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GERALD A. MAYCOCK v. GRAVELY CORPORATION (05/02/86)

filed: May 2, 1986.

GERALD A. MAYCOCK, APPELLANT,
v.
GRAVELY CORPORATION, A/K/A CLARK GRAVELY CORPORATION, GRAVELY INTERNATIONAL, INC., GERALD MAYCOCK AND CAROL RUTH GILMORE TOME, THE EXECUTRIX OF RUTH GILMORE



Appeal from the Order of May 2, 1985 in the Court of Common Pleas of Erie County, Civil No. 3632-A-1983.

COUNSEL

Eugene J. Brew, Jr., Erie, for appellant.

Natalie A. Dwyer, Erie, for appellees.

Cirillo, President Judge, and Del Sole and Beck, JJ.

Author: Del Sole

[ 352 Pa. Super. Page 422]

This appeal is taken from an Order of the trial court granting Appellee's Motion for Judgment on the Pleadings and dismissing and denying Appellant's Motion for Partial Summary Judgment and Motion for Sanctions.

[ 352 Pa. Super. Page 423]

Initially, we note that, "[t]he grant of a judgment on the pleadings has been held to be a final order . . . . Such a judgment is dispositive of all issues raised by the case and is, therefore, an appealable order." Indiana County Hospital Page 423} v. McCarl's Plumbing, 334 Pa. Super. 226, 228-229, 496 A.2d 767, 768 (1985).

"The standard by which we review a motion for judgment on the pleadings is identical to that which we use to review the sustaining of a demurrer." Stein v. Richardson, 302 Pa. Super. 124, 137, 448 A.2d 558, 564 (1982). "In determining whether a demurrer should be sustained and the complaint dismissed the question is whether, on the facts averred, the law says with certainty that no recovery is possible: (citations omitted)." Stein v. Richardson, supra, 302 Pa. Super. at 137, 448 A.2d at 564. It is only where no material facts remain in dispute and "the moving party's right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered." Williams v. Lewis, 319 Pa. Super. 552, 555, 466 A.2d 682, 683 (1983).

Appellant, born September 17, 1963, alleges that on May 13, 1967 he was struck by a lawn mower manufactured by Appellee, Gravely Corporation, a/k/a Clark Gravely Corporation, Gravely International, Inc., (Gravely), operated by his father, Gerald Maycock, also a named defendant, on property owned by the Estate of Ruth Gilmore. According to the complaint, the injury sustained from this incident resulted in the amputation of Appellant's right leg.

On September 17, 1981, Appellant attained the age of 18 years. It was not until September 15, 1983 that Appellant initiated an action against the above-named defendants by filing a Writ of Summons in Trespass and Assumpsit. The Summons was never served and on May 1, 1984, a Praecipe to reissue the Writ of Summons was filed. The Summons was not served at that time either. Finally, on June 11, 1984, the Appellant filed a Complaint in Trespass and Assumpsit alleging a product liability claim, negligence in the manufacture and sale of the mower as well as a cause of action based on breach of warranty. Following the filing of an answer with New Matter pleading the affirmative defense of the applicable statutes of limitations,*fn1 Appellee

[ 352 Pa. Super. Page 424]

Gravely, subsequent to Appellants reply, filed a Motion for Judgment on the Pleadings claiming the action was time-barred. The trial ...


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