Krevitz v. City of Philadelphia

• Decision Date: 14 September 1994
• Citation: 648 A.2d 353,167 Pa.Cmwlth. 412
• Parties: , Prod.Liab.Rep. (CCH) P 14,052 Sandra KREVITZ, Executrix of the Estate of Edward L. Krevitz, Appellant, v. CITY OF PHILADELPHIA and Towmotor Corporation.
• Court: Pennsylvania Commonwealth Court

Page 353

648 A.2d 353

167 Pa.Cmwlth. 412, Prod.Liab.Rep. (CCH) P 14,052

Sandra KREVITZ, Executrix of the Estate of Edward L Krevitz, Appellant, v. CITY OF PHILADELPHIA and Towmotor Corporation.

Commonwealth Court of Pennsylvania.

Argued Oct. 5, 1993.

Decided Sept. 14, 1994.

Hy Mayerson, for appellant.

Francis P. Devine, III, for appellees.

Before PELLEGRINI and KELLEY, JJ., and LORD, Senior Judge.

KELLEY, Judge.

Sandra Krevitz, executrix of the estate of her husband Edward L. Krevitz (decedent), appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which denied Krevitz' motion for a new trial and/or judgment n.o.v. following disposition of her negligence case against the City of Philadelphia (City).

The facts and procedure of this sixteen year old case may be summarized as follows. On August 22, 1978, decedent was fatally injured when a forklift he was operating overturned while he was maneuvering it on a City street behind his place of business. On April 25, 1979, Krevitz, representing the estate of her husband, initiated a negligence action against the City alleging that the street was defectively repaved, resulting in the creation of a soft spot that caused the accident to occur.

Two months after the accident and six months prior to the commencement of the action against the City, counsel for Krevitz wrote a letter to Ransome Lift Equipment Company (Ransome), the distributor of the forklift, alleging that the design of the forklift was defective, but failed to directly sue Ransome or the forklift manufacturer, Towmotor Corporation (Towmotor), until many years after the running of the statute of limitations. ¹

In February, 1982, the City filed a complaint joining Towmotor and Ransome after the statute of limitations had run for Krevitz against Towmotor. ² In its complaint, the City alleged that the Towmotor forklift was defectively designed, leading to the rollover of the forklift and causing decedent to be fatally crushed by the weight of the machine.

On January 7, 1985, Krevitz filed a motion to amend the complaint to sue Towmotor directly. ³ Krevitz alleged, inter alia, that Towmotor had fraudulently concealed the defective design of its forklift and had fraudulently concealed numerous other overturn accidents in which unwarned forklift operators were crushed to death. After thirteen months of extensive briefing, discovery and oral argument, the trial court denied the motion by oral order on February 18, 1986.

A jury trial was held in May, 1986, at the conclusion of which the jury returned a verdict in favor of the City. The jury did not address the issue of whether Towmotor acted negligently because Krevitz did not have a direct claim against the manufacturer. On June 18, 1986, Krevitz filed a motion for new trial and/or judgment n.o.v., alleging that the trial court erred in denying her motion to amend the complaint to add Towmotor as an additional defendant.

Following the passage of fifteen months without procedural activity, Towmotor moved to dismiss the post-verdict motion for failure to prosecute. Based on counsel for Krevitz' representation that the delay was due to his inability to obtain the trial transcript, the trial court denied Towmotor's motion for non-pros on October 14, 1987. Another four years of complete inactivity followed.

Without the trial transcripts, Krevitz filed a motion for a new trial in November, 1991, and a "motion for a new trial and/or judgment n.o.v. as against the City and Towmotor" in February, 1992. In these post-verdict motions, Krevitz (1) renewed her earlier argument that Towmotor had deliberately and fraudulently concealed the alleged defective design, precluding a cause of action against Towmotor; (2) argued that she be allowed to present the testimony of an expert concerning Towmotor's corporate decision not to warn customers of the forklift's alleged propensity to overturn during operation; (3) argued that newly-discovered evidence illuminated Towmotor's alleged fraudulent concealment and destruction of evidence as a continuing course of conduct; and, (4) asserted that meaningful review mandated access to the trial transcripts.

On December 10, 1991, Towmotor again filed a motion to dismiss plaintiff's post-verdict motions based on the failure of Krevitz to prosecute the motions.

The trial court heard oral argument on the outstanding post-verdict motions on June 4, 1992. At this time, Krevitz waived and abandoned any claim of error in the trial that exonerated the City from responsibility. Instead, Krevitz claimed that there was a pattern of fraudulent activity on the part of Towmotor to conceal from the public, the courts, and Krevitz, the defects in the design of its forklift, along with the dangers in operating the machine. Therefore, Krevitz maintained, the trial court erred when it denied Krevitz' motion to amend her complaint to add Towmotor as an additional defendant even though several years had elapsed since the statute of limitations expired. Krevitz further alleged that there was newly-discovered evidence that Towmotor fraudulently concealed information in its possession concerning the danger of the forklift.

On July 8, 1992, the trial court issued its order denying the post-verdict motions on the basis that the facts on which Krevitz relied to show concealment by Towmotor, even if believed, were insufficient to toll the running of the statute of limitations. In so concluding, the trial court held there was no error in its decision denying Krevitz' motion to amend her complaint to include Towmotor. The trial court subsequently denied Krevitz' motion for reconsideration. This appeal followed the entry of final judgment on October 29, 1992.

Initially, we note that our scope of review of a denial of a motion for a new trial is limited to a determination of whether the trial court abused its discretion or committed clear legal error. Milan v. Department of Transportation, 153 Pa.Commonwealth Ct. 276, 620 A.2d 721 (1993), petition for allowance of appeal denied, 535 Pa. 650, 633 A.2d 154 (1993). Likewise, our review of a denial of a motion for judgment n.o.v. is limited to the same determination. United States Fidelity & Guaranty Co. v. Royer Garden Center, 143 Pa.Commonwealth Ct. 31, 598 A.2d 583 (1991), petition for allowance of appeal denied, 530 Pa. 663, 609 A.2d 170 (1992). We must view the record in a light most favorable to the verdict winner and grant that party every inference. Id.

On appeal, Krevitz avers that the trial court erred in denying her motion to amend in that Towmotor has actively sought to conceal the defective design and manufacture of its forklift for many decades. ⁴ Because of this alleged fraudulent concealment, Krevitz argues, she did not bring suit against Towmotor within the two year period following decedent's accident. Upon learning of the alleged defects, Krevitz maintains, she immediately sought permission from the trial court to amend her complaint and sue Towmotor directly.

Further, Krevitz argues that newly-discovered evidence supporting her theory of fraudulent concealment was sufficient to warrant a new trial despite the running of the statute of limitations. According to Krevitz, the new information consists of evidence of a cover-up of a forklift tipover which amputated the legs of Towmotor's engineering/safety expert who testified at trial; evidence that the driver of the forklift depicted in the safety movie shown to the jury was actually wearing a seatbelt despite Towmotor's contrary statements before and during the trial; witnesses to the accident in question perjured themselves; and Towmotor destroyed a videotape of the accident in defiance of the trial court's order forbidding destruction of accident records.

Lastly, Krevitz asserts that the trial court erred in concluding that (1) the trial transcript was not needed to decide the motion to amend complaint; (2) the absence of the transcript did not require the grant of a new trial; and, (3) the unavailability of the transcript was the fault of counsel for Krevitz. ⁵

In support of its position that the trial court properly denied the post-trial motions of Krevitz, Towmotor herein principally argues that any cause of action against it is barred by the statute of limitations because the motion to amend was commenced more than two years after Krevitz' discovery of her husband's injuries; that is, the date of the fatal accident.

The present action is controlled by the two-year statute of limitations set forth in 42 Pa.C.S. § 5524, which provides in pertinent part:

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 negligent or unlawful violence or negligence of another.

42 Pa.C.S. § 5524(2).

This two year period begins to run "as soon as the right to institute and maintain suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). A person asserting a claim has the duty to use "all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Id.

In Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), affirmed, 950 F.2d 721 (3d Cir.1991), the court reviewed the standard of reasonable diligence under Pennsylvania law and stated:

In defining reasonable diligence, the courts have stated "[t]here are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence." Urland v. Merrell-Dow Pharmaceuticals, Inc., 822...