Thomas Hollander, Pittsburgh, for appellant.
John E. Kunz, Pittsburgh, for appellee.
Brosky, Johnson and Montgomery, JJ. Brosky, J., files a dissenting opinion.
[ 312 Pa. Super. Page 535]
This appeal arises from the grant of defendant-appellee's motion for judgment on the pleadings on the ground that the action was barred by the statute of limitations.*fn1 We reverse and remand the matter to the court below.
Plaintiff-appellant allegedly was injured while on the premises of the Young Men's Christian Association of New Kensington on November 15, 1978. Appellant claims that as a result of appellee's negligence, he became permanently and irreversibly quadriplegic. Prior to retaining counsel, appellant's father, on his son's behalf, filed a praecipe for a writ of summons in trespass with the prothonotary of
[ 312 Pa. Super. Page 536]
Westmoreland County on November 12, 1980. Though the writ was issued by the prothonotary that same day, service upon appellee-defendant was not made prior to its expiration.
A praecipe to reissue the writ of summons was filed by appellant through his attorney on January 29, 1981; and, said writ was reissued on that date. The writ was then delivered to the Westmoreland County sheriff with instructions for service and was served upon appellee-defendant on February 17, 1981.
Appellant contends that the rule in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), is not violated where a plaintiff intended to have the writ served immediately, but, due to a misunderstanding on the part of the layman filing the suit on his behalf, the writ was not delivered to the sheriff as required by local rule.
In Lamp the plaintiff-appellant's attorney filed a praecipe for a writ of summons within the period permitted by the statute of limitations, but instructed the prothonotary not to deliver the writ to the sheriff for service. A praecipe for reissuance was filed, but service of the writ and its accompanying complaint was not effectuated. No reason was given for the failure to serve this reissued writ. Some two months later another praecipe for reissuance was filed and service was timely made. Both praecipes for reissuance were filed beyond the two year statutory period.
The rule in such cases prior to Lamp was based upon a literal interpretation of Pa.R.C.P. 1007 ...