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LEBOWITZ ET UX. v. SINGER ET UX. (04/03/74)

decided: April 3, 1974.

LEBOWITZ ET UX., APPELLANTS,
v.
SINGER ET UX.



Appeal from order of Court of Common Pleas of Montgomery County, No. 66-11893, in case of Max E. Lebowitz, and Cecelia Lebowitz, his wife, v. Joseph Singer and Miriam Singer, his wife.

COUNSEL

Jean B. Green, with her Andrew L. Braunfeld, and Waters, Fleer, Cooper & Gallager, for appellants.

Dean B. Stewart, Jr., with him McTighe, Brown, Weiss, Bonner & Stewart, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 227 Pa. Super. Page 276]

This is an appeal from the lower court's granting of defendants' petition to dismiss plaintiffs' action in trespass on the grounds that the statute of limitations had expired.

The accident in this case occurred on September 28, 1964. Plaintiffs filed a praecipe for writ of summons in September, 1966, reissued it in September, 1968 and again in September, 1970. At no time was the writ

[ 227 Pa. Super. Page 277]

    served on defendants. At this point plaintiffs had until September 28, 1972 to reissue the writ in order to continue tolling the statute (Goodrich-Amram, § 1007-3 and 1010). On November 24, 1971, prior to the expiration of the time which plaintiffs had to reissue the writ, defendants filed a petition to dismiss plaintiffs' action with prejudice on the ground that the statute of limitations had expired. Plaintiffs answered the petition relating the history of negotiations between the parties, but more important, setting forth their reliance on the defendants' insurance company's assurance that it would not assert the statute of limitations in view of the negotiations. The negotiations had reached a point where the insurance company sent plaintiffs' counsel a check for $6,000 in offer of the settlement of plaintiffs' claim with instructions that the check would be void if not cashed within 90 days. The check was not cashed nor was the case settled or discontinued because plaintiffs' counsel was uncertain about a claim which plaintiffs had against the same insurance company under plaintiffs' own policy for medical payments.

Because the plaintiffs failed to have the writ reissued prior to September 28, 1972, the lower court on May 2, 1973, granted the defendants' petition to dismiss the plaintiffs' action with prejudice.

The lower court was correct in granting defendants' petition to dismiss plaintiffs' action. Ordinarily the defense of the statute of limitations is to be raised as an affirmative defense in a responsive pleading under the heading "new matter." However, as the learned lower court pointed out, there is no complaint in this case to which the defendants can plead. Plaintiffs' other contention that defendants should have proceeded under Pa. R. C. P. 1037 by ruling plaintiffs to file a complaint, or suffer a judgment of "non pros." is also not tenable since this procedure is applicable only where

[ 227 Pa. Super. Page 278]

    the writ of summons has been served on the defendants, which did not occur here. Galbraith ...


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