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JOSEPH FARINACCI AND MARGIE FARINACCI v. BEAVER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (06/23/86)

decided: June 23, 1986.

JOSEPH FARINACCI AND MARGIE FARINACCI, APPELLANTS,
v.
BEAVER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, ROBERT A. KATHARY AND ASSOCIATES, LTD., FRANCHISE REALTY INTERSTATE CORPORATION, SCOTFORD INSURANCE SERVICES, CENTER STAGE, INC., AND CINEMETTE THEATERS, INC., APPELLEES



Appeal from Order of Superior Appellants Court dated December 21, 1984, at No. 1219 Pittsburgh, 1982, affirming the Order of the Court of Common Pleas of Beaver County, Pennsylvania, Civil Division, at No. 163 of 198 sustaining Preliminary Objections and dismissing Plaintiff's Complaint, dated October 6, 1982. Pa. Super. Ct. , 488 A.2d 1169 (1985)

COUNSEL

Larry A. Silverman & Paul W. Roman, Jr., Dickie, McCamey & Chilcote, P.C., Pittsburgh, for appellants.

C. Leon Sherman, Lynette Norton, Tucker, Arensberg, P.C., Pittsburgh, for Beaver County Indus. Authority & Robert A. Kathary, etc.

Louis C. Long, Richard J. Mills, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for Scotford Ins. Services.

Joseph J. Liberati, Paul T. Grater, Monaca, for Center Stage, Inc.

Timothy D. Appelbe, Paul T. Grater, Pittsburgh, for Cinemette Theaters.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting opinion in which Larsen and McDermott, JJ., join.

Author: Flaherty

[ 510 Pa. Page 591]

OPINION OF THE COURT

We granted allocatur in this case to review the application of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) to a matter where, on the last day to commence an action for personal injuries, plaintiff filed a praecipe for writ of summons but, through plaintiff's counsel's inadvertence, service of the writ could not be effected within 30 days of its issuance.

Plaintiffs in the original action, appellants herein, seek damages in connection with a slip and fall which allegedly occurred on February 2, 1980. In compliance with the two-year limitation on commencement of actions for personal injury, 42 Pa.C.S.A. § 5524(2), plaintiffs' counsel filed a praecipe for writ of summons with the Prothonotary of Beaver County on February 2, 1982, the last permissible

[ 510 Pa. Page 592]

    day under the statute. Plaintiffs' counsel paid the Prothonotary for issuance of the writ and the writ issued the next day. Although plaintiffs' counsel intended to immediately instruct and pay the sheriff for service, he misplaced the file. Eight or nine days later, the file was found and returned to plaintiffs' counsel who then forgot to take necessary steps to effectuate service of the writ. The writ was reissued ...


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