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WILL ET AL. v. MALOSKY (11/12/68)

decided: November 12, 1968.

WILL ET AL., APPELLANTS,
v.
MALOSKY



Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1964, No. 325, in case of Paul J. Will, Jr. et al. v. Nicolina Malosky et al.

COUNSEL

Henry E. Rea, Jr., with him Brandt, Riester, Brandt and Malone, for appellants.

William A. Weiler, with him Egler, McGregor & Reinstadtler, for appellees.

Bell, C. J., Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Eagen

[ 432 Pa. Page 247]

This case arises from an automobile accident on State Route 51 in Allegheny County, Pennsylvania, on October 27, 1963. The appellants, Paul J. Will, Jr., Jeanne Will, his wife, and their two children were injured when their car collided with an automobile driven by Nicolina Malosky, the appellee herein.

On January 14, 1964, the appellants filed suit against Nicolina Malosky. The sheriff's return indicated that he had not served process upon the appellee because she was in Germany with her husband, a member of the Armed Forces of the United States. On September 15, 1966, the appellants reinstated their complaint against the appellee, who had, at that time, returned to the United States. Service was made upon her by serving the Secretary of the Commonwealth of Pennsylvania.

The appellee filed preliminary objections to the reinstated complaint, contending that the statute of limitations barred any action against her. The Court of Common Pleas of Allegheny County sustained the appellee's preliminary objections and dismissed the appellants' complaint. From that judgment, this appeal was taken.

In Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961), and Marucci v. Lippman, 406 Pa. 283, 177 A.2d 616 (1962), we considered the impact of the statute of limitations upon personal injury actions where the summons was issued, but not served or reissued within the permissible statutory period. In Marucci, supra, we said at page 285: "When the writ of summons was originally issued in the present action, the statute of limitations was tolled for a period of

[ 432 Pa. Page 248]

    two years from the date of issuance, but not a day longer . . . . The action was barred when this period expired . . . ."

Applying the principles of the above cited cases, the actions here would have been barred on January 14, 1966, two years after suit was commenced on January 14, 1964. The appellants, however, argue that the Act of 1842, July 30, P. L. 449, § 27, 12 P.S. 37, and the Act of 1895, May 22, P. L. 112, § 1, 12 P.S. 40, preclude the dismissal of its complaint.

The Act of 1842 provides as follows: "The provisions of the Act of March 27, 1713, entitled 'An act for limitation of actions', shall hereafter not extend to cases where the defendant or defendants, in any suit, shall be beyond sea, at the time of such cause of action accrued: Provided, That such suit be brought within the times ...


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