Mawhinney v. Selak

Philadelphia County Court of Common Pleas

Mawhinney v. Selak

50 Pa. D. & C.2d 177, 1970 Pa. Dist. & Cnty. Dec. LEXIS 128

CourtPennsylvania Court of Common Pleas, Philadelphia County

DecidedAugust 12, 1970

Docketno. 7285-E

StatusPublished

This text of 50 Pa. D. & C.2d 177 (Mawhinney v. Selak) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mawhinney v. Selak, 50 Pa. D. & C.2d 177, 1970 Pa. Dist. & Cnty. Dec. LEXIS 128 (Pa. Super. Ct. 1970).

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Opinion

LEVIN, J.,

This case came be[178]*178fore us on a motion for a judgment on the pleadings. Defendant argued that the action was barred by the statute of limitations as to one defendant, Obrad Selak, and that there was no cause of action as to the other defendant, Alexander Selak.

Plaintiff’s complaint alleges that Alexander Selak was the owner of an automobile which was involved in an accident while being operated by another. The complaint does not ask for any relief or damages from Alexander Selak. The allegation of ownership does not itself furnish any foundation for liability: Double v. Myers, 305 Pa. 266 (1931). We, therefore, granted Alexander Selak’s motion for judgment on the pleadings. See Anderson v. Krebs, 38 D. & C. 2d 100 (1964).

Plaintiff contends that the statute of limitations is no bar to his case against Obrad Selak, first, because of a court order dated December 4, 1968, giving plaintiff leave to join Obrad. Such an order is entirely proper and yet does not affect the effect of the statute of limitations. Since the statute of limitations is a defense which here may be raised not by preliminary objection to the complaint, but only by answer and new matter, the joinder of a defendant is proper and yet the statute of limitations is still a bar.

Plaintiff further alleges that the driver of the automobile, now alleged to be Obrad, identified himself as Alexander Selak at the time of the accident. Even if that were true, Alexander’s answer denied such allegation and the police report, readily available to plaintiff, clearly identified Obrad as the driver. Proper care by plaintiff would have disclosed the actual operator of the automobile and the misidentification at the scene of the accident, if such there was, is, under these circumstances, certainly no reason to depart from the normal operation of the statute of limitations.

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LEVIN, J.,

This case came be[178]*178fore us on a motion for a judgment on the pleadings. Defendant argued that the action was barred by the statute of limitations as to one defendant, Obrad Selak, and that there was no cause of action as to the other defendant, Alexander Selak.

Plaintiff’s complaint alleges that Alexander Selak was the owner of an automobile which was involved in an accident while being operated by another. The complaint does not ask for any relief or damages from Alexander Selak. The allegation of ownership does not itself furnish any foundation for liability: Double v. Myers, 305 Pa. 266 (1931). We, therefore, granted Alexander Selak’s motion for judgment on the pleadings. See Anderson v. Krebs, 38 D. & C. 2d 100 (1964).

Plaintiff contends that the statute of limitations is no bar to his case against Obrad Selak, first, because of a court order dated December 4, 1968, giving plaintiff leave to join Obrad. Such an order is entirely proper and yet does not affect the effect of the statute of limitations. Since the statute of limitations is a defense which here may be raised not by preliminary objection to the complaint, but only by answer and new matter, the joinder of a defendant is proper and yet the statute of limitations is still a bar.

Plaintiff further alleges that the driver of the automobile, now alleged to be Obrad, identified himself as Alexander Selak at the time of the accident. Even if that were true, Alexander’s answer denied such allegation and the police report, readily available to plaintiff, clearly identified Obrad as the driver. Proper care by plaintiff would have disclosed the actual operator of the automobile and the misidentification at the scene of the accident, if such there was, is, under these circumstances, certainly no reason to depart from the normal operation of the statute of limitations.

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Bluebook (online)

50 Pa. D. & C.2d 177, 1970 Pa. Dist. & Cnty. Dec. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mawhinney-v-selak-pactcomplphilad-1970.

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