OPINION BY JACOBS, J., September 19, 1973:
In this case plaintiffs appeal the dismissal of their complaint with prejudice which in effect terminated their cause of action and barred any attempts at amendment. The dismissal was based on a demurrer which was properly sustained. However, on the state of the record, the action barring further attempts at amendment was prematurely taken by the court below.
It was proper for the lower court to dismiss plaintiffs' complaint which was based on the theory of breach of warranty for the following reasons: First, the law does not impose on carriers the implied duty to warrant safe carriage regardless of the negligence of third persons or other events. As our Supreme Court stated in Griffith v. United Air Lines, Inc.: "[A] public carrier owes to its passengers a high degree of care, but it is not an insurer of their safety. . . . Liability may be imposed only for injuries resulting from negligent conduct." 416 Pa. 1, 8, 203 A.2d 796, 799 (1964) (footnote omitted). Second, the plaintiffs in their complaint failed to aver any facts to show an express
After the appeal was taken and the case was in this Court, the plaintiffs attempted to get the order reconsidered or, in the alternative, to get permission to file an amended complaint. By virtue of the appeal, the case was out of the hands of the lower court and it could do nothing about the petition.
Plaintiffs, without objection, have included in their printed record a copy of their petition to amend. The proposed amended complaint in assumpsit instead of claiming breach of warranty avers breach of a contract of nonnegligent carriage. The latter is a good cause of action. See Griffith v. United Air Lines, Inc., supra; Scott v. Eastern Air Lines, Inc., 399 F.2d 14 (3d Cir.), cert. denied, 393 U.S. 979 (1968).
Apparently, the lower court put plaintiffs out of court because it believed that any attempts to amend would be barred by the statute of limitations. That is probably correct so far as the proposed amended complaint produced at argument before us is concerned. Whether it be brought in assumpsit or trespass, a suit for breach of nonnegligent carriage is brought for injuries wrongfully done to the person and falls within the bar of the 2-year statute of limitations for personal injuries. Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34.
Our action does not mean that the defendant may not raise the defense of the statute of limitations, but only that it must be raised in a proper pleading. As a general rule, a court will not permit an amendment introducing a new cause of action after the statute of limitations has run. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966). That rule is designed to protect a defendant from being deprived of his right to plead the statute of limitations. 22 P.L.E. Limitation of Actions § 108 (1959). Such would be the case where the original complaint was filed within the period allowed by the statute of limitations, but the amended complaint introduced a new cause of action after the statute of limitations had expired. If the amendment were allowed, the new cause of action introduced would be timely since the amended complaint relates back to the date the original complaint was filed. 3 Standard Pennsylvania Practice 681 (1952). In that situation it would be proper for the court to deny the amendment. Otherwise, the defendant would be prejudiced in not being able to plead the defense of
The action sustaining defendant's demurrer is affirmed, but the order dismissing plaintiffs' complaint with prejudice is reversed with directions that plaintiffs be given a reasonable time within which to file their proposed amended complaint.