No. 935 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1506 March Term 1981
Allen L. Feingold, Philadelphia, for appellant.
Thaddeus J. Bartkowski, II, Philadelphia, for appellee.
Spaeth, Wieand and Hoffman, JJ. Wieand, J., files a concurring opinion.
[ 318 Pa. Super. Page 562]
This is an appeal from the lower court's granting appellee's motion for summary judgment. We affirm the order, but in finding appellant's contention waived, employ different reasoning than that relied upon by the lower court.
On May 10, 1979, while appellant checked under her car's hood on the shoulder of Interstate 95, another car swerved onto the berm, striking appellant's car and causing her serious personal injuries. In addition to a No-fault Insurance claim, appellant sued Lowell Mankham, a driver identified by eyewitness Roland Forte as the sole cause of the accident. On November 16, 1981, more than two years after the accident, however, after Forte allegedly altered his account of the events at an arbitration hearing on appellant's no-fault claim and blamed himself, appellant petitioned for and was granted leave to join Forte and appellee, his employer, as defendants. Appellee, answering the complaint, raised a statute of limitations defense in new matter. Appellant replied by denying the new matter. After appellee motioned for summary judgment, appellant responded by averring that appellee was estopped from raising the statute of limitations because Forte committed fraud by concealing his involvement until after the statute of limitations period had run. Appellee's motion for summary judgment was granted, prompting this appeal.
Appellant contends that the lower court erred in refusing to find appellee estopped from claiming that the statute of limitations barred her action. Pa.R.Civ.P. 1030 provides
[ 318 Pa. Super. Page 563]
All affirmative defenses, including but not limited to the defenses of . . . estoppel . . . [and] fraud . . . shall be pleaded in a responsive pleading under the heading "New Matter."
Further, all defenses not raised in an answer or reply are deemed waived. Pa.R.Civ.P. 1032 (enumerated exceptions inapplicable). Here, in appellant's reply, she denied appellee's new matter but failed to raise in her own new matter the affirmative defenses. Because affirmative defenses must be part of the pleadings, Pa.R.Civ.P. 1030, appellant's subsequent averment of estoppel and fraud in her answer to appellee's request for summary judgment failed to preserve the issue.*fn1
Therefore, because appellant has not properly raised fraud, and her action was brought more than two years after the accident, her claim is barred by the statute of limitations. 42 Pa.C.S.A. § 5524. Accordingly, in the absence of disputed material issues of ...