Charles J. Maloney, John Duggan, Jr., Pittsburgh, for appellant.
Frank Bolte, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 373]
William B. Donahue, plaintiff-appellant, trading and doing business as Donahue Furnace Company, on December 5, 1947, entered into a written agreement with Anton Knaus to install six gas furnaces in certain property owned by Knaus. The total consideration was $3,100, of which $2,000 was paid on the signing of the agreement, the balance to be paid upon completion of the work. The purchaser requested the seller not to begin the installation work until such time as he should be advised by the purchaser, and said that he desired the work to be completed by the end of July, 1948.
On or about January 29, 1948, less than two months after the signing of the agreement, Knaus was killed in an automobile accident at Fort Lauderale, Florida. Plaintiff did not learn of his death until on or about June 1, 1948, when he attempted to contact him, as he had said that he desired the work to be completed by the end of July of that year, and then learned for the first time from William A. Knaus, administrator of his father's estate and defendant-appellee herein, of the death of the decedent.
The administrator acknowledged the contract for the purchase and installation of the furnaces but told plaintiff that he would not be ready for the installation work to begin prior to October, 1948. Accordingly, plaintiff waited until on or about October 15, when he received word from defendant to proceed with the work as soon as he possibly could. Consequently, the installation began November 8, 1948.
[ 169 Pa. Super. Page 374]
On or about December 1, 1948, plaintiff was requested by defendant to install certain cold air returns and cut in approximately sixteen new returns not called for under the terms of the contract. Defendant agreed to pay the reasonable cost of the extra work, which plaintiff claims to be $175. Upon refusal by defendant to pay the balance due under the contract, or for the extra work, plaintiff began this action in assumpsit May 20, 1949, for the sum of $1,275 with interest thereon from December 15, 1948.
Defendant filed preliminary objections to the complaint and asked that it be dismissed on the sole ground that more than a year had elapsed between the death of the decedent and the beginning of the action against the administrator of his estate. After argument before a court en banc the preliminary objections were sustained and judgment entered for the defendant and against the plaintiff on the pleadings.
This appeal by plaintiff brings squarely before an appellate court of this State for the first time the question whether section 35(b) of the Fiduciaries Act of June 7, 1917, P.L. 447, as amended, is an extension or restriction of the statute of limitations. As a general rule, it is hazardous for a court to attempt to fathom the legislative intent in enacting a statute, but it so happens that the writer of this opinion was a member of the Legislature in 1917 and a member of the Judiciary General Committee to which the legislation was referred and reported to the floor of the House. The Act of 1917 simply provided: 'Executors or administrators shall have power to commence and prosecute all actions for mesne profits or for trespass to real property, and all personal actions which the decedent whom they ...