Wednesday, June 23, 2021

Statute of Limitations Argument Can Be Made By Preliminary Objections In Some Cases

In the case of Weisberg v. Bansley, No. 20-CV-4432 (C.P. Lacka. Co. May 20, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections in a convoluted civil litigation, which Preliminary Objections were based, in part, upon a statute of limitations defense.

The court noted that this matter began as an ejectment action in 2006 and had since spawned three (3) additional lawsuits, with the current lawsuit being an action claiming wrongful use of civil proceedings that were instituted in an earlier lawsuit asserting wrongful use of civil proceedings.

In the pending case, a lawyer sued his ex-client, that client’s former attorneys, and the attorney who represented the ex-client’s former lawyer in the prior action alleging wrongful use of civil proceeding.

The Defendants filed Preliminary Objections asserting that the current case was barred by the statute of limitations since it was not commenced within two (2) years of the date that the prior lawsuit under the Dragonetti Act was voluntarily discontinued with prejudice as to all parties.

The Plaintiff countered with the argument that the current lawsuit was timely filed and that the discovery rule operated to extend the statute of limitations period.

After reviewing the records before him, Judge Nealon found that it was free and clear from doubt that the underlying Dragonetti action was voluntarily discontinued as to all parties “with prejudice” more than two (2) years and twenty-six (26) days before the current action was commenced.

Judge Nealon also noted that the question of whether a voluntary Discontinuance under Rule 229 constitutes a final termination for purposes of the question presented in this case depended upon whether the Discontinuance was with prejudice or without prejudice and whether it was a global Discontinuance as to all parties, as opposed to a mere dismissal of less than all Defendants. The court cited other case law confirming that, when an action is voluntarily discontinued with prejudice, the resulting dismissal with prejudice finalizes the parties’ rights as would a judgment on the merits and binds the parties with the same force and effect as if a final decree had been rendered after a full hearing on the merits.

In contrast, if a matter is voluntarily discontinued without prejudice, the Plaintiff is at liberty to commence, pursuant to Pa. R.C.P. 231(a), a second action based upon the same cause of action, provided that the statute of limitations had not expired. See Op. at 16.

The court also addressed the fact that the statute of limitations defense was raised in this matter by way of Preliminary Objections as opposed to by way of an Answer and New Matter, which is ordinarily the correct way to assert such a defense. 

The court reviewed the law confirming that, where the statute of limitations defense is clear on the face of the pleadings and the record and where a Plaintiff did not file Preliminary Objections to the Defendants’ assertion of that affirmative defense by way of Preliminary Objections rather than New Matter, the merits of a statute of limitations defense could be addressed by the court.

As more than two (2) years had passed since the previous litigation at issue had been terminated, the court found that the current lawsuit was clearly time-barred. As such, the Defendants’ Preliminary Objections in the nature of a demurrer based upon the expiration of the statute of limitations was sustained.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Nathan Dumlao on

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