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GALBRAITH v. GAHAGEN (11/10/64)

November 10, 1964

GALBRAITH
v.
GAHAGEN, APPELLANT.



Appeal, No. 230, March T., 1964, from order of Court of Common Pleas of Clarion County, August T., 1961, No. 5, in case of Stanley P. Galbraith and Edna N. Galbraith v. Erdice Gahagen. Order affirmed.

COUNSEL

H. Ray Pope, Jr., for appellant.

Robert B. Filson, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

[ 415 Pa. Page 501]

OPINION PER CURIAM

On September 19, 1959, the plaintiffs, Stanley and Edna Galbraith, husband and wife, were injured in an accident resulting from a collision of their automobile with one owned by the defendant Erdice Gahagen. On August 22, 1961, a praecipe for summons in trespass was filed which was served on the defendant August 29, 1961. On November 16, 1963, the plaintiffs filed their complaint in trespass. On December 21, 1963, the complaint was reinstated and service made on the defendant January 2, 1964.

The defendant filed preliminary objections averring the complaint was filed more than two years after the praecipe for summons was filed and more than two years after the summons had been served on the defendant and was thus barred by the statute of limitations. The court dismissed the preliminary objection.

We find it unnecessary to decide whether the issue of the statute of limitations should have been raised by an answer containing new matter, since we agree with the court below that the defendant, having been served with the summons, was required to take the next step of ruling plaintiffs to file their complaint.

The defendant did not avail herself of Rule 1037(a) of the Rules of Civil Procedure which provides: "If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros."

The defendant argues that she was not obliged to ask for the rule above indicated in the circumstances, citing in this respect Rees v. Clark, 213 Pa. 617, Zarlinsky v. Laudenslager, 402 Pa. 290 and Marucci v. Lippman, 406 Pa. 283. In the last case, we stated: "When the writ of summons was originally issued in

[ 415 Pa. Page 502]

    the present action, the statute of limitations was tolled for a period of two years from the date of issuance, but not a day longer. See Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). The action was barred when this period expired and the lower court correctly so ruled."

However, in the Marucci case, as in the other two cited, a summons had issued, but it was never served upon the defendant. The defendant here argues that that fact is of no moment in this case because we had stated, as quoted above, that the statute of limitations was tolled for a period of two years from the date of issuance of the summons, "but not a day longer." Thus, the defendant seeks to interpret the legal ...


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