Cox v. Hott

371 A.2d 921, 246 Pa. Super. 445, 1977 Pa. Super. LEXIS 1635
CourtSuperior Court of Pennsylvania
DecidedMarch 31, 1977
Docket439
StatusPublished
Cited by15 cases

This text of 371 A.2d 921 (Cox v. Hott) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Hott, 371 A.2d 921, 246 Pa. Super. 445, 1977 Pa. Super. LEXIS 1635 (Pa. Ct. App. 1977).

Opinions

HOFFMAN, Judge:

Appellants contend that the lower court erred when it granted appellee’s motion for judgment on the pleadings because the statute of limitations had run.

On July 3, 1971, the parties were involved in an automobile accident on Route 19, Township of Peters, Washington County. As a result of the collision, appellant William Cox’s 1967 Pontiac was damaged beyond repair and all of the appellants suffered injuries described in their complaint as “serious and severe.”

Appellants commenced an action in trespass by filing a praecipe for a writ of summons on June 25, 1973, within the two year statute of limitations governing actions for personal injuries. See Act of June 24, 1895, P.L. 236, § 2; 12 P.S. § 34. The writ has never been served. However, on July 10, 1973, appellants filed a complaint in trespass which was served on appellee on July 11, by the Washington County Sheriff.1

Appellee’s attorney entered his appearance on July 20, 1973, and filed an answer and new matter on July 30, 1973. Appellee’s answer stated that damages and negligence were in issue. Appellee raised by new matter the bar of the statute of limitations. His theory was that the complaint was filed beyond the statutory limit. Ap[447]*447pellee did not raise any challenge to the court’s jurisdiction by preliminary objections. See Rule 1017, P.R.C.P., 42 P.S. Appendix. On August 14, 1973, appellants filed a reply to new matter which asserted that service of process was timely. Subsequently, appellee took depositions of appellants William and Sharon Cox on November 15, 1973. On February 12, 1974, appellee’s representatives conducted a medical examination of appellant Sharon Cox.

Finally, on November 13, 1975, appellee filed a motion on the pleadings in which appellee raised the defense of the statute of limitations. On December 22, 1975, the lower court entered an order granting that motion. This appeal followed.

The lower court based its decision on Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970): “Where an action is started by summons, the complaint is only the required pleading with none of the characteristics of process; service of the complaint in such a case cannot confer jurisdiction. ‘The complaint, to be process, must be sole process. The phraseology of Rule 1007 compels this conclusion.’ Goodrich-Amram, § 1007-6. See Williams v. Pantalone, 47 Westmore.L.J. 265 (C.P. Westmoreland Co. 1965) and Di Orio v. Renn, 39 Northumb.Leg.J. 20 (C.P. Northumberland Co. 1966). Thus in the case at hand the service of appellant’s complaint did not erase the need for timely service of the appellant’s original writ or the alternative requirement that the writ be reissued within two years to prevent its lapse.” Id. at 237, 263 A.2d at 418.2

[448]*448Appellants, however, contend that appellee waived his right to object to the manner in which he was served and that his motion for judgment on the pleadings would have been proper only if appellee had challenged service of process in a timely manner. Further, they contend that Yefko is simply inapposite to the instant case.

The following are the relevant facts in Yefko: the parties were involved in an automobile accident on February 11, 1965. The plaintiff-appellant took no action until January 10,1967, when she filed a praecipe for a writ of summons in trespass. The writ remained dormant. On May 18, 1967, plaintiff-appellant filed a complaint in trespass which was subsequently served on the Secretary of the Commonwealth and on the defendant-appellee, an out-of-state resident, by registered mail. To this point, the operative facts are indistinguishable from those presented by the instant case.

Thereafter, “defendant-appellee filed timely preliminary objections in the nature of a petition raising a question of jurisdiction because of improper service; a motion to strike off the complaint; a demurrer raising the bar of the statute of limitations; and a motion for a more specific pleading.” 437 Pa. at 235, 263 A.2d at 417. The lower court sustained defendant-appellee’s objection to the manner of service of process, but granted “ ‘. . . leave to the plaintiff to carry through with the procedure [i. e., commencement of the action by the issuance and service of a writ of summons] he originally elected to follow . . .’” Id., 263 A.2d at 417. Again, plaintiff-appellant sat idly by until January 28, 1969, when she filed a praecipe for reissuance of her original writ of summons. After it was served, defendant-appellee again raised the bar of the statute of limitations by timely preliminary objections. The lower court sustained the preliminary objections and dismissed plaintiff-appellant’s action.

[449]*449The Supreme Court affirmed: “It is well settled that a writ of summons may be reissued only for a period of time which, when measured from the date of the original issuance of the writ (or the date of a subsequent valid reissuance thereof) is not longer than the period of time required by the applicable statute of limitations for the bringing of the action. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969); Zarlinsky v. Laudenslayer, 402 Pa. 290, 167 A. 2d 317 (1961).” Id. at 236, 263 A.2d at 418. The Court found that the applicable period of limitations had not been extended so that plaintiff-appellant’s praecipe for reissuance of the writ was not timely. Accord, Trost v. Clover, 234 Pa.Super. 255, 338 A.2d 630 (1975), see also Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

The factual differences are readily apparent. On July 30, 1973, appellee raised the bar of the statute of limitations in new matter; he did not challenge the court’s jurisdiction by preliminary objections. Further, after his attorney entered his appearance, he proceeded to litigate the action by taking depositions and by arranging for a medical examination of appellant Sharon Cox. Thus, the dispositive question is whether these factual differences distinguish the instant case from Yefko.

Rule 1017, Pa.R.C.P., requires that challenges to personal jurisdiction be raised preliminarily: “(b) Preliminary objections are available to any party and are limited to (1) a petition raising a question of jurisdiction or venue or attacking the form or service of a writ of summons . . ..” A party must raise preliminary objections “within twenty (20) days after service of the preceding pleading.” Rule 1026, Pa.R.C.P.; Radakovich v. Weisman, 241 Pa.Super. 35, 359 A.2d 426 (filed June 28, 1976). A party who fails to raise a question of the court’s in personam jurisdiction by timely preliminary objections waives that claim. Rule 1032, Pa.R.C.P. [450]*450That is, “[i]t is well-established that a party may waive his objections to personal jurisdiction by consenting to the court’s authority: ‘Jurisdiction of the person may only be obtained, . . ., through consent, waiver or proper service of process.’ Slezynger v. Bischak, 224 Pa.Super.

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Cox v. Hott
371 A.2d 921 (Superior Court of Pennsylvania, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
371 A.2d 921, 246 Pa. Super. 445, 1977 Pa. Super. LEXIS 1635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-hott-pasuperct-1977.