231 Pa. Super. 185 | Pa. Super. Ct. | 1974
Lead Opinion
Opinion by
This is an appeal from the order of the Court of Common Pleas of Philadelphia County, that held that when a plaintiff-appellant filed a praecipe for a writ of summons, but failed to deliver the writ to the Sheriff for service, the statute of limitations is not tolled. The court granted a motion for summary judgment in favor of the defendant appellee, Southeastern Pennsylvania Transportation Authority (SEPTA).
In a similar case, Anderson v. Bernhard Realty Sales Company, Inc., 230 Pa. Superior Ct. 21, 329 A.2d 852 (1974), this Court disagreed and reversed on the ground that the statute of limitations is tolled.
The following is a record of the facts in the instant case:
The appeal arises out of an action in trespass for personal injuries sustained by the appellant, Gilroy
This case is controlled by our decision in Anderson v. Bernhard Realty Sales Company, Inc., supra.
The summary judgment is reversed.
Concurrence Opinion
Concurring Opinion by
The lead opinion decides the present case on the basis of Anderson v. Bernhard Realty Sales Company, Inc., 230 Pa. Superior Ct. 21, 329 A. 2d 852 (1974). This concurring opinion is submitted by way of stating my understanding of the scope of that decision.
In Anderson, a three judge plurality (Judge Jacobs, joined by President Judge Watkins and Judge CerCONE) concluded that the statute of limitations is tolled if the plaintiff files a praecipe for a writ of summons, even if he fails to deliver the writ to the sheriff. Judge Price and Judge Van der Voort each dissented. I concurred in the plurality opinion because its reliance on the prior cases seemed to me correct. I noted, however, that those cases should be overruled prospectively. It seemed to me that Rules 1007, 1008, and 1009 should be construed to mean that an action is not commenced so as to toll the statute of limitations until the plaintiff’s attorney has done two things: first, he must have filed with the prothonotary either a complaint or a praecipe for a writ of summons, and second, he must have filed with the sheriff an attested
It therefore appears from Anderson that four Judges (Judges Hoffman, Price, Yan der Voort, and I) believe that at least after September 23, 1974, filing with both the prothonotary and the sheriff is necessary to toll the statute of limitations.
Here, the accident occurred on October 21, 1970, the praecipe for a writ of summons was filed with the prothonotary on October 20, 1972, but nothing was filed with the sheriff until the complaint was filed on July 2, 1973. As these actions were prior to the filing of Anderson, the lead opinion properly, or so it seems to me, holds that the statute of limitations was tolled.
Dissenting Opinion
Dissenting Opinion by
Í respectfully dissent from the Majority Opinion in this ease for the reasons already discussed in my Concurring and Dissenting Opinion in Anderson v. Bernhard Realty Sales Company, Inc., 230 Pa. Superior Ct. 21, 329 A. 2d 852 (1974).
There is, however, one distinguishing factor to be pointed out in the instant case. In Anderson, the defendant, Bernhard Realty, had no knowledge that it would bé required to defend a lawsuit until the statute of limitations had expired. The ease now before us is not identical to Anderson in that respect, for in the instant case, appellant had informed appellee of his claim against SEPTA, in writing, on November 3, 1970. Appellee acknowledged notice of the claim on November 11, 1970. The parties entered into settlement negotiations subsequent to the acknowledgement.
On October 20, 1972, appellant filed a praecipe for a writ of summons in trespass with the Prothonotary. Appellant admits in his brief that the purpose for filing the praecipe was “to protect the cause of action from expiring” [Appellant’s Brief, at 3] as the settlement negotiations were not completed. However, appellant did not in fact protect his claim, for he failed to comply with R.C.P. 1009, which requires service of process within 30 days of the issuance of the writ. On November 29, 1972, appellant was notified in writing that no settlement would be made. Despite this notification, appellant waited until July 2, 1973, to reissue the writ and institute service. Appellant asserts that the procedure he followed should be considered appropriate because: “. . . [ajppellee, while luring and lulling appellant in questionable negotiations and conversations, must have expected the statute to run in its favor for that is what it now claims. After thinking the statute had run, appellee refused to recognize any claim of appellant or to discuss adjustment.” [Appellant’s Brief, at 6] This contention is not meritorious, for (1) the record contains no support for appellant’s allegations, and (2) appellant could have protected himself merely by instituting service of process and so providing SEPTA with actual notice of the pendency of the suit. Should the settlement negotiations have succeeded, appellant could have withdrawn his action.
In the case at bar, as in Anderson, supra, if appellant wished to protect his claim, he had a duty to comply with the Rules of Civil Procedure, including R.C.P. 1009 which requires service of process within
I would affirm the summary judgment.
