Marucci v. Lippman

• Decision Date: 17 January 1962
• Citation: 406 Pa. 283,177 A.2d 616
• Parties: Joseph MARUCCI, Appellant, v. Sidney LIPPMAN.
• Court: Pennsylvania Supreme Court

Page 616

177 A.2d 616

406 Pa. 283

Joseph MARUCCI, Appellant, v. Sidney LIPPMAN.

Supreme Court of Pennsylvania.

Jan. 17, 1962.

Rehearing Denied Feb. 21, 1962.

Edward O. Spotts, James P. Gill, Charles S. Morrow, Pittsburgh, for appellant.

George Y. Meyer, Donald W. Bebenek, Meyer, Darragh, Buckler & Bebenek, Pittsburgh, for appellee.

Before BELL, C. J., and JONES, COHEN, EAGEN and ALPERN, JJ.

EAGEN, Justice.

On February 26, 1955, an automobile operated by the plaintiff, Joseph Marucci, was involved in an intersection collision with an automobile operated by the defendant, Sidney Lippman.

On September 22, 1955, alleging that the accident was due to the carelessness of the defendant, the plaintiff instituted this action in the Common Pleas Court of Allegheny County to recover damages. The sheriff did not serve the writ of summons and made a return 'Not Found.'

On November 21, 1955, Lippman instituted an action against Marucci, in the County Court of Allegheny County, for property damage sustained in the accident which he claimed was due to the carelessness of Marucci.

On January 3, 1956, counsel for Marucci filed a petition to transfer Lippman's action from the County Court to the Common Pleas Court.

On March 25, 1959, the cases were listed for pre-trial. Marucci's counsel moved that the actions be consolidated for trial. Lippman's counsel objected and called attention to the fact that service of the summons in the Marucci action had never been effected upon the defendant. Because of this defect the pre-trial Judge refused to order consolidation.

On April 1, 1959, more than four years after the accident involved, the writ was reissued in the Marucci action and service of the writ made on the defendant. Counsel for Lippman then entered his appearance on behalf of the defendant and filed timely preliminary objections raising the question of the statute of limitations. The lower court sustained the preliminary objections and dismissed Marucci's action. From that order this appeal is prosecuted.

When the writ of summons was originally issued in the present action, the statute of limitations was tolled for a period of two years from the date of issuance, but not a day longer. See Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). The action was barred when this period expired and the lower court correctly so ruled.

It is argued that Lippman waived his right to raise the defense of the statute of limitations, particularly in view of the fact that on January 23, 1959, Lippman's counsel wrote to Marucci's counsel calling his attention to the fact that the defendant had never been served and requested that service in the action be perfected.

While it is true that the defendant may waive his right to plead the statute (see Smith, Admr. v. Pennsylvania Railroad, 304 Pa. 294, 156 A. 89 (1931)), we do not construe the letter involved to constitute such a waiver. Smith is completely dissimilar.

Lippman's counsel was understandedly anxious to 'clear the docket' and conclude the action. Hence the letter referred to. Until his client was legally served, it would be foolhardy for him to even enter his appearance. The defense of the statute of limitations is an affirmative one and must be specifically pleaded: Pa.R.C.P. 1030, 12 P.S.Appendix; Thomas v. McLean, 365 Pa. 526, 76 A.2d 413 (1950). It could not be raised until an answer was filed and surely no answer was due until the defendant was at least served with process. To now deny the defendant the opportunity of pleading the statute, under the circumstances this case presents, and rule that he waived this right, would tend to completely destroy the rules concerning the applicability of the statute of limitations and would further be in conflict with the pertinent decisions this Court has enunciated repeatedly over a long period of years.

Order affirmed.

MUSMANNO, Justice (dissenting).

Joseph Marucci and Sidney Lippman, owners of the cars they were respectively driving, met unconventionally in a conventional collision on February 25, 1955, and, hurling the charges at each other, as is customary on these occasions, that the opposite party was at fault, each sued the other for the damages they had allegedly sustained in the violent encounter. Joseph Marucci filed his claim in the Court of Common Pleas of Allegheny County on September 22, 1955. Lippman, evidently assuming that his damages were not as substantial as Marucci claimed his to be, entered on November 21, 1955, his suit against Marucci in the County Court of Allegheny County, which Court has a lesser monetary jurisdiction than the Court of Common Pleas.

Marucci's counsel, desiring that both actions be tried simultaneously, petitioned the County Court to transfer Lippman's case to the Common Pleas Court. A copy of this petition was served on Marucci's counsel who made no objection to the requested transfer. Accordingly, in due course, on May 31, 1956, the County Court transferred Lippman's case to the Court of Common Pleas.

It must be here interpolated that when Marucci instituted his trespass action against Lippman on September 22, 1955, Lippman was not readily locatable and the Sheriff on October 22, 1955, returned the writ 'Not Found.'

On January 23, 1959, Lippman's attorney wrote to Marucci's counsel as follows:

'You filed a petition in the above matter to have the County Court case at No. 2614 of 1955 transferred to the Common Pleas Court and consolidated with an action which you instituted against Sidney Lippman at No. 2948 October Term, 1955. I have checked the docket entries on your Common Pleas Court case and I see that Sidney Lippman was never served. This matter has dragged about 4 years and it still has not been put at issue. I am wondering if you will take action to get service on Sidney Lippman in order that we can proceed on our case of Lippman vs. Marucci.'

Acting on this letter, Marucci's counsel had the writ reinstated and service was made on Lippman on April 2, 1959, which, of course, was beyond the two-year statute of limitations.

On April 21, 1959, the attorney then representing Lippman in behalf of his insurance carrier, entered his appearance and filed preliminary objections, raising the matter of the statute of limitations. The objections were sustained by the Common Pleas Court, and this appeal followed.

The Majority of this Court now sustains the decision of the lower Court and, in my opinion, does a great injustice to the plaintiff Marucci. In addition, it reduces the word of Lippman's attorney to the status of mere persiflage. Why would Lippman's attorney have written to Marucci's attorney the letter above quoted if he did not intend to have Marucci's action against Lippman litigated together with Lippman's action against Marucci?

This Court from time to time raises to the top of the flagpole the flying banner of stare decisis, but here it completely ignores that valiant ensign. In Smith, Admr., v. Penna. Railroad, 304 Pa. 294, 156 A. 89, this Court clearly expounded...