Voshell v. Sun Oil Co.

PER CURIAM:

This appeal presents the single question of whether the statute of limitations was foiled when plaintiff-appellant filed a praecipe for a writ of summons, but instructed the prothonotary to hold the writ and not deliver it to the sheriff for service. The court below, in granting defendantappellees’ motion for judgment on the pleadings, concluded that the statute of limitations was not tolled under those circumstances. We, however, must disagree.

Appellant filed his praecipe on March 11, 1974. This action, therefore, is controlled by Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Our Supreme Court there specifically ruled that a plaintiff’s “issue and hold” instructions to the prothonotary did not make the timely filing of the praecipe a nullity for purposes of tolling the statute of limitations.¹ Accordingly, we hold that the instant action was properly commenced within the statutory period.

Judgment reversed and complaint reinstated.

1 . That result, however, was qualified. In actions instituted subse- ■ quent to the date of the Lamp decision, “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.” Lamp v. Heyman, supra at 478, 366 A.2d at 889 (footnote omitted).