No. 361 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1817 July Term, 1974
Stephen M. Feldman, Philadelphia, for appellant.
John J. O'Brien, Jr., Philadelphia, for appellees.
Brosky, Wieand and Beck, JJ. Beck, J., concurs in the result.
[ 309 Pa. Super. Page 487]
Does a failure to file a reply constitute the admission of an averment contained in new matter that the cause of action alleged in the complaint "is barred by the . . . statute of limitations?" The trial court held that a failure to file a reply was such an admission and summarily dismissed an
[ 309 Pa. Super. Page 488]
action for personal injuries which, in fact, had been commenced within two years of the injury. We reverse.
The complaint contains averments that James Bowman was admitted to St. Luke's and Children's Medical Center, a general hospital, on July 14, 1972. There he came under the care of Dr. Frank A. Mattei, an orthopedic surgeon. As a result of negligently administered medical care, according to the complaint, he sustained injuries to "nerves, muscles, tendons, ligaments and bones."
An action in trespass was commenced on July 11, 1974 by filing a praecipe for issuance of a summons. The summons was promptly issued but not delivered to the sheriff for service. It was reissued on October 4, 1974 and was thereafter served on the named defendants. On November 8, 1974, St. Luke's ruled Bowman to file a complaint, and in due course the same was filed. Thereafter, St. Luke's and Dr. Mattei filed separate answers containing new matter asserting that Bowman's claim was barred by the applicable two year statute of limitations.*fn1 It was not until December 12, 1980 that Bowman filed a reply to this new matter. Because of the lateness of this filing, motions to strike the reply were filed and granted. In this posture, the case proceeded to trial.*fn2 At the close of Bowman's case, an oral motion for summary judgment was granted on grounds that the failure to file a reply to new matter constituted an admission that the action was barred by the statute of limitations.
Pa.R.C.P. 1045(b) requires that the affirmative defense of the statute of limitations, unless previously raised by demurrer and sustained, be pleaded as "New Matter." The rule, by 1962 amendment, provides further:
"A plaintiff who fails to file a reply to averments of the defendant's new matter shall be ...