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STOLTZFUS ET AL. v. HAUS (03/31/75)

decided: March 31, 1975.

STOLTZFUS ET AL., APPELLANTS,
v.
HAUS



Appeal from order of Court of Common Pleas of Lancaster County, Oct. T., 1969, No. 160, in case of William F. Stoltzfus, Parent and Natural Guardian of Paula M. Stoltzfus, a Minor, and William F. Stoltzfus, in his own right, v. William Haus.

COUNSEL

Soren P. West, with him Roda, Morgan, Hallgren & Heinly, for appellant.

Richard P. Nuffort, with him S. R. Zimmerman, III, and Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 234 Pa. Super. Page 47]

This case raises the question whether, prior to June 28, 1974, the effect of a writ of summons marked "not to be served" could be raised by preliminary objections in a case in which the statute of limitations is waivable. The court below held that it could be. We reverse.*fn1

[ 234 Pa. Super. Page 48]

The action arises out of an automobile accident that occurred on November 4, 1967. A praecipe for a writ of summons was filed on October 31, 1969. The docket entry for this date includes the notation, "(not to be served requested by John F. Heinly, Esq.)". On October 21, 1971, a praecipe to reissue the writ was filed, and the writ was served the next day. A complaint was filed on May 30, 1972, but abandoned on January 10, 1973, for failure to pay costs. The complaint was reinstated on March 27, 1973, and appellee was finally served with the complaint on April 3, 1973.

The next docket entry is "March 1, 1974 Preliminary Objections filed." The briefs for both parties, however, indicate that during the eleven months following service of the complaint, counsel for appellee filed an appearance and was granted an extension of time to file a "responsive pleading." The preliminary objections were the only responsive pleading filed by appellee. Appellants filed preliminary objections to appellee's preliminary objections. After oral argument, the court dismissed appellants' preliminary objections to appellee's preliminary objections, sustained appellee's preliminary objections, and dismissed the complaint.

The basis on which appellee's preliminary objections were sustained and the complaint dismissed was that because of the "hold" order on the original writ of summons the writ did not toll the statute of limitations. This is a correct statement of the law. Peterson v. Phila. S. Tr. Co., 435 Pa. 232, 255 A.2d 577 (1969); Anderson v. Bernhard Realty Sales Co., Inc., 230 Pa. Superior Ct. 21, 329 A.2d 852 (1974) (allocatur granted January 2, 1975.) However, though correct, it is not dispositive, for the issue of the writ's effect was not properly before the

[ 234 Pa. Super. Page 49]

    court because it had not been properly pleaded.

The matters that may be raised by preliminary objections are delineated by Rule 1017(b) of the Pa. Rules of Civil Procedure.*fn2 Appellee's preliminary objections were denominated "motion to strike off complaint" (which would be under Pa. R. C. P. 1017(b)(2)) and "demurrer" (which would be under Pa. R. C. P. 1017 (b)(4)). The court below, however, held that the "preliminary objections are really in the nature of a petition raising a question of jurisdiction," and as such were properly raised under Pa. R. C. P. 1017(b)(1). ...


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