Opinion
J-S61019-16 No. 1865 WDA 2015
10-18-2016
WILLIAM R. BARNES Appellant v. SARAH MORRIS Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order October 28, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-11-026803 BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J. JUDGMENT ORDER BY LAZARUS, J.:
William Barnes appeals from the order entered in the Court of Common Pleas of Allegheny County granting Sarah Morris' preliminary objections in the nature of a demurrer. We affirm.
Our standard of review of an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint is limited to determining whether the trial court committed a legal error or abused its discretion. Feingold v. Hendrzak , 15 A.3d 937 (Pa. Super. 2011).
Because the trial court properly determined that the statute of limitations had expired on each of Barnes' tort claims against Morris, we affirm based on the opinion authored by the Honorable Timothy Patrick O'Reilly. We direct the parties to attach a copy of that opinion in the event of further proceedings.
Although the statute of limitations is an affirmative defense to be raised as new matter in a responsive pleading, not by means of preliminary objections in nature of demurrer, see Pa.R.C.P. 1030, we note that Barnes did not object to Morris' raising of the statute of limitations in preliminary objections. Plaintiff's Response to Defendant's Preliminary Objections, 9/23/15. See Lamp v. Heyman , 366 A.2d 882 (Pa. 1976) (since plaintiff appellant did not object to issue being raised by way of preliminary objections either in trial court or on appeal and since additional defendants raised issue as new matter and plaintiff then admitted underlying factual allegation, Supreme Court would proceed to determination of whether plaintiff was barred by statute of limitations); Richmond v. McHale , 35 A.3d 779, 782-83 (Pa. Super. 2012); DeMary Latrobe Printing & Pub'g Co., 762 A.2d 758, 762 (Pa. Super. 2000).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2016
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