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FREDERICK DICKERSON v. BRIND TRUCK LEASING (04/16/87)

filed: April 16, 1987.

FREDERICK DICKERSON, APPELLANT,
v.
BRIND TRUCK LEASING, AND KEENAN MOTORS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 346 December 1981.

COUNSEL

William C. Kauffman, Philadelphia, for appellant.

Diane A. Dichter, Philadelphia, for Brind Truck Leasing, appellee.

Cirillo, President Judge, and Montemuro and Kelly, JJ. Cirillo, President Judge, files a concurring opinion.

Author: Montemuro

[ 362 Pa. Super. Page 342]

Appellant Frederick Dickerson challenges a grant of summary judgment by the Philadelphia Court of Common Pleas. Because Mr. Dickerson failed to bring his personal injury claims within the pplicable two-year period of limitations, 42 Pa.C.S.A. § 5524, we affirm.

[ 362 Pa. Super. Page 343]

The parties agree that Mr. Dickerson sufferedd injuries after he fell from the back of a truck while attempting to close the truck's rear door. The parties also agree that this mishap occurred on December 3, 1979. Appellee Brind Truck Leasing does not appear to dispute that it leased the truck in question to Mr. Dickerson's employer, Fuller Wholesale Meats, Inc.

Mr. Dickerson commenced this action on December 8, 1981 by filing a praecipe for a writ of summons. The summons named Brind Truck Leasing (Brind) and Keenan Motors as defendants. Keenan had sold the ill-fated truck to Brind. In his complaint, Mr. Dickerson alleged that he fell while "in the act of loading and/or unloading the truck" and that he did not discover the resulting injuries until "on or after December 9, 1979." Mr. Dickerson divided his complaint into two counts, one "in assumpsit" for breach of implied and express warranties and the other "in trespass" for negligence and for distribution of an allegedly "defective" truck. Brind responded with an answer and new matter and a motion for judgment on the pleadings. In its motion, Brind contended that the two-year statute of limitations barred Mr. Dickerson's action.*fn1 The trial court denied judgment on the pleadings.

Nonetheless, on November 30, 1983, Mr. Dickerson, now represented by new counsel, sought to amend his complaint to include "allegations . . . required to be pleaded, in accordance with the Pennsylvania No-fault Motor Vehicle Insurance Act." The trial court denied the petition to amend, but gave Mr. Dickerson the right to file another petition that "specifically sets forth the proposed amendments to the complaint." Mr. Dickerson neither filed another petition nor challenged the denial of the first one. On January 30, 1985, Brind again raised the two-year statute of limitations,

[ 362 Pa. Super. Page 344]

    this time in a motion for summary judgment. The trial court granted the motion by order of June 21, 1984, and this timely appeal followed.

In its opinion, the trial court found that Mr. Dickerson's cause of action accrued on December 3, 1979, the date of the accident. The court therefore concluded that the two-year statute of limitations for personal injury actions had elapsed before Mr. Dickerson instituted suit on December 8, 1981. Moreover, because appellee Brind had only leased, rather than sold its truck to Fuller Wholesale Meats, Inc., the court refused to apply the Uniform Commercial Code's four-year period of limitations, 13 Pa.C.S.A. § 2725, to Mr. Dickerson's breach of warranty claim. On appeal, Mr. Dickerson raises two arguments against the holding of the trial court. First, he contends that the now-repealed Pennsylvania No-fault Motor Vehicle Insurance Act*fn2 governs his tort claims and that the two-year period of limitations therefore did not begin to run until he knew or should have known that he had crossed one of the No-fault "thresholds." Second, he maintains that ...


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