the third-party complaint, and also answered the plaintiff's complaint, as it had a right to do under R.R. 4:14--1. In the answer to the city, Di Iorio denied negligence and included a counterclaim for contribution by the city and the driver of the car as joint tortfeasors.

In the answer to the plaintiff, Di Iorio did not answer the allegations of the complaint 'because they do not apply.' Di Iorio did, however, set up the negligence of plaintiff and of third parties as affirmative defenses. Dr Iorio also demanded a statement of damages under R.R. 4:8--1 and took plaintiff's deposition by way of discovery.

The absence of a direct claim by plaintiff against Di Iorio was apparently overlooked by plaintiff's attorney until the pretrial. It was filed more than two years after the personal injuries were inflicted. As above indicated, Di Iorio contends that the filing of the direct claim against it by plaintiff constitutes the commencement of an action more than two years after the cause of action accrued and is barred by N.J.S. 2A:14--2, N.J.S.A.

Plaintiff contends that by the leave granted in the pretrial order to file the new pleading, Di Iorio is barred from setting up the statute of limitations. The pretrial order provides that Di Iorio may answer the new pleading within 20 days after service and that, if new matter is presented, an additional pretrial is to be held. It seems clear that Di Iorio has the right to set up any defense to which it is entitled and that the defense of the statute of limitations was not in any way passed upon by the mere leave granted plaintiff to file her pleading. The proper time to pass upon defenses is when the claim and the defenses have been pleaded. My recollection is that the possibility of the bar of the statute was mentioned at the time of the granting of leave to plead and that I expressly provided for the filing of an answer so that the question might be presented, if desired, in the normal course. Di Iorio objected to the granting of leave to the plaintiff to plead and waived none of its rights. If the pretrial order is not as clear on this point as it needs to be, then it may be amended to that effect.

The question is now properly raised by motion since the facts upon which the defense of the statute of limitations is based appear upon the face of the pleading. Feil v. Senisi, 7 N.J.Super. 517, 72 A.2d 348 (Law Div.1950).

The time limitation on the institution of an action is governed by statute. The court has no power to exercise discretion to allow the institution of an action after it has been barred by the statute.

However, the question as the when an action has been commenced is governed by the rules of court and requires construction of the rules to meet the specific situation.

R.R. 4:3--1 provides:

'A civil action is commenced by filing a complaint with the court.'

Plaintiff did not file a complaint against the defendant Di Iorio within two years after the accrual of the cause of action. Plaintiff did file a complaint and did institute an action within two years against the other parties. Also within the two-year period, Di Iorio was joined as third-party defendant in the same action.

R.R. 4:14--1 provides, Inter alia, that:

'The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 4:12 and his counterclaims and cross-claims as provided in Rule 4:13.'

Third-party defendant contends that plaintiff may not now amend her complaint to assert a claim directly against the third-party defendant, because plaintiff's cause of action against third-party defendant was barred by the statute of limitations before the amendment was allowed or filed. On behalf of plaintiff it is contended that there is no new cause of action asserted because the same claim has been asserted against third-party defendant through defendant, that the assertion of a claim directly against third-party defendant is merely an amended pleading based on the same occurrence as the original pleading and relates back to the date of the original under R.R. 4:15--3, and that no new party is being added, and the amendment is merely a change of theory.

There appears to be no New Jersey case directly in point. However, there are a number of federal trial court decisions holding that such an amendment may not be permitted. Hankinson v. Pa. R.R. Co., 160 F.Supp. 709 (E.D.Pa.1958); Carlise v. Monongahela Ry. Co., 16 F.R.D. 426 (W.D.Pa.1954); Horan v. Pope and Talbot, Inc., 119 F.Supp. 711 (E.D.Pa.1953); Lommer v. Scranton-Spring Brook Water Service Co., 3 F.R.D. 27 (M.D.Pa.1943). This is stated to be the rule at 3 Moore's Federal Practice (2d ed.), § 14.09, supplement to page 422 at note 7, and in 1A Barron & Holtzoff, Federal Practice and Procedure, § 427, at note 77. The cited cases do not examine the question in depth but generally announce that a new cause of action may not be pleaded after the expiration of the statutory period of limitations.

In 1A Barron & Holtzoff, op. cit., § 448, it is stated:

'Unfortunately many of the decisions on these questions (amendment of pleadings) persist in speaking in terms of 'cause of action' instead of 'claim for relief'. The rules nowhere make use of the term 'cause of action'. The reasons are obvious. The term itself is 'so elusive of definition and the results achieved by the courts so varied, often at the expense of justice, that it can hardly be mere chance that the new rules attempted to establish a new test.'

Our R.R. 4:15--3 is taken from the federal rule. It reads as follows:

'4:15--3. When Amendments Relate Back.

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or...