Marucci v. Lippman

177 A.2d 616, 406 Pa. 283, 1962 Pa. LEXIS 677

• Court: Supreme Court of Pennsylvania
• Decided: January 17, 1962
• Docket: Appeal, 128
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

On February 26, 1955, an automobile operated by the plaintiff, Joseph Marucci, was involved in an intersection collision with an automobile operated by the defendant, Sidney Lippman.

On September 22, 1955, alleging that the accident was due to the carelessness of the defendant, the plaintiff instituted this action in the Court of Common Pleas of Allegheny County to recover damages. The sheriff did not serve the writ of summons and made a return “Not Found.”

On November 21, 1955, Lippman instituted an action against Marucci, in the County Court of Allegheny County, for property damage sustained in the accident which he claimed was due to the carelessness of Marucci.

On January 3, 1956, counsel for Marucci filed a petition to transfer Lippman’s action from the County Court to the Court of Common Pleas.

On March 25, 1959, the cases were listed for pretrial. Marucci’s counsel moved that the actions be consolidated for trial. Lippman’s counsel objected and called attention to the fact that service of the summons in the Marucci action had never been effected upon the defendant. Because of this defect the pre-trial judge refused to order consolidation.

On April 1, 1959, more than four years after the accident involved, the writ was reissued in the Marucci action and service of the writ made on the defendant. Counsel for Lippman then entered his appearance on behalf of the defendant and filed timely preliminary objections raising the question of the statute of limitations. The lower court sustained the preliminary objections and dismissed Marucci’s action. From that order this appeal is prosecuted.

When the writ of summons was originally issued in the present action, the statute of limitations was tolled for a period of two years from the date of issuance, but not a day longer. See Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A. 2d 317 (1961). The action was barred when this period expired and the lower court correctly so ruled.

It is argued that Lippman waived his right to raise the defense of the statute of limitations, particularly in view of the fact that on January 23, 1959, Lippman’s counsel wrote to Marucci’s counsel calling his attention to the fact that the defendant had never been served and requested that service in the action be perfected.

While it is true that the defendant may waive his right to plead the statute (see Smith v. Pennsylvania Railroad, 304 Pa. 294, 156 Atl. 89 (1931)), we do not construe the letter involved to constitute such a waiver. Smith is completely dissimilar.

Lippman’s counsel was understandably anxious to “clear the docket” and conclude the action. Hence the letter referred to. Until his client was legally served, it would be foolhardy for him to even enter his appearance. The defense of the statute of limitations is an affirmative one and must be specifically pleaded: Pa. R. C. P. 1030; Thomas v. McLean, 365 Pa. 526, 76 A. 2d 413 (1950). It could not be raised until an answer was filed and surely no answer was due until the defendant was at least served with process. To now deny the defendant the opportunity of pleading the'statute, under the circumstances this case presents, and rule that he waived Ms right, would tend to completely destroy the rules concerning the applicability of the statute of limitations and would further be in conflict with the pertinent decisions this Court has enunciated repeatedly over a long period of years.

Order affirmed.