Appeals, Nos. 41 and 42, Jan. T., 1960, from judgments of Court of Common Pleas of Lehigh County, Jan. T., 1953, No. 29, in case of John Zarlinsky et al. v. Donald W. Laudenslager. Judgments affirmed.
James Weirbach, with him Theodore R. Gardner, for appellants.
W. H. Neely, with him Samuel D. Frederick, and Snyder, Wert, Wilcox, Frederick & Doll, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
This action for the recovery of damages allegedly suffered by the plaintiffs, husband and wife, as the result of a two-car automobile collision, was commenced with the filing of a praecipe for the issuance of a writ of summons in trespass against the defendant. The writ was duly issued but never served. It was not until more than two years and eight months after the action had been begun that the plaintiffs filed their complaint.
The question involved on these appeals is whether the action is barred, to the extent that damages for personal injuries are claimed, by a court promulgated rule fixing a limitation of time within which a plaintiff, after causing a writ of summons to issue which was not served, must act in order to protect the efficacy of the process and thus keep the cause of action alive.
The accident, which the plaintiffs charge to alleged tortious conduct of the defendant, occurred on December 29, 1950. The husband and wife plaintiffs, who were driver and passenger respectively in one of the cars involved, filed their praecipe for the issuance of a writ of summons in trespass against the defendant, the driver of the other car, on September 29, 1952. As already indicated, the writ was issued but never served. On June 16, 1955, the plaintiffs filed their complaint which, as amended, claims damages for personal injuries to the wife plaintiff, medical expenses incurred and to be incurred by the husband plaintiff therefor, and property damage to the husband's automobile and consequent loss to him.
The defendant's answer to the complaint alleged, under the heading of New Matter, that the "action is barred by the Statute of Limitations." On September 20, 1956, the deposition of the defendant was taken in which he stated that he had entered the United States Navy on February 19, 1952, spent his entire naval service at Bainbridge, Maryland, and was discharged on December 1, 1953. He further deposed that he had spent the first three months after his discharge at his father's home in Allentown and that, since sometime in February of 1954, he has resided continuously in Stroudsburg, Pennsylvania. He was not questioned as to whether he had attempted to conceal his whereabouts.
On September 25, 1956, the defendant moved for judgment on the pleadings, ...