Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division at No. 45 Sept. 1986.
James C. Stover, Philadelphia, for appellants.
Donald F. Ladd, Philadelphia, for appellee.
Cavanaugh, Tamilia and Popovich, JJ.
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This is a direct appeal from the order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of The Medical College of Pennsylvania. We affirm.
On appeal the appellants, Peter Williams and Cynthia Williams, contend: (1) the trial court improperly relied upon a memorandum prepared for arbitration when resolving an issue of material fact as to the date the appellant-husband was injured; and (2) pursuant to 42 Pa.C.S.A. § 5524(2), an action commenced two years and four days after the incident in question is not barred by the statute of limitations.
On September 2, 1984, the appellants filed a writ of summons instituting the underlying civil action against the appellee, The Medical College of Pennsylvania. On December 4, 1986, the appellants filed a complaint alleging that "on or about September 3, 1984," the appellee negligently
[ 381 Pa. Super. Page 421]
caused Peter Williams, to fall from a gurney in the emergency room.
On May 8, 1987, the appellee filed an answer with new matter asserting the affirmative defense of the statute of limitations. On June 16, 1987, the appellants replied to the appellee's affirmative defense and put at issue the statute of limitations.
On June 17, 1987, in accordance with Phila.R.C.P. Rule 180(a), the matter was heard by the Arbitration Panel of the Court of Common Pleas which awarded the appellants six thousand dollars.
On July 17, 1987, the appellee filed a timely appeal to the Court of Common Pleas, after which it filed a motion for summary judgment asserting that the appellants' action was barred by the two year statute of limitations. On April 18, 1988, the lower court granted the appellee's motion for summary judgment and dismissed the appellants' complaint. This timely appeal followed.
First, the appellants contend the trial court improperly determined a question of material fact by relying upon a legal memorandum prepared by appellants' counsel in preparation for an arbitration hearing. The memorandum which was submitted to the Arbitration Panel stated that on August 29, 1984, the appellant-husband fell from a gurney in the appellee's emergency room. The appellants argue that the memorandum was prepared in anticipation of the appellee's affirmative defense that the claim was barred by the statute of limitations. Since the memorandum was not a pleading filed of record, and the date of the incident was consistently stated as September 3, 1984, on all other papers filed, the appellants claim the trial court should not have relied upon the memorandum when resolving the date of the incident.
Generally, we note that Pa.R.C.P. 1035(b) authorizes the trial court to grant a motion for summary judgment where there is no genuine issue of material fact.
Pa.R.C.P. 1035(b). Motion for Summary Judgment.
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