No. 1725 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 71-6230.
G. Wayne Renneisen, Philadelphia, for appellant.
Charles W. Craven, Philadelphia, for appellee.
Price, Cavanaugh and Watkins, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 296 Pa. Super. Page 136]
The lower court sustained defendant's preliminary objections on the ground that the statute of limitations barred plaintiff's claim. We disagree and reverse.
According to the complaint plaintiff suffered personal injuries as a result of an automobile accident on May 27, 1969. On May 25, 1971, plaintiff commenced suit by writ of summons in trespass. Although the writ was issued by the prothonotary, it was never served on the defendant.
On October 1, 1971, plaintiff filed a complaint in trespass. The complaint was reinstated on February 16, 1972, April 12, 1972 and December 12, 1972. On December 12, 1972, defendant was served with the complaint.
On December 27, 1972, defendant's liability insurance carrier requested and received from plaintiff's counsel a reasonable extension of time in which to answer or otherwise move so that it could review the medical reports and bills and evaluate the claim. On July 16, 1973, defendant's counsel entered his appearance. On July 18, 1973, the defendant filed preliminary objections which sought to strike the writ of summons and the complaint and dismiss the cause of action. On February 20, 1974, plaintiff filed preliminary objections to the defendant's preliminary objections. On March 12, 1974, defendant filed his answer to plaintiff's preliminary objections to defendant's preliminary objections. On July 27, 1979, the lower court entered an order which sustained the defendant's preliminary objections on the
[ 296 Pa. Super. Page 137]
ground that the statute of limitations had run and which dismissed the plaintiff's preliminary objections.
Plaintiff's first argument is that the defense of a waivable statute of limitations should have been raised in new matter rather than in preliminary objections. This proposition of law is correct. Pa.R.Civ.P. 1017, 1030. Nevertheless, the plaintiff has not raised this issue in the lower court. After analyzing prior cases and the Pa.R.A.P. 302, we conclude that this issue has been waived.
In Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965), the lower court sustained the defendant's preliminary objections, inter alia, on the ground that the action was barred by the statute of limitations and the Supreme Court affirmed. On appeal the appellant argued for the first time that the defense of the statute of limitations should have been raised in new matter. This argument was rejected because it was not raised in the court below ...