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May 29, 1952


Appeal, No. 116, March T., 1951, from judgment of Court of Common Pleas of Beaver County, March T., 1950, No. 255, in case of Ruth G. Maxson v. Estella E. McElhinney, Admrx., Estate of Benjamin Harrison McElhinney, deceased. Judgment affirmed.


George A. Baldwin, Jr., with him George A. Baldwin and Baldwin & Baldwin, for appellant.

Leonard L. Ewing, with him Reed, Ewing & Ray, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Drew

[ 370 Pa. Page 623]


We are here faced with the question as to whether a petition to dismiss a complaint in trespass was a timely one under our Rules of Civil Procedure. The lower court held that it was and granted the prayer of the petition.

On May 21, 1949, Merle G. Maxson was riding through the state of North Carolina in an automobile owned by and allegedly driven by Benjamin Harrison McElhinney when the car left the road and struck a tree killing both Maxson and McElhinney. Maxson's widow brought this action on her own behalf and on behalf of her minor son against Estella E. McElhinney, administratrix of McElhinney's estate, to recover damages for wrongful death. Defendant filed an answer denying operation of the car at the time of the accident. Thereafter, defendant filed a petition in which she alleged that since the accident happened in North Carolina the law of that state controlled and that under North Carolina law the only person entitled to bring suit for wrongful death is the personal representative and concluded from that, that plaintiff could not bring the suit. Plaintiff's answer to that petition, so far as material here, averred that the petition was in the nature of a preliminary objection and could not be

[ 370 Pa. Page 624]

    considered after a responsive answer to the complaint had been filed.

Although the petition was entitled "Petition Raising Defense of Lack of Capacity to Sue", the learned court below treated it as a petition to dismiss for non-joinder of an indispensable party and after exhaustive study dismissed the complaint on that ground.

It is not disputed that under the North Carolina wrongful death statute only the personal representative has the right to bring suit. It is likewise true that the law of North Carolina governs the right of action here: Dickinson v. Jones, 309 Pa. 256, 163 A. 516; Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346; Roberts v. Freihofer B. Co., 283 Pa. 573, 129 A. 574. Thus, if the defense was not waived by the filing of a responsive answer, the complaint was properly dismissed. See e.g.: LaBar v. New York, etc., R.R. Co., 218 Pa. 261, 67 A. 413; Usher v. Railroad Co., 126 Pa. 206, 17 A. 597.

Under Rule 1032, Pa. Rules Civ. Proc., the filing of a responsive answer waives all defenses except failure to state a claim upon which relief can be granted, failure to join an indispensable party, and lack of jurisdiction over the subject matter. It follows, therefore, that the defense of lack of capacity to sue is waived by a responsive answer. However, we are in full accord with the lower court that the present controversy involves more than a mere lack of capacity on the part of plaintiff to sue. That defense is designed for cases where the remedy alone is affected. For example, where a person has failed to register a fictitious name he is barred from bringing suit by the Fictitious Names Act*fn1, but his substantive right still exists. Here, on the other hand, no right exists under North Carolina law except in the personal representative: McCloy v. Atlantic Coast

[ 370 Pa. Page 625]

    out of which, if at all, the right must arise, took place in New Jersey, it is to the statutes of that state alone that we must resort to ascertain the nature of the right, and the party in whom it is vested." (Italics added). We then held that since the New Jersey statute vested the right in the personal representative and no one else, the widow could not recover. That is precisely the case here. The North Carolina statute created a right where none existed at common law and vested that right in the personal representative. He is the only person who could exercise that right and no one other than he could state a legally enforceable claim.

It might be possible under different circumstances to amend the pleadings by making the personal representative the party-plaintiff to the suit. But where, as here, the statute of limitations has become a bar, no amendment can be permitted since that, in legal effect, would be the introduction of a new cause of action by the substitution of different parties: LaBar v. New York, etc., R.R. Co., supra. Accordingly, the order of the court below dismissing the complaint and entering judgment for defendant was correct.

Judgment affirmed.


Judgment affirmed.


In view of the fact that the defendant replied to the merits of the complaint in trespass, I believe that she waived all technicalities and that, therefore, the complaint should stand.

I would reverse the lower court.

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