Appeal, No. 107, April T., 1959, from order of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. 339, in case of Louis Zoller et ux. v. Highland Country Club et al. Order affirmed.
R. C. Little, with him James J. Burns, Jr., and James F. Manley, for appellant.
Gene K. Lynch, with him Dennis C. Harrington, and McArdle, Harrington & McLaughlin, for appellees.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 208]
On July 14, 1955, Clara Zoller slipped and fell while leaving the swimming pool area of the Highland Country Club. To recover damages for her injuries, she and her husband instituted a trespass action against the club, and also against the Mellon-Stuart Company which had designed and constructed the area in question. The complaint was filed on July 10, 1957. The prothonotary prepared a notice of suit addressed to the sheriff,*fn1 but for some reason, unexplained by the record or in the briefs, this notice did not reach the sheriff's office. On November 6, 1957, counsel for plaintiffs filed a praecipe to reinstate the complaint. The
[ 191 Pa. Super. Page 209]
prothonotary prepared another notice of suit addressed to the sheriff, and requiring service by the 5th day of December, 1957. This notice did reach the sheriff's office. Endorsed thereon is a return showing that the notice of suit, together with a copy of the complaint, was served upon the Highland Country Club on November 9, 1957, and upon the Mellon-Stuart Company on November 13, 1957. Each defendant filed preliminary objections. Those of the Highland Country Club, with which we are presently concerned, are set forth in the footnote.*fn2 On April 16, 1959, the court en banc dismissed the preliminary objections of both defendants, and allowed twenty days for the filing of answers. The Highland Country Club appealed to this court on April 22, 1959, which was within a period of fifteen days. See Pennsylvania Coal Co. v. Luzerne County, 390 Pa. 143, 134 A.2d 657.
Our initial impression was that the appeal must be quashed on the ground that the order of the court below was interlocutory. See Grosso v. Englert, 381 Pa. 351, 113 A.2d 250; Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867. However, in Thomas v. McLean, 365 Pa. 526, 76 A.2d 413, wherein the defendant's
[ 191 Pa. Super. Page 210]
preliminary objections were the same as those filed by this appellant, the Supreme Court held that, notwithstanding the fact that the order overruling the preliminary objections was interlocutory, it was nonetheless appealable because disposition was thereby made of the jurisdictional question raised by the second objection. The appeal was then quashed as untimely. Although it is difficult to perceive in either case a question of want of jurisdiction over the person separate and apart from the question of the statute of limitations, which is an affirmative defense to be pleaded under new matter and not a proper subject of preliminary objections, our ultimate conclusion is that we should dispose of the appeal on its merits.
The court below took the position that, under the Pennsylvania Rules of Civil Procedure, the action was commenced by the filing of the complaint, that the statute of limitations was tolled because the complaint in the instant case was filed within a period of two years from the date of the accident, and that the tolling of the statute was not affected by the fact that the original notice of suit did not reach the sheriff's office and no return was made thereon. Appellant contends to the contrary that a complaint may not be reinstated after the statute of limitations has ...