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EVANS v. MARKS (04/19/66)

decided: April 19, 1966.

EVANS, APPELLANT,
v.
MARKS



Appeal from judgment of Court of Common Pleas of Lebanon County, June T., 1963, No. 119, in case of Charlotte Evans v. Ethel C. Marks and First Pennsylvania Banking and Trust Company, executor of estate of Frances Bischoff Nash, deceased.

COUNSEL

James S. Kilpatrick, Jr., with him Haws & Burke, for appellant.

Bernerd A. Buzgon, with him Davis and Katz, for appellee.

Thomas H. Ehrgood, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 421 Pa. Page 147]

This action of trespass arose out of an accident which occurred on June 16, 1959, at the intersection of Routes 72 and 322 in West Cornwall Township, Lebanon

[ 421 Pa. Page 148]

County, Pennsylvania. Appellant, Charlotte Evans, was a passenger in a vehicle owned and operated by Frances Bischoff Nash, now deceased, which collided with a vehicle operated by appellee, Ethel C. Marks, at the intersection. Frances Bischoff Nash died as a result of the accident. The suit was brought in Lebanon County by Charlotte Evans against Ethel C. Marks, the operator of the other vehicle. The complaint was filed by appellant against appellee on January 15, 1963,*fn1 for damages resulting from the collision. On July 2, 1963, appellee filed an answer denying liability and further alleging as new matter that appellant was precluded from bringing this action because she had previously received satisfaction of a verdict in a proceeding brought in Montgomery County by the same plaintiff against the personal representative of the deceased Frances Bischoff Nash. Appellant filed a reply on July 29, 1963, contending that the verdict was not the result of an adversary proceeding in Montgomery County, but, rather, was an agreed verdict, and that satisfaction thereof did not absolve appellee. On July 30, 1963, appellee filed a motion for judgment on the pleadings, argument followed, and briefs were submitted to the court. The court below, in its opinion of May 28, 1964, refused the motion for judgment on the pleadings.

On June 9, 1964, appellee petitioned for an extension of time to join the First Pennsylvania Banking and Trust Company, Executor of the Estate of Frances Bischoff Nash, Deceased, as an additional defendant. The lower court issued a rule and on July 1, 1964, made the rule absolute. On July 2, 1964, a complaint to join the additional defendant, the First Pennsylvania

[ 421 Pa. Page 149]

Banking and Trust Company, was filed. On October 2, 1964, the additional defendant filed an answer and under new matter pleaded that appellant released the additional defendant by a written release, a copy of which was attached to the pleading. On October 7, 1964, appellee, the original defendant, filed a reply to new matter and, on October 31, 1964, the court below granted leave to appellee to amend her answer and new matter, and this amendment was filed on November 10, 1964. The new matter filed by appellee stated that appellant's release of all claims made on December 28, 1962, thereby released not only the additional defendant but also appellee, the original defendant. The pertinent parts of the release read as follows: "I/we, being of lawful age, have released and discharged, and by this release do for myself/ourselves, my/our heirs, executors, administrators and assigns, release and discharge First Pennsylvania Banking & Trust Co., Executor of the Estate of Frances Bischoff Nash, deceased and any and all other persons and entities (whether herein named or not) of and from any and all claims, damages, actions, causes of action, and suits of whatever kind, known or unknown, prior to and including the date hereof, and particularly for all injuries to person or damage to property resulting or to result, and especially the liability arising from an accident which occurred on or about the 16th day of June, 1959, at or near Lebanon, Pa." (Emphasis ours)

Appellant filed an amended reply, admitting the execution of the release but denying the document released appellee from liability. Appellant avers that on or about November 30, 1962, counsel for additional defendant forwarded a release to appellant's counsel, which release specifically released and discharged "The First Pennsylvania Banking & Trust Company, Executor of ...


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