Jacob v. New Kensington Y.M.C.A.

459 A.2d 350, 312 Pa. Super. 533, 1983 Pa. Super. LEXIS 3689
Superior Court of Pennsylvania·Decided March 11, 1983·No. 1274·Published·Cited by 19 cases

Opinions

MONTGOMERY, Judge:

This appeal arises from the grant of defendant-appellee’s motion for judgment on the pleadings on the ground that the action was barred by the statute of limitations.1 We reverse and remand the matter to the court below.

Plaintiff-appellant allegedly was injured while on the premises of the Young Men’s Christian Association of New Kensington on November 15, 1978. Appellant claims that as a result of appellee’s negligence, he became permanently and irreversibly quadriplegic. Prior to retaining counsel, appellant’s father, on his son’s behalf, filed a praecipe for a writ of summons in trespass with the prothonotary of [536] Westmoreland County on November 12, 1980. Though the writ was issued by the protiionotary that same day, service upon appellee-defendant was not made prior to its expiration.

A praecipe to reissue the writ of summons was filed by appellant through his attorney on January 29, 1981; and, said writ was reissued on that date. The writ was then delivered to the Westmoreland County sheriff with instructions for service and was served upon appellee-defendant on February 17, 1981.

Appellant contends that the rule in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), is not violated where a plaintiff intended to have the writ served immediately, but, due to a misunderstanding on the part of the layman filing the suit on his behalf, the writ was not delivered to the sheriff as required by local rule.

In Lamp the plaintiff-appellant’s attorney filed a praecipe for a writ of summons within the period permitted by the statute of limitations, but instructed the prothonotary not to deliver the writ to the sheriff for service. A praecipe for reissuance was filed, but service of the writ and its accompanying complaint was not effectuated. No reason was given for the failure to serve this reissued writ. Some two months later another praecipe for reissuance was filed and service was timely made. Both praecipes for reissuance were filed beyond the two year statutory period.

The rule in such cases prior to Lamp was based upon a literal interpretation of Pa.R.C.P. 1007 which states in part that

“[a]n action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons...”

In interpreting Rule 1007, our Supreme Court repeatedly held that the mere filing of a praecipe to commence an action is sufficient to toll the running of the statute of limitations; and, pursuant to Pa.R.C.P. 1010(a), the writ [537] may be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for commencement of the action. See, e.g., Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961).

The Lamp court concluded, however, that too much potential for abuse existed “in a rule which permitted 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.” Lamp v. Heyman, supra, 469 Pa. at 477, 366 A.2d at 888. As a result, a new rule was enunciated as follows:

“[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.” Id., 469 Pa. at 478, 366 A.2d at 889 (footnote omitted).

The above language, standing alone, negates appellant’s contention that this case does not fall within the ambit of Lamp. Prior to its enunciation of the new approach, however, the Supreme Court delineated the purpose for the departure from prior cases interpreting Pa.R.C.P. 1007. The Court declared that

“[o]ur 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.” Lamp v. Heyman, supra, 469 Pa. at 478, 366 A.2d at 889.

The key phrase in the stated purpose for the present approach is “good-faith effort.” Though appellant did not notify appellee of the action in accordance with the service provision of the local rule, he did vicariously assume, based [538] upon comments made to his father by an employee of the prothonotary, that service would be effectuated absent any further action on his part. As a result, appellant asserts that his intention to have timely service made suffices as a good-faith effort.

Our review of the Lamp decision reveals that the Supreme Court clearly intended to abrogate the potential for abuse in cases where the issuance of a writ of summons tolls the statute of limitations. On the other hand, we also interpret Lamp as not intending its effect to be the punishment of those who make a good-faith effort to comply with the local rules. This interpretation necessitates a case-by-case analysis of the applicability of Lamp.

The facts in the case at hand take the matter outside of the Lamp rule. As a layman acting on his son’s behalf prior to retaining counsel, the inference drawn by appellant’s father from certain comments of a member of the prothonotary’s office is reasonable.2 Unlike an attorney who should be familiar with local procedures before commencing an action, a layman does not have the advantage of such familiarity. It is not unreasonable to believe that a layperson would accept without question, or misinterpret, procedural information from an officer of the court. We do not interpret the rule in Lamp as automatically binding upon those who find themselves in violation of their local rule regarding service regardless of the surrounding circumstances.3

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Jacob v. New Kensington Y.M.C.A., 459 A.2d 350, 312 Pa. Super. 533, 1983 Pa. Super. LEXIS 3689 (Pa. Ct. App. 1983).

459 A.2d 350 (Jacob v. New Kensington Y.M.C.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Jacob v. New Kensington Y.M.C.A.
459 A.2d 350 (Superior Court of Pennsylvania, 1983)