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NETTIE M. WATTS v. OWENS-CORNING FIBERGLAS CORPORATION & OWENS-ILLINOIS (04/16/86)

filed: April 16, 1986.

NETTIE M. WATTS, ADMINISTRATRIX OF THE ESTATE OF BERNARD WATTS, DECEASED AND NETTIE M. WATTS, IN HER OWN RIGHT, APPELLANT,
v.
OWENS-CORNING FIBERGLAS CORPORATION & OWENS-ILLINOIS, INC. & PITTSBURGH CORNING CORPORATION & EAGLE-PICHER INDUSTRIES, INC. & NICOLET INDUSTRIES, INC. & RAYMARK CORPORATION & RAYMARK INDUSTRIES, INC. & RAYBESTOS-MANHATTAN, INC. & CELOTEX CORPORATION & H.K. PORTER AND COMPANY, INC. & SOUTHERN ASBESTOS COMPANY & D.A.R. INDUSTRIAL PRODUCTS, INC. & A.C. AND S. CORPORATION & KEENE CORPORATION & PACOR, INC. & ARMSTRONG WORLD INDUSTRIES, INC. & ARMSTRONG CORK COMPANY & FORTY-EIGHT INSULATION, INC. & FIBREBOARD CORPORATION & GAF CORPORATION & ASTEN-HILL COMPANY & RUBBEROID COMPANY & GARLOCK, INC. & TURNER AND NEWALL LIMITED & UNI-ROYAL, INC. F/K/A U.S. RUBBER COMPANY, INC.



Appeals from the Orders of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 3246(2246A) May Term 1983.

COUNSEL

No appearance nor briefs entered on behalf of appellant.

Joseph W. McGuire, Philadelphia, for appellees.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Wickersham

[ 353 Pa. Super. Page 268]

Before us are twelve consolidated appeals stemming from twelve orders of the Court of Common Pleas of Philadelphia County, granting summary judgments in favor of twelve of the twenty-five defendants involved in an asbestos-related disease action.*fn1

[ 353 Pa. Super. Page 269]

Appellant's husband, Bernard Watts, was employed at the Philadelphia Naval Shipyard from 1940 to 1951 and at the Naval Air Development Center from 1951 to 1980. In 1979, he was discovered to have lung cancer. He died on May 23, 1981. On May 16, 1983, appellant commenced this action by obtaining a writ of summons. Appellant failed however to deliver the writ to the sheriff for service within the thirty days specified by Pa.R.C.P. No. 1009(a). In fact, the writ was not reissued until more than three months later, on August 23, 1983. On August 17, 1983, appellant filed a complaint, which was reinstated on September 3, 1983. Service was subsequently made on all defendants, including appellees.

A flurry of pleadings followed, but the only pleadings of importance herein were motions for summary judgments*fn2 made by appellees. The gist of these motions was that appellant's complaint should be dismissed as time-barred by the statute of limitations.*fn3 The lower court agreed and, in a series of orders from March 1984 to April 1985, granted the motions. To each order, appellant filed a timely appeal. These appeals are before us now.

The question presented is whether appellant's failure to effectuate timely service of the writ rendered it a nullity, thus causing appellant's action to be time-barred as failing to be filed within the two-year statute of limitations.*fn4 After

[ 353 Pa. Super. Page 270]

    carefully reviewing the arguments presented to us by the parties, the record on appeal, the thorough opinions of the Honorable Harry A. Takiff dated March 22, 1984 and June 21, 1984, and the applicable caselaw, we conclude that appellant's action was indeed time-barred by her failure to file it within the two-year period following the death of Bernard Watts.

Pa.R.C.P. No. 1007 provides that a civil action may be commenced by filing with the prothonotary a praecipe for a writ of summons. Pa.R.C.P. No. 1009(a) provided, at all relevant times herein,*fn5 that the writ "shall be served by the sheriff within thirty (30) days after issuance or filing." Thus, while the actual filing of a praecipe for a writ of summons commences the action and tolls the applicable statute of limitations, at least since the landmark decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), if the plaintiff fails to make a good faith effort to effectuate service of the ...


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