Appeal from order of Court of Common Pleas of Allegheny County, April T., 1963, No. 511, in case of Sharon Goldstein, a minor, by Rose Goldstein and Meyer Goldstein, her husband, parents and natural guardians, and Rose Goldstein and Meyer Goldstein, her husband, in their own rights, v. Daniel Stadler.
James F. Manley, with him Burns & Manley, for appellant.
Roslyn M. Litman, with her Litman, Litman, Harris and Wecht, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
On January 13, 1963, Sharon Goldstein, a minor, by her parents, Rose Goldstein and Meyer Goldstein, and Rose Goldstein and Meyer Goldstein, in their own behalf (Goldsteins), caused a summons in trespass to be issued in the Court of Common Pleas of Allegheny County against Daniel Stadler for damages for injuries alleged to have been suffered by the minor child in a motor vehicle accident which occurred on January 20, 1961. On July 22, 1964, Goldsteins filed a complaint in trespass and on July 23, 1964, caused the writ of summons, which had not been served, to be reissued. On July 28, 1964, the reissued writ was served upon Stadler.
Stadler then filed an answer containing "New Matter" wherein he averred that the reissued summons in trespass had been improperly served after the original writ of summons had expired and after the statute of limitations had run and, therefore, any claims which Goldsteins might have had were barred. Goldsteins filed preliminary objections to Stadler's "New Matter" alleging that the facts set forth in "New Matter" did not bar Goldsteins' cause of action by reason of the statute of limitations. The court below sustained Goldsteins' preliminary objections to Stadler's "New Matter" and struck off such "New Matter" in an order entered on September 29, 1964. Stadler, on October 14, 1964, filed an appeal to this Court and on December 8, 1964, perfected such appeal, two months and eleven days subsequent to the date of the order of the court below.
The affirmative defense of the statute of limitations was properly pleaded by Stadler under "New Matter": Rule 1030, Pa. R.C.P.*fn1
While it is difficult to conceive of the statute of limitations in personal actions as a "jurisdictional" question, this Court in Thomas, supra, did consider, in a factual matrix very similar to that in the case at bar, that, where a writ was reissued and served after the original writ had expired and after two years from the date of the injury had run, a "jurisdictional" question was raised. However, we need not determine in this case whether or not the question is "jurisdictional" because in either event this appeal must be quashed.
If we treat the order of the court below as dispositive of a jurisdictional question, then the only basis for this appeal is by virtue of the Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672. Section 3 of that statute*fn2 provides, inter alia: "The appeal here provided for must be taken and perfected within fifteen days from the date when the decision is rendered". (Emphasis supplied). See: Thomas v. McLean, supra, p. 528. The present appeal, while taken within fifteen days, was not perfected until 55 days from the date of the order of the court below and, on that basis, must be quashed.
On the other hand, if the order of the court below should be treated as not dispositive of a question of jurisdiction, then this appeal must likewise be quashed as the order would then be an ...