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PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. NICHOLSON CONSTRUCTION COMPANY (04/25/88)

filed: April 25, 1988.

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, APPELLANT,
v.
NICHOLSON CONSTRUCTION COMPANY, A CORPORATION



Appeal from the Judgment entered January 2, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 85-2238.

COUNSEL

Jack L. Cherkin, Pittsburgh, for appellant.

In-grid S.M. Lundberg, Pittsburgh, for appellee.

Brosky, Del Sole and Hoffman, JJ.

Author: Hoffman

[ 374 Pa. Super. Page 15]

This appeal is from an order granting a motion for summary judgment in favor of defendant-appellee and against plaintiff-appellant. Appellant contends that the lower court erred in determining that its cause of action for contribution was barred by the applicable statute of limitations.

[ 374 Pa. Super. Page 16]

We disagree and, accordingly, affirm the lower court's order.

On February 5, 1985, appellant commenced this action against appellee seeking statutory contribution in the amount of $28,732.59 arising from an earlier lawsuit. Anthony Pietrzyk, appellee's employee, was seriously injured in a work-related accident which occurred on November 11, 1971. Pietrzyk then filed a lawsuit against Phillips Construction Co., who was the subcontractor on the work site and insured by appellant. Phillips Construction Company joined appellee as an additional defendant in the action.*fn1 Following a jury trial, appellant and appellee were found jointly and severally liable and Pietrzyk was awarded $125,000.00 in damages. On October 14, 1977, appellant paid $91,231.59 of the verdict, representing the difference between the verdict and the $33,768.41 worth of workmen's

[ 374 Pa. Super. Page 17]

    compensation benefits already received by Pietrzyk. The docket reflected that the verdict was marked "satisfied and costs paid."

There was no further action taken on this case until February 21, 1984, when Pietrzyk filed a petition to reinstate his rights pursuant to the Worker's Compensation Act,*fn2 77 Pa.S.A. ยงยง 1-601. Appellee settled the claim and agreed to pay Pietrzyk 40% of his weekly benefits to be applied towards his pro rata share of counsel fees. Appellant then initiated this contribution action against appellee seeking to recover the undisposed 60% of Pietrzyk's weekly compensation benefits, which amounts to $36.00 per week, until $28,731.59 is recovered or the compensation payments are terminated. Upon receiving cross-motions for summary judgment, the lower court granted appellee's motion and concluded that appellant's action for contribution was barred by the statute of limitations governing assumpsit actions. This appeal followed.

Appellant initially contends that the summary judgment was improper because its cause of action was not barred by the statute of limitations. Appellant alleges that appellee's unauthorized suspension of compensation payments to Pietrzyk tolled the statute of limitations until 1984 when the compensation payments resumed. Appellant contends further that each weekly compensation payment constitutes an installment and with each installment a new and separate cause of action is created. Appellant ...


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