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HomeMy WebLinkAbout02-5402 CivilDAVID L. THOMAS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES K. JONES, DEFENDANT IN RE: 02-5402 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 1, 2003:-- On November 7, 2002, plaintiff, David L. Thomas filed a pro se civil complaint against James K. Jones, who had been his court-appointed criminal attorney. While the complaint is disjointed, plaintiff's claim is for legal malpractice for which he seeks monetary damages against defendant.~ Plaintiff alleges that on March 22, 2000, defendant was appointed to represent him in a criminal prosecution. Plaintiff entered a plea on November 14, 2000. He is now a sentenced prisoner in a state correctional institution in Pennsylvania. The complaint was never served on defendant by the Sheriff. As of this date, no return of service of any type is entered on the docket, or has the complaint been reissued. On ~ The elements of a claim for legal malpractice are the failure of an attorney to exercise ordinary skill and knowledge, and that such negligence was the proximate cause of damages to the plaintiff. Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998). The statute of limitations for the alleged negligence of court-appointed counsel is two years. Moore v. McComsey, 313 Pa. Super. 264 (1983). 02-5402 CIVIL TERM December 12, 2002, one month and five days after the filing of the complaint, defendant, through counsel, filed preliminary objections to the complaint. The objections have been briefed and are before us for disposition. One of the preliminary objections is a motion to strike the complaint. Pa. Rule of Civil Procedure 1028(a)(1 ) provides for a preliminary objection where there has been: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint. (Emphasis added.) Under Pa. Rule of Civil Procedure 400(a), absent specific exceptions which are not applicable in this action, "original process shall be served within the Commonwealth only by the sheriff." Rule 401(a) provides that "Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Rule 401 (b)(1) provides: If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule.., 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. Rule 401 (a)(4) provides that "A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule .... " Citing Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001 ), defendant maintains the plaintiff's complaint must be stricken. In Lamp v. Heyman, 469 Pa. 465 (1976), a case involving a praecipe for a writ of summons, the Supreme Court of Pennsylvania held that a writ of summons tolls a statute of limitations "only if the plaintiff then refrains from a -2- 02-5402 CIVIL TERM course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lamp does not require an additional affirmative duty to pursue service of process if an initial good faith service attempt is unsuccessful. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589 (1986). In a plurality opinion supported by two justices, the Supreme Court in Witherspoon concluded that for a writ of summons to toll an applicable period of limitations, "the process must be immediately and continually reissued until service is made." However two justices dissented from the lead opinion entirely, and three justices concurred in the result only "based upon the plaintiff's failure to effectuate service upon [defendant] for a period of nine months," and not because the writ of summons was not immediately reissued after its initial expiration. There was no majority in Witherspoon that changed existing Pennsylvania law. In the case sub judice, it is now just short of one half a year since plaintiff filed his complaint. The complaint has never been served or has it ever been reissued. It is clear from the record that plaintiff has not made a good faith effort to serve his complaint against defendant. Accordingly, the following order is entered? ORDER OF COURT AND NOW, this day of May, 2003, the preliminary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. 2 This resolution makes it unnecessary to consider the other issues raised in defendant's preliminary objections. -3- 02-5402 CIVIL TERM By the Court, David L. Thomas, EM-0130, Pro se SCI-Albion 10745 Route 18 Albion, PA 16475-0002 Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant :sal Edgar B. Bayley, J. -4-