Cooper v. Downingtown School District , 238 Pa. Super. 404 ( 1976 )

Opinion by

Price, J.,

This is an appeal of an order entered by the court below, sustaining the preliminary objections of the ap-pellee, Downingtown School District, and dismissing the appellant’s complaint against that appellee. The propriety of this order is now being questioned.

In December¹ of 1966, William B. Cooper, the minor appellant, was seriously injured while on property owned and maintained by the appellee, Downingtown School District. On June 10, 1974, the appellant filed a complaint in trespass, alleging, in part, that the appellant’s injuries were negligently caused by the appellee. The appellee filed preliminary objections to the complaint contending, inter alia, that at the time the cause of action arose the doctrine of governmental immunity prohibited suits against school districts. The lower court sustained the appellee’s preliminary objections on this basis and dismissed the complaint against it. We affirm the order of the lower court.

At all times relevant to the instant case, that is, from December, 1966, when the appellant was injured, until December, 1968, when the statute of limitations expired, the law of this Commonwealth prohibited suits against school districts by virtue of governmental immunity. The appellant made no effort to institute suit during the applicable limitations period. In fact, no complaint was filed until more than one year following the abolition of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973).

In Snyder v. Shamokin Area School District, 226 Pa. Superior Ct. 369, 311 A.2d 658 (1973), this court indicated that Ayala would be applied to cases pending at the time Ayala was decided. Snyder is not controlling in the instant case because this suit was not pending, nor apparently even contemplated, in May of 1973, when Ayala was handed down. Moreover, the instant case could not have been pending at the time of the Ayala holding because the applicable statute of limitations expired four and one-half years beforehand.

From December, 1966, through December, 1968, this appellant had no legal redress for his injury. At all times during his limitations period, the courts of Pennsylvania consistently refused to hear suits against school districts. Therefore, he could not have recovered for his injury then, and we believe that he is also unable to do so now. Appellant made no attempt to “champion the cause,” Ayala, supra at n.10, and should not now benefit from another’s successful endeavor.

One subsidiary point to this case should also be mentioned. Although the issue of the expiration of the statute of limitations is properly raised under new matter, Pa. R.C.P. 1030, rather than by preliminary objection,² Pa. R.C.P. 1017 (b) (4), we will reach the merits at this time, in the interests of judicial economy,³ for two reasons. First, it was briefed, argued, and considered in the lower court. Secondly, once the statute of limitations is raised in new matter, appellee’s right to a judgment on the pleadings, based on the statute of limitations, will be clear. See Pa.R.C.P. 1034. Therefore, we see no reason to remand this case for further pleadings.⁴

We affirm the order of the lower court.

1 . No specific day in December, 1966, is alleged as the date of the accident.

2 . Pa.R.C.P. 1017(b) (4) provides in pertinent part that: “Preliminary objections are available to any party and are limited to a demurrer, which may include the bar of a non-waivable statute of limitations . . . which bars or destroys the action. ...” However, in a personal injury action, such as the present case, the statute of limitations does not limit the right of action itself, but rather limits the assertion of that right. The statute of limitations defense here is therefore a waivable defense and should have been pleaded under new matter as prescribed by Pa.R.C.P. 1030.

3 . Cf. Commonwealth v. Jackson, 463 Pa. 301, 303, 344 A.2d 842, 843 (1975) at n.1.

4 . Appellant would have us hold that statutes of limitations do not run against minors. There is clearly no merit to this contention. See, e.g., Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958). But see Schmucker v. Nationwide Mutual Insurance Co., 344 F.Supp. 701 (E.D. Pa. 1972).