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filed: June 6, 1980.


No. 1578 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 76-8140.


Paul W. Roman, Jr., Pittsburgh, for appellant.

Zeno Fritz, Pittsburgh, for appellees.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 278 Pa. Super. Page 564]

Appellant contends that appellees' action in trespass is barred by the statute of limitations. We agree in part and, accordingly, reverse in part the order of the lower court denying appellant's motion for judgment on the pleadings.

On April 17, 1974, the parties were involved in an automobile accident in the city of Pittsburgh. Subsequently, on April 15, 1976, appellees (plaintiffs) filed a complaint in trespass in the Court of Common Pleas of Allegheny County in which they sought to recover from appellant (defendant) for personal injuries and property damage allegedly sustained in the accident.*fn1 Plaintiffs did not deliver the complaint to the sheriff with directions for service; consequently, the complaint was not timely served, and it expired on May 15, 1976.*fn2 On April 13, 1978, plaintiffs had their complaint reinstated and delivered to the sheriff with directions for service. The sheriff was unable to locate defendant and made a return of "Not Found." On August 4, 1978, plaintiffs again had their complaint reinstated and delivered to the sheriff. This time service was made, and on August 24, 1978, defendant filed an answer and new matter

[ 278 Pa. Super. Page 565]

    raising the statute of limitations as a defense. Subsequently, defendant moved for judgment on the pleadings, again contending that the statute of limitations barred plaintiffs' action. The lower court denied defendant's motion in an order which contained the certification required by 17 P.S. § 211.501(b) (current version at 42 Pa.C.S.A. § 702(b)) for interlocutory appeals by permission. This Court then granted defendant's petition for permission to appeal.

The essence of defendant's contention before the lower court and on this appeal is that plaintiffs' failure to deliver their complaint to the sheriff within ninety days after our Supreme Court's decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), constituted a bar to service which nullified the commencement of the action and rendered plaintiffs' reinstated complaint untimely under the statute of limitations.*fn3 In Lamp, the Court held that under Pa.R.Civ.P. 1007, the filing of a praecipe for a writ of summons within the applicable statutory period served to toll the running of the statute of limitations, notwithstanding the plaintiff's directions to the lower court prothonotary to issue and hold the writ and thereby prevent service.*fn4 Nevertheless, the Court

[ 278 Pa. Super. Page 566]

    conclude[d] that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, [the Court found] that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible.

Id., 469 Pa. at 477, 366 A.2d at 888-89 (footnotes omitted). Accordingly, the Court ruled that in cases commenced after November 24, 1976 (the date on which Lamp was decided), "a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Id., 469 Pa. at 478, 366 A.2d at 889 (footnote omitted).*fn5 Additionally, the Court ruled that

[i]f any plaintiff who, having filed a praecipe to institute an action, is presently engaged in such a course of conduct and thereby preventing or delaying service of notice of suit upon a defendant, and he subsequently fails to remove within ninety days of the date of this decision [ i.e., by February 22, 1977] whatever bar to service he may have erected, he shall be deemed to have nullified the commencement of his action.

Id., 469 Pa. at 478 n.8, 366 A.2d at 889 n.8. The Court further ruled that "the plaintiff shall be responsible for

[ 278 Pa. Super. Page 567]

    prompt delivery of the writ to the sheriff for service," unless under local practice the prothonotary both prepares the writ and delivers it to the sheriff. Id., 469 Pa. at 478-79, 366 A.2d at 889.*fn6

In the present case plaintiffs tolled the applicable statutes of limitation by filing their complaint, but then prevented service upon defendant by not delivering the complaint to the sheriff.*fn7 Moreover, plaintiffs did not remove the bar to service which they had erected until April, 1978, well beyond the ninety-day grace period which the Supreme Court allowed for cases instituted before the date Lamp was decided. Nonetheless, the lower court denied defendant's motion for judgment on the pleadings. In support of its decision, the court noted that the rule in Lamp expressly applied to cases instituted by writ of summons. Because plaintiffs had commenced their action by complaint, the lower court concluded that Lamp was inapplicable and that plaintiffs' obstruction of service therefore did not render their complaint a nullity and result in their action being barred by the

[ 278 Pa. Super. Page 568]

    statute of limitations.*fn8 Appellant contends that this was error, and we agree.

Although the lower court correctly noted that the rule in Lamp expressly refers to cases instituted by writ of summons, we think that the rule applies with equal force to cases instituted by complaint. The same potential for abuse which the Court in Lamp sought to eliminate is present regardless of whether a plaintiff commences his action by writ of summons or by complaint. In either case, a plaintiff could conceivably extend the life of his claim against an unsuspecting defendant simply by having process reissued or reinstated and preventing service.*fn9 In either case, such a course of conduct would disserve the policies of avoiding stale claims and promoting speedy justice. Accordingly, we disagree with the lower court's conclusion that the rule in Lamp does not apply to cases commenced by complaint.

Having concluded that the rule in Lamp applies to cases instituted by complaint, we must now consider whether the rule can fairly be applied in the present case. We note that plaintiffs' action was commenced more than seven months before the date on which Lamp was decided. We note also that in extending a ninety-day grace period from the date of decision for all plaintiffs to remove whatever bars to service they may have erected, the Court in Lamp expressly referred to cases instituted by praecipe for a writ of summons. Nonetheless, we can see no unfairness in applying the rule in Lamp to the present case. Even though plaintiffs commenced their action by filing a complaint, we

[ 278 Pa. Super. Page 569]

    do not think that they could reasonably have believed that they would suffer no consequences if they failed to remove their bar to service within ninety days after the decision in Lamp. The opinion in Lamp was unambiguous in condemning the very abuse of which plaintiffs were guilty. Thus, we hold that plaintiffs' failure to deliver their complaint to the sheriff by February 22, 1977, served to nullify the commencement of their action for personal injuries. Accordingly, plaintiffs' claim for personal injuries is barred by the two-year statute of limitations on such claims,*fn10 and the lower court erred in not so holding.*fn11

Order reversed in part; case remanded for proceedings consistent with this opinion.

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