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FRANCES LAMP v. ALVIN S. HEYMAN ET AL. (11/24/76)

decided: November 24, 1976.

FRANCES LAMP, APPELLANT,
v.
ALVIN S. HEYMAN ET AL., APPELLEES, AND BEAVER VALLEY MOTOR COACH COMPANY AND CLARENCE ROBBINS, ADDITIONAL APPELLEES



COUNSEL

Louis M. Tarasi, Jr., Conte, Courtney, Tarasi & Price, Pittsburgh, for appellant.

Robert E. Kunselman, Reed, Sohn, Reed & Kunselman, Beaver, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Pomeroy and Nix, JJ., join. Pomeroy, J., filed a dissenting opinion in which Roberts and Nix, JJ., join.

Author: Eagen

[ 469 Pa. Page 469]

OPINION OF THE COURT

In this case we are directly confronted for the first time with the important question of whether, in Pennsylvania practice, a plaintiff, whose attorney files a praecipe for a writ of summons to commence an action within the time period permitted by the statute of limitations, instructs the prothonotary to issue the writ but not deliver it to the sheriff for service, and then has the writ reissued and served after that time period has expired, is barred by the statute of limitations from continuing the action.

On September 1, 1967, plaintiff-appellant Frances Lamp allegedly was injured when her car was struck from the rear by a truck driven by defendant-appellee Heyman. On August 28, 1969, within the two-year period permitted by the statute of limitations for the bringing of an action to recover damages for injury wrongfully done to the person,*fn1 her attorney filed in the Court of Common Pleas of Beaver County a praecipe for a writ of summons in trespass against the defendants, but because of his instructions to the prothonotary the writ was not delivered to the sheriff's office and consequently was not

[ 469 Pa. Page 470]

    served.*fn2 On April 9, 1970, a praecipe for the reissuance of the writ was filed together with a complaint endorsed with the notice to plead. Again no service was effectuated, and this time the record does not indicate the reason. On June 4, 1970, another praecipe for reissuance was filed, and service was finally effectuated on June 19, 1970. Subsequently, defendants filed preliminary objections in which they asserted that the original summons was a "nullity" because of plaintiff's "issue and hold" instructions to the prothonotary, and that the action was therefore not brought within the two-year period provided by the statute of limitations. The defendants also filed a complaint against additional defendants, who then filed an answer and new matter raising the statute of limitations as a defense. The plaintiff replied to this new matter and admitted that the "issue and hold" instructions had been given to the prothonotary. On February 16, 1974, the trial court sustained the original defendants' preliminary objection in the nature of a demurrer and entered judgment for the defendants.*fn3 On direct appeal the Superior Court affirmed in a per curiam order without opinion. Lamp v. Heyman, 231 Pa. Super. 776, 331 A.2d 553 (1975). We granted allocatur.

Initially, we observe that under Rule 1030 of the Pennsylvania Rules of Civil Procedure the bar of the statute of limitations is instantly an affirmative defense to be raised as new matter in a responsive pleading, as was done by the additional defendants, not by means of preliminary objections in the nature of a demurrer.

[ 469 Pa. Page 471]

Compare Pa.R.C.P. 1017(b)(4), not here applicable. See Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971); Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969). Since, however, appellant has not objected to the issue being raised by way of preliminary objections either in the trial court or on appeal, and since the additional defendants did raise the issue as new matter and appellant then admitted the underlying factual allegation, we proceed to a determination of whether appellant is indeed barred by the statute of limitations from continuing her action. Cf. Yefko v. Ochs, 437 Pa. 233, 236, n. 1, 263 A.2d 416 (1970); Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968).

Pa.R.C.P. 1007 in pertinent part provides: "An action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons. . . ." This Court has repeatedly held that, pursuant to this rule, the mere filing of a praecipe to commence an action is sufficient to toll the running of the statute of limitations and that, although Pa.R.C.P. 1009(a) provides that a writ shall be served within thirty days after issuance or filing, it may, pursuant to Pa.R.C.P. 1010(a), be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of the action; further, each valid reissuance gives rise to a new equivalent period during which the writ may again be reissued. See, e. g., Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Thus, in the instant case, it is clear that if appellant validly commenced her action so as to toll the running of the statute when she filed her praecipe on August 28, 1969, her action is not barred by the statute of limitations, since she effectuated service of a writ reissued well within two years from both the date when she filed her original praecipe in August and the date

[ 469 Pa. Page 472]

    when she had the writ reissued the following April. The trial court, however, in sustaining appellees' preliminary objections held that appellant nullified her apparent commencement of the action by the "issue and hold" instructions her attorney gave the prothonotary, since these instructions had the deliberate effect of frustrating timely notice to appellees that an action had been brought against them.

We note that it has become a relatively common practice throughout the Commonwealth for attorneys to file a praecipe with the prothonotary to toll the statute of limitations but then, whether because settlement negotiations are in progress or because more time is needed to prepare the case, to delay or prevent service upon the defendant. Depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee. It is clear that the various courts which have been presented with the question have reflected a wide division over whether such action, or inaction, on the part of the plaintiff should be deemed to nullify the effect of the original filing. See generally Brua v. Bruce-Merrilees Electric Co., 63 Pa.D. & C.2d 652 (1973), and cases cited therein; 1 Goodrich-Amram, Standard Pennsylvania Practice, § 1007.3 (Supp.1976). The consequence of such division has unfortunately been to undermine the uniformity of practice and the predictability of result envisioned by this Court when it promulgated Rule 1007.

Pa.R.C.P. 127 sets forth the following provisions pertinent to the construction of Rule 1007:

"(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.

[ 469 Pa. Page 473]

"(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter is not to be disregarded under the pretext of pursuing its spirit."

Applying these standards to Rule 1007, we conclude that neither the language of the rule nor our decisions interpreting it permit us to hold that appellant's "issue and hold" instructions to the prothonotary upon filing her praecipe nullified the commencement of her action and caused it to be barred by the statute of limitations. We accordingly reverse.

The language of Rule 1007 is clear and unambiguous; it does not admit of qualification in an effort to ascertain its spirit.*fn4 Indeed, its underlying purpose has been to provide certainty as to the commencement of an action and to remove a subsequent failure to effect service from consideration in determining whether the statute of limitations has been tolled. In the words of one authoritative commentator:

"Under the prior practice, there were differences of opinion respecting the date when an action has been 'commenced' by the plaintiff within the meaning of the Statutes of Limitation. The alternatives included (1) the date the plaintiff filed his praecipe; (2) the date the prothonotary prepared and issued the writ; (3) the date the writ was delivered to the sheriff for service.

[ 469 Pa. Page 474]

"Rule 1007(1) clarifies any doubts with respect to the prior law. The action is 'commenced' by 'filing with the prothonotary a praecipe . . .'. This makes it clear that this action by the plaintiff is all Page 474} that is required of him. Failure of the prothonotary to issue the writ, failure of the plaintiff to pick the writ up, or failure of the sheriff to receive the writ for service are all irrelevant, so far as tolling the statute is concerned. By the mere filing of the praecipe, the action has been 'commenced.'" [Footnotes omitted.] [Emphasis supplied.]

1 Goodrich-Amram, Standard Pennsylvania Practice, § 1007.3 at 22.

In Salay v. Braun, supra, 427 Pa. at 484-85, 235 A.2d at 371, we described the nature and scope of the ...


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