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DONALD M. BENDER v. FRED C. MCILHATTEN (01/05/87)

filed: January 5, 1987.

DONALD M. BENDER, LUCILLE W. BENDER, AND F.M. HSU, TRADING AS DONALD M. BENDER, LUCILLE W. BENDER AND F.M. HSU, A PARTNERSHIP, APPELLANTS,
v.
FRED C. MCILHATTEN



Appeal from the Order April 11, 1986 in the Court of Common Pleas of Clarion County, Civil No. 887 - 1983.

COUNSEL

Michael S. Gingerich, Lewistown, for appellants.

James H. Devittorio, Clearfield, for appellee.

Del Sole, Kelly and Popovich, JJ.

Author: Del Sole

[ 360 Pa. Super. Page 169]

At issue in this case is the application of the appropriate statute of limitations to a claim for tortious interference with lease negotiations. The trial court held that the two year limitation period provided in 42 Pa.C.S.A. § 5527(3) made Appellants' claim time-barred and for that reason granted Appellee's Motion for Judgment on the Pleadings. Appellants' filed this appeal in which they assert their action is subject to the six year statute of limitation found in 42 Pa.C.S.A. § 5527(6).

The statutory periods of limitations for civil actions are controlled by Sections 5501 to 5536 of the Judicial Code, 42 Pa.C.S.A. § 5501 et seq. Appellants seek to apply the residual provision of 42 Pa.C.S.A. § 5527(6), which establishes a six year limitation period for any action not subject to any other limitation period. Appellee and the trial court

[ 360 Pa. Super. Page 170]

    maintain, and we agree, the residual provision does not apply because this action comes under the two year limitation requirements of 42 Pa.C.S.A. § 5524(3). It provides that "(t)he following actions and proceedings must be commenced within two years: . . . (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof." Section 5524 was amended in 1982. The amendment added a seventh paragraph to the provision which requires an action to be commenced within two years.

(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.

42 Pa.C.S.A. § 5524(7).

The underlying action in this case was commenced on December 1, 1983 when Appellants filed a complaint in trespass alleging Appellee tortiously interfered with Appellants' lease negotiations sometime between August and October 1981. "Both parties concede that had . . . paragraph [seven] been in effect at the accrual date of this action, it would have required that the two year statute of limitation be applied." Mazzanti v. Merck and Co., Inc. 770 F.2d 34, 35 (3rd Cir.1985). "The 1982 amendments to th[e] Act admittedly do not determine the outcome of the instant action because the cause of action had accrued prior to the effective date of the amendments to the controlling sections. See: Section 403 of Act 1982, Dec. 20, P.L. 1409, No. 326 (amendments to sections 5524 and 5527 became effective prosectively (sic) sixty days after the date of the Act)" Id. Appellant submits that while paragraph seven does not apply in this case, its enactment evidences ...


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