DeRugeriis v. Brener
| Decision Date | 13 November 1975 |
| Citation | 348 A.2d 139,237 Pa.Super. 177 |
| Parties | William DeRUGERIIS, Jr., a minor, by his parents and natural guardians William DeRugeriis and Mary DeRugeriis, Appellants, v. Stephen BRENER. |
| Court | Pennsylvania Superior Court |
Petition for Allowance of Appeal Granted March 12, 1976.
Robert S. Lucarini, Philadelphia, for appellants.
Raymond M. Seidel, Norristown, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge:
Appellants plaintiffs below, appeal to this Court from a Judgment on the Pleadings entered for appellee after hearing before the Montgomery County Court of Common Pleas sitting en banc. Suit had been commenced on January 17, 1969, with defendant named as 'Herbert' Brener. After the applicable statute of limitations had expired appellee, defendant below, filed an answer to the complaint in which he averred that 'Stephen' Brener had been the driver of the car which was involved in the accident with the appellant's vehicle, which accident had given rise to appellants' cause of action. Upon the petition of appellants, and after the taking of depositions and a hearing, Judge David Groshens allowed the complaint to be amended to reflect the proper party defendant. In his answer to the amended complaint, appellee averred the bar of the statute of limitations insofar as his being brought into the case was concerned and promptly moved for judgment on the pleadings as aforementioned.
The facts show that this auto accident occurred on February 25, 1967. At the scene that evening, immediately after the accident the parties pulled their vehicles off the road and onto the neighboring property of one Dr. O'Neill in whose presence identifications were exchanged. The doctor noted on his scratch pad the name of Herbert Brener, and his insurance company, which piece of paper he gave to William DeRugeriis, Jr. Communication was had between Herbert Brener, father of Stephen, and William DeRugeriis, Sr., and between the senior DeRugeriis and the Breners' insurance carrier. In the interim between these communications and the answer to the original complaint, appellants were not informed as to the true identity of the driver of the Brener vehicle.
It is axiomatic that a plaintiff must enter suit before the running of the statute of limitations. The bar of the statute of limitations operates also when a plaintiff attempts to bring in another party as defendant following the applicable statutory period. Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965) makes it clear that, after the statute has run, no amendment will be permitted to change the name of the defendant from father to son, even though it is clear that plaintiff had every intention of suing the operator of the vehicle, i.e., the son. There is some similarity between Saracina, supra, and the instant factual situation. In both, the issue transcends a mere correction of the name of a party, for which amendment our 'Rules of Civil Procedure' allows liberality. In each, a new party, the son of the owner of the car, was the driver of the allegedly offending vehicle and was the party which plaintiffs intended to sue; but in each case the owner was sued. Saracina, supra, prohibited a correcting amendment.
However, in Saracina, supra, there is no indication that the defendant concealed the true name of the driver. We cannot know if plaintiff Saracina made every attempt to determine the true identity of the driver and in this way to implement his intention of suing the driver. In the case before us, appellee did not supply appellant-driver with the correct information as to his name; nor did his father; nor did his insurance carrier. Either intentionally or not, appellee, original defendant Herbert Brener, and their agents actively misled appellants as to who the real driver was until after the statute of limitations had run. The true identity of the driver was withheld until defendant answered the original complaint. We therefore conclude that the statute of limitations was tolled as to Stephen Brener because of the active concealment of the true name of the driver, which occurred during the period in which the applicable statutory period was running.
This disposition makes unnecessary a consideration of other issues raised by appellants.
Reversed and remanded for a new trial.
I do not agree with the majority's holding that the statute of limitations was tolled as to Stephen Brener because I do not consider that issue to be before this Court. I would affirm the decision below allowing appellee's Motion for Judgment on the Pleadings.
In passing upon a motion for judgment on the pleadings, the court may consider only the pleadings themselves and any documents properly attached thereto. Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968); Bogojavlensky v. Logan, 181 Pa.Super. 312, 124 A.2d 412 (1956). It may not consider depositions or other collateral evidence in such a ruling, Bata v. Central-Penn Nat'l Bank, 423 Pa. 373, 224 A.2d 174 (1966), Cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967); Nederosteck v. Endicott- Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72 (1964), and any reference to other material constitutes error. Pisiechko v. Diaddorio, 230 Pa.Super. 295, 326 A.2d 608 (1974); See Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968); Goodrich-Amram, § 1034(a)-2 (Supp.1972).
Specifically, it has been held that in determining whether the defendant's motion for judgment on the pleadings should be allowed we must consider the complaint, the answer containing new matter And the reply to new matter. Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). See Bata v. Central-Penn Nat'l Bank, supra.
In the present case, appellee, defendant below, moved for and was granted judgment on the pleadings, after he raised the affirmative defense of the bar of the statute of limitations in new matter and appellant filed a reply thereto. The majority makes it clear that Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965), in the absence of fraud or concealment, controls under the facts of this case, appellant having brought in a new party after the statute of limitations had run. With that determination, I agree; appellant's amendment transcended a mere correction of the name of a party. See Saracina v. Cotoia, supra; Miller v. Jacobs, 361 Pa. 492, 65 A.2d 362 (1949); Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947); DeFebbo v. Speshok. 54 Pa.D.&C.2d 385 (C.P.Carbon 1971).
Appellee having raised a valid affirmative defense barring appellant's claim, the statute of limitations, he was entitled to judgment on the pleadings if his defense was unanswered or was inadequately answered in appellant's reply to new matter. See Goldman v. McShain, supra; Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967); Pisiechko v. Diaddorio, supra; Chivers v. School Dist. of Mt. Lebanon, 6 Pa.Cmwlth. 622, 297 A.2d 187 (1972); Goodrich-Amram, § 1030--5 (Supp.1975). The sole question to be considered here is thus whether the reply to new matter adequately overcame appellee's affirmative defense.
Appellant replied to appellee's new matter as follows:
I cannot conclude that this reply presents an adequate answer to appellee's new matter in the form of a claim of estoppel to raise the statute of limitations by fraud or concealment, as does the majority. Although the depositions and other collateral evidence intimate such a claim, we can consider only the pleadings themselves on a motion for judgment on the pleadings, [1] Bata v. Central-Penn Nat'l Bank, supra.
Appellant's reply arguably answers appellee's affirmative defense in the form of a plea of res judicata, collateral estoppel or 'law of the case', but it does not raise the issue of concealment or fraud. Moreover, I agree with the lower court's determination that the allegation that Is raised by the pleadings inadequately answered appellee's affirmative defense. Neither res judicata nor collateral estoppel applies here because those doctrines relate only to final orders, decrees or judgments and the order allowing amendment of the instant complaint was clearly interlocutory, See Posternack v. American Cas. Co., 421 Pa. 21, 218 A.2d 350 (1966); Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957); Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953); Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974), and, as was correctly noted by the lower court, the ruling allowing amendment did not become the 'law of the case'. See Schaffer v. Larzelere, supra.
Even if it were assumed, Arguendo, that appellant's reply was an attempt to incorporate the various documents relating to the order granting leave to amend, I would still not agree that appellant has adequately answered appellee's affirmative defense.
First, the Pennsylvania Rules of Civil Procedure require that fraud be averred with particularity. Pa.R.C.P. No. 1019(b); Bata v Central-Penn Nat'l Bank, supra. Appellant has not done so here. Appellant's reply may only be said to raise allegations of fraud or concealment by a rather strained conclusion that reference to the Order...
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