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JAMES VOSHELL v. SUN OIL COMPANY AND MICHAEL F. CAMPBELL (12/02/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 2, 1977.

JAMES VOSHELL, APPELLANT,
v.
SUN OIL COMPANY AND MICHAEL F. CAMPBELL

No. 169 October Term, 1975, Appeal from Judgment and the Order of the Court of Common Pleas of Chester County, Dismissing the Complaint, No. 94 1/2 March Term, 1974, in Trespass., Civil Action, Law

COUNSEL

Carolus A. Wade, West Chester, for appellant.

Thomas O. Malcolm, West Chester, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Per Curiam

[ 251 Pa. Super. Page 286]

This appeal presents the single question of whether the statute of limitations was tolled when plaintiff-appellant filed a praecipe for a writ of summons, but instructed the prothonotary to hold the writ and not deliver it to the sheriff for service. The court below, in granting defendant-appellees' motion for judgment on the pleadings, concluded that the statute of limitations was not tolled under those circumstances. We, however, must disagree.

Appellant filed his praecipe on March 11, 1974. This action, therefore, is controlled by Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Our Supreme Court there specifically ruled that a plaintiff's "issue and hold" instructions to the prothonotary did not make the timely filing of the praecipe a nullity for purposes of tolling the statute of limitations.*fn1 Accordingly, we hold that the instant action was properly commenced within the statutory period.

Judgment reversed and complaint reinstated.


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