Joyce v. Mankham

HOFFMAN, Judge: This is an appeal from the lower court’s granting appellee’s motion for summary judgment. We affirm the order, but in finding appellant’s contention waived, employ different reasoning than that relied upon by the lower court. On May 10, 1979, while appellant checked under her car’s hood on the shoulder of Interstate 95, another car swerved onto the berm, striking appellant’s car and causing her serious personal injuries. In addition to a No-fault Insurance claim, appellant sued Lowell Mankham, a driver identified by eyewitness Roland Forte as the sole, cause of the accident. On November 16, 1981, more than two years after the accident, however, after Forte allegedly altered his account of the events at an arbitration hearing on appellant’s no-fault claim and blamed himself, appellant petitioned for and was granted leave to join Forte and appellee, his employer, as defendants. Appellee, answering the complaint, raised a statute of limitations defense in new matter. Appellant replied by denying the new matter. After appellee motioned for summary judgment, appellant responded by averring that appellee was estopped from raising the statute of limitations because Forte committed fraud by concealing his involvement until after the statute of limitations period had run. Appellee’s motion for summary judgment was granted, prompting this appeal. Appellant contends that the lower court erred in refusing to find appellee estopped from claiming that the statute of limitations barred her action. Pa.R.Civ.P. 1030 provides [563] All affirmative defenses, including but not limited to the defenses of ... estoppel ... [and] fraud ... shall be pleaded in a responsive pleading under the heading “New Matter.” Further, all defenses not raised in an answer or reply are deemed waived. Pa.R.Civ.P. 1032 (enumerated exceptions inapplicable). Here, in appellant’s reply, she denied appellee’s new matter but failed to raise in her own new matter the affirmative defenses. Because affirmative defenses must be part of the pleadings, Pa.R.Civ.P. 1030, appellant’s subsequent averment of estoppel and fraud in her answer to appellee’s request for summary judgment failed to preserve the issue.1 Therefore, because appellant has not properly raised fraud, and her action was brought more than two years after the accident, her claim is barred by the statute of limitations. 42 Pa.C.S.A. § 5524. Accordingly, in the absence of disputed material issues of fact, we affirm the lower court’s granting of summary judgment.2 Affirmed. WIEAND, J., files a concurring opinion. Footnotes [1] Pa.R.Civ.P. 1017(a) provides, "The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counterreply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” [2] This case may be distinguished from Straup v. Times Herald, 283 Pa.Superior Ct. 58, 423 A.2d 713 (1980), where the plaintiffs raised the doctrine of equitable estoppel as "the affirmative basis of their request for injunctive relief" rather than as a defense. Id., 283 Pa.Superior Ct. at 69, 423 A.2d at 719. Here, appellant raised estoppel and fraud specifically to defend against appellee's statute of limitations argument. We acknowledge a conflict between Pa.R.Civ.P. 1030 and GoodrichAmram 2d § 1030:4 and the lower court cases relied upon therein. Regardless of nomenclature, however, whether an affirmative defense is raised in new matter or an amendment, see Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), the purpose supporting rule 1030’s requirement, that all issues be framed prior to trial, must prevail over any concern that new matter is an inappropriate section in a reply.