Zarlinsky v. Laudenslager

• Decision Date: 16 January 1961
• Citation: 402 Pa. 290,167 A.2d 317
• Parties: John ZARLINSKY, Beulah Zarlinsky, Appellants, v. Donald W. LAUDENSLAGER.
• Court: Pennsylvania Supreme Court

167 A.2d 317

402 Pa. 290

John ZARLINSKY, Beulah Zarlinsky, Appellants, v. Donald W. LAUDENSLAGER.

Supreme Court of Pennsylvania.

January 16, 1961.

Theodore R. Gardner, James L. Weirbach, Allentown, for appellants.

S D. Frederick, Snyder, Wert, Wilcox, Frederick & Doll, W Hamlin Neely, Allentown, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK, and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

This action for the recovery of damages allegedly suffered by the plaintiffs, husband and wife, as the result of a two-car automobile collision, was commenced with the filing of a praecipe for the issuance of a writ of summons in trespass against the defendant. The writ was duly issued but never served. It was not until more than two years and eight months after the action had been begun that the plaintiffs filed their complaint.

The question involved on these appeals is whether the action is barred, to the extent that damages for personal injuries are claimed, by a court promulgated rule fixing a limitation of the time within which a plaintiff, after causing a writ of summons to issue which was not served, must act in order to protect the efficacy of the process and thus keep the cause of action alive.

The accident which the plaintiffs charge to alleged tortious conduct of the defendant, occurred on December 29, 1950. The husband and wife plaintiffs, who were driver and passenger respectively in one of the cars involved, filed their praecipe for the issuance of a writ of summons in trespass against the defendant, the driver of the other car, on September 29, 1952. As already indicated, the writ was issued but never served. On June 16, 1955, the plaintiffs filed their complaint which, as amended, claims damages for personal injuries to the wife plaintiff, medical expenses incurred and to be incurred by the husband plaintiff therefor, and property damage to the husband's automobile and consequent loss to him.

The defendant's answer to the complaint alleged, under the heading of New Matter, that the 'action is barred by the Statute of Limitations.' On September 20, 1956, the deposition of the defendant was taken in which he stated that he had entered the United States Navy on February 19, 1952, spent his entire naval service at Bainbridge, Maryland, and was discharged on December 1, 1953. He further deposed that he had spent the first three months after his discharge at his father's home in Allentown and that, since sometime in February of 1954, he has resided continuously in Stroudsburg, Pennsylvania. He was not questioned as to whether he had attempted to conceal his whereabouts.

On September 25, 1956, the defendant moved for judgment on the pleadings, whereon the court granted a rule on the plaintiffs to show cause why judgment of non pros should not be entered against them. The plaintiffs filed a reply on October 17, 1957, to the defendant's answer and new matter wherein they averred, as the defendant's deposition had disclosed, that he was in the military service of the United States from February 19, 1952, to December 1, 1953; that the plaintiffs were without knowledge of the defendant's whereabouts between February 12, 1953, and May of 1955, although diligent search for him had been made by them and on their behalf; and that the defendant sought actively to conceal his whereabouts from the plaintiffs both during his period of military service and thereafter. The plaintiffs also averred that, as a consequence of negotiations, an understanding was reached on May 19, 1953, between plaintiffs' attorney and a person acting as agent for both the defendant and his insurance carrier that no further action was to be taken until the defendant returned from active military service and made his whereabouts known to the plaintiffs.

The depositions of both of the plaintiffs and their attorney were taken and submitted to the court below. On May 19, 1959, the court entered judgments on the pleadings for the defendant as to so much of the plaintiffs' complaint as claimed damages for personal injuries to the wife, leaving standing that part of the complaint which claims damages for property loss to the husband's automobile. It is those judgments from which the plaintiffs have appealed.

The statute of limitations for the bringing of an action to recover damages for personal injuries which do not result in death is two years. Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34. This statutory provision is without direct bearing on the issue here involved since the plaintiffs filed their praecipe for a writ of summons against the defendant on September 29, 1952, which was within two years of the happening of the accident. The statutory period of limitation becomes important, however, by analogy and furnishes the basis for the rule decisionally promulgated by this court with respect to the period of time within which a plaintiff must act to protect the efficiency of a writ of summons issued but not served.

Prior to the adoption of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, we held on a number of occasions that, when a statute of limitations required an action to be brought within a specified period of time and such an action was instituted by the issuance of a writ of summons against the defendant which was not served, the plaintiff could continue process to keep his cause of action alive by the issuance of an alias writ of summons, but that he had to do so within a period of time which, measured from the issuance of the original writ, was not longer than the time required by the applicable statute of limitations for the bringing of the action, and that subsequent pluries writs of summons had to be issued within the same period of time measured from the issuance of the preceding writ. Mayo v. James Lees & Sons Company, 1937, 326 Pa. 341, 192 A. 459; Prettyman v. Irwin, 1922, 273 Pa. 522, 117 A. 195; Bovaird & Seyfang Manufacturing Company v. Ferguson, 1906, 215 Pa. 235, 64 A. 513. Thus it was, that this court imposed a rule of limitation for the continuing of process to keep alive an action by analogy to the statute of limitations for the bringing of the action.

The Pennsylvania Rules of Civil Procedure abandoned alias and pluries writs of summons and provide, in lieu...