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DERUGERIIS ET AL. v. BRENER (11/13/75)

decided: November 13, 1975.

DERUGERIIS ET AL., APPELLANTS,
v.
BRENER



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 69775, in case of William DeRugeriis, Jr., a minor, by his parents and natural guardians, William DeRugeriis and Mary DeRugeriis, v. Stephen Brener.

COUNSEL

Robert S. Lucarini, for appellants.

Raymond M. Seidel, with him Walton Coates, and High, Swartz, Roberts & Seidel, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 237 Pa. Super. Page 178]

Appellants, plaintiffs below, appeal to this Court from a Judgment on the Pleadings entered for appellee after hearing before the Montgomery County Court of Common Pleas sitting en banc. Suit had been commenced on January 17, 1969, with defendant named as "Herbert" Brener. After the applicable statute of limitations had expired appellee, defendant below, filed an answer to the complaint in which he averred that "Stephen" Brener had been the driver of the car which was involved in the accident with the appellant's vehicle, which accident had given rise to appellants' cause of action. Upon the petition of appellants, and after the taking of depositions and a hearing, Judge David Groshens allowed the complaint to be amended to reflect the proper party defendant. In his answer to the amended complaint, appellee averred the bar of the statute of limitations insofar as his being

[ 237 Pa. Super. Page 179]

    brought into the case was concerned and promptly moved for judgment on the pleadings as aforementioned.

The facts show that this auto accident occurred on February 25, 1967. At the scene that evening, immediately after the accident, the parties pulled their vehicles off the road and onto the neighboring property of one Dr. O'Neill in whose presence identifications were exchanged. The doctor noted on his scratch pad the name of Herbert Brener, and his insurance company, which piece of paper he gave to William DeRugeriis, Jr. Communication was had between Herbert Brener, father of Stephen, and William DeRugeriis, Sr., and between the senior DeRugeriis and the Breners' insurance carrier. In the interim between these communications and the answer to the original complaint, appellants were not informed as to the true identity of the driver of the Brener vehicle.

It is axiomatic that a plaintiff must enter suit before the running of the statute of limitations. The bar of the statute of limitations operates also when a plaintiff attempts to bring in another party as defendant following the applicable statutory period. Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965) makes it clear that, after the statute has run, no amendment will be permitted to change the name of the defendant from father to son, even though it is clear that plaintiff had every intention of suing the operator of the vehicle, i.e., the son. There is some similarity between Saracina, supra, and the instant factual situation. In both, the issue transcends a mere correction of the name of a party, for which amendment our "Rules of Civil Procedure" allow liberality. In each, a new party, the son of the owner of the car, was the driver of the allegedly offending vehicle and was the party which plaintiffs intended to sue; but in each case the owner was sued. Saracina, supra, prohibited a correcting amendment.

However, in Saracina, supra, there is no indication that the defendant concealed the true name of the driver.

[ 237 Pa. Super. Page 180]

We cannot know if plaintiff Saracina made every attempt to determine the true identity of the driver and in this way to implement his intention of suing the driver. In the case before us, appellee did not supply appellant-driver with the correct information as to his name; nor did his father; nor did his insurance carrier. Either intentionally or not, appellee, original defendant Herbert Brener, and their agents actively misled appellants as to who the real driver was until after the statute of limitations had run. The true identity of the driver was withheld until defendant answered the original complaint. We therefore conclude that the statute of limitations was tolled as to Stephen Brener because of the active concealment of the true name of the driver, which occurred during the period in which the applicable statutory period was running.

This disposition makes unnecessary a consideration of other issues ...


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