Summary
In Mangino v. SteelContracting Co., 427 Pa. 533, 235 A.2d 151 (1967), the Supreme Court held that the defense of the statute of limitations could not be raised by preliminary objection.
Summary of this case from Ziemba v. HagertyOpinion
March 21, 1967.
November 14, 1967.
Practice — Pleading — Defenses — Statute of limitations — Pa. R. C. P. 1030.
In view of Pa. R. C. P. 1030 (which provides that "All affirmative defenses, including . . . statute of limitations . . ., shall be pleaded in a responsive pleading under the heading `New Matter' "), the defense of the statute of limitations may not be raised in a preliminary objection.
Mr. Chief Justice BELL, Mr. Justice EAGEN and Mr. Justice ROBERTS dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 66, March T., 1967, from judgment of Court of Common Pleas of Washington County, May T., 1963, No. 206, in case of Alvira Mangino v. Steel Contracting Company. Judgment vacated.
Trespass for personal injuries.
Defendant's preliminary objections sustained and judgment entered for defendant, order by SWEET, P. J., McCUNE and CURRAN, JJ. Plaintiff appealed.
Clyde G. Tempest, with him Paul A. Simmons, and Tempest Simmons, for appellant. Charles C. Keller, with him Peacock, Keller Yohe, for appellee.
Rule 1030 of the Pa. Rules of Civil Procedure requires that all affirmative defenses including statute of limitations shall be pleaded in a responsive pleading under the heading of "New Matter."
In this action of trespass, even though it appears on the record that the original complaint was never served and appellant did not reinstate her complaint or obtain service on appellee in the time permitted by Pa. R. C. P. 1010, (See Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961) and Marucci v. Lippman, 406 Pa. 283, 177 A.2d 616 (1962)) and hence the action would be barred by the running of the statute of limitations, it is still necessary to raise that defense in a responsive pleading as required by Pa. R. C. P. 1030. It might appear that our rule imposes an undue burden upon a defendant by denying him the preliminary objection procedure. Nevertheless, it does assure the proper determination of the question of an affirmative defense by requiring a plaintiff to answer and by permitting the issue created thereby to be litigated independently of the merits. This can now be accomplished by invoking Pa. R. C. P. 1035, which became effective May 9, 1966 and, in effect, adopts the motion for summary judgment procedure provided for in the Federal Rules of Civil Procedure. Since our rules now provide an expeditious manner by which all affirmative defenses as set forth in Pa. R. C. P. 1030 may be quickly determined, we see no reason to depart from the requirements of that rule.
The judgment of the court below is vacated and the matter remanded to that court to permit the filing of an answer and new matter.
Mr. Chief Justice BELL, Mr. Justice EAGEN and Mr. Justice ROBERTS dissent.