No. 512 April Term, 1978, Appeal from the Order dated December 27, 1977, of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at G.D. No. 77-09260.
William A. Johnson, McMurray, for appellants.
Harry W. Miller, Pittsburgh, for appellees.
Cercone, Wieand and Lipez, JJ.
[ 264 Pa. Super. Page 611]
This is an appeal from an order sustaining a motion for judgment on the pleadings in favor of the defendants on the ground that the action was barred by the statute of limitations. We think the plaintiffs took the necessary steps to preserve their right of action and, therefore, reverse.
"Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise . . . . The party moving for the judgment on the pleadings admits for the purpose of his motion the truth of all the allegations of his adversary and the untruth of any of his allegations which may have been denied by his adversary." Goodrich-Amram 2d., § 1034(b)(1).
The defendants were the moving parties. They plead the bar of the statute of limitations in New Matter to which the plaintiffs in Reply denied its applicability and set forth the factual basis for their contentions. Hence, we read the pleadings as follows:
As the result of a collision between plaintiffs' and defendants' automobiles in Allegheny County on August 8, 1973, the plaintiffs suffered personal injuries. On July 23, 1975, the plaintiffs filed a Praecipe for a writ of summons in trespass with the prothonotary of Allegheny County. The writ was delivered to the Sheriff for service on July 28, 1975. The Sheriff was unable to locate the defendants and subsequently made a return of N.E.I. On April 25, 1977, a complaint in trespass was filed with the prothonotary and was delivered to the Sheriff for service. Attempted service on the defendants again resulted in the return of N.E.I. On July 25, 1977, the complaint was reinstated with directions for service pursuant to Pa.R.Civ.P. 2079.*fn1 Service was then effected.
[ 264 Pa. Super. Page 612]
The defendants say in their brief that the complaint was "inadvertently filed at a new number and it should have been a renewal of the writ which was originally filed in July of 1975;" and note further that the praecipe for the writ was filed to No. G.D. 75-17227, whereas, the complaint was filed to No. G.D. 77-09260. We point out, however, that nowhere in the pleadings does this appear and for the purpose of this motion we are bound by the plaintiffs' factual recital as summarized above.
Assuming, arguendo, that the complaint was filed to a new number (and the plaintiffs' reproduced records of the docket entries do show the same caption to both numbers), we know of no rule mandating its filing to the original writ and number. While it might be helpful and even desirable for record control, we cannot impose a requirement not so mandated. In any event, under Pa.R.Civ.P. Rule 1010(e),*fn2 provision is made for the use of a complaint as alternative process, so that the "[f]iling or reinstatement or substitution of a complaint which is used as alternative process under this sub-section has the same effect in tolling the statute of limitations as the reissuance or substitution of a writ." Note of the Procedural Rules committee. If there were any defect in ...