Appeal from the Order of the Court of Common Pleas, Civil Action Law, for the County of Montgomery, at No. 72-9412. No. 1128 October Term, 1976.
Mark A. Koral, Philadelphia, for appellant.
William H. Bradbury, III, Norristown, with him William H. Kinkead, III, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 245 Pa. Super. Page 328]
Appellants contend that the lower court erred in dismissing their complaint for failure to comply with the applicable statute of limitations. We affirm the order of the lower court dismissing the complaint.
[ 245 Pa. Super. Page 329]
On December 3, 1969, appellee was driving a vehicle in Montgomery County, which struck and injured the minor appellant who was then five years of age. The minor appellant sustained a fracture of the right femur and an injury to the right kidney for which she was hospitalized five weeks.
Approximately one week after the accident, Mr. Paul Becker, an adjuster for the appellee's insurance carrier, contacted the appellant-mother, Mrs. Courts, by telephone to inquire about the physical condition of the minor appellant. During the two years immediately following the accident, Mr. Becker telephoned Mrs. Courts approximately twelve times. Generally, the conversations related to the recovery of the minor plaintiff and the payment of her doctor bills. Mr. Becker advised Mrs. Courts to forward the medical bills to him for payment. Mrs. Courts sent him the doctor bill which totaled $321.00. The appellee's insurance company sent a check in that amount dated November 23, 1971, and a release to appellants. Appellants did not deposit the check or sign the release.
Appellants filed a complaint on August 24, 1972, eight months after the running of the statute of limitations. As an affirmative defense, appellee raised appellant's failure to comply with the two year statute of limitations applicable in a personal injury case.*fn1 By stipulation of counsel, the issue of the applicability of the statute of limitations was tried on December 22, 1975, before a Montgomery County Court of Common Pleas sitting without a jury. On February 6, 1976, the trial court issued an order dismissing the complaint for failure to comply with the statute of limitations. This appeal followed.
Appellants contend that the appellee is estopped by its own conduct from pleading the statute of
[ 245 Pa. Super. Page 330]
limitations. The statute of limitations in an action to recover damages for personal injury, not resulting in death, is two years. Nonetheless, the running of the statute may be tolled and a defendant estopped from asserting it as a defense, in clear cases of fraud, deception, or concealment. Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936). The Supreme Court summarized the legal principles relevant to establish a claim of estoppel in Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967): "(a) mere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations; (b) if, through fraud, deception or concealment of facts, an insurance company lulls an injured person or his representatives into a sense of security so that such person's vigilance is relaxed, then the company is estopped from evoking the statute; (c) the fraud which will toll the statute and effect an estoppel need not be fraud in the strictest sense, i. e., inclusive of an intent to deceive, but may be fraud in the broad sense, i. e., inclusive of an unintentional deception; (d) an estoppel becomes operative only in clear cases of fraud, deception or concealment; (e) the statute of limitations will run against persons under a disability, including minors ...