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JAMES P. FOX AND ANGELA FOX v. ROBERT J. BYRNE (04/29/87)

filed: April 29, 1987.

JAMES P. FOX AND ANGELA FOX, HUSBAND AND WIFE, APPELLANTS,
v.
ROBERT J. BYRNE, M.D. AND NORRISTOWN SURGICAL ASSOCIATES, INCORPORATED, APPELLEES (TWO CASES)



Appeal from the Judgment Entered June 11, 1986 in the Court of Common Pleas of Montgomery County, Civil, No. 82-17229. Appeal form the Judgment Entered June 24, 1986 in the Court of Common Pleas of Montgomery County, Civil, No. 82-17229.

COUNSEL

Beth Liss Shuman, Philadelphia, for appellants.

Alan K. Cotler, Philadelphia, for appellees.

Cirillo, President Judge, and Rowley and Hoffman, JJ.

Author: Cirillo

[ 363 Pa. Super. Page 71]

Must a plaintiff file a responsive pleading to new matter in a defendant's answer which raises the statute of limitations as an affirmative defense, when the plaintiff's complaint states facts indicating that the statute should be extended via application of the discovery rule?

[ 363 Pa. Super. Page 72]

The Court of Common Pleas of Montgomery County granted defendant's, Dr. Robert Byrne and Norristown Surgical Associates, motion for judgment on the pleadings since the plaintiffs, James and Angela Fox, failed to respond to such new matter. Because we find that the answer to the question posed above is no, we reverse. We also quash appellants' appeal from the trial court's denial of their motion to reconsider.

The Foxes instituted suit against Dr. Robert Byrne and Norristown Surgical Associates (appellees) on November 5, 1982, by filing a praecipe for summons.

On August 8, 1984, the Foxes filed a complaint alleging Dr. Byrne's negligent performance of surgery on Mr. Fox's fractured leg on September 10, 1980. Among the acts of negligence alleged were the decision to perform the surgery; permitting a bone fragment to be expelled from the wound onto the floor and then sterilizing and reinserting the bone fragment; and improperly selecting and inserting an intramedullary rod. The complaint also alleged the doctor's "[c]oncealing from the husband-plaintiff":

1) "the fact that bone left the operative site";

2) "the fact that the bone which left the operative site became contaminated and necrotic and that such necrotic bone was reinserted into the fracture area";

3) "the fact that the rod was undersized and had failed to immobilize the fracture and had ...


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