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Daniel v. City of Philadelphia

Commonwealth Court of Pennsylvania

March 12, 2014

Stephany Daniel, Appellant
v.
City of Philadelphia

Argued February 10, 2014.

Appealed from No. May Term, 2012, No. 2395. Common Pleas Court of the County of Philadelphia. Tucker, J.

Neil S. Kerzner, Philadelphia, for appellant.

Elise M. Bruhl, Deputy City Solicitor, Philadelphia, for appellee.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

ROCHELLE S. FRIEDMAN, Senior Judge.

Page 956

Stephany Daniel appeals from the May 8, 2013, order of the Court of Common Pleas of Philadelphia County (trial court), which granted the City of Philadelphia's (City) motion for judgment on the pleadings. We affirm.

On June 19, 2010, Daniel allegedly slipped and fell on North Camac Street in the City. On May 22, 2012, just before the two-year statute of limitations expired, Daniel filed a personal injury complaint against the City.[1] Daniel did not serve the complaint at this time. However, eight months later, and over seven months after the statute of limitations would have expired, Daniel reinstated her complaint on January 29, 2013.

On February 1, 2013, Daniel served the complaint on the City. On February 12, 2013, after entering its appearance, the City filed an answer and new matter asserting that the statute of limitations had expired; the City did not file preliminary objections. On March 6, 2013, the City filed a motion for judgment on the pleadings, alleging that Daniel failed to serve the complaint before the statute of limitations expired, thus barring her cause of action. Daniel replied that the City had waived the issue by not raising it in preliminary objections.

On May 13, 2013, the trial court granted the City's motion for judgment on the pleadings and dismissed Daniel's complaint. Daniel appealed to this court.[2]

Daniel argues that the trial court erred in granting the City's motion for judgment on the pleadings because the City was barred from asserting a statute of limitations defense of " defective/late" service by way of preliminary objections after it had entered an appearance and filed an answer. (Daniel's Br., at 4.) We disagree.

Pursuant to Pa. R.C.P. No. 1007(2), " [a]n action may be commenced by filing with the prothonotary . . . a complaint." Pa. R.C.P. No. 401(a) provides that " [o]riginal process shall be served . . . within thirty days after . . . the filing of the complaint." Pa. R.C.P. No. 401(b)(1) provides that " [i]f service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule . . . the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by . . . reinstating the complaint." Pa. R.C.P. No. 401(b)(2) provides that " a complaint [may be] reinstated at any time and any number of times."

This Court has repeatedly held that, pursuant to [Pa. R.C.P. No. 1007(2)], the mere filing of a [complaint] to commence an action is sufficient to toll the ...

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