Rudman v. City of Scranton

• Decision Date: 13 July 1934
• Docket Number: 38-1934
• Citation: 114 Pa.Super. 148,173 A. 892
• Parties: Rudman et ux. v. City of Scranton et al., Appellants
• Court: Pennsylvania Superior Court

173 A. 892

114 Pa.Super. 148

Rudman et ux. v. City of Scranton et al., Appellants

No. 38-1934

Superior Court of Pennsylvania

July 13, 1934

Argued March 6, 1934

Appeal by City of Scranton from judgment of C. P., Lackawanna County, March T., 1933, No. 943, in the case of Simon and Bertha Rudman v. City of Scranton and the Spring Brook Water Service Company.

Sci fa. to bring in additional defendant. Before Lewis, J.

The facts are stated in the opinion of the Superior Court.

Motion to quash the writ. The court granted the motion. City of Scranton appealed.

Error assigned, among others, was the decree of the court.

Reversed.

E. V McLaughlin, Assistant City Solicitor, and with him A. A. Vosburg and A. S. Rosenberg, for appellant.

Clarence Balentine of Kelly, Balentine, Fitzgerald & Kelly, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

Simon Rudman and Bertha Rudman, his wife, brought an action in trespass against the City of Scranton for damages resulting from personal injuries sustained August 22, 1932, by Bertha Rudman, and in their statement of claim alleged that the city was negligent in that it allowed and permitted a hole, depression, or defect, which caused the injury, to remain in a public highway. The suit was instituted on February 20, 1933, and on March 4, 1933, the defendant filed a praecipe for a sci. fa. to bring in the Spring Brook Water Service Company as an additional defendant, pursuant to the provisions of the Act of April 10, 1929, P. L. 479, as amended by the Act of June 22, 1931, P. L. 663 (12 PS 141). The praecipe contained a statement of reasons why the Spring Brook Water Service Company was liable to the City of Scranton for the amount of any judgment that might be recovered against it. It was there alleged that on June 27, 1929, the city issued to the Spring Brook Water Service Company, on its application, a permit to occupy a portion of the street, where the accident occurred, for water service, and that a permit was issued to the Spring Brook Water Service Company permitting it to dig or cause a tunnel to be constructed to the curb line under a brick gutter, and that the water company undertook to be responsible for and pay "all loss or damage to either person or persons or property which in any manner arise [arose] by reason of the occupying or the prosecution of, or resulting from said work." There was attached to the praecipe a copy of such permit. It was further alleged that the water company made a cut in the pavement and caused a tunnel to be constructed to the curb, and that in back filling the tunnel, the earth or filling was not replaced in its former secured condition and as a result of such defective replacement the gutter drooped or caved in at the point where the plaintiff wife was injured, and that "the Scranton Spring-Brook Water Service Company, additional defendant, is primarily responsible for the defective maintenance condition of the cartway on Quincy Avenue, which plaintiff alleges caused the injury for which suit is brought."

The Spring Brook Water Service Company filed an affidavit of defense raising questions of law and assigned eight reasons why the scire facias was not sufficient. An objection to the scire facias was sustained and the writ quashed.

The court below based its action solely on the fact that the accident happened two years after the filling and repairing of the street by the water company. As the appellee admitted at bar in this court, the reason assigned by the lower court was not a valid one. The Act of June 24, 1895, P. L. 236, § 2 (12 PS 34), provides as follows: "Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards." (Italics ours.) The action accrues when the damage is sustained by the plaintiff, not when the causes are set in motion ultimately producing injury as a consequence: Pollock v. P. B. & L. E. R. R. Co., 275 Pa. 467, 119 A. 547; Noonan v. Pardee, 200 Pa. 474, 50 A. 255. Consequently, the claim against the water company was not barred by the statute. Viewing the case as it concerned the rights between the two defendants arising from a contract express or implied, and remembering that the issuing of the scire facias was the equivalent of a notice to defend the action and the circumstances here present, the statute of limitations would not begin to run against the city until the city is compelled to pay the judgment recovered against it or, at best, until a judgment is recovered: Ashley Boro. v. Lehigh & Wilkes-Barre Coal Co., 232 Pa. 425, 81 A. 442.

As is suggested by the appellee, where a court in an opinion "gives a wrong reason for a rightful conclusion, and it appears that there is no trace of the erroneous view in the record of the trial, nor that it was in any way productive of the verdict that was rendered, the appellate court will not reverse the judgment because of the wrong reason thus given": Glegg v. Seaboard Steel Casting Co., 34 Pa.Super. 63; Jeannette Planing Mill Co. v. Greenawalt, 11 Pa.Super. 157; Piper's Appeal, 20 Pa. 67.

The appellee now relies not upon the reason assigned by the court below to sustain its order, but upon several other objections which it raised in the court below to the sufficiency of the scire facias, but which were not considered there. The appellee in that connection contends (1) that "the scire facias cannot be sustained by the proposition that the water company is liable to the city in assumpsit for the maintenance of Quincy Avenue up to August 22, 1932;" (2) that "the scire facias is insufficient because it fails to allege that the additional defendant is 'liable over,' 'jointly or severally liable,' or 'alone liable;'" (3) and that the scire facias "is defective in substance because the water company is not primarily liable for the cause of action sued on."

"The writ of scire facias operates not only as a method of bringing a party into court, but, in addition, becomes a pleading and must, therefore, state a good cause of action": Nunamaker v. Finnegan, 110 Pa.Super. 404, 409, 168 A. 482. "We are of opinion that where the defendant in the action relies upon some bond, contract or writing not appearing in the plaintiff's statement filed in the action, to establish the liability of the additional defendant over to him, either wholly or in part, he should set out such bond, contract or writing in his praecipe, affidavit or suggestion for the scire facias to bring in the additional defendant, just as he would do in his 'statement' if he were bringing an original action against such additional defendant on the bond, etc., and a copy thereof should be served with the scire facias so as to inform the additional defendant fully of the nature of the claim against him; but if the latter feels that the praecipe, affidavit or suggestion and the scire facias are not sufficiently specific in their averments or do not contain writings which should be pleaded, the remedy is not to file an affidavit of defense raising a question of law and asking for judgment in favor of the additional defendant, but to rule the original defendant for a more specific praecipe, affidavit or suggestion, or move to strike it off, as the case may be, in analogy to the practice with respect to plaintiff's statements: Rhodes v. Terheyden, 272 Pa. 397, 401, 116 A. 364; Drabant v. Cure, 274 Pa. 180, 118 A. 30; Franklin Sugar Refining Co. v. Lykens Mercantile Co., 274 Pa. 206, 117 A. 780;" Sch. Dist. Eddystone v. Lewis, 101 Pa.Super. 588, 590.

The praecipe for the scire facias followed the form prescribed by the Supreme Court in the case of Vinnacombe v. Phila., 297 Pa. 564, 147 A. 826, and in our opinion stated a good cause of action. Prior to the amendment of 1931 the Supreme Court, in the Vinnacombe case (pp. 569, 573),...