Farinacci v. Beaver County Industrial Development Authority

OPINION OF THE COURT

FLAHERTY, Justice.

We granted allocatur in this case to review the application of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) to a matter where, on the last day to commence an action for personal injuries, plaintiff filed a praecipe for writ of summons but, through plaintiff’s counsel’s inadvertence, service of the writ could not be effected within 30 days of its issuance.

Plaintiffs in the original action, appellants herein, seek damages in connection with a slip and fall which allegedly occurred on February 2, 1980. In compliance with the two-year limitation on commencement of actions for personal injury, 42 Pa.C.S.A. § 5524(2), plaintiffs’ counsel filed a praecipe for writ of summons with the Prothonotary of Beaver County on February 2, 1982, the last permissible day under the statute. Plaintiffs’ counsel paid the Prothonotary for issuance of the writ and the writ issued the next day. Although plaintiffs’ counsel intended to immediately instruct and pay the sheriff for service, he misplaced the file. Eight or nine days later, the file was found and returned to plaintiffs’ counsel who then forgot to take necessary steps to effectuate service of the writ. The writ was reissued and the sheriff paid on March 11, 1982, and personal service on all defendants was made within the next two weeks.

Defendants, appellees herein, filed preliminary objections raising the statute of limitations. They argued that filing the praecipe could not toll the statute of limitations where plaintiffs failed to instruct and pay the sheriff for service in accordance with local practice. In response, plaintiffs’ counsel filed a brief challenging the propriety of defendants’ raising the statute of limitations in preliminary objections, and an affidavit explaining the reason for the delay in paying the sheriff for service.¹ There is no suggestion, of record or otherwise, that plaintiffs contemplated additional evidentiary proceedings prior to disposition of defendants’ preliminary objections.² The Court of Common Pleas sustained defendants’ preliminary objections and dismissed plaintiffs’ action. A three judge panel of Superior Court affirmed without opinion. Farinacci v. Beaver Authority, 339 Pa.Super. 623, 488 A.2d 1169 (1984)..

Before reaching the substantive issue regarding application of the rule in Lamp, supra, we turn our attention to the procedural irregularities in this matter. Firstly, in this case, the defense of the statute of limitations was not properly raised in preliminary objections, but in new matter. This case does not involve the bar of a nonwaivable statute of limitations which was properly raised by preliminary objections under Pa.R.C.P. 1017(b)(4).³ See, Id. 469 Pa. at 470-471, 366 A.2d at 885; Sayne v. Wylie, 296 Pa.Super. 134, 137, 442 A.2d 694, 696 (1981); Pa.R.C.P. 1030. Neither does this case fall within the ambit of Pa.R.C.P. 1017(b)(1) which allows attacks on the “former service of a writ of summons” via preliminary objections as the Court of Common Pleas supposed. Existence of a statute of limitation which cuts off a remedy does not constitute a defect in the “form or service of a writ of summons” contemplated by Pa.R.C.P. 1017(b)(1) and subject to attack by preliminary objections.

The proper method for challenging the propriety of defendants’ preliminary objections raising the statute of limitations is by preliminary objections to defendants’ preliminary objections. See, Stein v. Richardson, 302 Pa.Super. 124, 139, 448 A.2d 558, 565 (1982); 2 GOODRICH AMRAM 2d, § 1017(b):5, 43-44 (1976). Plaintiffs, however, did not so challenge defendants’ preliminary objections. Rather, plaintiffs filed a brief. Although this procedure was erroneous, Common Pleas Court considered the arguments thus presented, and Superior Court expressly approved the lower court’s decision. We therefore will review the decision of the Court of Common Pleas.

Lamp v. Heyman, supra, changed the prior practice of automatically tolling the statute of limitations after praecipe for writ of summons for the same period of time within which the original action could be brought, by imposing the additional requirement that plaintiffs “[refrain] from a course of conduct which serves to stall in its tracks the legal machinery [they have] just set in motion.” Id. 469 Pa. at 478, 366 A.2d at 889. “Depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering

it to the sheriff for service, or by neglecting to pay the sheriff his fee.” Id., 469 Pa. at 472, 366 A.2d at 886 [Emphasis supplied]. Plaintiffs are required to comply with local practice to ensure, insofar as they are able, prompt service of process. A fair reading of the opinion of the Court of Common Pleas indicates that the local practice in Beaver County is for the Prothonotary to deliver the writ to the sheriff, and for plaintiffs’ counsel to deliver to the sheriff instructions and payment for service before the writ is served. See also, Weiss v. Equibank, 313 Pa.Super. 446, 449, 460 A.2d 271, 273 (1983). As stated supra, after plaintiffs’ counsel misplaced the file, he neglected for approximately one month to deliver the requisite instructions and payment to the sheriff. Common Pleas Court held that this neglect violated the rule announced in Lamp.

Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action. Although this good-faith requirement is not apparent from a reading of the rule itself, we interpret the rule mindful of the context in which it was announced. The purpose for the rule, as stated in Lamp, “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.” 469 Pa. at 478, 366 A.2d at 889 [Emphasis supplied]; see also Jacob v. New Kensinqton Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983).

In each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made. Thus, evidentiary determinations are required. Instantly, plaintiffs submitted an affidavit which the court considered in rendering its decision. Defendants agree that this affidavit sets forth all relevant facts and that no further evidentiary proceedings are required. Based on the affidavit, the Court of Common Pleas found that eight or nine days of the delay was attributable to counsel’s simply misplacing the file. Such is not necessarily inconsistent with a finding of good faith. The remaining four weeks’ delay is attributable only to counsel’s faulty memory. As plaintiffs have failed to provide an explanation for counsel’s inadvertence which could substantiate a finding that plaintiffs made a good-faith effort to effectuate service of the writ, we are constrained to hold that the order of the Court of Common Pleas granting defendants’ preliminary objections and dismissing plaintiffs’ action was not an abuse of discretion, and was therefore proper.

Affirmed.

ZAPPALA, J., files a dissenting opinion in which LARSEN and McDERMOTT, JJ., join.

1 . Although they are included in the reproduced record, neither the brief nor affidavit are part of the record on appeal, see Pa.R.A.P. 1921.

2 . Although plaintiffs now seek alternative relief in the form of an opportunity to produce additional evidence, their request is in conjunction with an argument that the issue before the court is properly determined at the summary judgment stage, and not on preliminary objections. This argument is without merit.

3 . The practice of raising nonwaivable statute of limitations by preliminary objections was changed by amendment of Pa.R.C.P. 1017(b)(4), effective July 1, 1984.