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VERA LEWIS v. CITY PHILADELPHIA (01/28/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 28, 1987.

VERA LEWIS, IN HER OWN RIGHT AND AS A PARENT AND NATURAL GUARDIAN OF RICHARD LEWIS, A MINOR, APPELLANT,
v.
CITY OF PHILADELPHIA, CHARLES BROWN, MARVIN BUNTON AND RONALD CORE

Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 3653 February 1982.

COUNSEL

Bruce W. Jennings, Philadelphia, for appellant.

Cirillo, President Judge and Rowley and Beck, JJ.

Author: Rowley

[ 360 Pa. Super. Page 413]

OPINION OF THE COURT

This is an appeal from an order granting appellees' preliminary objections and dismissing the personal injury complaint filed on behalf of Richard Lewis, a minor. On June 24, 1981, Richard slipped on a sidewalk adjacent to a construction area and fell into a wall which was under construction. Suit was filed against the owner of the building under construction, and on February 7, 1986, suit was filed against the City of Philadelphia. The City filed preliminary objections on the ground that the two year statute of limitations, 42 Pa.C.S. § 5524, barred the minor's claim.*fn1 The trial court granted the preliminary objections and dismissed the complaint.

On appeal, appellant argues that 42 Pa.C.S. § 5533(b), which became effective on June 29, 1984 and

[ 360 Pa. Super. Page 414]

    which tolls the statute of limitations during a person's minority, should apply.*fn2 Based on this Court's decisions in Clark v. Jeter, 358 Pa. Super. 550, 518 A.2d 276 (1986) and Maycock v. Gravely Corporation, 352 Pa. Super. 421, 508 A.2d 330 (1986), we affirm.

In Maycock, the plaintiff was born in 1963 and was injured by a lawn mower in 1967. Two days before his twentieth birthday, on September 15, 1983, the plaintiff sued the manufacturer of the lawn mower by filing a writ of summons. The complaint was filed on June 11, 1984. The defendants filed a motion for judgment on the pleadings which was granted because the plaintiff's cause of action had expired in 1969. On appeal, the appellant argued that 42 Pa.C.S. § 5533 should be applied retroactively to existing proceedings and pending claims because it is procedural and does not affect the substantive rights and obligations of the parties. Noting that 42 Pa.C.S. § 5533 is silent with regard to its retroactive application, and noting that where a right to sue has expired under the applicable statute of limitations prior to the effective date of a new and longer statute of limitations, the new statute of limitations

[ 360 Pa. Super. Page 415]

    cannot revive the expired cause of actions,*fn3 the Court held:

     that a minor injured prior to the effective date of 42 Pa.C.S.A. § 5533(b), who attained majority before the effective date, and whose claims are time-barred by applicable statutes of limitations prior to the effective date of § 5533(b) cannot rely on this section to revive a barred claim.

Maycock v. Gravely, Id., 352 Pa. Superior Ct. at 428, 508 A.2d at 334.

Following the rationale in Maycock, the Court concluded in Clark that a minor's paternity claim in a civil support action which had expired under 42 Pa.C.S. § 6704 could not be revived by the new 18 year statute of limitations, 23 Pa.C.S. § 4343(b). In Clark the putative father voluntarily paid support until June 1981, when the child was 11 years old. Two years and two months later, in August, 1983, while the child was still a minor, a complaint for support raising the issue of paternity was filed. Under 42 Pa.C.S. § 6704(e), the statute of limitations for support/paternity was six years from the birth of the child or two years following the last voluntary payment of support. Therefore, because the complaint for support was not filed until two years and two months after the putative father's last voluntary support payment when the child was 11 years old, 42 Pa.C.S. § 6704(e) barred the action. Only after the time-barred complaint was filed did the 18 year statute of limitations become effective. Therefore, just as in Maycock, the plaintiff sought to apply a new, lengthier statute of limitations to a time-barred action which was pending. Following the rationale of Maycock, and noting that no statute is to be construed to be retroactive in the absence of the clear and manifest intent of the legislature, 1 Pa.C.S. § 1926, the court denied the claim of retroactivity in Clark.

[ 360 Pa. Super. Page 416]

The instant case is distinguishable from Maycock only on the ground that the minor plaintiff in the present case was still a minor when the action was commenced, whereas in Maycock, the injured minor had reached his majority almost two years before he commenced the action. This distinction, however, is irrelevant. The basis of the holdings in Maycock and Clark is that the statute is silent as to retroactivity and that expired causes of action cannot be revived. In Clark, Maycock, and the instant case, the causes of action had expired before the new statutes of limitations became effective, and the statutes are silent as to retroactivity. Therefore, we find that the age of the plaintiff at the time the action commenced is immaterial to the retroactivity of the statute of limitations which became effective after the applicable statute of limitations expired. We hold that a minor injured prior to the effective date of 42 Pa.C.S. § 5533(b) and whose claims are time-barred by the applicable statute of limitations prior to the effective date of § 5533(b) cannot rely on § 5533(b) to revive the barred claim.

Order affirmed.


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