Jacob v. New Kensington Y.M.C.A.
| Decision Date | 23 May 1983 |
| Citation | 312 Pa.Super. 533,459 A.2d 350 |
| Parties | Brian Roger JACOB, Appellant, v. NEW KENSINGTON Y.M.C.A. |
| Court | Pennsylvania Superior Court |
Thomas Hollander, Pittsburgh, for appellant.
John E. Kunz, Pittsburgh, for appellee.
Before BROSKY, JOHNSON and MONTGOMERY, JJ.
This appeal arises from the grant of defendant-appellee's motion for judgment on the pleadings on the ground that the action was barred by the statute of limitations. 1 We reverse and remand the matter to the court below.
Plaintiff-appellant allegedly was injured while on the premises of the Young Men's Christian Association of New Kensington on November 15, 1978. Appellant claims that as a result of appellee's negligence, he became permanently and irreversibly quadriplegic. Prior to retaining counsel, appellant's father, on his son's behalf, filed a praecipe for a writ of summons in trespass with the prothonotary of Westmoreland County on November 12, 1980. Though the writ was issued by the prothonotary that same day, service upon appellee-defendant was not made prior to its expiration.
A praecipe to reissue the writ of summons was filed by appellant through his attorney on January 29, 1981; and, said writ was reissued on that date. The writ was then delivered to the Westmoreland County sheriff with instructions for service and was served upon appellee-defendant on February 17, 1981.
Appellant contends that the rule in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), is not violated where a plaintiff intended to have the writ served immediately, but, due to a misunderstanding on the part of the layman filing the suit on his behalf, the writ was not delivered to the sheriff as required by local rule.
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 statutory period.
In interpreting Rule 1007, our Supreme Court 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 Pa.R.C.P. 1010(a), 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. See, e.g., Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961).
The Lamp court concluded, however, that too much potential for abuse existed "in a rule which permitted 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." Lamp v. Heyman, supra at 477, 366 A.2d at 888. As a result, a new rule was enunciated 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." Id. at 478, 366 A.2d at 889 (footnote omitted).
The above language, standing alone, negates appellant's contention that this case does not fall within the ambit of Lamp. Prior to its enunciation of the new approach, however, the Supreme Court delineated the purpose for the departure from prior cases interpreting Pa.R.C.P. 1007. The Court declared that "[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." Lamp v. Heyman, supra at 478, 366 A.2d at 889.
The key phrase in the stated purpose for the present approach is "good-faith effort." Though appellant did not notify appellee of the action in accordance with the service provision of the local rule, he did vicariously assume, based upon comments made to his father by an employee of the prothonotary, that service would be effectuated absent any further action on his part. As a result, appellant asserts that his intention to have timely service made suffices as a good-faith effort.
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. This interpretation necessitates a case-by-case analysis of the applicability of Lamp.
The facts in the case at hand take the matter outside of the Lamp rule. As a layman acting on his son's behalf prior to retaining counsel, the inference drawn by appellant's father from certain comments of a member of the prothonotary's office is reasonable. 2 Unlike an attorney who should be familiar with local procedures before commencing an action, a layman does not have the advantage of such familiarity. It is not unreasonable to believe that a layperson would accept without question, or misinterpret, procedural information from an officer of the court. We do not interpret the rule in Lamp as automatically binding upon those who find themselves in violation of their local rule regarding service regardless of the surrounding circumstances. 3
Given our finding that some cases may arise to which the Lamp rule is not applicable, a problem presents itself in the matter before us. A general allegation as to his intent to serve was made in appellant's reply to appellee's new matter. Specific facts supporting that general assertion were set forth in appellant's amended reply to new matter. The amended reply cannot be considered part of the pleadings herein, however, as appellant's motion to amend his reply was not granted by the court below for reasons noted above. 4 As the lower court's consideration of a motion for judgment on the pleadings is limited to well-pleaded facts, admissions and documents properly attached to the pleadings, 5 Balush v. Borough of Norristown, 292 Pa.Super. 416, 437 A.2d 453 (1981), it logically follows that our review of the grant of such a motion is also so limited.
Since the issue of the lower court's denial of appellant's motion to amend his reply was preserved for our review, however, a finding that the denial was erroneous and the amendment should have been permitted would give us leave to consider the allegations made therein.
The additional factual information contained in appellant's proposed amended reply is crucial in light of our interpretation of Lamp as set forth hereinbefore. If admitted by appellee or proven by appellant in the face of a denial, these facts would tend toward a showing of a "good-faith effort" to effectuate service. Facts such as those which appellant asked leave of the court below to plead are relevant and necessary for a finding as to the applicability of Lamp, and should, therefore, be considered by the court which has taken under advisement a motion for judgment on the pleadings asserting a violation of the statute of limitations based upon an absence of timely service.
While the right to amend pleadings is a matter within the sound discretion of the trial court, amendments should be allowed unless they violate the law or prejudice the rights of the opposing party. Bogert v. Allentown Housing Authority, 426 Pa. 151, 231 A.2d 147 (1967). As appellee herein will not be prejudiced by allowing the proposed a...
To continue reading
Request your trial
- James v. Southeastern Pennsylvania Transp. Authority
-
Patterson v. American Bosch Corp.
...that permitted by the statute of limitations." 469 Pa. at 478, 366 A.2d at 889 [Emphasis supplied]; see also Jacob v. New Kensington Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983). In each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whe......
-
Robinson v. Trenton Dressed Poultry Co.
...of Lamp v. Heyman, supra, Robinson's failure to do so served to nullify the commencement of his action. See Jacob v. New Kensington Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983); Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980); Delphus v. Kastanek, 267 Pa.Super. 26, 405 A.2d ......
-
People, Property Owners and Citizens of Pleasant Valley School Dist. v. Burney
...Court has applied Lamp to require a good faith effort on the part of the plaintiff to effect service. In Jacob v. New Kensington Y.M.C.A., 312 Pa.Superior Ct. 533, 459 A.2d 350 (1983), the majority found that Lamp must be applied on a case-by-case basis in order to determine whether plainti......