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WILLIAM COX v. WARD HOTT (03/31/77)

decided: March 31, 1977.

WILLIAM COX, A MINOR, BY WILLIAM J. COX, AND SHARON COX, HIS GUARDIANS, ET AL., APPELLANTS,
v.
WARD HOTT



Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division at No. 488 May Term, 1973. No. 439 April Term, 1976.

COUNSEL

Leo P. Hajdukiewicz, Pittsburgh, with him Samuel R. Sciullo, Pittsburgh, for appellants.

Stephen D. Marriner, Washington, with him McCreight, Marriner & McCreight, Washington, for appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, absent. Spaeth, J., files a concurring and dissenting opinion in which Jacobs and Price, JJ., join.

Author: Hoffman

[ 246 Pa. Super. Page 446]

Appellants contend that the lower court erred when it granted appellee's motion for judgment on the pleadings because the statute of limitations had run.

On July 3, 1971, the parties were involved in an automobile accident on Route 19, Township of Peters, Washington County. As a result of the collision, appellant William Cox's 1967 Pontiac was damaged beyond repair and all of the appellants suffered injuries described in their complaint as "serious and severe."

Appellants commenced an action in trespass by filing a praecipe for a writ of summons on June 25, 1973, within the two year statute of limitations governing actions for personal injuries. See Act of June 24, 1895, P.L. 236, § 2; 12 P.S. § 34. The writ has never been served. However, on July 10, 1973, appellants filed a complaint in trespass which was served on appellee on July 11, by the Washington County Sheriff.*fn1

Appellee's attorney entered his appearance on July 20, 1973, and filed an answer and new matter on July 30, 1973. Appellee's answer stated that damages and negligence were in issue. Appellee raised by new matter the bar of the statute of limitations. His theory was that the complaint was filed beyond the statutory limit. Appellee

[ 246 Pa. Super. Page 447]

    did not raise any challenge to the court's jurisdiction by preliminary objections. See Rule 1017, P.R.C.P., 42 P.S. Appendix. On August 14, 1973, appellants filed a reply to new matter which asserted that service of process was timely. Subsequently, appellee took depositions of appellants William and Sharon Cox on November 15, 1973. On February 12, 1974, appellee's representatives conducted a medical examination of appellant Sharon Cox.

Finally, on November 13, 1975, appellee filed a motion on the pleadings in which appellee raised the defense of the statute of limitations. On December 22, 1975, the lower court entered an order granting that motion. This appeal followed.

The lower court based its decision on Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970): "Where an action is started by summons, the complaint is only the required pleading with none of the characteristics of process; service of the complaint in such a case cannot confer jurisdiction. "The complaint, to be process, must be sole process. The phraseology of Rule 1007 compels this conclusion.' Goodrich-Amram, § 1007-6. See Williams v. Pantalone, 47 Westmore.L.J. 265 (C.P. Westmoreland Co. 1965) and Di Orio v. Renn, 39 Northumb.Leg.J. 20 (C.P. Northumberland Co. 1966). Thus in the case at hand the service of appellant's complaint did not erase the need for timely ...


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