Williams v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 09 January 1991
• Citation: 585 A.2d 583,137 Pa.Cmwlth. 163
• Parties: Edward WILLIAMS, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Steven Janjanin and Eugene Luciw, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 583

585 A.2d 583

137 Pa.Cmwlth. 163

Edward WILLIAMS, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Steven Janjanin and Eugene Luciw, Appellees.

Commonwealth Court of Pennsylvania.

Argued Dec. 3, 1990.

Decided Jan. 9, 1991.

Craig M. Washington, Philadelphia, for appellant.

Leslie G. Dias, with him, Gordon J. Scopinich and Margaret E. Wenke, Philadelphia, for appellees.

Before PALLADINO and PELLEGRINI, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

Edward Williams has appealed from an order of the Court of Common Pleas of Philadelphia County granting the motion for summary judgment filed by the Southeastern Pennsylvania Transportation Authority (SEPTA) and its trolley car driver Steven Janjanin ¹ and dismissing Williams' complaint.

Williams alleges that he was injured on February 18, 1986 while aboard a SEPTA trolley driven by Janjanin. On February 17, 1988, one day before the applicable two-year statute of limitations ran, he, through his attorney, filed a praecipe to issue a writ of summons. His attorney filed an affidavit wherein he states that he mailed a copy of the writ to Mr. Melvin Pitts, SEPTA's claims supervisor, on February 2, 1988. This letter included an "acceptance of service letter form" (Williams' brief p. 4), which Mr. Pitts was asked to forward to SEPTA's legal department. The form was not returned to Williams' counsel.

SEPTA was ultimately served with a copy of the writ on October 25, 1988. In the interim, Williams' counsel had reissued the writ a total of seven times. Williams' failure to have the writ served until eight months after it was originally issued is not explained in the record.

Williams filed his complaint on November 25, 1988 and SEPTA filed an answer and new matter on December 12, 1988. In its new matter, SEPTA raised the bar of the statute of limitations for Williams' failure to effect timely service of his writ of summons. It thereafter filed a motion for summary judgment on these grounds, which motion was granted by the trial court.

The issue before us is whether the trial court properly granted summary judgment based upon Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). We hold that the motion was properly granted and affirm.

In Lamp, our Supreme Court laid down a new rule with respect to actions commenced by writs of summons within the statute of limitations period, but not served before the expiration of that period. Prior to Lamp, the rule was that an action commenced but not served within the statutory period was sufficient to toll the statute for an additional period equal to the length of the statutory period. The Lamp Court stated:

We now conclude 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. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the process of justice as speedy and efficient as possible. Accordingly, we believe that the rule must now be qualified.... 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, pursuant to our supervisory power over Pennsylvania courts, we rule that henceforth, i.e., in actions instituted subsequent to the date of this decision, 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. 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 and since there are differences among the judicial districts of Pennsylvania in the procedures followed in these matters, a plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service.

Id. at 477-78, 366 A.2d at 888-89 (citation omitted; footnotes omitted).

Williams argues that Lamp does not apply because he did not attempt to frustrate the legal process. Rather, he argues that he complied with Pa.R.C.P. No. (Rule) 402(b) by sending a copy of the writ to SEPTA along with an acceptance of service form which was not returned to him. Rule 402 covers two...