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ELLEN BRASLOW v. SONYA MARIE SWARTZ AND DAVID L. SCHMIDT (07/12/78)

decided: July 12, 1978.

ELLEN BRASLOW, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, PHILIP BRASLOW, AND PHILIP BRASLOW, IN HIS OWN RIGHT, AND EMANUEL HORENSTEIN, APPELLANTS,
v.
SONYA MARIE SWARTZ AND DAVID L. SCHMIDT



No. 1268 October Term, 1977, Appeal from the Order entered March 2, 1977, of the Court of Common Pleas of Montgomery County at No. 74-17627., Civil Action, Law.

COUNSEL

M. Klevan, Philadelphia, with him Frank Weitzman, Philadelphia, for appellants.

John J. Seehousen, Philadelphia, with him James M. Marsh, Philadelphia, for appellees.

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

Author: Price

[ 256 Pa. Super. Page 191]

This appeal is from the lower court's order sustaining appellees' preliminary objections and dismissing appellants' complaint with prejudice. We reverse the lower court and order the reinstatement of the complaint.

[ 256 Pa. Super. Page 192]

On February 5, 1974, appellants filed a complaint in Philadelphia County alleging a cause of action in trespass arising out of a motor vehicle accident that occurred on February 28, 1972, in Montgomery County. The complaint was reinstated on June 11, 1974 and was directed to be served. Preliminary objections attacking service were sustained and the service was quashed.*fn1 The case was then transferred to Montgomery County in response to appellants' motion. See Pa.R.C.P. No. 1006(e).

A certified copy of the record was received and docketed in the office of the Montgomery County Prothonotary on December 11, 1974. Simultaneously, the complaint was separately filed and docketed at the same term and number. The complaint was not served at this time.*fn2

On September 29, 1976, the complaint was reinstated and ultimately served on appellees. Preliminary objections were filed contending that the action was barred for lack of timely service. Appellees alleged that after the complaint was filed in Montgomery County on December 11, 1974, the appellants took no further action to effectuate service. Appellees argued therefore that the filing of the complaint in Montgomery County was a nullity. If appellees' contention had been correct, then more than two years would have elapsed from June 11, 1974, the date of the previous reinstatement and the action would have been barred.*fn3 Unfortunately

[ 256 Pa. Super. Page 193]

    for appellees, our supreme court on November 24, 1976, decided Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

In Lamp, the supreme court held that the filing of a praecipe for a writ of summons was sufficient to toll the statute of limitations despite the fact that the plaintiff had instructed the prothonotary not to deliver the writ to the sheriff for service. The same rule obviously applies to the reissuance of a writ or reinstatement of a complaint. Therefore, if the filing of the complaint in Montgomery County was a sufficient reinstatement, the failure of ...


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