William COX, a minor, by William J. Cox, and Sharon Cox, his guardians, et al., Appellants, v. Ward HOTT.
Superior Court of Pennsylvania
March 31, 1977
371 A.2d 921
Argued Nov. 15, 1976.
Stephen D. Marriner, Washington, with him McCreight, Marriner & McCreight, Washington, for appellee.
Before JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
Appellants contend that the lower court erred when it granted appellee‘s motion for judgment on the pleadings because the statute of limitations had run.
On July 3, 1971, the parties were involved in an automobile accident on Route 19, Township of Peters, Washington County. As a result of the collision, appellant William Cox‘s 1967 Pontiac was damaged beyond repair and all of the appellants suffered injuries described in their complaint as “serious and severe.”
Appellants commenced an action in trespass by filing a praecipe for a writ of summons on June 25, 1973, within the two year statute of limitations governing actions for personal injuries. See
Appellee‘s attorney entered his appearance on July 20, 1973, and filed an answer and new matter on July 30, 1973. Appellee‘s answer stated that damages and negligence were in issue. Appellee raised by new matter the bar of the statute of limitations. His theory was that the complaint was filed beyond the statutory limit. Ap
Finally, on November 13, 1975, appellee filed a motion on the pleadings in which appellee raised the defense of the statute of limitations. On December 22, 1975, the lower court entered an order granting that motion. This appeal followed.
The lower court based its decision on Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970): “Where an action is started by summons, the complaint is only the required pleading with none of the characteristics of process; service of the complaint in such a case cannot confer jurisdiction. ‘The complaint, to be process, must be sole process. The phraseology of Rule 1007 compels this conclusion.’ Goodrich-Amram, § 1007-6. See Williams v. Pantalone, 47 Westmore.L.J. 265 (C.P. Westmoreland Co. 1965) and Di Orio v. Renn, 39 Northumb.Leg.J. 20 (C.P. Northumberland Co. 1966). Thus in the case at hand the service of appellant‘s complaint did not erase the need for timely service of the appellant‘s original writ or the alternative requirement that the writ be reissued within two years to prevent its lapse.” Id. at 237, 263 A.2d at 418.2
The following are the relevant facts in Yefko: the parties were involved in an automobile accident on February 11, 1965. The plaintiff-appellant took no action until January 10, 1967, when she filed a praecipe for a writ of summons in trespass. The writ remained dormant. On May 18, 1967, plaintiff-appellant filed a complaint in trespass which was subsequently served on the Secretary of the Commonwealth and on the defendant-appellee, an out-of-state resident, by registered mail. To this point, the operative facts are indistinguishable from those presented by the instant case.
Thereafter, “defendant-appellee filed timely preliminary objections in the nature of a petition raising a question of jurisdiction because of improper service; a motion to strike off the complaint; a demurrer raising the bar of the statute of limitations; and a motion for a more specific pleading.” 437 Pa. at 235, 263 A.2d at 417. The lower court sustained defendant-appellee‘s objection to the manner of service of process, but granted “‘. . . leave to the plaintiff to carry through with the procedure [i. e., commencement of the action by the issuance and service of a writ of summons] he originally elected to follow . . . .‘” Id., 263 A.2d at 417. Again, plaintiff-appellant sat idly by until January 28, 1969, when she filed a praecipe for reissuance of her original writ of summons. After it was served, defendant-appellee again raised the bar of the statute of limitations by timely preliminary objections. The lower court sustained the preliminary objections and dismissed plaintiff-appellant‘s action.
The factual differences are readily apparent. On July 30, 1973, appellee raised the bar of the statute of limitations in new matter; he did not challenge the court‘s jurisdiction by preliminary objections. Further, after his attorney entered his appearance, he proceeded to litigate the action by taking depositions and by arranging for a medical examination of appellant Sharon Cox. Thus, the dispositive question is whether these factual differences distinguish the instant case from Yefko.
In the instant case, service by complaint was improper because the sheriff did not serve appellee with the writ of summons. See Yefko v. Ochs, supra. Appellee‘s failure to raise that issue within 20 days of service of the complaint constituted a waiver. Instead of filing preliminary objections, appellee raised the statute of limitations as new matter. The writ was filed within the applicable period, so that the statute of limitations was tolled. See Lamp v. Heyman, supra; Yefko v. Ochs, supra. Thus, had appellee filed preliminary objections challenging personal jurisdiction, the appellants could have timely filed a praecipe for reissuance of the writ. Appellee did not challenge the court‘s jurisdiction and proceeded to litigate the case. The waiver of his challenge to the court‘s jurisdiction validated appellants’ otherwise defective form of service. Because the statute of limitations had not run when appellants’ original writ was filed, the lower court erred when it dismissed the instant action.
Therefore, we reverse the lower court‘s order and reinstate appellants’ complaint.
WATKINS, President Judge, absent.
SPAETH, J., files a concurring and dissenting opinion in which JACOBS and PRICE, JJ., join.
SPAETH, Judge, concurring and dissenting:
I agree with the majority‘s conclusion that appellee‘s conduct in these proceedings would constitute a waiver
Appellants’ action arose out of an automobile accident that occurred on July 3, 1971. The action is both for personal injuries to appellants and for property damage to appellant William Cox‘s automobile. On June 25, 1973, just within the two year statute of limitations for personal injury actions,1 appellants filed a praecipe for a writ of summons and thus commenced their action.
The extended statute of limitations for each of the actions could have been satisfied either by service of the writ of summons within thirty days,
Appellants, however, neither had the original writ nor a reissued writ served. Instead, on July 11, 1973, they had a complaint served on appellee. According to the law at the time, as expressed in Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970), the complaint, while serving as a pleading, was not proper process for purposes of service; having commenced their action by writ, appellants should have served the writ, not the complaint.3
On November 5, 1975, appellee filed his motion for judgment on the pleadings, pleading the statute of limitations as a bar to appellants’ action. In considering this motion, the majority focuses on the conduct of appellee between the time he became aware of the existence of the action, when the complaint was “served“, and the time of the motion. Appellee‘s conduct during this period, when he filed responsive pleading and engaged in discovery, the majority contends constituted a waiver of any objections that appellee might have had to the court‘s jurisdiction. I grant the point, but it is irrelevant to appellee‘s claim that the action is barred by the statute of limitations. Apparently what the majority is saying is that appellee, having waived any defect in service so far as service relates to jurisdiction has also waived any defect in service so far as service relates to the statute of limitations. This reasoning, I submit, confuses the several functions service may perform.
Service may confer personal jurisdiction; it may provide notice of the commencement of an action; and it may serve to define the relevant period of time in which an action must be brought under the statute of limitations. See generally R. Anderson,4 Commentary Intro
This case presents a textbook example. The “service” of the complaint on appellee was defective in conferring in personam jurisdiction over appellee because the complaint was not the proper process. Yefko v. Ochs, supra. Nevertheless it did have the effect of notifying appellee of the pendency of the action that appellants had commenced against him by way of the unserved writ. However, it had no effect with respect to tolling or satisfying the statute of limitations. Yefko v. Ochs, supra. Appellee apparently had no objection to the court‘s personal jurisdiction over him; he waived it by engaging in adversary conduct. Therefore, the first two functions of service—to confer jurisdiction and to give notice—have been performed. That fact, however, has no bearing on whether the third function—to toll or satisfy the statute of limitations—has also been performed.
The majority would have appellee object within twenty days that the service of the complaint was defective. I can see no reason, consistent with appellee‘s position, for doing this. Nor do I see any reason to punish a defendant who, rejecting dilatory techniques, simply submits to the court‘s jurisdiction. When appellee received the complaint, any statute of limitations claim was speculative only: it would not ripen until (1) appellants had failed to have the writ served within thirty days of its issuance (when the complaint was served, on July 11, 1973, there remained fourteen days for timely service of the writ), and (2) appellants failed to have the writ reissued within two years after its issuance. The majority, apparently, would impose a duty on a defendant to anticipate, by almost two years, his adversary‘s failure to satisfy the statute of limitations, thereby reminding his adversary of his responsibility under the Rules of Civil Procedure.5
The majority may have been confused by the fact that in Yefko v. Ochs, supra, both the statute of limitations and the personal jurisdiction issues were present. Since the defendant there had never waived his objection to the court‘s jurisdiction, the Court, in sustaining his preliminary objections, referred to both issues. There is no such problem, however, in Trost v. Clover, 234 Pa.Super. 255, 338 A.2d 630 (1975), where this court applied the rule of Yefko v. Ochs to a case remarkably similar to this one. In Trost, the plaintiffs in a personal injury action also filed a praecipe for a writ of summons that was never served or reissued. The plaintiffs did, however, serve a complaint on the original defendants, which caused them to file responsive pleadings, join additional defendants, and otherwise to become actively involved in the proceedings. After the writ of summons expired without having been served or reissued, all of the defendants (original and additional) moved for judgment on the pleadings, citing the statute of limitations. Judgment was granted and we affirmed (WATKINS, P. J., noting his dissent). We did not suggest that by participating in the proceedings, and thus waiving any possible jurisdictional claims, the defendants had waived their statute of limitations claim. I believed at the time that Trost was a correct application of Yefko v. Ochs, and I still do.
I would affirm the order of the lower court granting judgment on the pleadings for appellee on the action for personal injuries because the statute of limitations bars that action. As to the action for property damage, however, the issuance of the writ of summons tolled the statute of limitations until June 25, 1979, so that appellant can still have the writ reissued and served in time. I
JACOBS and PRICE, JJ., join in this opinion.