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DOROTHY SNYDER AND HARRY SNYDER v. NORTH-SOUTH BOWL (02/15/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: February 15, 1979.

DOROTHY SNYDER AND HARRY SNYDER, HER HUSBAND, APPELLANTS,
v.
NORTH-SOUTH BOWL, INC. V. PENN FIXTURE & SUPPLY COMPANY AND THE VECTA GROUP, INC.

No. 571 April Term, 1978, Appeal from the Order Entered December 27, 1977, of the Court of Common Pleas of Allegheny County, Civil Division, at No. 1862 January Term, 1974.

COUNSEL

Ira C. Houck, Jr., Pittsburgh, for appellant.

Thomas R. Wright, Pittsburgh, for appellee, North-South Bowl.

Arthur J. Murphy, Jr., Pittsburgh, for appellee, Penn Fixture & Supply Co.

John A. Eacharach, Pittsburgh, for appellee, The Vecta Group.

Cercone, Wieand and Hoffman, JJ.

Author: Per Curiam

[ 263 Pa. Super. Page 329]

This is appeal from an order granting judgment on the pleadings to the defendants. Plaintiffs commenced this action in trespass by filing a praecipe for a writ of summons on November 15, 1973, in Allegheny County, for injuries sustained on November 23, 1971. It is the local practice in Allegheny County that if the plaintiff does not deliver the writ to the Sheriff with directions for service, then service is not made. Dzonick v. Shaeffer, 125 P.L.J. 253 (Allegheny C.P.1977). While plaintiffs caused the writ to be re-issued several times, they did not deliver the writ to the Sheriff for service until May 13, 1977.

On November 24, 1976, the Supreme Court decided Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The Court held in Lamp that an action would no longer be deemed commenced by a writ of summons where the plaintiff prevents or delays service of the writ, effective February 22, 1977. Lamp, supra, 469 Pa. at 478 & n.8, 366 A.2d at 889. The Court stressed that plaintiffs must adhere to local practice, and that if the Prothonotary is not responsible for delivering the writ to the Sheriff, then the plaintiff is responsible for seeing that service is promptly made. Id., 469 Pa. at 478-79, 366 A.2d at 889.

Here, plaintiffs failed to deliver the writ to the Sheriff for 3 1/2 years after its filing, and for nearly three months after the cutoff date announced in Lamp. Under local practice, this wholly prevented service of the writ. Thus, the action was not commenced until some 5 1/2 years after the cause of action accrued. The action was thus barred by the statute

[ 263 Pa. Super. Page 330]

    of limitations, 12 P.S. ยง 34, and the court below was correct in giving judgment on the pleadings to defendants for this reason.

Order affirmed.

19790215

© 1998 VersusLaw Inc.



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