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ANDERSON v. BERNHARD REALTY SALES COMPANY (09/23/74)

decided: September 23, 1974.

ANDERSON, APPELLANT,
v.
BERNHARD REALTY SALES COMPANY, INC., ET AL.



Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 138, in case of Robert B. Anderson v. Bernhard Realty Sales Company, Inc., Revest, Inc., and Ronald Heurich.

COUNSEL

Matthew Verlich, with him Stokes, Lurie & Tracy, for appellant.

James F. Manley and Ralph A. Davies, with them Burns, Manley & Little, and Thomson, Rhodes & Grigsby, for appellee at No. 82.

J. Gambino, with him James A. McGregor, Jr., and Egler, McGregor & Reinstadtler, for appellee at No. 117.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion. Concurring and Dissenting Opinion by Price, J. Dissenting Opinion by Van der Voort, J.

Author: Jacobs

[ 230 Pa. Super. Page 22]

The sole question presented by this appeal is whether the statute of limitations is tolled when the plaintiff files a praecipe for a writ of summons, but fails to deliver the writ to the sheriff for service. The lower court held that under such circumstances the statute of limitations is not tolled. We disagree and reverse.

The following relevant facts appear in the record: On October 17, 1968, plaintiff-appellant was injured when he fell in a hole on the premises of defendants. On July 8, 1970, appellant filed, in Allegheny County, a praecipe for a writ of summons in trespass against all defendants; the writ was never delivered to the sheriff for service. On June 22, 1972, appellant filed a praecipe to reissue the writ of summons in trespass; again, the writ was never delivered to the sheriff for service. On January 30, 1973, appellant filed another praecipe to reissue the writ of summons; this time, appellant delivered the writ to the sheriff who served it on defendants.

[ 230 Pa. Super. Page 23]

By way of new matter in their answers, defendants Revest, Inc. and Ronald Heurich raised the defense of the statute of limitations.*fn1 They alleged that appellant had not tolled the running of the statute of limitations because he failed to deliver the writ of summons to the sheriff for service after filing a praecipe to commence the action. In its answer, defendant Bernhard Realty Sales Co. did not raise the defense of the statute of limitations. Defendants Revest, Inc. and Ronald Heurich moved for judgment on the pleadings which was granted by the court below. Thereafter, defendant Bernhard Realty Sales Co. moved for summary judgment, claiming that the bar of the statute of limitations should apply to appellant's action against it as well. This motion was also granted.*fn2 The present appeal is from the dismissal of the action against these three defendants because of the running of the statute of limitations.

In dismissing the action, the court below reasoned that it was necessary for appellant after filing the praecipe to deliver the writ of summons to the sheriff for service in order to toll the statute of limitations. Since there was no dispute that appellant failed to deliver the writ to the sheriff, the lower court concluded that the filing of the praecipe did not toll the 2-year statutory period. The lower court's decision was based on several cases prior to the adoption of the Pennsylvania Rules of Civil Procedure which held that after a plaintiff has started an action, he must be vigilant in obtaining service or the statute of limitations will not

[ 230 Pa. Super. Page 24]

    be tolled. See Mayo v. James Lees & Sons Co., 326 Pa. 341, 192 A. 459 (1937); Bovaird & Seyfang Mfg. Co. v. Ferguson, 215 Pa. 235, 64 A. 513 (1906); Magaw v. Clark, 6 Watts 528 (Pa. 1837). The lower court further concluded that the holding of those cases had not been disturbed by the Pennsylvania Rules of Civil Procedure and held that it was still necessary for a plaintiff after starting an action to take prompt action to obtain service in order to toll the statute of limitations.

We disagree with this conclusion. Rule 1007 of the Pennsylvania Rules of Civil procedure states: "An action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons . . . ." No further action of a plaintiff is required under Rule 1007 to commence an action. The filing of a praecipe for a writ of summons is sufficient to toll the statute of limitations for an amount of time measured by the original statutory period (in this case 2 years) irrespective of whether the prothonotary issues the writ or the sheriff serves it. Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970). Furthermore, the writ can be reissued at any time within 2 years from the date of its issuance, and thus toll the statute for a 2-year period from the date of reissuance. Id. Our review of the law convinces us that there have been no decisions since the adoption of Rule 1007, effective January 1, 1947, which require a plaintiff to deliver the writ of summons to the sheriff in order to toll the statute of limitations. On the contrary, it has been held that the statute is tolled by the filing of a praecipe for a writ of summons regardless of whether the plaintiff delivers the writ to the sheriff. See Zoller v. Highland Country Club, 108 P.L.J. 1, aff'd, 191 Pa. Superior Ct. 207, 156 A.2d 599, allocatur refused, 191 Pa. Superior Ct. xxvi (1959); Thomas v. McLean Coal Co., 79 Pa. D. & C. 492 (1951).

[ 230 Pa. Super. Page 25]

The defendants have also argued that appellant's failure to deliver the writ to the sheriff for service is tantamount to ordering the sheriff to "hold" the writ. A "hold" order to the sheriff or prothonotary has been held to nullify the filing of the praecipe and the statute of limitations would continue to run. McCrystal v. Berczel, 8 Mercer 75 (1965). See Peterson v. Philadelphia Suburban Transp. Co., 435 Pa. 232, 255 A.2d 577 (1969). However, we do not equate appellant's failure to deliver the writ to the sheriff with the affirmative "hold" orders found in McCrystal and Peterson. See Donahey v. Mattox, 228 Pa. Superior Ct. 8, 323 A.2d 167 (1974) (failure of plaintiff to pay sheriff's fee held not equivalent to "hold" order).

The Pennsylvania Rules of Civil Procedure do not place upon a party who has filed a praecipe to commence an action the duty to deliver the writ to the sheriff in order to toll the statute of limitations. As we noted in Zoller v. Highland Country Club, supra, arguments of the type presented by the defendants in this case should be addressed to the Procedural Rules Committee.

We would like to add in closing that defendants still possess the remedy of non pros. as protection against a plaintiff's unreasonable delay in prosecuting an action. See Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967).

Order reversed.

Disposition

Order reversed.

Concurring Opinion by Spaeth, J.:

I agree with Judge Jacobs' statement of the cases and therefore join him in reversing the court below. In my view, however, the cases are poorly reasoned and should be overruled. I would not overrule them for the purpose of this cas e, for that would be unfair to appellant, who ...


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