J-S61019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM R. BARNES                                   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

SARAH MORRIS

                            Appellee                    No. 1865 WDA 2015


                    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.:                       FILED OCTOBER 18, 2016

       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.1       We affirm.

       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




____________________________________________


1
 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).
J-S61019-16



O’Reilly.2 We direct the parties to attach a copy of that opinion in the event

of further proceedings.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




____________________________________________


2
  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).



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                                           .                   I   .               .
        IN THE COURT OF COMMON PLEAS OF ALL'=GHENY COUNTY, PENNSYLVANIA

                                                           •   I
                                                               I




                                                               l

WILLIAM. R. BARNES,                            )       CIVll,. DIVISION
                                               )
                                               )       No. GbM11 ~26803
               Plaintiff,                      )
                                               )
                                               )
               vs.                             )
                                               )
SARAH MORRIS,                                  )
                                               )
               Defendant.                      )

                                      MEMORANDUM ORDER

                                                               I

       This case involves one of the most emotionally _charged issues in our country today -

Abortion vel non,

       On December 11, 2010 Plaintiff, William         R. Barnes (Barnes) in funherancs     of his antl-
                                                               '
abortion 'views attended a "praysr-ln" or vigil in the vicinity of the offices of Planned Parenthood

of Western
        .
           Pennsylvania, .at 933 Liberty Avenue in Downtown,
                                                     I
                                                             Pittsburgh:
                                                                   ,
                                                                         He brought with
                                                                           I
                                                                               '   .
                                                                                   '
him a small plaster statue of the Blessed Virgin Mary ..

       Defendant, Sarah Morris (Morris), apparently otdlarnetrlcally       opposed views to Barnes,
          ·•                                                   '                   •             I




is alleged to have approached him and snatched the statue from him and ran way with it. A

prompt hew and cry arose and Morris was apprehended andcharqed with an appropriate

criminal offense. The same was adjudicated and she was placed on AR.D and directed to pay
                                                                       ,

restitution. That restitution was $150.00 and was paid to Barnes.



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                     ' ..
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                                                                                                                                                         GD-11-26803 '
                                                                                               '.           /        _        .
                   One would th~k the matter would have ended
                                                           '
                                                              thbre.
                                                               .     Not so.                                ,
                                                             1
                                            •                                     .                         I


                   Barnes. proceeding prose but with some appa ent internet e~pertise, filed a praecipe for

           Writ of Summons against Planned Parenthood only on December 22, 2011. After an exchange
                             .                 .              I .            .      .
           of Pleadings and Motions, Barnes was given leave to add Morris as ~ Defendant on April 17,   I                                            •



··...,..   2012. That order also permitted Barnes to serve int~~rogatories
                                                               ·(        . on Morris. Morris was served
                                                                                                        I
           with the re-issued Writ and the Interrogatories on April ~9. 2012 ..

                  The docket entries further show that Planned PJrenthood on June 14, 2012 filed a ten day
                                                                        ..                          I                                                             .
           notice of intenti.on to take judgment of non-pros against. Barnes. Thereafter there is no further
                                                                          .                         I
                                                                    .     '                         I

           entry'_as to Planned Parenthood.                 .                                   i.
                  On Aug~st 3, 2015, Ba;mes filed his Compialnt ~~t only again$t Morris.
                                                                                               I

                  Morris thereafter filed Preliminary Obj~ctionf and                                                                heard Argument            on them on

           September 24, 2015.
                                                                                                                                    •
                  In his Complaint. Barnes alleges 6 counts of tortlous conduct by Morris to wit:
                  a.   Assault and Battery                                    ·               I: .                                      .·
                                                                                              11
                  b. Conversion

                  c. Conspiracy
                                                                                              I .                        .
                - d. Intentional infliction of Severe Emotional Distress
                                                                                                                     I
                  e. Invasion of Privacy and Trespass                                                       :1
                                                I   .
                                                                                              ,-·! ..
                  f. Religious Persecutio~ .                             . .· · 1 :                                                          :   .                       ;

                  As noted above, the Praecipe for Writ of Sumrcms was re-Issued on April 18, 2Q12 and

           served on April 29, 2012. The Complaint was not'filed,uhtll August 3, 2015. and period ~f 3 years.
                                                           ~      I                                          .
           and 3 months elapsed .. The Statute of Lirr,iltations ls two years for 9:II of Barnes' Tort claims
                                                                .                         I


           except for Invasion of Priv~9y which is one year 42 p+                                           C.S.A.                § 5523, 5524 the re-Issuance and
                                                                                       I
           service of the writ ·only extended the Statute of Limltatlons fbr an equivalent period, that is 2.
                                                        .               ~ , . ·I                                I·




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                                            - ·-·
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                                                                                      1.
                                                                                                                         ••             •DWii            ...... ..       .
                                                                                          GD-11-26803

                                              .                      .
             Thus the writ s~Ned on April 29, 2012 only ~xtended the Statute of Limitations for an

     ,··equivalent period (two years) or only until April 29, 2014. See Lamp vs. Heyman, 366 A.2d '882

     /{Pa. 1976). According to Rule 401 (a), original process shall.be served within the Commonwealth

     within thirty days after the issuance of the writ or the filing of the complaint. Rule 401 (b){4) states

     that a reissued, reinstated or substituted writ or complaint shall be served within the appncabie

    :· time prescribed by subdivision (a) of this rule. Thus, ,t,he Statute of Limitations on all of Barnes'

    t Tort claims has expired. Accordingly his Complaint was DISMISSED.
            While the Rules contemplate the Statue of Limitations being raised as New Matter, recent

     cases have permitted it to be considered in a Preliminary Objection context when the basis is

     clear. I find that to be the case here. Hence my order ..



                                                        BY THE COURT,            *




     l!:1.oecember 2015




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