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PAULISH v. BAKAITIS (03/18/71)

decided: March 18, 1971.

PAULISH, APPELLANT,
v.
BAKAITIS



Appeal from order of Superior Court, April T., 1969, No. 100, affirming order of Court of Common Pleas of Indiana County, Sept. T., 1964, No. 61, in case of Vivian Paulish v. Mary Bakaitis and Bart Bertocci, Inc.

COUNSEL

Sanford S. Finder, for appellant.

James L. Jack, Jr. and Joseph N. Mack, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Pomeroy

[ 442 Pa. Page 436]

This case is a study in dilatoriness in the handling of a personal injury suit. The chronology is set forth in the margin,*fn1 but a narrative recital of the course of

[ 442 Pa. Page 437]

    events is also necessary to an understanding of the issues.

Two years lacking one week following an automobile accident which occurred in June, 1962 and in which plaintiff-appellant was injured, suit was commenced against the two defendants, appellees herein, by the filing of a praecipe for summons in trespass. The writ issued and a return of service was made. A year and five days after commencement of the action, in June, 1965, plaintiff's complaint was filed alleging negligence on the part of defendant Mary Bakaitis in the driving of the automobile in which plaintiff had been a guest passenger, and negligence on the part of Bart Bertocci, Inc., a contractor doing construction work in a public highway at the point of accident, for failure to give warning and erect a proper barricade at the work site.

Defendants filed separate answers, Bakaitis in October, 1965, and Bertocci in November, 1965 (their time to plead having been extended by stipulation). Bakaitis' answer denied liability generally and under new matter pleaded a release, a copy of which was attached to the answer, given by plaintiff to Bakaitis before suit was brought. The answer of Bart Bertocci, Inc. likewise denied liability generally and under new matter pleaded the Bakaitis release as also releasing Bertocci. In addition, Bart Bertocci, Inc., alleged under new matter that there was no corporation known as "Bart Bertocci, Inc."; that at the time of the occurrence there was a partnership known as Bertocci Construction Company which was engaged in highway construction at the location indicated; that this partnership had been succeeded in May, 1963, before suit was brought, by a corporation known as Bertocci Contractors, Inc. The answers were endorsed with a notice to reply to the new matter.*fn2

[ 442 Pa. Page 438]

In May, 1967, after a lapse of 18 months in which no action was taken in the case by anyone, a motion was filed on behalf of the named defendant, Bertocci, for judgment on the pleadings pursuant to Pennsylvania Rule of Civil Procedure 1034.*fn3 The two grounds for the motion were the same as those advanced in the answer and undenied by any reply, viz., that the general release to Bakaitis likewise exonerated Bertocci, and that the named defendant was nonexistent. No similar motion was filed on behalf of Bakaitis.

Presumably prompted by the motion for judgment, but before it was heard or disposed of, plaintiff in June, 1967, filed a reply to the new matter in each answer, asserting that the release was obtained by fraud and that in any event it was not a general release such as would release Bertocci as an alleged joint tortfeasor, and that plaintiff had been advised she was not releasing Bertocci. ...


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