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JOHN A. FEHER v. RODNEY S. ALTMAN (09/15/86)

filed: September 15, 1986.

JOHN A. FEHER, JR., A MINOR, BY JOHN A. FEHER AND KATHERINE R. FEHER, HIS PARENTS AND NATURAL GUARDIANS, APPELLANTS
v.
RODNEY S. ALTMAN, M.D.



Appeal from the Order of the Court of Common Pleas, Civil Division, of Beaver County, No. 1326 of 1983.

COUNSEL

John J. Ross, Aliquippa, for appellants.

Anita B. Folino, Pittsburgh, for appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Rowley

[ 357 Pa. Super. Page 51]

OPINION OF THE COURT

This is an appeal from an order granting appellee's motion for summary judgment. The issue is whether appellants

[ 357 Pa. Super. Page 52]

    made a good faith effort to notify appellee that they had instituted an action against him by filing a praecipe for a writ of summons two days before the statute of limitations ran on their claim. We agree with the trial court that appellants made no such good faith effort and affirm the summary judgment entered in favor of appellee.

Appellants, an injured minor and his parents, sought to bring an action in medical malpractice against appellee for allegedly negligent medical treatment performed by appellee on October 7, 1981. The applicable two year statute of limitations, 42 Pa.C.S. ยง 5524, required that the action be brought on or before October 7, 1983. On October 5, 1983, appellants' counsel filed a praecipe for a writ of summons. The trial court's opinion, dated August 30, 1985, states that "[p]laintiffs' counsel concedes that no instructions were ever given to the sheriff regarding service of the writ which was allowed to expire without delivery." In addition, the record reflects that the sheriff's fee for service of the writ was never paid.*fn1

The original writ expired on November 4, 1983 without any effort having been made to have it served. On November 30, 1983, the writ was reissued, a complaint was filed, and the two documents were subsequently taken to the sheriff. The sheriff's fee was paid, instructions for service were given, and the sheriff served the reissued writ and complaint on December 5, 1983.

Appellee filed an Answer and New Matter averring that appellants' suit was barred by the applicable two year statute of limitations. Appellee subsequently filed a motion for summary judgment, stating that the action was barred by the two year statute of limitations because appellants had not delivered the originally issued writ to the sheriff and because the statute of limitations had expired before the ...


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