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HomeMy WebLinkAbout2005-2801 Civil EZEKIEL E. GRAHAM, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : PENNSYLVANIA TURNPIKE : COMMISSION, : DEFENDANT : 05-2801 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF’S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., March 7, 2006:-- May 21, 2005 On , plaintiff, Ezekiel E. Graham, filed a complaint against February 6, defendant, Pennsylvania Turnpike Commission. Plaintiff avers that on 1994 , when he was seven years old, he was injured in a sledding accident when his foot caught in an opening of a right-of-way fence at the property of defendant that was next to the property where he was living. Plaintiff alleges that his injuries were caused by the negligence of defendant in the maintenance of the fence. He avers that he March 7, 2004 reached the age of eighteen on . Defendant filed preliminary objections to the complaint containing factual allegations. Plaintiff filed an answer. The following facts are admitted: February 2, 1996 (1) On , an action was instituted by a writ of summons in this court at 96-606, by Deborah L. Graham, individually and as parent and natural 05-2801 CIVIL TERM guardian of Ezekiel E. Graham, against the Pennsylvania Turnpike Commission. (2) In a complaint, damages were sought for injuries incurred by Ezekiel E. Graham in the sledding accident of February 6, 1994. (3) On January 13, 2003, after no response was made by Deborah Graham, a dismissal was entered for inactivity pursuant to Cumberland County Local Rule of Court 1 228. (4) No appeal was filed from the dismissal. (5) No permission was filed seeking to reinstate the action at 96-606, or to initiate the current action. In its preliminary objection, defendant avers that plaintiff’s complaint must be 2 Bon Homme Richard dismissed for failure to conform to law or rule of court. Citing Restaurants, Inc. v. Three Rivers Bank and Trust Company, 298 Pa. Super. 454 (1982), defendant maintains that, “[w]here the initial Complaint is dismissed for __________ 1 Rule 228 provides: The Prothonotary shall list, for general call on the last Tuesday of October of each year, all civil matters which are not at issue, and in which no proceedings of record have occurred during the two years or more immediately prior thereto. The Prothonotary shall, in the manner provided by Pa.R.J.A. 1901(c), notify counsel of record and any parties for whom no appearance has been entered, that the matter has been so listed. If no action is taken, and no written objection is filed in a listed matter prior to the time set for the general call, the Prothonotary shall strike the matter from the list, and enter an Order as of course dismissing the matter for failure to prosecute. If, at the call of the list, no good cause is shown why a matter should be continued, the Court shall enter an Order dismissing the matter with prejudice. -2- 05-2801 CIVIL TERM inactivity or staleness pursuant to Pa.R.J.A. 1901, the plaintiff must seek permission Bon Homme Richard from the court” seeking reinstatement of its action. In Restaurants, the complaint of plaintiff was dismissed under a local rule promulgated pursuant to Pennsylvania Rule of Judicial Administration 1901. Plaintiff then filed another action under another docket number after the statute of limitations had run. A preliminary objection to the new action was sustained. The Superior Court affirmed, stating: Whether the party requests that the original case be reinstated or requests permission to start the same cause of action under a new term and number is evidently not material. What is important is that he shall give cogent reasons for his inactivity, and that the court shall determine whether permission to proceed will be forthcoming. * * * Plaintiff in this case had a remedy to pursue, but simply chose to make and “end run” around the Rules. The court below was proper in refusing to permit this action. The Judicial Code at 42 Pa.C.S. Section 5533(b), provides: Infancy.— (1)(i) If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. The statute of limitations for the within personal injury action is two years. 42 Pa.C.S. § 5524. Under Section 5533(b), Ezekiel Graham had two years from his 2 Pa. Rule of Civil Procedure 1028(a)(2). -3- 05-2801 CIVIL TERM eighteenth birthday, March 7, 2004, to commence an action for injuries sustained in a sledding accident that occurred when he was a minor. He commenced this action on May 21, 2005, within that two year period. This action, in his own right, is not precluded by the dismissal for inactivity of the complaint filed by his mother as his 3 guardian when he was a minor. Ezekiel did not have to have court permission to file it. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2006, the preliminary objection of IS DISMISSED. defendant to plaintiff’s complaint, By the Court, Edgar B. Bayley, J. C. William Kenny, Esquire 510 Third Street Pittsburgh, PA 15219 For Plaintiff Joseph G. Zack, Esquire 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 For Defendant __________ 3 The infancy clause at Section 5533(b) would not have saved the claim that Ezekiel’s Hathi v. Krewstown Park Apartment, mother made individually at 96-606. See 385 Pa. Super. 613 (1989). -4- 05-2801 CIVIL TERM :sal -5- EZEKIEL E. GRAHAM, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : PENNSYLVANIA TURNPIKE : COMMISSION, : DEFENDANT : 05-2801 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF’S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of March, 2006, the preliminary objection of IS DISMISSED. defendant to plaintiff’s complaint, By the Court, Edgar B. Bayley, J. C. William Kenny, Esquire 510 Third Street Pittsburgh, PA 15219 For Plaintiff Joseph G. Zack, Esquire 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 For Defendant :sal