Gould v. Nazareth Hosp.

• Decision Date: 27 June 1986
• Citation: 354 Pa.Super. 248,511 A.2d 855
• Parties: Francis GOULD and Marie Gould, Appellants, v. NAZARETH HOSPITAL and William Robinson, Jr., M.D., Appellees.
• Court: Pennsylvania Superior Court

Page 855

511 A.2d 855

354 Pa.Super. 248

Francis GOULD and Marie Gould, Appellants, v. NAZARETH HOSPITAL and William Robinson, Jr., M.D., Appellees.

Superior Court of Pennsylvania.

Submitted Jan. 13, 1986.

Filed June 27, 1986.

Ilene L. Isaacman, Philadelphia, for appellants.

Fredric L. Goldfein, Philadelphia, for appellees.

Before ROWLEY, MONTEMURO and KELLY, JJ.

KELLY, Judge.

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, ¹ 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. ²

The September 12, 1983 service attempt proved unsuccessful, as Robinson no longer maintained offices within Nazareth Hospital.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 15, 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. ³ 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. ⁴ 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 is sufficient to toll the running of the statute of limitations; and, pursuant to the Rules of Civil Procedure, the writ may be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for commencement of the action. The Lamp court concluded, however, that "there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service." 366 A.2d at 888. The court set forth the new rule as follows:

[A] writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.

366 A.2d at 889 (footnote omitted).

At bar, defendant Robinson alleged in preliminary objections that the Lamp rule had been violated, since appellants had made no attempt at service during the initial thirty (30) day life of the original writ. Robinson's position, however, ignores an important factual consideration which distinguishes this case from Lamp and its progeny: the failure to attempt service during the life of the original writ was due to error within the sheriff's office, and not to any affirmative action on the part of the appellant.

Prior to enunciating the new approach, the court in Lamp stated its reasoning:

[O]ur purpose is to avoid the situation in which a plaintiff can bring an action, but by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.

366 A.2d at 889 (emphasis added). As this court stated in Jacob v. New Kensington Y.M.C.A., 312 Pa. Super 533, 459 A.2d 350 (1983):

Our review of the Lamp decision reveals that the Supreme Court clearly intended to abrogate the potential for abuse in cases where the issuance of a writ of summons tolls the statute of limitations. On the other hand, we also interpret Lamp as not intending its effect to be the punishment of those who make a good-faith effort to comply with the local rules.

459 A.2d at 352. In Jacob, the plaintiff's father, a layman, filed a praecipe for writ of summons on his son's behalf. He misinterpreted the instructions of the prothonotary, and, as a result, the writ was never delivered to the sheriff for service. The writ expired without service being attempted. On appeal from an order sustaining defendant's motion for summary judgment, we found that the Lamp rule had not been...