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VIVIAN SANCHEZ v. CITY PHILADELPHIA (07/23/82)

filed: July 23, 1982.

VIVIAN SANCHEZ, BY HER PARENT AND NATURAL GUARDIAN NAIDA SANCHEZ, AND NAIDA SANCHEZ, IN HER OWN RIGHT, APPELLANT,
v.
CITY OF PHILADELPHIA, NORTH AMERICAN ENGINES CO. AND BLANCHE JANKUSKAS AND NAIDA SANCHEZ, ADDITIONAL DEFENDANT



No. 2003 October Term, 1979, An Appeal from the Order of the Court of Common Pleas, Civil Action of Philadelphia County at No. 747 July Term 1978.

COUNSEL

Paul Mark Perlstein, Philadelphia, for appellant.

Mark S. Kardos, Philadelphia, for North American, et al., appellees.

Andrew DiPiero, Jr., Assistant City Solicitor, for City of Philadelphia, appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Spaeth

[ 302 Pa. Super. Page 185]

This is an appeal from an order denying appellant's petition to amend her complaint on the ground that the amendment would plead a new cause of action after the statute of limitations had run. Appellant argues that the amendment would only amplify the original cause of action. We do not agree, and therefore affirm.

The accident out of which this case arises occurred on July 26, 1976. This action was commenced on July 6, 1978, by writ of summons, Pa.R.C.P. 1007(1), and the complaint was filed on November 9, 1978.

The first count of the complaint sought damages for appellant's minor daughter, Vivian. It was alleged that

[ 302 Pa. Super. Page 186]

    appellee Blanche Jankuskas, acting in the course of her employment, had been driving an automobile owned by appellee North American Engines Company and had collided with an automobile in which Vivian had been a passenger. Various acts of negligence on the part of Blanche Jankuskas were alleged; the negligence of appellee City of Philadelphia was alleged to have been its failure to maintain the traffic signals at the intersection where the accident occurred. It was also alleged that as a result of the accident, Vivian sustained serious injuries, for which she had been or would be obliged to undergo medical treatment, and that she might suffer a loss of earning capacity.

The second count of the complaint sought certain specific damages for appellant herself. It incorporated all of the first count, and then alleged that as Vivian's mother, appellant had incurred and might continue to incur medical expenses for Vivian's care, and also, that appellant would suffer financial injury if Vivian's earnings, to which appellant would be entitled during Vivian's minority, were impaired.

The writ of summons had tolled the statute of limitations, Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964), and two years later, on July 6, 1978, the statute ran. Act of June 24, 1895, P.L. 236, 12 P.S. 34, recodified at Act of July 9, 1976, P.L. 586, No. 142, sec. 2, 42 Pa.C.S.A. sec. 5524. On March 20, 1979, appellant filed a petition for leave to amend the complaint by adding a third count, seeking damages for personal injuries she had herself sustained in the accident. The proposed third count alleged appellees' negligence by incorporating the first count's allegations of that negligence. It then alleged that appellant had been driving the automobile in which Vivian had been a passenger, and that by reason of appellees' negligence she had sustained severe ...


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