Appeal from the Order of February 27, 1976 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. 3148 July Term, 1973.
Janet N. Valentine, Pittsburgh, for appellants, at No. 598.
Charles H. Alpern, Pittsburgh, for appellant, at No. 614.
Robert J. Pfaff and Frederick N. Egler, Pittsburgh, for appellant, at No. 616.
Murray S. Love, and Sikov & Love, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, P. J., and Hoffman, Van der Voort and Spaeth, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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In the instant appeal the defendants below challenge the lower court's denial of their preliminary objections which questioned the validity of the court's jurisdiction over their persons. In particular defendant-appellants argue that the writ of summons in trespass and assumpsit which was served upon them did not comply with the provisions of Rule 1010 of the Pennsylvania Rules of Civil Procedure. For reasons which will later become apparent, sustaining their argument would be tantamount to terminating plaintiffs-appellees' cause of action in trespass. On the facts present in the instant case, that is a result we are not inclined to reach. Therefore, we will affirm the order of the lower court denying appellants' jurisdictional objection, albeit for reasons different from those which persuaded the court below.
In June of 1971 Mrs. Marie Hoeke entered Mercy Hospital in Pittsburgh for surgery. Allegedly as a result of such surgery Mrs. Hoeke suffered through an unfortunate recuperation which resulted in the amputation of her "lower right extremity" and removal of her right kidney. For these and related injuries she and her husband sought to hold Mercy Hospital and Drs. Kairys, Copeland and Cushing liable in both assumpsit and trespass. Consequently, on June 13, 1973, Mrs. Hoeke and her husband, through their counsel, filed a praecipe for a writ of summons in trespass and assumpsit. The record indicates that although the writ issued it was never claimed at the prothonotary's office by plaintiffs' counsel and delivered to the sheriff for service. Obviously the praecipe was only filed to toll the statute of limitations until such time as plaintiffs were prepared to proceed further with the suit, a common practice at that time which has since been prospectively abolished by our Supreme Court. See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Approximately one year later, on June 11, 1974, plaintiffs were prepared to proceed in earnest and filed the ordinarily appropriate praecipe to reissue the writ of summons, well within the time limit prescribed by Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). It was at
[ 254 Pa. Super. Page 524]
this point that matters went awry because the original writ had been lost, misplaced or destroyed; in any event, the prothonotary's office could not locate it. When this has occurred the appropriate procedure for plaintiffs is to praecipe for the issuance of a substituted writ pursuant to Pa.R.C.P., Rule 1010(c). Instead, the writ clerk, who was a relative novice in the prothonotary's office drafted a new "original" writ rather than insisting that plaintiffs' counsel praecipe for a substituted writ. Her error became obvious when she improperly dated the writ "June 13, 1974 " rather than "June 13, 1973." This writ was then stamped "reissued" and served on defendants. Defendants' suspicions concerning the verity of the "reissued original" writ were subsequently confirmed when the employment records of the prothonotary established that the writ clerk, who prepared the purported "original" writ which was served, was not an employee in June, 1973. Hence, she could not possibly have prepared the original writ.
Soon after the writs were served counsel for the various defendants entered appearances. Counsel for Drs. Kairys and Copeland filed a demand for a jury trial contemporaneously with entering their appearances, and counsel for Mercy Hospital included its jury trial demand in the appearance form itself. The docket reflects no further action in the case until November, 1975 when Drs. Kairys, Copeland and Cushing filed praecipes ruling plaintiffs to file a complaint. It should be noted that more than two years had elapsed since the issuance of the original writ in June, 1973, so that, at least with respect to the cause of action in trespass, if defendants' argument is correct that the writ is defective, plaintiffs could not have cured the defect in service of the writ of June, 1974 and complied with Zarlinsky v. Laudenslager, supra. When plaintiffs' complaint was filed shortly thereafter, the four defendants filed their preliminary objections challenging in personam jurisdiction.
At the hearing on the objections plaintiffs argued, first, that defendants had waived the jurisdictional objection by entering appearances, ...