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LOUISE M. KING AND WALTER J. KING v. EARL O. HAUPT (04/13/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 13, 1978.

LOUISE M. KING AND WALTER J. KING, APPELLANTS,
v.
EARL O. HAUPT, JR.

No. 450 April Term, 1976, Appeal from the Decree dated January 13, 1976 of the Court of Common Pleas, Civil Division, Law, of Somerset County, at No. 61 Civil 1973.

COUNSEL

John J. Dirienzo, Jr., Somerset, with him Joseph N. Cascio, Somerset, for appellants.

Rabe F. Marsh, III, Greensburg, with him Joseph M. Loughran, Greensburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 254 Pa. Super. Page 99]

The sole question presented in this appeal is whether the statute of limitations was tolled when plaintiff-appellants filed a praecipe for a writ of summons but simultaneously directed the prothonotary to hold the writ and not deliver it at that time to the sheriff for service. The court below granted defendant-appellee's motion for judgment on the pleadings, concluding that the statute of limitations was not tolled under these circumstances. We, however, must disagree.

Appellants filed their praecipe on January 26, 1973. The instant action, therefore, is controlled by Lamp v. Heyman,

[ 254 Pa. Super. Page 100469]

Pa. 465, 366 A.2d 882 (1976). In Lamp, our Supreme Court specifically ruled that a plaintiff's "issue and hold" instructions did not make the timely filing of the praecipe a nullity for purposes of tolling the statute of limitations.*fn1 Accordingly, we hold that appellants commenced this action within the statutory period. See Voshell v. Sun Oil Company, 251 Pa. Super. 285, 380 A.2d 490 (1977).

Judgment reversed and complaint reinstated.


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