Wible v. Apanowicz
| Decision Date | 05 November 1982 |
| Citation | 452 A.2d 545,306 Pa.Super. 262 |
| Parties | June WIBLE, Appellant v. Grace APANOWICZ and U.S. Fleet Leasing, Inc. |
| Court | Pennsylvania Superior Court |
Argued May 10, 1982.
Barry L. Gross, Philadelphia, for appellant.
Dale Patrick Kennedy, Philadelphia, for appellees.
Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
Appellant contends that the lower court erred in granting appellee's motion for summary judgment. Specifically, she alleges that the court improperly calculated the time available for reinstating a complaint, or that appellee was arguably estopped from asserting the statute of limitations because she had frustrated service by giving false addresses. Finding appellant's contentions without merit, we affirm the lower court's order.
On May 10 1976, appellant was involved in an auto accident with appellee, Grace Apanowicz, who was driving a car leased by her employer from appellee U.S. Fleet Leasing. Ms. Apanowicz gave the police an incorrect address for herself and her employer's address. On March 30, 1978, appellant filed a complaint in trespass against appellees at the addresses shown in the police report. The sheriff indicated by return of service on April 19, 1978 that he could not serve process. On April 2, 1980, appellant, having discovered the correct addresses, filed a reinstated complaint, that was subsequently served upon appellees. Appellees asserted the statute of limitations in new matter and moved for summary judgment on grounds that appellant had reinstated the complaint two days beyond the two year statute of limitations period. The lower court granted summary judgment to Ms. Apanowicz, and this appeal followed.
Appellant contends first that the lower court incorrectly calculated the time available for reinstating the complaint. Appellant argues, alternatively, that the limitations period for reinstating a complaint should begin either thirty days following the filing of the complaint, or on an earlier day when the plaintiff knows, or should know, that the sheriff cannot serve process. We determine that, because the lower court properly began the limitations period for reinstatement when appellant filed the initial complaint with the prothonotary, it calculated the period correctly. In Pennsylvania, a party may commence an action, and toll the statute of limitations, by filing with the prothonotary any of three forms of process: a praecipe for writ of summons; a complaint; or an agreement for amicable action. Pa.R.Civ.P 1007. See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) (). If the process cannot be served upon the adverse party within a period, measured from the time of the filing of the initial process, and not longer than the period of the statute of limitations for the underlying action, the process loses its efficacy and the filing party is again subject to the bar of the statute of limitations. Katz v. Greig, 234 Pa.Superior Ct. 126, 339 A.2d 115 (1975). The filing party may prevent such lapse of its process however, by timely reinstating it through a renewed filing with the prothonotary, and each such reinstatement will remain effective for a period equal to that of the applicable statute of limitations. See, e.g., Nath v. St. Clair Memorial Hospital, 251 Pa.Superior Ct. 361, 380 A.2d 820 (1977) (process timely reinstated). Indeed, a party may reinstate a complaint or reissue a writ of summons "at any time or any number of times," Pa.R.Civ.P. 1010 although a late reinstatement will be subject to the statute of limitations. The party who files initial process bears the burden of acting to ensure its continued efficacy. Katz v. Greig, supra. In applying these reinstatement rules, our courts have consistently considered irrelevant both the time the filing party became aware the sheriff could not serve process and the time the original cause of action arose. Rather, once a party files process with the prothonotary, the party has been allotted a fixed time equal to the statute of limitations to either file new process, or risk losing the action to the bar of the statute of limitations. Washington v. Papa, 253 Pa.Superior Ct. 293, 384 A.2d 1350 (1978) (); Katz v. Greig, supra (two-year statute of limitations; injury on January 8, 1970; praecipe for writ of summons filed November 6, 1970; action subject to bar because new summons and complaint, filed January 5, 1973, were not filed "until after November 6, 1973"). Because appellant filed her original complaint on March 30, 1978, and did not file her reinstated complaint until April 2, 1980, two days outside the applicable two year statute of limitations, her action is subject to the bar of that statute, as the lower court properly...
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