Appeal from judgment of Court of Common Pleas of Delaware County, No. 10209 of 1964, in case of Alice Peterson v. Philadelphia Suburban Transportation Company et al.
Stephen J. McEwen, Jr., for appellant.
J. B. Erwin, with him Bernard P. Carey, Jr., for plaintiff, appellee.
Ernest L. Green, Jr., with him Butler, Beatty, Greer and Johnson, for additional defendant, appellee.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Eagen joins in this dissenting opinion.
This case presents procedural problems in the area of third party practice, including the raising, by an additional defendant, of the defense of the statute of limitations. A chronological statement of the pleadings and other steps taken in the lower court during the 3 1/2 years between commencement of suit and the taking of this appeal will best present the posture of the case, and the problems presented.
Plaintiff allegedly sustained personal injuries in a fall on September 20, 1962, at the 69th Street Terminal in Upper Darby, Pennsylvania, on the property of Philadelphia Suburban Transportation Company (Suburban), the first-named defendant. The A. Raymond
Raff Company (Raff) was, according to the complaint, engaged as a contractor for Suburban in doing repair work at the Terminal, and was in possession of the premises for that purpose. From the third party complaint, it appears that Valley Erection Company, Inc. (Valley) was engaged in installing iron work on the platform of the Terminal at the time of the injury, whether as a subcontractor or agent or in another capacity does not appear.
On September 10, 1964, ten days before the expiration of the two-year statute of limitations (Act of June 24, 1895, P. L. 236, § 2, 12 P.S. § 34), plaintiff commenced this action by filing a praecipe for summons. The praecipe (which was not part of the printed record) named as defendants Suburban, Raff and Valley. Summons in trespass was duly served on Suburban and Raff, but was never served on Valley. According to the opinion of the court below (although not otherwise shown in the printed record) the summons to Valley was "held" on order from the attorney for the plaintiff. The plaintiff's complaint, filed January 27, 1965, named only Suburban and Raff as defendants, and contained separate counts as to each. It made no mention of Valley.
Suburban answered the complaint in March, 1965, and Raff in October, 1965. About six weeks later, on December 3, a stipulation of counsel was filed, signed by the attorneys for the plaintiff and the two original defendants, extending the time for "filing a writ" to join additional defendants,*fn1 and agreeing that Raff might "file a writ" to join Valley as "an additional defendant who may be solely, jointly or severally liable."
This stipulation was endorsed "approved" by a judge of the court. On December 28, 1965, Raff filed its third party complaint against Valley, alleging sole liability to plaintiff, liability over to the defendants, or joint or several liability with the defendants with respect to any recovery by the plaintiff. To this complaint Valley timely filed preliminary objections based on noncompliance with Pa. R.C.P. 2253.*fn2
For over two years following February of 1966, with one minor exception,*fn3 the case lay dormant in this posture. The preliminary objections were not brought on for hearing. On April 1, 1968, Valley filed two petitions. One sought to have the original suit discontinued as to it as a defendant; the other sought leave to file an answer nunc pro tunc to the third party complaint of Raff, and stated its willingness to withdraw its still pending preliminary objections. Both petitions asserted that the statute of limitations had run ...