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MIRIAM KOZAK v. CITY PHILADELPHIA AND TONY DEPAUL & SONS (04/29/83)

filed: April 29, 1983.

MIRIAM KOZAK, APPELLANT,
v.
CITY OF PHILADELPHIA AND TONY DEPAUL & SONS



No. 357 Philadelphia 1981, Appeal from the order entered January 19, 1981, Court of Common Pleas, Philadelphia County, Trial Division, Law at No. 1744 July Term, 1980.

COUNSEL

Alan B. Epstein, Philadelphia, for appellant.

Niki Teresa Ingram, Assistant City Solicitor, Philadelphia, for City of Philadelphia, appellee.

H. Allen Litt, Philadelphia, for DePaul & Sons, appellee.

Hester, Cirillo and Johnson, JJ.

Author: Johnson

[ 313 Pa. Super. Page 90]

This is an appeal from the order of January 19, 1981 dismissing, with prejudice, Appellant's complaint. Appellant was injured on April 13, 1978 when her vehicle came into contact with a raised manhole cover on a Philadelphia street. Pursuant to a praecipe for a writ of summons filed July 18, 1980, Appellant filed a complaint in trespass against both Appellees. Appellee Tony DePaul & Sons (DePaul) filed an answer and new matter alleging, inter alia, that the complaint was barred by the two year statute of limitations. Appellant's reply to DePaul's new matter admitted that the cause of action occurred more than two years prior to the date suit was instituted.

The City of Philadelphia (City) also filed an answer and new matter, but did not raise the defense of statute of limitations. Appellant filed a reply to the City's new matter.

[ 313 Pa. Super. Page 91]

On December 12, 1980, DePaul filed a motion for judgment on the pleadings and accompanying rule and order. Appellant, upon receiving notice of the motion, informed DePaul that she would not contest the motion if DePaul limited relief to dismissal of the complaint against DePaul only. In response, DePaul apparently sent a cover letter, dated January 8, 1981, along with an amended order and rule to the clerk of motion court in Philadelphia. The amended order and rule requested dismissal of Appellant's complaint as against DePaul only.*fn1 On January 19, 1981, the trial court signed the original order dismissing the complaint with prejudice as to all parties. Appellant and DePaul subsequently filed a stipulation on January 27, 1981 requesting the order of January 19 be stricken and substituted, so as to permit dismissal as to DePaul only. Appellant then filed her notice of appeal on February 13, 1981.

Appellant argues on appeal that because the trial court failed to exercise its discretion, the dismissal of Appellant's complaint must be reversed. Appellant theorizes that because the trial court did not have the amended rule and order before it when its decision was made, due to an administrative error, and because the City failed to raise the defense of the statute of limitations, the order of January 19 must be reversed and remanded.

Appellant refers us to Lewis v. Clark, 227 Pa. Super. 547, 323 A.2d 298 (1974). In Lewis, plaintiff filed a complaint in trespass and defendant raised, by way of new matter in his answer, the statute of limitations as a bar to the action. After giving advance notice to plaintiff, defendant filed a motion for judgment on the pleadings, but before the motion was filed, plaintiff filed an answer to the motion claiming defendant was estopped from asserting the statute of limitations as a bar to the action. The ...


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