# Lamp v. Heyman > Supreme Court of Pennsylvania · November 24, 1976 · 469 Pa. 465 URL: https://www.frixlaw.com/law-library/cases/9701901 ## 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 Roberts - **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/9701901 ## 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 ROBERTS, Justice (dissenting). I dissent. In my view appellant’s claim is barred by the statute of limitations. The accident out of which this case arises occurred on September 1, 1967. On August 28, 1969, within the applicable two year statute of limitations, appellant’s counsel filed a praecipe for writ of summons in trespass as provided by Pa.R.Civ.P. 1007, contrary to the mandate of rule 1009 (“The writ . . . shall be served by the sheriff. . . .”) counsel directed that the writ not be served. Service on a re-issued writ was first made on the defendant on June 19, 1970, more than 33 months after the accident. Notwithstanding appellant’s willful disregard for the mandate of rule 1009, the majority allows the original writ, unserved at appellant’s direction, to effect a tolling of the statute of limitations. The majority concludes: “neither the language of the rule nor our decisions interpreting it permit us to hold that appellant’s ‘issue and hold’ instructions to the prothonotary upon filing her praecipe nullified the commencement of her action and caused it to be barred by the statute of limitations.” In my view, this is incorrect. This action is controlled by Peterson v. Philadelphia Suburban Transportation Company, 435 Pa. 232 , 255 A.2d 577 (1969). In Peterson , plaintiff filed a praecipe for writ of summons naming A, B, and C defendants. A and B were duly served but the plaintiff, as here, direct *485 ed that the summons for C be held and not served. After the statute of limitations had expired B sought to join C as an additional defendant. This Court held that C was properly removed from the record as a original defendant because it had not been served with process due to the plaintiff’s own instructions, and because the time for reissuance of the writ had expired. In so concluding Mr. Justice Pomeroy stated for the majority: “The court below was correct in concluding that ‘The “hold” order by Plaintiff on the summons naming Valley as a defendant makes the summons a nullity.’ In so holding the court reached the same conclusion as the Court of Common Pleas of Mercer County had reached in two similar cases: Bittler v. Rocco Bono Equipment Rentals, 38 Pa.D. & C.2d 458 (1966), and McCrystal v. Berczel, No. 82 June Term, 1964 (apparently not reported). Judge Stranahan in the former case quotes Judge McKay in the latter case as follows: ‘However, when the plaintiff went further and notified the Prothonotary to hold the praecipe, in effect they nullified their action in filing it. In other words, while purporting to commence an action, they expressly prevented the commencement of it by simultaneously stopping and thereby nullifying the effect of their praecipe.’ We agree entirely with this conclusion.” 435 Pa. at 240 , 255 A.2d at 582 . The majority seeks to distinguish the Peterson case asserting that the plaintiff there was barred not because she failed to commence her action within the two year period but because she failed to have the unserved writ reissued. In this way the majority attempts to recast the decision in Peterson to rest exclusively on the failure to reissue. It is apparent, however, from the concluding *486 paragraph of the majority opinion in Peterson that the decision rested on both grounds: “In summary, Valley 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 was no deliberate failure to prosecute, the time for reissuance of the writ, as established by the decisions of this court, had expired.” Even more significant is the sound logic supporting our resolution of this issue in Peterson . The purpose of a writ of summons is twofold: (1) it enables the court to obtain jurisdiction over the defendant who is served, and (2) it gives the defendant notice that he is before the court and must prepare to defend an action. To allow a plaintiff to obstruct service of the writ frustrates each of these objectives. Our rules of civil procedure in no way contemplate or intimate that a plaintiff can have a writ of summons issued and then prevent its service. * If the plaintiff does not make a good faith effort to have the writ served in accordance with the mandate of the rules the issuance of the writ is, as the Court held in Peterson , a nullity. This reasoning — that an affirmative act to prevent service nullifies the issuance of the writ and does not toll the statute of limitations — is supported by a host of trial court decisions. See Bittler v. Rocco Bono Equipment Rentals, 38 Pa.D. & C.2d 458 (1966); McCrystal v. Berczel, 8 Mercer L.J. 75 (1965); Krout v. Anchor Motor Freight, 81 York L.R. 131 (1967); Howell v. Fleck, 5 *487 Butler L.J. 155 (1970); Augermier v. Hammer, 64 Lanc.L.Rev. 287 (1974); Bobiak v. J. C. Penney Co., 68 Schuy.L.R. 184 (1972); Sprague v. Pumphrey, 29 Som. L.J. 202 (1974); Texter v. Guiden, 15 Leb.L.J. 87 (1974); Ellis v. Danielson, 4 Butler L.J. 326 (1967); but see Yupcavage v. Mackovy, 68 Schuy.L.R. 128 (1972); Belas v. Melanovich, 31 Beaver L.J. 108 (1971). The majority of the trial courts which have considered the question have clearly recognized that to allow a party to issue a writ and order it held frustrates both the letter and the policy of our rules. The majority cites Goodrich Amram for the proposition that the action is commenced by the filing of the praecipe without further action by the plaintiff. In the usual case this is true. However, Goodrich Amram goes on to state: “A praecipe filed with the prothonotary, with instructions to ‘hold it’ and not to issue a writ, is a nullity so far as tolling the statute of limitations is concerned. It has also been held that an instruction to the prothonotary to ‘hold’ the writ after issuance, followed by no delivery of the writ to the sheriff for service, nullifies the proceedings and does not toll the statute. Where P issues a writ of summons and directs the sheriff to ‘hold’ it, so that the writ is never served and is never reissued, the writ is a nullity. The ‘hold’ order is a nullification of the filing of the praecipe.” 1 Goodrich Amram 2d § 1007:3 at 468-69 (1976) (footnotes omitted). It is manifestly unjust to defendants, and a misreading of our rules, to hold that the clandestine filing of a praecipe for writ of summons marked “hold” or “don’t serve” tolls the statute of limitations. The majority’s result today is a departure from our rules, from a prior decision by this Court on the issue, from the bulk of existing case law throughout the state, from the statement of *488 the leading authority on Pennsylvania procedure and from sound reasoning and justice. I dissent and would affirm the order of the Superior Court. POMEROY and NIX, JJ., join in this opinion. Of course where the writ cannot be served, or is not served, through no fault of the plaintiff the action is commenced and the statute is tolled. This, however, is not such a case. See 1 Goodrich Amram 2d § 1007:3 at 466-67. The distinguishing factor in these cases is whether the failure to have the writ served is attributable to the plaintiff. If it is, the writ is a nullity. If, however, the plaintiff has acted diligently to have the writ served and either through a mistake by the sheriff or prothonotary, or because of the inability to locate the defendant, the writ is not served the statute is tolled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701901. Public record. Not legal advice.