Pеterson v. Philadelphia Suburban Transportation Company (et al., Appellant).
Supreme Court of Pennsylvania
June 27, 1969
435 Pa. 232
Before JONES, COHEN, EAGEN, O‘BRIEN, ROBERTS and POMEROY, JJ.
The allocatur is granted and the order of the Superior Court is reversed.
Peterson v. Philadelphia Suburban Transportation Company (et al., Appellant).
Stephen J. McEwen, Jr., for appellant.
J. B. Erwin, with him Bernard P. Carey, Jr., for plaintiff, appellee.
Ernest L. Green, Jr., with him Butler, Beatty, Greer and Johnson, for additional defendant, appellee.
OPINION BY MR. JUSTICE POMEROY, June 27, 1969:
This case presents procedural problems in the area of third party practice, including the raising, by an additional defendant, of the defense of the statute of limitations. A chronological statement of the pleadings and other steps taken in the lower court during the 3 1/2 years between commencement of suit and the taking of this appeal will best present the posture of the case, and the problems presented.
Plaintiff allegedly sustained personal injuries in a fall on September 20, 1962, at the 69th Street Terminal in Upper Darby, Pennsylvania, on the property of Philadelphia Suburban Transportation Company (Suburban), the first-named defendant. The A. Ray-
On September 10, 1964, ten days before the expiration of the two-year statute of limitations (
Suburban answered the complaint in Marсh, 1965, and Raff in October, 1965. About six weeks later, on December 3, a stipulation of counsel was filed, signed by the attorneys for the plaintiff and the two original defendants, extending the time for “filing a writ” to join additional defendants,1 and agreeing that Raff might “file a writ” to join Valley as “an additional defendant who may be solely, jointly or severally lia-
For over two years following February of 1966, with one minor exception,3 the case lay dormant in this posture. The preliminary objections were not brought on for hearing. On April 1, 1968, Valley filed two petitions. One sought to have the original suit discontinued as to it as a defendant; the other sought leave to file an answer nunc pro tunc to the third party complaint of Raff, and stated its willingness to withdrаw its still pending preliminary objections. Both petitions asserted that the statute of limitations had run as to any claim against Valley, and the second petition stated that Valley would raise this defense if allowed to answer the complaint.
Both original defendants filed answers to both petitions, claiming in essence that the statute of limita-
The lower court granted both petitions, and stipulated that Valley should withdraw its preliminary objеctions. The order is reproduced in the margin.4 Valley then withdrew its preliminary objections and filed an answer to Raff‘s complaint. It claimed the bar of the statute of limitations as an affirmative defense. Thus at long last, 3 years and 8 months after the commencement of the action, the pleadings were complete and the case was at issue. This apрeal by Raff, one of the two original defendants, followed.
At the threshold of our consideration are two motions of the plaintiff, one to quash the appeal as being from an interlocutory order, and the other to dismiss for noncompliance with our Rule 64 as to the time for filing briefs. With respect to the latter, the attorney for appellant Raff has tеndered an adequate explanation (illness of the brief writer). Ordinarily the court
The motion to quash has more merit. As the court recently reiterated in Middleberg v. Middleberg, 427 Pa. 114, 115 (1967), “. . . an appeal will lie only from a definitive order, decree or judgment which finally determines the action. In order to constitute a final order, decree or judgment, the оrder must terminate the litigation between the parties to the suit by precluding a party from further action in that court.” Paragraph 1 of the order here appealed from (see footnote 4) possesses the requisite degree of finality. Its effect is to dismiss the action as to Valley in its capacity as a named defendant in the original suit. An analogous order dismissing an action against an additional defendant was held to be a final order and so subject to appeal in Rau v. Manko, 341 Pa. 17, 20 (1941). See also Schwartz v. Jaffe, 324 Pa. 324, 331 (1936), Ashworth v. Hannum, 347 Pa. 393, 396-7 (1943), Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 275 (1949).
The second paragraph of the court‘s order, on the other hand (which is not related in any direct way to the first paragraph), is not at all final. It merely allows the filing, nunc pro tunc, of an answer to a third party complaint, a strictly discrеtionary matter, DiGregorio v. Skinner, 351 Pa. 441, 447 (1945);
Turning now to the merits of that portion of the appeal which is properly before us, the question presented may be simply stated thus: When is a party defendant, named as such in a summons, not a party in fact? The answer given by the lower court was, when he has not been served with the summons because of a “hold” order given by the plaintiff to the sheriff. We agree.
An action may be commenced by filing with the prothonotary a praecipe for a writ of summons. The writ must be served within thirty (30) days after issuance. Reissued writs must be served within thirty (30) days after reissuance.
Here, admittedly, the service of a writ of summons upon Valley was held up for three and one-half years after the filing of the praecipe which commenced the action. It was a named defendant in a suit by the plaintiff, but never served because of an “order” by the plaintiff to the sheriff to “hold“; this in spite of the mandatory language of
Appellant reads
In Salay v. Braun, 427 Pa. 480, 485 (1967), we recognized, moreover, that the right in a plaintiff to keep an action alive until service can be
Plaintiff here could have caused the reissuance of the writ at any time until September 9, 1966, two years from the filing of the original praecipe, but chose not to do so. Having caused the original writ to be held and not served, and having failed to reissue it within the time allowed by our decisions, there was no right in the plaintiff to keep Valley on the record as a named defendant. It seems clear that the plaintiff delayed unreasonably in the prosecution of the case against Valley. But its action, or failure to act, invested appellant with no rights vis a vis Valley. Appellant had, and it exercised, the right to bring Valley into the case as a third рarty defendant. Valley is now in the case as such.
It is true, of course, that one can waive service of process by various means, and become a party to a suit by voluntary appearance. Appellant argues that Valley did that by joining in the stipulation amending the plaintiff‘s complaint. We disagree. At the time this was done, the third party complаint against Valley had already been filed and served, and Valley‘s preliminary objections were pending. Until they were disposed of, Valley was a party to the litigation, as it still is. Its joinder in the stipulation was proper, and in no way inconsistent with its desire to clear up an ambiguous record by being eliminated as a named original defendant.
Finally, appellant cоntends that Valley went about getting rid of the “held” writ in the wrong way, but it does not say what the right way is. No doubt procedures other than the particular petition Valley here filed were available to it in order to resolve this question, but we see nothing wrong with the method here
In summary, Valley was properly removed from the record in this case as an original defendant because, first, it had never been served with process due to plaintiff‘s own instructions, and second, even if there were no deliberate failure to prosecute, the time for the reissuance of the writ, as established by the decisions of this court, had expired.
In the recent case of Hibbs v. N.O.R.T.H., 433 Pa. 578 (1969), in a case where appellee had not filed a brief with this court, and we reversed, we commented, “It is not so much a slight to us, but a courtesy owed to the lower court“. In this case, neither appellee Peterson, the plaintiff, nor appellee, Valley, the additional defendant, has filed a brief. Here we аffirm the lower court, but comment that the filing of a brief is not only a courtesy owed to the lower court but would have been an aid to this court in the disposition of the case.
The judgment of the court below, as contained in paragraph 1 of its order dated April 26, 1968, is affirmed.
Mr. Chief Justice BELL took no part in the consideration or decision of this case.
DISSENTING OPINION BY MR. JUSTICE O‘BRIEN:
I would refuse to entertain the instant appeal because, in my view, the appellant here, Raff, is not a party legally aggrieved by the only order the majority holds to be final, and is certainly not aggrieved by it at the present time, since as to him it is interlocutory. Raff is attempting to appeal the order granting Valley‘s petition that it (Valley) be discontinued as a pаrty defendant. While the plaintiff Peterson might properly have appealed this order, I fail to see what
However, rather than quash the appeal as premature, I would dismiss it because I do not believe that Raff can ever be in the position whereby it has a right to complain about the instant order. Apparently, Raff fears that its third-party complaint against Valley may have run afoul of the Statute of Limitations, а subject on which no decision is now necessary, and thus it wants to keep Valley in the case as a party defendant. Raff‘s rights against Valley must arise through Valley‘s being joined as an additional defendant, or through a separate suit.
I would dismiss the instant appeal, or at the very least, quash it as premature.
Mr. Justice EAGEN joins in this dissenting opinion.