Murtha v. Crozer-Chester Medical Center

TAMILIA, Judge,

dissenting.

The majority concludes appellee Jones was a party to the action despite his never having been served with process. I disagree and therefore respectfully dissent from the Opinion of the majority. Initially, I believe the cases cited by appellee Jones more than support the proposition one cannot be a party to an action without having been served within one’s lifetime. Appellants did not serve appellee J. Albright Jones with the complaint until October 25, 1988, two days after the expiration of the 30-day period during which an original complaint must be served and ten days after the death of appellee Jones.

Although the majority hastily dismisses Schor v. Becker, 437 Pa. 409, 263 A.2d 324 (1970) as not controlling, I find this case is, in fact, determinative of the outcome here. The Court in Schor held the individual who died before being served “was not a party to any action instituted by appellants.’’ Id., 437 Pa. at 410, 263 A.2d at 325. While the majority dispels this finding as mere dicta, I maintain it was a pertinent conclusion because it has direct bearing on the determination of the stated issue on appeal. See id.

Furthermore contrary to the majority’s conclusion that Schor is distinguishable in light of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), I believe Lamp has no bearing on Schor and therefore Schor is controlling here. The Lamp case merely explains when a praecipe for writ of summons is deemed to commence an action for purposes of construing the tolling of the statute of limitations and not, as the majority erroneously asserts, when a case is deemed commenced for purposes of irrevocably including a party. The majority mistakenly suggests Lamp clarifies the differences of opinion, inherent in prior practice, with respect to the date when an action had officially commenced in both respects (See Majority Opinion p. 543-544). Even under Lamp, the Supreme Court held that if a praecipe is issued but not served within a reasonable time the action may be nolle prossed. Id., 469 Pa. at 475, 366 A.2d at 888. The holding in Lamp does not insulate the action from summary judgment where the plaintiff has failed to make service on an individual before he dies or in violation of Pa.R.C.P. 401. The only differences of opinion Lamp settles are those over the dating of the praecipe itself where the plaintiff filed the praecipe but instructed the prothonotary to issue it without delivering it to the sheriff for service. This decision was handed down to resolve the conflict arising out of the several counties and in prior decisions as between a “conditional” commencement of the action and a praecipe being one of three alternative methods enumerated by Pa.R.C.P. 1007. I submit there has been no difference of opinion as to the date an action could go forward, based on mandated personal service, where, as here, the complaint was filed or as in Schor where the plaintiff did not instruct the prothonotary to hold the writ without delivery.

Pennsylvania’s Rules of Civil Procedure specifically set out the three criteria for commencement of an action for the purpose of tolling the statute of limitations, the occurrence of any one of which will commence the action:

An action may be commenced by filing with the prothonotary

(1) a praecipe for writ of summons,

(2) a complaint, or

(3) an agreement for an amicable action.

Pa.R.C.P. 1007. However, as Schor clearly states, a complaint is “simply a ‘pleading’ and not a ‘process’ under Pa.R.C.P. 1007(2).” Id., 437 Pa. at 411, n. 3, 263 A.2d at 325, n. 3, citing Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970). Working under the applicable rules of civil procedure with facts suggesting no need for clarification under Lamp, the Schor court held that even if an action were commenced, the individual against whom the action is brought is not a party to the action without being served with process in his lifetime. The decision in Schor mandates the conclusion in the instant case that Dr. Jones is not a party to appellants’ action.

Additionally, appellants’ action against Dr. Jones is further hampered by appellants’ failure to effect original process within 30 days of filing the complaint. The Pennsylvania Rules of Civil Procedure provide, inter alia:

RULE 401. TIME FOR SERVICE. REISSUANCE, REINSTATEMENT AND SUBSTITUTION OF ORIGINAL PROCESS. COPIES FOR SERVICE

(a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.

(b) (1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint.

(2) A writ may be reissued or a complaint reinstated at any -time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.

(3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.

(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution____

Pa.R.C.P. 401. Appellants admit service was not made on Dr. Jones’ secretary until October 25, 1988, which was 32 days after the complaint was filed (Appellants’ brief, p. 6). The record also shows appellants’ did not attempt to reinstate the complaint as provided in Rule 401(b)(1). As such, the complaint was a nullity and the service of process was untimely making appellants’ attempts to bring suit against Dr. Jones futile.

For these reasons, I disagree with the majority’s conclusion and instead would affirm the trial court’s decision.