Reid v. Southeastern Pennsylvania Transportation Authority

Dissenting Opinion by

Price, J.:

Í respectfully dissent from the Majority Opinion in this ease for the reasons already discussed in my Concurring and Dissenting Opinion in Anderson v. Bernhard Realty Sales Company, Inc., 230 Pa. Superior Ct. 21, 329 A. 2d 852 (1974).

There is, however, one distinguishing factor to be pointed out in the instant case. In Anderson, the defendant, Bernhard Realty, had no knowledge that it would bé required to defend a lawsuit until the statute of limitations had expired. The ease now before us is not identical to Anderson in that respect, for in the instant case, appellant had informed appellee of his claim against SEPTA, in writing, on November 3, 1970. Appellee acknowledged notice of the claim on November 11, 1970. The parties entered into settlement negotiations subsequent to the acknowledgement. *189Appellee was, therefore, aware of the possibility of a lawsuit should the settlement negotiations fail. However, awareness of the possibility of suit does not change the language or effect of the Rules of Civil Procedure, and does not control the outcome of this case.

On October 20, 1972, appellant filed a praecipe for a writ of summons in trespass with the Prothonotary. Appellant admits in his brief that the purpose for filing the praecipe was “to protect the cause of action from expiring” [Appellant’s Brief, at 3] as the settlement negotiations were not completed. However, appellant did not in fact protect his claim, for he failed to comply with R.C.P. 1009, which requires service of process within 30 days of the issuance of the writ. On November 29, 1972, appellant was notified in writing that no settlement would be made. Despite this notification, appellant waited until July 2, 1973, to reissue the writ and institute service. Appellant asserts that the procedure he followed should be considered appropriate because: “. . . [ajppellee, while luring and lulling appellant in questionable negotiations and conversations, must have expected the statute to run in its favor for that is what it now claims. After thinking the statute had run, appellee refused to recognize any claim of appellant or to discuss adjustment.” [Appellant’s Brief, at 6] This contention is not meritorious, for (1) the record contains no support for appellant’s allegations, and (2) appellant could have protected himself merely by instituting service of process and so providing SEPTA with actual notice of the pendency of the suit. Should the settlement negotiations have succeeded, appellant could have withdrawn his action.

In the case at bar, as in Anderson, supra, if appellant wished to protect his claim, he had a duty to comply with the Rules of Civil Procedure, including R.C.P. 1009 which requires service of process within *19030 days of the issuance of a writ of summons. Failing that duty, the appellant was not entitled to bring suit once the statute of limitations expired.

I would affirm the summary judgment.