# Lamp v. Heyman > Supreme Court of Pennsylvania · November 24, 1976 · 469 Pa. 465 URL: https://www.frixlaw.com/law-library/cases/9701900 ## Case - **Full name:** Frances LAMP, Appellant, v. Alvin S. HEYMAN Et Al., Appellees, and Beaver Valley Motor Coach Company and Clarence Robbins, Additional Appellees - **Court:** Supreme Court of Pennsylvania - **Decided:** November 24, 1976 - **Citations:** 469 Pa. 465; 366 A.2d 882; 1976 Pa. LEXIS 781 - **Precedential status:** Published - **Opinion:** Dissent by Pomeroy - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 228 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Declined to follow by Englert v. Fazio Mechanical Services, Inc., 2007 Pa. Super. 233 (2007). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701900 ## How later opinions describe it (automated extraction) - holding that “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” - finding that filing of a praecipe four days before expiration of two year statute of limitations tolled the statute, where plaintiff failed to deliver the writ to the sheriff for service - holding that the failure to make good-faith efforts to serve a defendant will nullify tolling of the statute of limitations ## Opinion text POMEROY, Justice (dissenting). The Court today holds that our present rules of Civil Procedure, 1 2 by providing for the commencement of actions by the filing of a praecipe for a writ of summons and for the reissuance of unserved writs, permit a plaintiff to toll the statute of limitations* indefinitely merely by filing a praecipe for a writ and that it matters not that service of the writ upon the defendant is intentionally prevented by the plaintiff himself. Under this interpretation a plaintiff may not only commence an action without any attempt to notify the defendant that a suit is pending but also can keep the ac *480 tion alive for years — theoretically forever — without the defendant having any awareness that he had been sued. I cannot accept a construction of our Rules which would cloak with legitimacy a practice so contrary to normal ideas of fairness, to the policy behind statutes of limitations and to ideas of sound judicial administration. Recognizing the inherent unsoundness of the result it reaches, the Court takes immediate remedial action, which I applaud, by decreeing a different practice for the future. I am constrained to say, however, that in my view the Court errs seriously in its holding that our present rules and the case law construing them dictate the decision here rendered. Since some of my reasons for this view are not included in Mr. Justice ROBERTS’ opinion, which I join, I add this supplemental statement. I agree completely with Mr. Justice ROBERTS that our decision here should be controlled by Peterson v. Philadelphia Suburban Transportation Company, 435 Pa. 232 , 255 A.2d 577 (1969). We there flatly stated that “The court below was correct in concluding that ‘the “hold” order by Plaintiff on the summons makes the summons a nullity.' ” 435 Pa. at 240 , 255 A.2d at 582 . In light of the explicitness of this and related language in our opinion, it is difficult to understand how the Court can now state that “even if the plaintiff deliberately delayed service,” he was “entitled to rely on Peterson for the proposition that the mere filing of the praecipe in trespass . . . was sufficient to toll the statute . . .” Opinion of the Court, ante at 888. 3 *481 (My emphasis). In my view Peterson , properly read, requires exactly the opposite result. 4 Reading Rule 1007 in conjunction with the directive of Rule 1009 that writs of summons “shall be served,” 5 and construing both rules “liberally ... to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable,” compels the conclusion which I think Peterson announced, namely, that a praecipe for a writ of summons is effective to commence an action if, but only if, the plaintiff does not, as the Court aptly puts it, “stall in its tracks the legal machinery he has just set in motion.” Opinion of the Court, ante at 888-889. Although the Court accepts this construction only for the future, it is altogether consist *482 ent both with the law as it stood prior to 1947, when the Rules of Civil Procedure took effect, 6 and with the purpose of the omission from Rule 1007 of a service requirement as a precondition to commencement of an action. See Pa.R.C.P. 127(c)(3), (4), (5). In Salay v. Braun, 427 Pa. 480, 484 , 235 A.2d 368, 371 (1967), we observed, speaking through Mr. Justice EAGEN, that service was deliberately not made such a prerequisite in order “to free the plaintiff from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time.” Thus, our Rules were structured as they are in order to protect the plaintiff who files his praecipe within the period of limitations, but whose writ is served after the period has expired. Likewise, the Rules were designed to afford protection to the plaintiff who files his praecipe in time but whose writ is not issued, is not served, or is returned unserved through no fault of his own. In such cases the action has been commenced, and may be kept alive by reissuance of the writ pursuant to Rule 1010 within a period equal to the original period of limitations applicable to the action. See Zarlinsky v. Laudenslager, 402 Pa. 290, 295 , 167 A.2d 317, 320 (1961). 7 But I can perceive no legitimate pur *483 pose to be served in so construing our Rules as to permit a plaintiff (or a defendant in a third party proceeding) who has filed his praecipe for a writ in time to toll the statute of limitations, then with impunity by his own unilateral and often unannounced action or inaction to place the case in a suspended status, awaiting reactivation at the plaintiff’s pleasure. 8 The majority opinion asserts, without any basis in the record, that this has become “a relatively common practice throughout the Commonwealth.” It is suggested by appellant that by withholding of service, settlement negotiations and investigation of facts in complicated cases are facilitated. The argument not only overlooks the mandate of Pa.R.C.P. 1009 that service shall (if possible) be made within 30 days, but is quite unconvincing otherwise. Service is not a step which compels a lawsuit to proceed immediately and inexorably to a full scale legal battle by ruling out investigative and settlement activities, nor does service mean that costs and legal fees are necessarily escalated. In addition to being a prerequisite to investing a court with personal jurisdiction over the defendant, service of process has as its purpose notice to the named defendant that he has been brought into court as a party in a lawsuit and must take appro *484 priate steps in defense. Unless he has validly waived notice, anyone against whom the heavy hand of litigation is raised is entitled to no less. For the reasons stated, I would affirm the order of the Superior Court. ROBERTS and NIX, JJ., join in this dissenting opinion. . Of primary relevance are Rules 1007, 1009, and 1010 of our Rules of Civil Procedure (Pa.R.C.P.). Rule 1007 provides that an action may be commenced, among other ways, by the filing with the prothonotary of a praecipe for a writ of summons. Rule 1009 deals with service of process and provides in pertinent part that the “[t]he writ . . shall be served by the sheriff within thirty (30) days after issuance . .” In the event that the writ is not so served, Rule 1010(b) provides that the writ may be reissued “at any time and any number of times” and Rule 1010(d) provides that the reissued writ shall be served by the sheriff within thirty (30) days after reissuance. . The applicable statute of limitations is the Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34. It provides in pertinent part that “[e]very suit hereafter brought to recover damages for injury wrongfully done to the person, in cases where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards. ...” . In Peterson there was, to be sure, an alternative ground of decision. The plaintiff had not had the original writ of summons reissued as to the unserved defendant within the period required by our decision in Zerlinsky v. Laudenslager, 402 Pa. 290, 295 , 167 A.2d 317, 320 (1961). Thus, even if the “hold” order on the original writ had not nullified the filing of the praecipe, the plaintiff’s action against the unserved defendant would have become barred two years from the date of filing the original praecipe. The discussion in Peterson of the latter ground, 435 Pa. at 241-43 , 255 A.2d at 582-83 , however, contrary to what the majority now seems to suggest, was not at all intended to weaken our *481 holding on the first ground that the placing of the “hold” order on the writ rendered nugatory the commencement of the action by the filing of the praecipe naming the deliberately unserved defendant. As we concluded in Peterson , “[the unserved defendant] was properly removed from the record in this case as an original defendant because, first, it had never been served with process due to plaintiff’s own instructions, and second, even if there were no deliberate failure to prosecute, the time for the reissuance of the writ, as established by the decisions of this court, had expired.” 435 Pa. at 243 , 255 A.2d at 583 . (My emphasis). . I would similarly so rule in cases in which, instead of instructing the sheriff to hold the writs of summons, as in Peterson and the case at bar, the plaintiffs simply did not deliver their respective writs to the sheriff. This was the situation in Anderson v. Bernhard Realty Sales Co., Inc. and Reid v. Southeastern Penna. Transportation Authority, also decided today on the authority of the instant decision, 469 Pa. 488 , 366 A.2d 894 (1976). The effect of the inaction in such cases was the same as that of placing a “hold” order on the writs. Personal service, the means by which jurisdiction over the person of a defendant is generally obtained, was not made because the respective plaintiffs chose that it not be made; the defendants in Anderson and Reid, no less than the instant defendants, were thereby deprived of notice that an action had been commenced against them and were denied the opportunity to rule the plaintiffs to file a complaint, see Pa.R.C.P. 1037, and otherwise to seek to move the suits to a speedy conclusion. . Pa.R.C.P. 131 provides: “Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings. Rules in pari materia shall be construed together, if possible, as one rule or one chapter of rules.” . In Mayo v. James Lees & Sons Co., 326 Pa. 341, 342 , 192 A. 459 (1937), the prior rule was stated as follows: “A plaintiff, to keep his cause of action alive, must act by causing a summons to issue within the statutory period, and thereafter be vigilant by taking prompt steps to obtain service; he cannot procure the writ and remain inactive indefinitely. Where a writ, which is obtained within the statutory period and delivered to the sheriff for service in due time, is returned nihil habet or non ést inventus, the law considers plaintiff as having been diligent and treats his conduct as tolling the statute.” . Rule 1010 does not place a limit upon the time within which an unserved writ of summons may be reissued, but in Zarlinsky v. Laudenslager, supra, this Court held that “a writ of summons may be reissued only for a period of time which, measured from the date of a subsequent reissuance thereof, is not longer than the period of time required by the applicable statute of limitations for the bringing of the action.” 402 Pa. at 295 , 167 A.2d at 320 . Thus, in personal injury cases, unserved writs must be reis *483 sued at intervals not exceeding two years in order to keep the action alive. This action the plaintiff must take “to protect the efficacy of a writ of summons issued but not served.” Id. at 294 , 167 A.2d at 319 . In the case before us this was done. . While it is true, as the Superior Court plurality pointed out in Anderson v. Bernhard Realty Sales Co., 230 Pa.Super. 21, 25 , 329 A.2d 852 (1974) and as we observed in Peterson, 435 Pa. at 242 , 255 A.2d 577 , and in Salay v. Braun, 427 Pa. 480, 485 , 235 A.2d 368, 371 (1967), that defendants possess the remedy of non pros as protection against a plaintiff’s unreasonable delay in prosecuting an action, this is hardly an adequate remedy in cases of this sort; the defendant, who may not even be aware of the pendency of the suit until served, should not have the burden of going forward to demonstrate that the lapse of time in prosecuting the suit has been unreasonable or prejudicial as to him in a case where the statutory period of limitation has run prior to the delayed service. Cf. Pa.R.J.A. No. 1901. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701900. Public record. Not legal advice.