Myers v. Sezov

39 Pa. D. & C.2d 650, 1966 Pa. Dist. & Cnty. Dec. LEXIS 343
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedApril 27, 1966
Docketno. 1267
StatusPublished

This text of 39 Pa. D. & C.2d 650 (Myers v. Sezov) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Sezov, 39 Pa. D. & C.2d 650, 1966 Pa. Dist. & Cnty. Dec. LEXIS 343 (Pa. Super. Ct. 1966).

Opinion

Beckert, J.,

On June 21, 1962, Charles Martin Myers, Jr. (Charles, Jr.) was a Boy Scout, and while attending a scout meeting, his right hand was injured as the result of being struck by an axe wielded by Bruce Sezov, a minor (Bruce). This scout meeting took place at the home of Peter and Irene Burghart. The scoutmaster of this troop was Leonard Sezov (Leonard), father of Bruce.

As a result of the alleged injuries sustained by Charles, Jr., the above captioned complaint in trespass was filed on January 17, 1964, naming, in addition to the above persons, defendant “Boy Scouts of America”. An answer was filed thereto by Leonard and Bruce, in which they denied the allegation of the complaint without specific averments or denial, as permitted by Pennsylvania Rule of Civil Procedure 1045(a), and under new matter averred that the claim of Charles, Sr. and Rose, his wife, parents of Charles, Jr., was barred by virtue of a release signed by said parents as part of the “application to become a Boy Scout”. This application, in part, provided:

“. . . In consideration of the benefits derived from the membership, if accepted, we hereby voluntarily waive any claim against the local council or the National Council, the Boy Scout Troop, its chartered institution, and all leaders of the Boy Scouts of America, for any and all causes which may arise in connection with the activities of the above organization”.

Preliminary objections were filed on behalf of the “Bucks County Council, Boy Scouts of America”, and [652]*652we will first deal with these objections. The nature of the objections raise a question of jurisdiction and a demurrer. The thrust of the preliminary objections is that service of the complaint was made upon a scout executive of the Bucks County Council, Boy Scouts of America, and, therefore, made upon an organization not a party to this action. It is further contended that “Boy Scouts of America is a legal non-entity”. The preliminary objections raise the following two questions :

1. Has the complaint named a party which has been served and which is legally before this court, and,

2. May plaintiff now amend the complaint to name the Bucks County Council, Boy Scouts of America, as defendant, after the statute of limitations has expired?

We find that both of these questions must be answered in the affirmative.

Pa. R. C. P. 1033 vests in the court the discretion, at any time, to permit plaintiff to correct the name of a party. Pa. R. C. P. 126 provides that the rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action and that the court may disregard any error or defect of procedure which does not affect the substantial right of the parties.

The above two rules can be invoked only where it is determined that a legal party is properly before the court. That is to say, that the right party is, in fact, in court as the result of a service of process, and it is merely the designation of that party which plaintiff is seeking to change. The test, as enunciated in Gozdonovic v. Pleasant Hills Realty Company, 357 Pa. 23, 29, and approved in Powell v. Sutliff, 410 Pa. 436, 438, was whether: “ The right party was sued but under a wrong designation’, in which event the amendment was permissible — or, whether ‘a wrong party was sued and the amendment was designed to substitute another dis[653]*653tinct party’ — in which event the amendment was not permissible”.

Plaintiffs argue that the Bucks County Council, Boy Scouts of America, is, in fact, defendant which they, plaintiffs, were intending to bring upon this record as a party defendant. There is merit to their argument. Paragraph 5 of the complaint sets forth that “Defendant, Boy Scouts of America, is a corporation with offices situate at 30 East Court St., Doylestown, Pennsylvania”, and service of the complaint was made at that address upon a scout executive, Bucks County Council, Boy Scouts of America, and, therefore, plaintiff contends that a legal party is properly before the court.

The instant case is not the type of situation to be ruled by Saracina v. Cotoia, 417 Pa. 80, where the wrong person was named and served, but is akin to Powell v. Sutliff, supra, and Wright v. Eureka Tempered Copper Company, 206 Pa. 274, where the right person was served and the allowed amendment was merely to change the incorrect designation of the correct defendant.

We, therefore, overrule and dismiss defendant’s preliminary objection.

In addition to the preliminary objections heretofore discussed, plaintiffs filed preliminary objections to the new matter of Leonard and Bruce, averring that if the language of the application heretofore recited was construed to be a release, it would be contrary to public policy, or, if it be a release, that it is not a release for personal injuries; that said defendants were not within its purview.

Plaintiffs have cited no authority for the proposition that the writing, if a release, should be declared invalid as being contrary to public policy; nor have plaintiffs presented to our attention any statute which will render this release void as against public policy, and our independent research has not persuaded us to so hold, [654]*654nor has lead us to discover any such statute. Pennsylvania cases have held that writings in the nature of a release, to be held invalid as contrary to public policy, apply in: bailment cases, Wendt v. Sley System Garages, 124 Pa. Superior Ct. 224; banks, Thomas v. First National Bank of Scranton, 376 Pa. 181; and common carriers, Turek v. Pennsylvania Railroad Company, 369 Pa. 341. Plaintiffs, by this argument, would have us place the Boy Scout organization in the same classification as banks, common carriers, etc. We are not prepared to do this, as membership in the Boy Scouts is limited to those individuals approved for membership, as well as to those within a certain age range, whereas the other agencies serve the public at large.

We, therefore, hold that in the absence of statute, a release of damages in futuro is valid and not violative of public policy except in that type of case heretofore mentioned. See Brush v. Lehigh Valley Coal Co., 290 Pa. 322; 31 P. L. Encyc. 271.

Plaintiffs further contend that the release, as pleaded, should not be construed as a rélease for personal injuries. We agree with plaintiffs in this regard, but by so agreeing do not see how plaintiffs’ position is strengthened, but, in fact, believe that it is weakened. The writing under consideration is a writing signed by the parents of Charles, Jr. It, therefore, does not and cannot, from a legal point of view, release any rights, present or in the future, that may flow to Charles, Jr. If the writing has any efficacy, it is upon the derivative right of Charles, Sr. and Rose, his wife, parents of Charles, Jr., to recover for medical expenses allegedly flowing from Charles, Jr’s, injuries. Counsel for defendant do not contend that this writing bars the claim of minor plaintiff, but to the contrary quite candidly recognizes that a parent may not give a binding release of a minor’s claim. See Crew v. Bartels, 27 F. R. D. 5 (U. S. D. C. E. D. Penna).

[655]*655As we construe the writing now before us, if a label is required, we are dealing with a written instrument in the nature of an agreement to release, as distinguished from a release itself; that is to say, a release of claims not yet in existence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Powell v. Sutliff
189 A.2d 864 (Supreme Court of Pennsylvania, 1963)
Dilks v. Flohr Chevrolet
192 A.2d 682 (Supreme Court of Pennsylvania, 1963)
Minnotte Appeal
192 A.2d 394 (Supreme Court of Pennsylvania, 1963)
Daniels v. Bethlehem Mines Corp.
137 A.2d 304 (Supreme Court of Pennsylvania, 1958)
Turek v. Pennsylvania Railroad
85 A.2d 845 (Supreme Court of Pennsylvania, 1952)
Thomas v. First Nat. Bank of Scranton
101 A.2d 910 (Supreme Court of Pennsylvania, 1954)
Alcorn Combustion Co. v. Kellogg Co.
166 A. 862 (Supreme Court of Pennsylvania, 1933)
Brush v. Lehigh Valley Coal Co.
138 A. 860 (Supreme Court of Pennsylvania, 1927)
Gozdonovic v. Pleasant Hills Realty Co.
53 A.2d 73 (Supreme Court of Pennsylvania, 1947)
Wendt v. Sley System Garages
188 A. 624 (Superior Court of Pennsylvania, 1936)
Wright v. Eureka Tempered Copper Co.
55 A. 978 (Supreme Court of Pennsylvania, 1903)
Perry v. Payne
66 A. 553 (Supreme Court of Pennsylvania, 1907)
Home Builders of Mercer County, Inc. v. Dellwood Corp.
108 A.2d 731 (Supreme Court of Pennsylvania, 1954)
Saracina v. Cotoia
208 A.2d 764 (Supreme Court of Pennsylvania, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
39 Pa. D. & C.2d 650, 1966 Pa. Dist. & Cnty. Dec. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-sezov-pactcomplbucks-1966.