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.
[ 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 ...