Leidich v. Franklin

• Decision Date: 03 July 1990
• Citation: 575 A.2d 914,394 Pa.Super. 302
• Parties: Virginia LEIDICH, Appellant, v. David FRANKLIN and Irene Franklin, His Wife, Appellees.
• Court: Pennsylvania Superior Court

Page 914

575 A.2d 914

394 Pa.Super. 302

Virginia LEIDICH, Appellant, v. David FRANKLIN and Irene Franklin, His Wife, Appellees.

Superior Court of Pennsylvania.

Argued March 6, 1990.

Filed May 16, 1990.

Reargument Denied July 3, 1990.

Leslie D. Jacobson, Harrisburg, for appellant.

James G. Nealon, III, Harrisburg, for appellee.

Before WIEAND, TAMILIA and POPOVICH, JJ.

POPOVICH, Judge.

This case involves an appeal from the order of the Court of Common Pleas of Dauphin County granting the motion for judgment on the pleadings filed on behalf of the appellees/defendants, David and Irene Franklin, and dismissing with prejudice the complaint of the appellant/plaintiff, Virginia Leidich. We reverse.

"Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise.... The party moving for the judgment on the pleadings admits for the purpose of his motion the truth of all the allegations of his adversary and the untruth of any of his allegations which may have been denied by his adversary." Goodrich-Amram 2d, § 1034(b)(1).

Beck v. Minestrella, 264 Pa.Super. 609, 611, 401 A.2d 762, 763 (1979).

The defendants were the moving parties. They pleaded the bar of the statute of limitations in new matter to which the plaintiff in answer denied its applicability and set forth the factual basis for her contention. Hence, we read the pleadings as follows:

As a result of a collision between the plaintiff's and defendants' automobiles in Dauphin County on April 4, 1986, the plaintiff suffered personal injuries. On January 4, 1988, the plaintiff filed a praecipe for the issuance of a writ of summons with the prothonotary of Dauphin County. Payment for the issuance of the writ was made, but on the back of the writ was written: "writ to atty. 1/4/87 ¹ RB". Next in the record is a certificate of service, prepared by an employee for the plaintiff's attorney, indicating that a copy of the writ was served upon the defendants by first class mail dated January 5, 1988. ² This was not disputed by the defendants. See Defendant's Answer With New Matter, Paragraph 23; Defendants' Motion For Judgment On The Pleadings, Paragraph 2; Defendants' Brief In Support Of Motion For Judgment On The Pleadings, page 1.

Also, on January 5, 1988, the defendants were served with a notice to appear for deposition on February 2, 1988. Counsel for the defendants, on or about March 3, 1988, objected to the deposition "referencing the Writ of Summons, at which point it was agreed to postpone said deposition indefinitely." Plaintiff's Answer To New Matter With Additional New Matter, Paragraph 34.

Nonetheless, from March 15 through April 4, 1988, documentation (which included the plaintiff's medical bills) was submitted to the defendants' insurer "with regard to possible settlement of the claim on a 'policy limits' basis." Id. at Paragraphs 36-38.

It was not until after April 4, 1988, that the plaintiff learned that settlement would not occur. Rather, the case was being contested "on technical grounds involving alleged deficiencies in the service of the Writ of Summons." Id. at Paragraph 39.

After the passage of the two-year period of limitations, the plaintiff filed a praecipe on May 17, 1988, seeking the reissuance of the writ. This occurred and the sheriff served the writ on the defendants the same date. The plaintiff, with the issuance of a rule to do so, filed a complaint. This was followed by the defendants filing an answer with new matter alleging, in Paragraphs 28 and 29, that the plaintiff's claim was barred by the statute of limitations and the principles enunciated in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

In the pleadings that followed, the plaintiff denied that her claim was foreclosed by Lamp, supra, that she acted in "good faith" in pursuing the lawsuit and she "ha[d] done nothing to stall or delay th[e] action." In the end, the court below granted the defendants' motion for judgment on the pleadings. It found that the plaintiff's action (of seeking the issuance of the initial writ and serving it by mail to the defendants) was contrary to the Rules of Civil Procedure (e.g., Rule 400), local practice ³ and established case law, i.e., Lamp, supra. Thereafter, the plaintiff filed an appeal to this Court.

The plaintiff raises for our consideration but a single issue of whether the court below erred in granting the defendants' motion for judgment on the pleadings. This one issue, however, is subdivided into seven subsections in the argument section of her appellate brief, six of which distill to the query: Did the plaintiff comply with the "good faith" effort required by Lamp, supra, in effectuating service of the writ of summons upon the defendants by mail, so as to toll the statute of limitations and render her lawsuit viable? Our response to this inquiry will resolve the matter posed for our review, and, as such, dispenses with the need to address the last of the plaintiff's contentions concerning the claim that defendants' counsel violated American Bar Association Canons of Professional Ethics by "wait[ing] to file a motion on the grounds of improper service until the statute [of limitations had expired.]"

All parties concerned, including the court below, look to the Lamp decision to buttress their respective positions. As such, we will examine Lamp and determine whose version is an accurate interpretation of its objective and purpose.

In Lamp, four days before the expiration of the two-year statute of limitations, the plaintiff's attorney filed a praecipe for a writ of summons against the defendants for injuries sustained in an automobile accident. However, instead of delivering the writ to the sheriff for service, the plaintiff instructed the prothonotary to "issue & hold". A praecipe for the reissuance of the writ was filed together with a complaint thirty-one months after the date of the accident. Again no service was made, and this time no reason appeared of record. Within two months of the reissuance of the writ, another praecipe for reissuance was filed, and service was effectuated on June 19, 1970.

The defendants filed preliminary objections asserting that the original summons was a "nullity" because of the plaintiff's "issue & hold" instructions to the prothonotary, and, therefore, the action was not brought within the two-year period provided by the statute of limitations.

The trial court sustained the preliminary objections and entered judgment for the defendants. On appeal, the Supreme Court observed that, under Pa.R.Civ.P. 1007, the mere filing of a praecipe to commence an action was sufficient to toll the running of the statue of limitations, and that, pursuant to then Rule 1010(a) (now found at Rule 401(b)(5)), the writ could be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of the action. Further, each valid reissuance gave rise to a new equivalent period during which the writ might again be reissued.

The Court observed that the plaintiff validly commenced her action so as to toll the statute of limitations. Thus, when the writ was reissued, the plaintiff's action was not barred by the statute of limitations. The case did not come to an end at this point. The Court went on to decide whether the "issue & hold" instructions of the plaintiff's attorney rendered ineffectual the original filing. The Court began by reading Rule 1007 allowing no exceptions in providing that an action is "commenced" with the filing of a praecipe, irrespective of whether the prothonotary issues the writ or the sheriff serves it. Stated otherwise, the mere filing of a praecipe, even if a plaintiff deliberately delayed service, was held sufficient to toll the statute of limitations, as stated by the Court in prior rulings. Therefore, the Court held the plaintiff was entitled to rely on these past rulings, and, consequently, the order of the court below holding to the contrary was reversed.

Cognizant of the possible deleterious repercussions flowing from a continuation of such a practice, the Lamp Court altered, for prospective purposes only, such a practice. It did so in the following fashion; to-wit ... 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.

* * * * * *

Our 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.

Accordingly, ... we rule henceforth, [that] ... a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion. Since the manner in which writs of summons are to be prepared and delivered to the sheriff for service is not covered by our rules ... a plaintiff should comply with local practice as to delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriff's office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service.

469 Pa. at 477-79, 366 A.2d at 888-889 (...