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HomeMy WebLinkAbout02-4755 CivilLEMOYNE AUTO SALES, Plaintiff VS. FERDINAND TOLENTINO, SOLEDAD TOLENTINO, KAREN A. CLUTTER and AMANDA LYNN DAVEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4755 CIVIL CIVIL ACTION - LAW MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY AND HESS. J.J. OPINION AND ORDER This case arises out of an accident that occurred on February 1, 2000. The salient facts are admitted by the defendants/movants, Ferdinand Tolentino and Soledad Tolentino. According to their answer, defendant, Amanda Davey, was operating a 1992 Geo Prism on Second Street in the borough of New Cumberland, Cumberland County, when she failed to stop at a stop sign at Bridge Street and struck a 1999 Plymouth Neon operated by defendant, Soledad Tolentino. As a result of this collision, the vehicle operated by Tolentino jumped the curb and struck several cars located on the plaintiff' s lot. Lemoyne Auto Sales filed a praecipe for writ of summons on Monday, February 4, 2002. On February 11, 2002, Lemoyne Auto Sales filed a complaint in Montgomery County Court of Common Pleas. Previous counsel for Tolentino filed preliminary objections in that court. The preliminary objections were sustained and this action was transferred to Cumberland County. Tolentino filed an answer with new matter on September 30, 2002. The new matter raises a violation of the applicable statute of limitations. Pending before the court is a motion for judgment on the pleadings filed by Tolentino. Friday, February 1, 2002, was not a legal holiday. The section of the Judicial Code dealing with actions and proceedings which must be Specifically, such actions commenced within two years appears at 42 Pa.C.S.A. Section 5524. include: (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortuous conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter. An action may, of course, be commenced by the filing with the Prothonotary of a praecipe for writ of summons. PaR. CP. 1007. In this case, there is no doubt that the praecipe was filed more than two years after the happening of the accident. In deciding a motion for judgment on the pleadings, we must accept as true all well- pleaded statements of fact of the party against whom the motion is sought and consider against that party only those facts which are specifically admitted. The grant of such a motion occurs only when the moving party's right to succeed is free and clear from doubt. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002). In this case, it is indeed free from doubt that the statute of limitations had expired when the praecipe for writ of summons was filed. ~ ORDER AND NOW, this day of February, 2003, following argument thereon, the ~ Plaintiff counters that because defendants "automatically have a comparative negligence action against the plaintiff," the tortfeasors in this case have a right of"contribution and/or indemnity" against the plaintiff thereby extending the statute of limitations. We can find no legal support for this novel, if not mystifying, argument. motion of the defendants for judgment on the pleadings is granted and the within action DISMISSED. BY THE COURT, Kevin A. Hess, J. Michael P. Creedon, Esquire For the Plaintiff Andrew C. Lehman, Esquire For Defendants Tolentino Karen A. Clutter 218 Ross Avenue, 2nd Floor Norristown, PA 19401 Amanda Lynn Davey 218 Ross Avenue, Apt. B New Cumberland, PA 17070 :rlm LEMOYNE AUTO SALES, Plaintiff VS. FERDINAND TOLENTINO, SOLEDAD TOLENTINO, KAREN A. CLUTTER and AMANDA LYNN DAVEY, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4755 CIVIL CIVIL ACTION - LAW MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY AND HESS. J.J. ORDER day of February, 2003, following argument thereon, the motion of the defendants for judgment on the pleadings is granted and the within action DISMISSED. BY THE COURT, Michael P. Creedon, Esquire For the Plaintiff Andrew C. Lehman, Esquire For Defendants Tolentino Karen A. Clutter 218 Ross Avenue, 2nd Floor New Cumberland, PA 17070 Amanda Lynn Davey 218 Ross Avenue, Apt. B New Cumberland, PA 17070 Kevin A. Hess, J. :rlm