Appeal from order of Court of Common Pleas of Luzerne County, Jan. T., 1967, No. 1120, in case of Irene Yefko v. Don Ochs.
George B. Ritchie, with him Jerome L. Cohen, for appellant.
Charles L. Casper, with him William J. Fahey, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
On January 10, 1967 plaintiff-appellant Irene Yefko filed a praecipe for a writ of summons in trespass for injuries allegedly sustained on February 11, 1965 while she was a passenger in an automobile owned and operated by defendant-appellee Don Ochs. This writ was issued but never served on defendant-appellee. On May 18, 1967 plaintiff-appellant filed a complaint in trespass to the same term and number as the summons; on or about May 24, 1967 that complaint was served upon the Secretary of the Commonwealth and upon the defendant-appellee, then an out-of-state resident, by registered mail, return receipt requested.
Thereafter, defendant-appellee filed timely preliminary objections in the nature of a petition raising a question of jurisdiction because of improper service; a motion to strike off the complaint; a demurrer raising the bar of the statute of limitations; and a motion for a more specific pleading. After argument on the preliminary objections, the court determined that the filing of a praecipe for a writ and the filing of a complaint were alternative procedures for the commencement of an action; that the plaintiff having chosen the former procedure, the court's jurisdiction did not attach to the defendant in that action since the writ was never served; and that the complaint, as filed, did not initiate a new action and was a nullity, the court's jurisdiction not having previously attached. Accordingly, the court, by order dated May 7, 1968, sustained the preliminary objections raising a question of jurisdiction and the motion to strike off the complaint "with leave to the plaintiff to carry through with the procedure [i.e., commencement of the action by the issuance and service of a writ of summons] he originally elected to follow"; it dismissed defendant's preliminary objection in the nature of a demurrer and the motion for a more specific complaint.
On January 28, 1969, more than eight months after the court had thus disposed of the preliminary objections, plaintiff-appellant filed a praecipe for the reissuance of her original writ of summons and another praecipe for the reinstatement of her previously stricken complaint. Thereafter the sheriff served the writ and the complaint on the defendant-appellee by registered mail. Defendant-appellee again raised the bar of the statute of limitations by timely preliminary objections. The court below concluded that the original issuance of the writ had tolled the statute of limitations for a period of two years, thus preserving plaintiff's cause of action until January 10, 1969; that the filing
of the original complaint did not serve to extend this time period; and that the plaintiff's attempt to reissue the writ on January 28, 1969 was barred by the statute.*fn1 Accordingly, it sustained defendant's preliminary objections in the nature of a demurrer and dismissed plaintiff's action. This appeal followed.
It is well settled that a writ of summons may be reissued only for a period of time which, when measured from the date of the original issuance of the writ (or the date of a subsequent valid reissuance thereof) is not longer than the period of time required by the applicable statute of limitations for the bringing of the action. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). In the present case, the plaintiff's writ could have been reissued at any time prior to January 10, 1969, but unless the two year period is inapplicable or was extended for some reason, the reissuance of the writ on January 28, 1969 was of no effect.
Appellant contends that the ordinary two year limitation on the reissuance of a writ is inapplicable when a complaint has been filed and served on the defendant during the period in question. The theory is that service of the complaint in this same action ...