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JOYCE SPACK v. PANAYOTIS APOSTOLIDIS (04/28/86)

filed: April 28, 1986.

JOYCE SPACK, MICHAEL SPACK,
v.
PANAYOTIS APOSTOLIDIS, M.D. AND THE LANKENAU HOSPITAL. APPEAL OF JOYCE SPACK. DEBRA LEE JACKSON, CHARLIE ANDREW JACKSON, V. PANAYOTIS APOSTOLIDIS, M.D. AND THE LANKENAU HOSPITAL. APPEAL OF DEBRA LEE JACKSON



Appeal from the Order of December 21, 1984 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 81-09615; Appeal from the Order of December 20, 1984 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 81-09620.

COUNSEL

Gregory G. Stagliano, Media, for Spack, appellant.

David E. Auerbach, Media, for Jackson, appellant.

Harvey A. Sernovitz, Philadelphia, for Apostolidis, appellee.

Ralph L. Hose, Ardmore, for Lankenau, appellee.

Rowley, Del Sole and Beck, JJ.

Author: Beck

[ 353 Pa. Super. Page 363]

Appellants appeal the judgment on the pleadings entered in favor of appellee Dr. Apostolidis on the ground that the appellants' suit was barred by the two-year statute of limitations. We affirm.

In reviewing an order granting a motion for judgment on the pleadings, we "accept as true the opposing party's well-pleaded averments of fact and consider against him

[ 353 Pa. Super. Page 364]

    only those facts which he specifically admits." Zelik v. Daily News Publishing Co., 288 Pa. Super. 277, 279, 431 A.2d 1046, 1047 (1981). In ascertaining the facts, we must examine only the pleadings and the documents properly attached thereto. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa. Super. 267, 476 A.2d 1322 (1984). "No affidavits, depositions or briefs may be considered." Id., 328 Pa. Superior Ct. at 270, 476 A.2d at 1324. Judgment on the pleadings will be upheld only "'in cases which are so free from doubt that trial would clearly be a fruitless exercise.'" Id., 328 Pa. Superior Ct. at 270, 476 A.2d at 1324; Balush v. Borough of Norristown, 292 Pa. Super. 416, 437 A.2d 453 (1981).

Appellants Mrs. Spack and Mrs. Jackson and their husbands claim damages stemming from Dr. Apostolidis' alleged May 20, 1977, sexual assault on Mrs. Spack and Mrs. Jackson during gynecological examinations. Nearly four years after the reputed incidents, on May 18, 1981, appellants Spack and appellants Jackson instituted actions against Dr. Apostolidis by writs of summons. Eight months later, on January 18, 1982, appellants Spack and appellants Jackson filed substantively identical six-count complaints against Dr. Apostolidis. In each complaint five counts were labelled trespass, and one count was labelled assumpsit.

Appellants concede that the five counts designated trespass in each complaint are barred by the two-year statute of limitations applicable to actions seeking recovery for personal injuries. Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34, now repealed and reenacted at 42 Pa.C.S. § 5524(2).*fn1 However, appellants contend that their cause of action pled in assumpsit is not time-barred because it is governed by ...


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