Appeal from the Order entered October 1, 1985 in the Court of Common Pleas of Philadelphia County, Civil No. 3230 April Term, 1983.
Michael R. Needle, Philadelphia, for appellant.
David F. McComb, Philadelphia, for appellees.
Beck, Popovich and Hoffman, JJ.
[ 356 Pa. Super. Page 424]
This is an appeal from the judgment entered pursuant to the lower court's order granting appellee's preliminary objections and dismissing appellant's complaint against appellee. Appellant contends that the lower court erred in dismissing her complaint because (1) appellant's service of a writ of summons upon appellee's co-defendant was sufficient to toll the statute of limitations as to appellee; (2) appellant's failure to serve the writ of summons on appellee did not bar appellant from later commencing an action against appellee by serving a complaint upon it; (3) appellee could not raise the affirmative defense of statute of limitations in a preliminary objection; and (4) if appellee could raise the statute of limitations, appellant's complaint should not have been dismissed because (a) the time at which the statute began to run is unclear, (b) the statute does not bar appellant's cause of action, and (c) appellee is estopped from asserting the statute of limitations. For the following reasons, we vacate the lower court's judgment, reverse its order and remand for further proceedings.
Appellant is the administratrix of the estate of Taazmayia Lang. She brought the instant action as part of a suit in equity against musician Theodore (Teddy) Pendergrass; his production company, Teddy Bear Productions, Inc.; and appellee, CBS Records, a division of CBS, Inc. The suit is based upon a personal management contract between Lang and Pendergrass pursuant to which Pendergrass was to pay Lang ten percent of "all gross compensation" received by Pendergrass during the term of the contract and ten percent of any compensation received by Pendergrass "from any and all agreements entered into during the term of the [contract between Lang and Pendergrass] or from any and all extensions, renewals or substitutions extending beyond
[ 356 Pa. Super. Page 425]
the term of [that contract]." See Complaint, Exhibit A at 4. The contract, dated August 1, 1976, had a one-year term with options to renew for three consecutive one-year periods. On August 20, 1976, Pendergrass entered into a recording agreement with Assorted Music Co., Inc. (Assorted). This agreement, which had an initial term lasting until October 3, 1978 and contained options to renew for three one-year periods, provided that Assorted would pay royalties to Pendergrass for all recordings by him produced and sold by Assorted. On September 17, 1976, Pendergrass, Lang, and Assorted allegedly entered into an agreement that provided for Assorted to pay directly to Lang ten percent of all royalties owed Pendergrass under the August 20 agreement between him and Assorted. The letter agreement also directed Assorted to furnish Lang with copies of the royalty statements supplied to Pendergrass. Then, pursuant to a letter dated October 19, 1976, appellee allegedly assumed Assorted's obligations under its August 20 agreement with Pendergrass.
Appellant contends that appellee thereby assumed Assorted's obligations to pay Lang ten percent of Pendergrass's royalties and furnish her with royalty statements. Lang died on April 17, 1977. Because appellee has never paid any royalties to her or her estate, appellant claims that appellee has breached its obligations to her.
On April 14, 1983, appellant filed a writ of summons to commence this action. She arranged for the writ to be served upon Pendergrass and Teddy Bear Productions, Inc., but failed to have the writ served upon appellee. On April 14, 1985, appellant filed a complaint that was served upon Pendergrass, Teddy Bear Productions, Inc., and appellee. On June 7, 1985, appellee filed preliminary objections to the complaint. The lower court sustained those objections and dismissed appellant's complaint as to appellee in an opinion and order dated October 1, 1985. That order was reduced to judgment and this appeal followed.
Appellant first contends that the lower court erred in holding that appellant's complaint ...