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EHRHARDT v. COSTELLO (04/22/70)

decided: April 22, 1970.

EHRHARDT, APPELLANT,
v.
COSTELLO



Appeal from judgment of Court of Common Pleas of Westmoreland County, April T., 1965, No. 456, in case of Willard W. Ehrhardt v. Ovidio Costello.

COUNSEL

Robert King Stitt, III, with him James A. Ashton, and Ashton & Stitt, for appellant.

B. Patrick Costello, with him Costello & Snyder, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result.

Author: Jones

[ 437 Pa. Page 558]

On June 4, 1963, Willard Ehrhardt (Ehrhardt) owned and operated a motor vehicle which on that date was involved in an accident with another motor vehicle operated by Ovidio Costello (Costello). As a result thereof, Ehrhardt, allegedly, suffered injuries to his person and damage to his motor vehicle. The accident occurred in Rostraver Township, Westmoreland County.

Unknown to Ehrhardt, Costello died on November 22, 1963, five and one-half months subsequent to the accident.*fn1

On May 28, 1965 -- seven days prior to the expiration of the period of statutory limitation of actions for the recovery of damages for personal injuries -- Ehrhardt filed a praecipe for and caused a writ of summons to be issued out of the Court of Common Pleas of Westmoreland County. The filing of such praecipe, irrespective of whether the Prothonotary issued the writ or the Sheriff served it, constituted the "commencement" of an action under Pa. R. Civ. P. 1007(1) sufficient to toll the statute of limitations.

On June 2, 1965, the Sheriff of Westmoreland County deputized the Sheriff of Washington County to serve the writ on Costello and, on June 9, 1965, this writ was returned "mortuus est" as to Costello.*fn2

[ 437 Pa. Page 559]

At this point we note: (1) while this writ could have been reissued at any time within two years from the date of its issuance under Pa. R. Civ. P. 1010(a) and (b), and the statute of limitations would be thus tolled for a period of two years from the date of reissuance (Peterson v. Philadelphia Suburban Trans. Co., 435 Pa. 232, 255 A.2d 577 (1969); Rufo v. Bastian-Blessing Co., 420 Pa. 416, 418, 218 A.2d 333 (1966); Marucci v. Lippman, 406 Pa. 283, 285, 177 A.2d 616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 295, 167 A.2d 317 (1961)), the death of Costello precluded and prevented such reissuance against Costello individually; (2) at the time of his death, Costello was not a party to any action instituted by Ehrhardt and, obviously, could not become a party post-mortem to any action (Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597 (1935)); (3) the fact that the filing of the praecipe for the writ constituted the "commencement" of an action (Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967)) does not avail Ehrhardt because Costello predeceased the filing of the writ by almost sixteen months.

After the sheriff's return of "mortuus est" nothing transpired until May 18, 1967 when, at Ehrhardt's instance, the Register of Wills of Washington County granted letters of administration in Costello's estate to one Frank Caroll.*fn3

On May 29, 1967 -- almost four years after the happening of the accident and within two years after issuance of the writ of summons -- Ehrhardt, without reissuing the writ of summons, caused a complaint in trespass to be filed in the Court of Common Pleas of Westmoreland County. This ...


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