12 Pa. Commw. 190 | Pa. Commw. Ct. | 1974
Opinion by
This case comes within the original jurisdiction of this Court. It was commenced by the filing of a com,
The bond contains a provision limiting the time during which suit may be brought on the bond. That provision reads as follows: “Section 6. No suit, action or proceeding of any kind to recover on account of loss under this bond shall be brought after the expiration of three years from the cancellation of this bond as an entirety, provided, however, that if such limitation for bringing suit, action or proceeding is prohibited or made void by any law controlling the construction of this bond, such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” The expiration date of the bond was August 25, 1967. During the period of the coverage of the bond, an employe of the Commonwealth (John P. Davis) embezzled an amount in excess of $10,000 from the Commonwealth. Davis pleaded
After preliminary objections of Transamerica were overruled, an answer was filed and the issues struck. A deposition was taken of the bonds claim counsel of Transamerica, and on October 16, 1973, the Commonwealth filed a motion for summary judgment. Thereafter, Transamerica filed its motion for summary judgment pursuant to Pa. R. C. P. No. 1035, and on November 28, 1973, the Commonwealth and Transamerica moved for consolidation of argument on the two motions for summary judgment.
Pa. R. C. P. No. 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party has the burden of proving that there is no material issue of fact and the record must be examined in a light most favorable to the nonmoving party. Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A. 2d 629 (1968); Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A. 2d 841 (1968). In this case both parties have filed for summary judgment and both agree that the facts are not controverted.
There being no real dispute as to the facts, the very narrow issue facing us is whether the Commonwealth is barred from recovery under the bond containing the quoted provisions of paragraph 6 limiting suit during the contractual period of three years from the date of cancellation of the bond, or whether Transamerica through its actions waived this contractual limitation, thereby permitting recovery.
While frankly admitting that it filed suit more than eight months beyond the contractual limitation
Our very careful review of the record before us permits us to conclude that Transamerica did not take any action nor did it make any statements which would have lulled the Commonwealth into a belief that its claim would be paid. We also conclude that Transamerica took no action which might have led the Commonwealth to believe that the three year limitation in the contract would be waived. There was nothing done by Transamerica which would have prevented the Commonwealth in any way from bringing a lawsuit within the three-year period. Having reached this conclusion, we must
Order
And Now, this 8th day of March, 1974 the motion of the Commonwealth of Pennsylvania for summary judgment is denied; the motion for summary judgment filed by Transamerica Insurance Company is hereby granted; and it is hereby ordered that the complaint filed at the above number and term is dismissed with costs to the Commonwealth.