M. Wade Myers, West Chester, with him Carolus A. Wade, West Chester, for appellant.
Timothy H. Knauer, West Chester, with him C. Robert Elicker, Jr., West Chester, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., notes his dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 294]
The instant appeal filed by the plaintiff below, Mrs. Linda Washington, arises from the lower court's granting appellee's motions for summary judgment. In all instances the judgments resulted from the hearing court's determination that the relevant statute of limitations had expired. With
[ 253 Pa. Super. Page 295]
the exception of the summary judgment granted for defendant, Mr. Anthony Papa, on the wrongful death action which has not been appealed, we disagree with the court's order and will reverse the judgments and remand for further proceedings.
On August 12, 1971, Mrs. Washington and her husband, Edward, were passengers in appellee's car when it was involved in an accident. This accident resulted in Mr. Washington's death and serious personal injuries to Mrs. Washington. Consequently, on August 2, 1972, Mrs. Washington, appellant herein, filed a praecipe for a writ of summons, but the writ was neither served nor reissued. More than one year later, on August 9, 1973, appellant filed a complaint setting forth causes of action in survival and wrongful death as a result of her husband's death, as well as claiming damages for the personal injuries she had sustained. Despite the fact that an original or reissued writ of summons had not been served pursuant to Pa.R.C.P., Rule 1010, prior to filing the complaint,*fn1 appellant served the complaint on appellee on August 24, 1973. Thereafter, counsel for appellee entered his appearance on September 24, 1973, filed a third party complaint against Larry Goodwin as an additional defendant, and filed an answer to the appellant's complaint on January 18, 1974. Appellee's original answer contained new matter raising the statute of limitations only with respect to appellant's complaint in wrongful death.
Appellee established by affidavit of the prothonotary that there was no activity on the original writ of summons in the year which followed its issuance. The only action thereafter had been appellant's filing the complaint on August 9, 1973, and its service on August 24, 1973. By simply applying the one year statute for wrongful death action*fn2 and the principle of Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961), the court reached the conclusion that summary judgment for appellee must be granted as to the wrongful death
[ 253 Pa. Super. Page 296]
count. In this respect the court's order was so manifestly correct that appellant did not appeal it to this court.
Subsequently, appellee, with leave of court, amended his new matter to include the contention that appellant's remaining causes of action in survival and for personal injuries, were barred by the applicable two year statute of limitations,*fn3 and moved for summary judgment. At the time of the amendment, more than two years had elapsed since the issuance of the writ. After considering the arguments of counsel the court concluded that appellant had failed to comply with the statute and granted summary judgment for appellee.
Recently, in Cox v. Hott, 246 Pa. Super. 445, 371 A.2d 921 (1977) we disposed of a virtually identical question in a fashion consonant with the rationale appellant offers in the instant case. Unfortunately, the hearing court did not have the benefit of that decision when it granted summary judgment for appellee ...