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KATZ v. GREIG (04/22/75)

decided: April 22, 1975.

KATZ, ET AL., APPELLANTS,
v.
GREIG



Appeal from order of Court of Common Pleas of Erie County, No. 2726-A-1970, in case of David B. Katz, by Philip Katz, his father and natural guardian, and Philip Katz and Marie Katz v. Richard A. Greig, and Marie Katz, Additional Defendant.

COUNSEL

Warren W. Bentz, for appellants.

Irving Murphy, with him William R. Brown, and MacDonald, Illig, Jones & Britton, for appellee.

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

Author: Jacobs

[ 234 Pa. Super. Page 128]

This appeal from an order granting appellee's motion for judgment on the pleadings*fn1 arises from an automobile accident in which the minor plaintiff, David Katz, sustained serious injuries. The only issues before us are first, whether the plaintiffs' claim asserted in their own right is barred by the applicable two year statute of limitations;*fn2 and second, whether the claim asserted on behalf of the United States Government under the Medical Care Recovery

[ 234 Pa. Super. Page 129]

Act*fn3 was properly asserted, and if so, whether it is also barred by the Pennsylvania statute of limitations.

I

The procedural history of this case clearly reveals that the claim asserted by the appellants in their own right is barred by the statute of limitations. The injury occurred on January 8, 1970. A praecipe for a writ of summons was filed on November 6, 1970; however, the appellants never directed service or paid the costs to secure service. It is undisputed that service of this summons was never effected. The summons was reissued on January 5, 1973, a complaint was filed on January 6, 1973, and both were then validly served.

The law is clear that a writ of summons properly issued within the applicable statute of limitations validly commences an action.*fn4 The law is also clear, however, that a party who has caused a writ to issue but not be served must act to protect the efficacy of the writ. If this be done by reissuance of the writ,*fn5 it must be done within a period of time which, measured from the issuance of the original writ, is not longer than the time required by the applicable statute of limitations for the bringing of the action. Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Because the original writ was not reissued until

[ 234 Pa. Super. Page 130]

    after November 6, 1972, the claim asserted by the appellants in their own right is barred by decisional rule drawn by analogy from the applicable two year statute of limitations. This is the undisputed law and any plea for a reevaluation of the Act of 1895 is properly addressed to the Legislature not the courts of this Commonwealth.

II

The appellants in their complaint also assert a claim on behalf of the United States Government under the Medical Care Recovery Act.*fn6 This Act confers upon the United States the right to recover from a tortfeasor the reasonable value of medical care and treatment which it is authorized or required by law to furnish to an injured person.*fn7 In the case at bar certain of the medical expenses

[ 234 Pa. Super. Page 131]

    of David Katz were paid by the United States Government because his father was a retired member of the United States Navy.

We note at the outset that any contention raised that the appellee has not yet been properly brought before the court must be rejected. The appellee was validly served with a summons in trespass and the docket entries so reveal. The defense of a statute of limitations of the nature involved in this case is not a jurisdictional defense, but merely a procedural bar to recovery and it in no way affects the validity of the service of process. Wiener v. Gemunden, 223 Pa. Superior Ct. 558, 302 A.2d 454 (1973). "The defense raised does not go to the judicial power of the court as to the cause or its jurisdiction over the person of the defendant, but rather to the mode in which the case is brought before the court." Bellotti v. Spaeder, 433 Pa. 219, 220, 249 A.2d 343, 344 (1969). Therefore, any assertion that the appellee is not properly before the court is simply incorrect.

The appellee also contends that the claim of the United States must fail because it was not asserted in the manner prescribed by the Act.*fn8 Although this view

[ 234 Pa. Super. Page 132]

    was adopted by a New York trial court in Carrington v. Vanlinder, 58 Misc. 2d 80, 294 N.Y.S. 2d 412 (1968), without citation to authority, we cannot accept it as a proper interpretation of the law. The court in Conley v. Maattala, 303 F. Supp. 484 (D.N.H. 1969) observed that none of the procedures for enforcing the government's right of recovery under the Act is mandatory and denied a motion to dismiss a count substantially identical with the one in the instant case. We believe that this is a better interpretation of the Act. "When a specific interest and right has been conferred upon the United States by statute, the remedies and procedures for enforcing that right are not to be narrowly construed so as to prevent the effectuation of the policy declared by Congress." United States v. York, 398 F.2d 582, 586 (6th Cir. 1968). See Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967).

In Palmer v. Sterling Drugs, Inc., 343 F. Supp. 692 (E.D. Pa. 1972), the claim of the government arose, as in the case before us, by letter addressed to counsel for plaintiff from a government agency. The court also rejected an argument "that the United States had only two avenues of recovery," id. at 695, and permitted the tort victim to pursue the claim on behalf of and with the consent of the United States. The same result was reached in Albright v. R. J. Reynolds Tobacco Co., 350 F. Supp. 341 (W.D. Pa. 1972), aff'd 485 F.2d 678 (3d Cir. 1973), cert. denied, 416 U.S. 951 (1974). The right of the United States should be interpreted "to enable the ...


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