Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 3423, in case of Gilroy Reid v. Southeastern Pennsylvania Transportation Authority.
George Philip Stahl, Jr., for appellant.
Lewis H. Van Dusen, Jr., with him Joseph F. Keener, Jr., Emil F. Toften, and Frederick T. Lachat, Jr., for appellee.
Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent.) Opinion by Watkins, P. J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion. Dissenting Opinion by Price, J.
[ 231 Pa. Super. Page 186]
This is an appeal from the order of the Court of Common Pleas of Philadelphia County, that held that when a plaintiff-appellant filed a praecipe for a writ of summons, but failed to deliver the writ to the Sheriff for service, the statute of limitations is not tolled. The court granted a motion for summary judgment in favor of the defendant appellee, Southeastern Pennsylvania Transportation Authority (SEPTA).
In a similar case, Anderson v. Bernhard Realty Sales Company, Inc., 230 Pa. Superior Ct. 21, 329 A.2d 852 (1974), this Court disagreed and reversed on the ground that the statute of limitations is tolled.
The following is a record of the facts in the instant case:
The appeal arises out of an action in trespass for personal injuries sustained by the appellant, Gilroy
[ 231 Pa. Super. Page 187]
Reid, on October 21, 1970, in a collision between a SEPTA trolley and a parked automobile. On November 3, 1970, the appellant notified SEPTA of his claim for damages and on October 20, 1972, the appellant filed a summons in trespass with praecipe in the office of the Prothonotary. The writ was not lodged with the Sheriff until the filing of the complaint on July 2, 1973. The statute of limitations was raised as an affirmative defense. The court below granted a motion for summary judgment in favor of the appellee. This appeal followed.
This case is controlled by our decision in Anderson v. Bernhard Realty Sales ...