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WILLIAM EVANS v. JAMES P. D'IORIO (01/05/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 5, 1987.

WILLIAM EVANS, TO THE USE OF ROADWAY EXPRESS, INC., AND WILLIAM EVANS AND DENISE EVANS, HIS WIFE
v.
JAMES P. D'IORIO, M.D. APPEAL OF WILLIAM EVANS, TO THE USE OF ROADWAY EXPRESS, INC.

Appeal from the Order entered May 9, 1986, in the Court of Common Pleas of Luzerene County, Civil No. 4282-C of 1985.

COUNSEL

F. Daniel Altland, Harrisburg, for appellant.

John D. Nardine, Wilkes-Barre, for appellee.

Wieand, Olszewski and Cercone, JJ.

Author: Olszewski

[ 360 Pa. Super. Page 46]

This is an appeal from an order sustaining appellee's preliminary objections in the nature of a demurrer to appellants' amended complaint and entering judgment in favor of appellee and against appellant. Because we find error in the trial court's decision, we reverse and remand.

This action was commenced by the filing of a praecipe of summons on October 7, 1985. After entry of a rule to file a complaint on November 22, 1985, a complaint naming William Evans, to the use of Roadway Express, Inc., as plaintiff was filed on December 13, 1985. Defendant-appellee filed preliminary objections on January 3, 1986. Thereafter, on January 16, 1986, appellants filed an amended complaint,

[ 360 Pa. Super. Page 47]

    which added William and Denise Evans as plaintiffs and expanded into three separate counts.

The amended complaint alleges that on October 20, 1983, while engaged in his employment with Roadway Express, Inc. ("Roadway"), appellant William Evans came into contact with toxic material while handling part of a shipment of Basazol Yellow 46 and, as a result, suffered toxic burns or impairment of his hands. It is averred further that appellee, Dr. James P. D'Iorio, treated Evans for said toxic burns and that during this treatment, appellee made various statements to Evans which allegedly were unwarranted by Evans's condition and were "below the standard of care a competent and prudent physician would render." (Amended complaint, paragraph 10.) The amended complaint then states that because of appellee's treatment, Evans suffered post-traumatic stress syndrome and other psychological impairments which prevented his return to work.

In Count I, Roadway seeks to recover additional workmen's compensation benefits which it paid to Evans as a result of Evans's disability. Counts II and III represent individual claims by appellants William and Denise Evans, respectively.

On February 4, 1986, appellee filed preliminary objections in the nature of a demurrer to the amended complaint alleging, inter alia, that the cause of action was barred by the applicable statute of limitations. The trial court, in an order dated May 9, 1986, sustained appellee's preliminary objections and entered judgment in his favor.

At issue on appeal is the trial court's decision to sustain the preliminary objections based upon appellee's statute of limitations defense. The trial court sustained the demurrer because "Roadway failed to timely file a legally sufficient complaint."*fn1 (Trial court opinion at 4.) This holding was

[ 360 Pa. Super. Page 48]

    improper, however, because the Pennsylvania Rules of Civil Procedure do not permit the bar of a statute of limitations to be raised by preliminary objections. See Pa.R.Civ.P. 1017(b)(4). The Rules require instead that the affirmative defense of statute of limitations be pleaded under new matter. See Pa.R.Civ.P. 1030. Our Supreme Court recently cited these rules and confirmed our position in Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).*fn2 For these reasons, appellee's statute of limitations defense was not properly before the trial court on preliminary objections.

Appellee's preliminary objections have also attacked the form of appellants' verification and have averred that appellant William Evans has instituted suit against a party other than appellee to recover for injuries complained of in this action. These matters have not been determined by the trial court.

For the foregoing reasons, the order sustaining appellee's preliminary objections based upon the bar of the statute of limitations is reversed, and the case is remanded to enable the trial court to consider and determine those preliminary objections which remain undecided.

Jurisdiction relinquished.

Disposition

Jurisdiction relinquished.


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