*1 275 of the entry upon run anew begins period appeal is not if decision day the decision, the 121st or on reconsidered Com- Explanatory See day period.” within entered failing inaction 19U, 1930.2. Wife’s following Rule ment — excused cannot be day 121st following appeal take an order new reconsidered why a of the reason regardless had Wife day. before on the docket not entered had been entered. if order an docket to see to view the ability taken. been have filed, should appeal a direct none was When 1995, hold 25, May vacate the Order Accordingly, we 22, final and dictates 1994 is April Order of previous that the Husband’s regarding parties respective rights pension. relinquished. Jurisdiction vacated.

Order 681 A.2d 815 VARGO, as Administratrix Individual and Darlene L. Deceased, Appellee, Vargo, A. of Andrew the Estate COMPANY, INC., Engineering & Construction KOPPERS Industries, Inc., Appellant. Koppers Division a/k/a Pennsylvania. Superior Court of Argued April 1996. Aug. 1996.

Filed *3 appellant. Cabraja, Pittsburgh, Kathleen J. Caroselli, appellee. Pittsburgh, R. William HOFFMAN, SOLE, JJ. DEL POPOVICH Before POPOVICH, Judge: 24, 1995, judgment

This is an from the of October appeal Allegheny County, entered in the Court of Common Pleas of $1,154,631.22. in favor of in the amount of Herein appellees 1) contends: The lower court erred when it refused appellant on that suit grant judgment grounds appellees’ n.o.v. 2) by Pennsylvania’s repose; was barred statute of The ver- 3) evidence; against dict was The lower weight improperly expert testimony relating court excluded to dece- 4) accident; dent’s intoxication at the time of the The improperly charged jury regarding lower court the issue of causation. review, we find that the trial court committed revers-

Upon ible error when ruled the statute of case. we reverse and inapplicable present Accordingly, entry judgment remand for favor.1 appellant’s erroneously first asserts that the lower court Appellant grant judgment alleged refused to its motion for n.o.v. which appellees’ repose. suit was barred statute of Pennsylvania Supreme proper Court set forth the standard for reviewing judgment denial of motion for n.o.v. Wenrick (1989), Schloemanrir-Siemag, 523 Pa. follows: proper scope of review for an court examin- appellate

[T]he n.o.v., a denial of ing judgment according longstand- rule, whether, ing the record in the most reading light granting favorable to the verdict winner and him the benefit inference, every competent favorable there is sufficient *4 support evidence to the verdict.

Id., 564 A.2d at 1246.

This motion for denial of directed verdict will be reversed if there is “an abuse of discretion or error of only Philadelphia Corp., Pa.Super. law.” Brown v. Asbestos 433 (1994). 131, 1245, 1248 Having appellees' by 1. determined that cause of action was barred the repose, appellant's remaining statute of we need not address issues. review, record the standard of the above-stated

Applying action and survival wrongful This death following: the reveals Sep- took on place accident which of an industrial arose out Clairton, in located at the USX Coke Works tember a door was as employed decedent Appellees’ Pennsylvania. a support between pinned cutter when he was cleaner/jamb by being moved oven door as the door was and a coke beam injuries died from the machine. The decedent the No. 6 door in accident. he sustained the No. 6 door that the witness established

Appellees’ expert ap- by and constructed designed, manufactured machine was appellees’ The subject to the accident. pellant years prior was 6 door machine was that the No. theory liability created when pinch point of an accessible defective because battery open- oven arm moved toward the the door extractor be- was created argue pinch point that the ing. Appellees on door machine as was not installed cause an elevator required. original design question per- machine in of the door operation

The cleaner, team, operator and a door a two-worker formed machine of maneuvers. The door sequence in a standard rail along system door machine moved the operator operation This involved controls. operated equipment coke oven unlocked and removed the extractor arm which shield and front of the heat cleaning position door to its replace- opening the door back to the oven then rotated cleaning the sides responsible The decedent was ment. pulled it had been into opening the oven after the door and arm. The door machine serviced by the extractor pit area to oven on a rail ovens and moved from oven number of coke system. necessary operation machine was for the

The No. 6 door battery part and was assembled on-site the coke oven designed door machines are general, construction. battery only. batteries operate specific on and constructed for a shop assembled temporarily machines are door fit, shipped pieces disassembled and customized then they eventually on which on the rails job site for construction *5 the ma- fitting a of requires installation Complete operate. the bat- whereby procedure a utilizing chine to the batteries until rail system tied finally rails are not tery front In the has stabilized. expansion are heated the batteries deep, were 18" Works, doors themselves the oven USX Coke five more than wide, high, weighed stories 20-24" several high 15-16' long, 20-30' tons, the door machines were while wide. and 7-8' and awarded trial, appellees in favor of found jury

At $850,000under the $55,000 Death Act and Wrongful under the a Motion for Post-Trial then filed Appellant Act. Survival Judgment for Defen- Entry Motion for of including Relief a of Entry In the Motion for for New Trial. dant and a Motion of Pennsylvania that a statute maintained Judgment, appellant 5536(a), actions extinguished § at 42 Pa.C.S.A. repose, codified years brought twelve improvements based on In response, appel- improvements. completion after the Damages to Include to Mold the Verdict filed a Motion lees increase the which would Delay Pursuant to Pa.R.C.P. for 13, 1995, judge the trial On October by verdict $249,631.22. Relief, including its for Post-Trial appellant’s Motion denied and Motion for New Entry Judgment for of within Motion of allowed the verdict Additionally, judge the trial Trial. Include $905,000 Motion to granted appellees’ to stand and $249,631.22. This appeal in the amount of Delay Damages followed. action, enacted civil the statute fol- of action under the legislature bars causes

Pennsylvania lowing circumstances: (b),

(a) in subsection Except provided Rule. General lawful- any person brought against action or proceeding civil supervi- furnishing design, planning, or ly performing construction, any or construction of sion or observation be commenced within must (12) to improvements of such completion after years twelve damages for: recover

(1) or supervision deficiency design, planning, Any improvement. of construction of the observation any arising out (2) or personal, real Injury property, deficiency. such out arising death

(3) wrongful Injury person deficiency. such any *6 on sustained (4) damages indemnity Contribution (3). (2) or in paragraph mentioned any injury account 5536(a). § 42 Pa.C.S.A. plain bar a merely does not repose

The statute of the cause of abolishes completely but it remedy, tiffs right Co., Inc., 290 Pa.Su Elevator Mitchell v. United action itself. (1981). 1243, applies The statute 476, 1248 per. (1) that: proves moving protection for its party where the (2) estate; improvement supplied was what was of the completion elapsed between years more than twelve (3) of the activity injury; and the improvement by is protected the class which within party was moving Inc., 536 Components, Building McConnaughey statute. See, (1994); v. Colum 1331, McCormick 95, A.2d 1333 Pa. 637 (1989). Co., 520, A.2d 907 522 Pa. 564 Conveyer bus test, the three-prong this held that under court below The test had been satisfied. elements of the second and third batteries, the coke that construction record established machines, complet- door was installation of the which included court The lower question. to the accident years prior ed 35 protected the class was within appellant ruled that 5536(a), manufactured and constructed designed, § it fixtures, including the operating all attendant batteries with necessary for the machines, were all of which rails and door However, held the lower court ovens. battery of the operation not an machine was the No. 6 door that repose. the statute of Since meaning of within the the first satisfy did not appellant that court ruled the lower repose test, statute rejected appellant’s of the prong defense. have years more than twelve undisputed it is

Presently, and constructed designed the door machine since elapsed wheth- Thus, first determine we must current location. on its 282 appellant protected by

er is member of the class the statute and whether the “improve- No. 6 door machine is an property”. ment to real 5536(a) §

The court below noted that Pa.C.S.A. architects, generally designed protect such as parties engi neers and contractors and apply does not to manufacturers of See, McCormick, 520, products. 522 Pa. 564 A.2d at 909-10. However, Pennsylvania courts have further specified perform manufacturers who acts of “individual akin expertise” to those commonly performed by builders also benefit may See, 95, from the statute’s defense. McConnaughey, 536 Pa. Thus, 637 A.2d at 1334. who party simply manufactures a see, product protection statute, is outside the Schmoyer Inc., by Schmoyer v. Mexico Forge, 645 A.2d 811 (1994), overruling Schmoyer by Schmoyer Forge, v. Mexico Inc., (1993), Pa.Super. 621 A.2d 692 party but a who *7 manufactures and is in design involved the and construction of product may the use the defense. McConnaughey, 536 Pa. 637 A.2d at 1334. the Since lower court determined that appellant actually designed and worked with. in the USX machine, installation of the door it concluded that appellant 5536(a), § was within the class protected by though even appellant also manufactured the door agree- machine. We with the lower court’s conclusion that appellant is member of the protected by class the statute of repose.2 appellant’s

We now turn to contention that the No. 6 door improvement machine is an to agree real and with appellant’s assertion that the door machine was an improve- ment to real under Pennsylvania Accordingly, law. brief, appellee’s Vasquez Whiting Corp., 2. In F.Supp. 660 685 (E.D.Pa.1987) support proposition cited appellant may is to the that not repose merely assert the statute of because the door machine was Vasquez, assembled on-site. In the United States District Court held that the manufacturer of a crane which was assembled on-site as an 5536(a). facility protection § industrial was not entitled to the How- ever, Vasquez played the design manufacturer in no role in the and Thus, installation of the crane. Id. at 686. we find that the immediate distinguishable Vasquez appellant played case is from since primary the design role in the and installation of No. the 6 door machine within the See, facility. McConnaughey, supra. USX Coke Works

283 error when committed reversible trial court that the hold we defense. the statute appellant denied the addressed had court Pennsylvania no Although constitutes machine a coke oven door whether issue of specific the Penn reasoning of the real property, improvement an court McCormick, this and supra, Court sylvania Supreme Pa.Super. Company, Electric v. General in Radvan McCormick, our su (1990) In controlling. A.2d 396 5536(a) in a §of application considered court preme conveyor which a belt and held that liability action products integrated which was and delivery system of a coal part was improvement an facility was into the construction Radvan, holding followed In this court property. real 5536(a) prod employee’s § an to bar applied McCormick trim machine that a side grounds on the liability action ucts court distin The lower property. improvement was an immediate case from the and Radvan McCormick guished Radvan involved McCormick equipment because In con i.e., realty. affixed stationary, somehow moved machine the No. 6 door trast, court noted that the trial Consequently, several coke ovens. and serviced on wheels was not door machine that the below determined court and Radvan. under McCormick 6 door machine the No. the fact Notwithstanding this distinction wheels, opinion it is this court’s moved on McCormick, our case. present dispositive is not of “improve- definition following embraced supreme court dictionary: law ment” from Black’s *8 estate) (usually real made to addition valuable [A] than condition, to more amounting in its an amelioration or and capital, or costing labor replacement, or repairs mere adapt it value, utility or beauty enhance its intended to purposes. or further for new at 909. Pa. we “improvement”, interpretation this familiar Applying find this definition. machine satisfies 6 door the No. According trial, to the record established at the door machine constituted a substantial of the part battery oven construction. The door machine was custom-designed to accommodate the design doors and latches of the on it batteries which operated integrated into the construction of the USX facility. Together, battery oven and the oven door ma- chine created a production facility processing of steel. The coke oven battery operate cannot without the concurrent operation of the coke oven door machine. Undoubtedly, No. 6 door utility machine enhanced the of the coke batteries within facility, the USX Coke Works and it can easily be characterized as a valuable addition to the realty. industrial Thus, we find that the trial court erred it when held that the No. 6 door machine did not constitute an improvement to real property under the McCormick standard.

The trial court was amiss when it distinguished Radvan from the the present Court, facts of case. The Radvan using standard, the McCormick held that a side trim machine was because, “it had been for more than place thirty years; it had never been moved installation; since its it was bolted to the floor and was connected to conduit piping power; and ... its ‘weight was in the dozens of tons and it would have been very difficult to ” Radvan, dismantle.’ 394 Pa.Super. 576 A.2d at 397. It is this court’s opinion the No. 6 door machine is analogous to the side trim machine at issue Radvan. But for fact that the door machine moved on wheels and served more than one coke oven battery, has remained affixed to the same rail system within the USX Coke facility Works since its assembly early on-site Although 1950’s. the door machine was was, in place not bolted as the side trim machine its movement was limited to the confined area of the rail system upon which Further, it was attached. the record reflects that large size and substantial weight the door machine necessitated on-site repairs maintenance. thus find that We the trial court’s interpretation Radvan was erroneous. Despite the fact that the No. 6 door machine was movable from one part of *9 to the another, substantially affixed USX to it was battery the as to constitute an facility way such a property.3 supreme our upon the lower court’s reliance reject

We also YMCA, Harrisburg Area by decision in Noll Noll court’s (1994), No. 6 to determine that the 643 A.2d 81 Coke Works door machine was not a fixture within USX Noll, is, definition, improve an facility. Under a fixture Noll, Id., plaintiff ment to real 643 A.2d at 87. property. starting block into injured when he dived from against Plaintiff then commenced an action swimming pool. supreme court starting the manufacturer of the blocks. Our not fixtures and refused starting ruled that the blocks were 5536(a), permanent § were not starting since the blocks apply necessary or essential to pool, they to the were not ly attached they were swimming pool, of the as a property the use damage pool. removal would not cause removable and Id., 643 A.2d at 89. statute of purposes then noted that for

The Noll court ... should “objective parties intent of the repose analysis, the object an has become a determining considered in whether be Id., § at 88. The of 5536.” purposes fixture when determin- court outlined various factors to be considered ing object an is a fixture: whether of whether objective court must make an determination

[A] § object purposes a fixture for the 5536. is may such a determination include: making considerations object degree to which and manner which removing ... attached to real the ease object may ... be removed without object whether the object is nec- damaging property.... the real whether the ... conduct essary to the real and the essential just Certainly, door machine was dedicated to one coke oven 3. if the Radvan), (as was in and was bolted to the floor the side trim machine absolutely dispute concerning the door machine’s there would be no “improvement property”. status as an perma- an intent to party and whether evidences nently object realty---- attach the omitted) (citations Id. *10 Noll, listed in the court below reviewing

After the criteria on a track operated that the No. 6 door machine concluded wheels, being completely was moved or capable with its own property without to the real itself was damage relocated of the coke oven any part not attached to one permanently Thus, fixture. battery. it was not a However, must be conclude that the immediate case we that the No. 6 door ma- from Noll. The fact distinguished years prior rail for over 35 system chine was confined to the objectively demonstrates an intent question the accident to a area within permanently particular affix the door machine facility. The door machine was also the USX Coke Works manufacturing to the use of the as a steel necessary property swimming pool, fully operable which is facility. Unlike blocks, starting battery inoperable a coke oven without therefore conclude that the No. without a door machine. We clearly machine a fixture as defined 6 door was objective standards established Noll. the tax assessment case of misapplied

The court below also (1961) 421, 175 A.2d 856 Borough of Aliquippa, In Re: not when it determined that the No. 6 door machine was to the real “necessary property.” Aliquippa, or essential im Court reviewed the issue of Pennsylvania Supreme to real the context of the tax assess provements intent of the in enact Focusing legislature ment law. on the law, supreme our court found that the ing the tax assessment from real estate machinery desired to remove all legislature of industries development taxation as an incentive to the Id., at Pennsylvania. the state of 175 A.2d 860-61. within doctrine apply court refused to the common law supreme Our were not fixtures when it determined that coke batteries tax assessment purposes. improvements improvements court which were high distinguished The also from directly manufacturing process improve- in the used Id., at generally. the land which benefited ments ovens did court held that coke supreme our Specifically, 861. of the manufac- part but were generally the land not benefit Thus, purposes for the were not fixtures they turing process. of real estate taxation. incorrectly case, court concluded

In the immediate the lower the No. on the issue of whether dispositive was Aliquippa Citing property. improvement 6 door machine was by implication lower court determined Aliquippathe generally, did not benefit the land No. 6 door machine The court realty. was therefore not essential to USX only benefited that because the door machine below concluded land”, the door on the “particular present manufacturer 5536(a). §by covered machine was not an reliance on we find that the lower court’s contrary, To the intent behind a tax misguided. legislative Aliquippa *11 legislative from the significantly statute differs assessment Co., Koppers of In Adair v. repose. intent behind a statute (6th Cir.1984), Inc., Court of 741 F.2d 111 the United States of applicability the Appeals interpreted for the 6th Circuit involving a to an industrial accident repose Ohio’s statute of coke part plant belt which was of a pulley conveyer head the argued designed by Koppers. plaintiff and built injured “improvement on which he was was not an equipment The Federal repose. to real under the statute of property” Court, in in deciding equipment question whether the Appeals to refused “improvements property”, met the definition of real (similar in applied tax to that apply provision an Ohio legislative in intent Aliquippa) because of the difference statute. While repose the statute of and the taxation behind thereon” relating improvements tax to “land and provision growth, economic fostering in the context of was written “special to extend repose provision was enacted statute for the litigation liability from stale and extensive protection ” Id. property.’ to real improvement or builder of ‘an design provided which that certain Despite provision at 113. for taxation property not improvements fixtures were equipment ruled that the purposes, Appeals the Court for the statute of an Adair was réasoning adopted by analysis. We concur with on find the lower court’s reliance Circuit and Sixth was Aliquippa improper.4 in First Nation-

Finally, reasoning adopted we find that the Reichneder, 463, 91 A.2d al Bank Mount Carmel Reichneder, (1952) Pennsylvania is instructive. fixtures, as it related to Court ruled that the law Supreme when indus- mortgages, helpful determining industrial so that it trial of the real equipment part became facility. industrial The Court constituted a fixture within the industrial doctrine: integrated plant noted that under the regard a for old notions could have [NJothing passive but machinery personal proper- led them to treat [the courts] integrant part manufactory of a ty palpably when it was un- mill, might be unscrewed or merely or because injury without to the pieces, taken to and removed strapped, * * * * * * the machin- fast or loose all building. Whether it, to constitute manufactory necessary of a which is ery all, must manufactory it would not be a at without which freehold____ question of the is not part [T]he for a pass to the strapped this bolted and [equipment was] whether if ceiling, necessary part floor and [it was] carrying shop, on the business of the machine machinery to the floor manufactory, whether bolted belonged [it] a fixture on the depends or not ... “the criterion of [and] used. A fixture premises business for which the are mill adaptation have no manufactory, colliery may attached, yet, not if it be Although other kinds of business. *12 trade on the designed premises, for the convenience of time, used, any called into use at subject so to be be in carry- If is indispensable a fixture. the article becomes business, realty.” part it becomes ing specific on the courts, repose, Pennsylvania applying the statute of have 4. We note that factory equipment to that found not to be an "im- ruled that similar Aliquippa "improvement provement” purposes in was an for taxation See, McCormick, (coal conveyer system supra belt property.” real Radvan, property); supra (factory side trim ma- improvement to real improvement property). chine was Pennsylvania “The rule is that a placed chattel an indus- use, permanent trial establishment for necessary fixture, of the operation plant becomes a and as such is part estate, thereto; of the real not although physically attached * * *. Whatever is a necessary part machinery of the fixture, on carrying the business is a irrespective manner of its ... attachment.” Id., (citations omitted). 91 A.2d at 278-79

Thus, standard, under the Reichneder the No. 6 door ma- chine clearly is fixture since it is indispensable carrying on the manufacturing of steel at the facility. USX Coke Works simple fact that it moved between several coke ovens on a rail system does not eliminate its status as a fixture. Accord- ingly, we find that is appellant protection entitled to the statute of repose. sum, we hold that appellant is entitled to the statute of 5536(a). § defense in 42 codified Pa.C.S.A. Appellees’

cause of action against appellant thereby barred. We find that the No. 6 door machine was a “fixture” and constituted an real as defined by the statute. We also find that more than years twelve have elapsed between completion of the improvement and the injury and that appellant was within the class protected by the statute. Ac- cordingly, we remand the immediate case to the lower court entry judgment in appellant’s favor.

Judgment reversed. Case remanded for entry judgment in appellant’s favor. Jurisdiction relinquished. SOLE, J.,

DEL files a Dissenting Opinion. SOLE,

DEL Judge, dissenting. I agree cannot the coke oven door machine is an improvement I property. would therefore affirm the trial court’s refusal judgment to enter in favor of Appellant.

Appellant’s primary argument on point this centers on the However, size of the door machine. may while that be a consider, factor to it is not determinative. In Schmoyer v. *13 290 (1993), 593, 692 Inc., 621 A.2d Pa.Super. 423 Forge,

Mexico (1994), a 1, 645 A.2d 811 538 Pa. grounds, other reversed on the door than ride, considerably smaller which is playground property improvement machine, found to be in the and embedded in concrete anchored it was because here, however, is not at- in question machine The ground. capable is on rails and It moves real property. tached to the It is property. to the real damage relocated without being of is, in way battery any the coke oven not attached to and maintenance. repairs for fact, separate to a area moved place to place it moves from car in that It akin to a railroad is not Surely, one would tracks. to railroad on tracks similar car, improvement to be an example, an Amtrak consider holding Prior cases passes. over which all the real affixed which was equipment involved applicable the statute See, v. e.g., McCormick stationary. the real (1989) (belt 520, Co., 564 A.2d 907 522 Pa. Conveyer Columbus Here, delivery system). of coal component conveyor rails on property; to the real is not affixed itself machine is .not. machine itself be but the may travels which it machinery, of but piece very large a simply machine is door property. not an particular that this concept Moreover, my opinion, A re-examined. needs to be repose of is a statute statute action cause of a abrogates repose completely of statute. time limit within merely sets a of limitations a statute whereas be commenced. of action must on a cause an action which Co., 339, 883 441 272 A.2d Pa. City Piping v. Steel Misitis an affirma- (1971). pleaded be as limitations must A statute by the is not waived whereas statute tive defense nonsuit, motion for raised may it but be plead failure to Pool Coal Co. First Gas judgment N.O.V. verdict directed (1930). Co., 485, 152 A. 685 Run Coal v. Wheeler Co., Pa. 382 476 Armstrong v. Cork Storage In Freezer Court, prede- discussing (1978), Supreme our A.2d 715 a cause of eliminated statute, that the statute noted cessor thereaf- This court repose. action, making it a statute thus Cork Co. Armstrong Storage on Freezer ter relied that the statute is also a statute precedent holding present Co., Inc., Mitchell v. United Elevator 290 Pa.Su- repose. (1981). cases have re- per. Subsequent *14 holding ferred to the Mitchell with little or no discussion. YMCA, 274, Harrisburg Noll Noll v. Area Inc., 123, (1994); Systems, Pa.Super. 81 v. Litton 372 Schaffer (1988); see, 539 A.2d 360 but Altoona Area School Dist. v. (1992). 131, 152 618 A.2d 1129 Campbell, Pa.Cmwlth. any The Mitchell court did not note differences between the statutes, merely stating prior two that the statute was “sub- is, however, stantially § reenacted” 42as Pa.C.S. 5536. There very significant difference between the two statutes. The predecessor read, in part: statute relevant “No action ... ” 9, 1976, § brought.... shall be 12 (repealed July P.S. 65.1 1978). 586, 27, P.L. present effective June The statute states § an action 42 that “must be commenced.” Pa.C.S. 5536. This is the precise language used the various statutes of limitation.

Of the eleven chapter statutes contained the on limitation actions, of all use the “must be commenced” or phrase “shall be commenced.” These include the six-month of limi- statute tations for setting judicial establishing aside a sale and 5522, § deficiency judgment, 42 one-year Pa.C.S. the statute bonds, limitations for libel and slander 42 and actions on 5523, § two-year Pa.C.S. the statute of limitations for tortious conduct, 5524, § 42 four-year Pa.C.S. the statute of limitations actions, 5525, § for 42 five-year contract the Pa.C.S. statute of limitations for specific performance, redemption and trusts in 5526, § real 42 property, fifteen-year Pa.C.S. statute of actions, 5528, § 42 limitations for escheat Pa.C.S. the twenty- year statute of limitations for instruments in writing under seal, 5529, § 42 twenty-one year Pa.C.S. and the statute of 5530, § 42 possession property, limitations of real Pa.C.S. catch-all years as well statute limitations of six § 42 specified, actions not otherwise 5527. All of Pa.C.S. these statutes of limitation use very language same used § the statute involved here.

292 § 5537 42 Pa.C.S. are different are statutes which only

The landscape archi- surveying and concern land § 5538 which lan- additional include the of these statutes tecture. Both time period not commenced within that an guage action differenti- language this which barred.” It is “shall be forever ones and which remaining statutes from ates these two § 5538 are statutes § 5537 and indication an immediate 5536 con- limitation. Section than statutes of rather § identical to 5536 is language The language. tains no such and is not the same of limitation of the statutes language has legislature repose. statutes of language of the as the § it intends stated, §in specifically set a time simply than of action rather the cause abrogate indicated such action. It has not commencing an limit for of limita- set forth a statute merely §in but has intent tions. *15 is, course, an affirmative defense

A of limitations statute Hilderhoff, is waived. Stahl or it pleaded must be which Wire & Keystone Fudula v. (1968); 247 A.2d 582 (1981). Works, Appel- 424 A.2d 921 Iron Pa.Super. Although as a defense. the statute plead lant did not discussion of have been some may there appears § 5536 is trial, record mention the first prior statute Appellee presented for a nonsuit after moved Appellant when to raise permitted should not be Appellant case. her trial. at that stage defense affirmative reasons, judgment affirm the I would For all of these majority from the decision. dissent respectfully therefore must