No. 660 Pittsburgh 1981, Appeal from the Order dated May 21, 1981, Court of Common Pleas, Beaver County, Civil Action, Law at No. 1203 of 1979.
Jay D. Glasser, Pittsburgh, for appellants.
Carol F. Graebner, Pittsburgh, for appellees.
Spaeth, Johnson and Hoffman, JJ.
[ 313 Pa. Super. Page 448]
The order appealed from in this case granted a motion by appellee Equibank for summary judgment, dismissed with prejudice the complaint filed by appellants against appellee Equibank, and dismissed the complaint against appellees DeNino and the Borough of Ambridge, without prejudice should another proceeding*fn1 end favorably to appellants, but
[ 313 Pa. Super. Page 449]
with prejudice should that proceeding end adversely to appellants.
The events giving rise to the complaint whose dismissal is the subject of the instant appeal are as follows. Appellants [Weiss] are owners of a certain property in Ambridge. Weiss conducts a furniture store on the ground floor, and lets the second floor to a residential tenant. In 1976 defendant/appellee Equibank purchased the property adjacent to the Weiss property and at some point offered to purchase the Weiss property also. This offer was refused. After razing the buildings on the property purchased, Equibank arranged for a consulting engineering firm to inspect and evaluate whether the razing of its buildings had damaged the adjacent Weiss building. The engineering firm determined that the Weiss building did not meet the requirements of the Standard Uniform Building Code. On August 13, 1976, at 7:30 p.m., a representative from Equibank and defendant/appellee DeNino, who is the Fire Chief and Building Officer of Ambridge, met at the Weiss property. DeNino closed off the Weiss building, alleging dangerous and hazardous conditions, roped off the sidewalk in front of the building, posted condemnation notices on the building, and directed the upstairs tenant to move.
Weiss appealed DeNino's action to the Ambridge Board of Appeals, which, in March 1978, affirmed DeNino's action. Weiss accordingly took an appeal to the Court of Common Pleas of Beaver County at No. 587 of 1978, see note 1 supra.
Weiss then commenced action in the instant case by filing a praecipe for a writ of summons in trespass. This praecipe was filed on June 27, 1979. According to the trial court,*fn2 in Beaver County the practice is (1) to file a praecipe for a writ of summons with the prothonotary and pay the filing fee, (2) to give written directions to the sheriff's office for service of the writ, and (3) to pay the sheriff the costs of service before the writ is served.
[ 313 Pa. Super. Page 450]
In this case, however, at the time of filing of the praecipe no directions were given to the sheriff's office and no costs of service were paid. On September 14, 1979, nearly three months later, the writ of summons was reissued, the written directions having been given to the sheriff on September 13, 1979. On September 18, 1979, the service costs were paid. The defendants were served on September 25, 1979. In the brief to this court Weiss explains that the delay was due to an unintended mistake.
The complaint against appellees was filed on December 19, 1979. It is a complaint in trespass. The trial court analogizes it to a chameleon, saying that the claim was originally treated by Weiss as a cause of action in fraud and is now considered a claim for malicious use of process, slip op. at 6.
Treating the claim as one for malicious use of process, the trial court dismissed the complaint against Equibank on the grounds that Equibank was not a party to the appeal proceedings at case no. 587 and is therefore not a proper party in the malicious use of process claim. Treating the complaint as a claim in trespass to land, slip op. at 3, the trial court ruled that the complaint against Equibank was barred by the statute of limitations*fn3 and the doctrine of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), in which our supreme court ruled that a writ of summons should remain effective to commence an action only if the plaintiff does not stall in its tracks the legal machinery he has set in motion. 469 Pa. at 478, 366 A.2d at 889.
The trial court stated that if Weiss is successful in its appeal at case no. 587 against the Borough of Ambridge Board of Appeals, Weiss may have a cause of action for
[ 313 Pa. Super. Page 451]
malicious use of process against the Borough and DeNino. Hence the dismissal by the trial court of the complaint against DeNino and the Borough, with prejudice or ...