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WILLIAMS STUDIO DIVISION PHOTOGRAPHY BY TALLAS v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY (11/28/88)

filed: November 28, 1988.

WILLIAMS STUDIO DIVISION OF PHOTOGRAPHY BY TALLAS, INC., APPELLEE,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Berks County, Civil Division at No. 292 1/2 November 1983 and No. 5 October Term, 1987 J.D.

COUNSEL

Joseph F. Leeson, Jr., Bethlehem, for appellant.

Jay N. Abramowitch, Reading, for appellee.

Kelly, Popovich and Hoffman, JJ.

Author: Popovich

[ 380 Pa. Super. Page 3]

This is an appeal from a judgment entered on a jury verdict in favor of the appellee, Williams Studio Division of Photography by Tallas, Inc. (hereafter, Williams), and against the appellant, Nationwide Mutual Fire Insurance Company (hereafter, Nationwide), for breach of a fire insurance contract.

This appeal presents a case of first impression, requiring this court to determine and explain the effect of a voluntary non-suit on the running of the statute of limitations. The trial court ruled that Williams, after entering a voluntary non-suit, could commence a second action after the expiration of the one year contractual period of limitation mandated by 40 Pa.S.A. § 636. We reverse and enter judgment in favor of the appellant.

The record reveals the following facts: Williams was in the business of photography and maintained a studio which was insured by Nationwide for fire protection. On December 31, 1979, the studio was destroyed by fire. Subsequently, Nationwide contested liability, and Williams instituted a suit against Nationwide on June 26, 1980, within the oneyear period expressly stated in the insurance contract and prescribed by 40 Pa.S.A. § 636. On May 10, 1982, during the course of the trial, Williams elected to take a voluntary non-suit pursuant to Pa.R.C.P. Rule 230,*fn1 which the trial court granted over the objection of Nationwide.

[ 380 Pa. Super. Page 4]

On November 22, 1983, almost four years after the fire, Williams commenced a second action on the same issue of Nationwide's liability under the fire insurance contract as permitted by Pa.R.C.P. Rule 231.*fn2 Nationwide moved for summary judgment and then for directed verdict claiming that the second suit brought by Williams violated the one-year statute of limitations mandated by 40 Pa.S.A. § 636, and, thus, the action was time-barred. The trial court denied the motions and allowed the case to continue. On January 24, 1986, the jury returned a verdict in favor of Williams in the amount of $30,000.00.

In its post-trial motions, Nationwide again asserted that the second action was filed four years after the date of the loss and, therefore, could not be sustained. The trial court reasoned that Williams had a substantive duty, under 40 Pa.S.A. § 636, to file an action within the prescribed twelve-month period and that Williams' act of filing its initial action fulfilled that duty. Despite acknowledging that the limitations period had expired, the trial court opined that, procedurally, Rule 230 preserved Williams' right to refile its action under Rule 231 as long as the period of time "between the granting of the non-suit and the filing of the second action was not unreasonable." (Trial court opinion, p. 5) This appeal followed.

The appellant presently asserts that the appellee, after entering a voluntary non-suit in its first action, was precluded by the statute of limitations from initiating its second action ...


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