Appeal from the Order dated April 17, 1985, in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1511 August, 1983.
Ilene L. Isaacman, Philadelphia, for appellants.
Fredric L. Goldfein, Philadelphia, for appellees.
Rowley, Montemuro and Kelly, JJ. Rowley and Montemuro, JJ., concur in the result.
[ 354 Pa. Super. Page 249]
This appeal arises from an order granting defendant-appellee Robinson's preliminary objections and dismissing the complaint against him. We reverse and remand the matter to the court below.
Plaintiff, Francis Gould alleges injury as a result of emergency room treatment administered by appellee on August 11, 1981 at Nazareth Hospital. On August 8, 1983, three days before the statute of limitations was to have lapsed,*fn1 plaintiff's attorney filed a praecipe for a writ of summons with the prothonotary in Philadelphia County. Though the writ was issued by the prothonotary that same day, service was not attempted on Robinson until September 12, 1983, five days after the writ had expired.*fn2
The September 12, 1983 service attempt proved unsuccessful, as Robinson no longer maintained offices within Nazareth Hospital. On October 5, 1983, in response to a rule to file complaint filed by the hospital, appellants filed their complaint. The complaint was reinstated on November
[ 354 Pa. Super. Page 25015]
, 1983. Appellant apparently obtained a new address for Robinson and twelve unsuccessful attempts at service were made at the new address between November 29, 1983 and December 19, 1983. The sheriff's return of service notes that the former Robinson office was then vacant, and that Robinson had left the premises during the term of the lease, without a forwarding address. Appellant scheduled the deposition of Robinson's father for April 5, 1984; this deposition was postponed.*fn3 After the deposition was rescheduled, on October 16, 1984, Robinson's father produced an Illinois address for his son. Appellant reinstated the complaint and perfected out-of-state service on October 19, 1984. Robinson then filed preliminary objections to the complaint, alleging that appellant had violated the rule of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and that the statute of limitations had, therefore, lapsed.*fn4 The lower court entered an order sustaining Robinson's preliminary objections and dismissing the complaint.
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 statute of limitations period.
Prior to Lamp, it was repeatedly held that the mere filing of a praecipe to commence an action ...