KATZ v. Greig

Opinion by

Jacobs, J.,

This appeal from an order granting appellee’s motion for judgment on the pleadings1 arises from an automobile accident in which the minor plaintiff, David Katz, sustained serious injuries. The only issues before us are first, whether the plaintiffs’ claim asserted in their own right is barred by the applicable two year statute of limitations ;2 and second, whether the claim asserted on behalf of the United States Government under the Medical Care Re*129covery Act3 was properly asserted, and if so, whether it is also barred by the Pennsylvania statute of limitations.

I

The procedural history of this case clearly reveals that the claim asserted by the appellants in their own right is barred by the statute of limitations. The injury occurred on January 8, 1970. A praecipe for a writ of summons was filed on November 6, 1970; however, the appellants never directed service or paid the costs to secure service. It is undisputed that service of this summons was never effected. The summons was reissued on January 5, 1973, a complaint was filed on January 6, 1973, and both were then validly served.

The law is clear that a writ of summons properly issued within the applicable statute of limitations validly commences an action.4 The law is also clear, however, that a party who has caused a writ to issue but not be served must act to protect the efficacy of the writ. If this be done by reissuance of the writ,5 it must be done within a period of time which, measured from the issuance of the original writ, is not longer than the time required by the applicable statute of limitations for the bringing of the action. Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970) ; Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Because the original writ was not reissued until *130after November 6, 1972, the claim asserted by the appellants in their own right is barred by decisional rule drawn, by analogy from the applicable two year statute of limitations. This is the undisputed law and any plea for a reevaluation of the Act of 1895 is properly addressed to the Legislature not the courts of this Commonwealth.

II

The appellants in their complaint also assert a claim on behalf of the United States Government under the Medical Care Recovery Act.6 This Act confers upon the United States the right to recover from a tortfeasor the reasonable value of medical care and treatment which it is authorized or required by law to furnish to an injured person.7 In the case at bar certain of the medical expenses *131of David Katz were paid by the United States Government because his father was a retired member of the United States Navy.

We note at the outset that any contention raised that the appellee has not yet been properly brought before the court must be rejected. The appellee was validly served with a summons in trespass and the docket entries so reveal. The defense of a statute of limitations of the nature involved in this case is not a jurisdictional defense, but merely a procedural bar to recovery and it in no way affects the validity of the service of process. Wiener v. Gemunden, 223 Pa. Superior Ct. 558, 302 A.2d 454 (1973). “The defense raised does not go to the judicial power of the court as to the cause or its jurisdiction over the person of the defendant, but rather to the mode in which the case is brought before the court.” Bellotti v. Spaeder, 433 Pa. 219, 220, 249 A.2d 343, 344 (1969). Therefore, any assertion that the appellee is not properly before the court is simply incorrect.

The appellee also contends that the claim of the United States must fail because it was not asserted in the manner prescribed by the Act.8 Although this view *132was adopted by a New York trial court in Carrington v. Vanlinder, 58 Misc. 2d 80, 294 N.Y.S. 2d 412 (1968), without citation to authority, we cannot accept it as a proper interpretation of the law. The court in Conley v. Maattala, 303 F. Supp. 484 (D.N.H. 1969) observed that none of the procedures for enforcing the government’s right of recovery under the Act is mandatory and denied a motion to dismiss a count substantially identical with the one in the instant case. We believe that this is a better interpretation of the Act. “When a specific interest and right has been conferred upon the United States by statute, the remedies and procedures for enforcing that right are not to be narrowly construed so as to prevent the effectuation of the policy declared by Congress.” United States v. York, 398 F.2d 582, 586 (6th Cir. 1968). See Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967).

In Palmer v. Sterling Drugs, Inc., 343 F. Supp. 692 (E.D. Pa. 1972), the claim of the government arose, as in the case before us, by letter addressed to counsel for plaintiff from a government agency. The court also rejected an argument “that the United States had only two avenues of recovery,” id. at 695, and permitted the tort victim to pursue the claim on behalf of and with the consent of the United States. The same result was reached in Albright v. R. J. Reynolds Tobacco Co., 350 F. Supp. 341 (W.D. Pa. 1972), aff’d 485 F.2d 678 (3d Cir. 1973), cert. denied, 416 U.S. 951 (1974). The right of the United States should be interpreted “to enable the government freely to assert this cause of action in any of a wide variety of possible procedural alternatives.” United States v. Winter, 275 F. Supp. 895, 896 (E.D. Pa. 1967).

The appellant lastly contends that even if properly brought the claim asserted on behalf of the United States *133is also barred by the state statute of limitations.9 This contention, however, is incorrect. The Medical Care Recovery Act confers upon the United States a separate and independent right to recover the reasonable value of care and treatment which it furnishes to an injured person, United States v. Greene, 266 F. Supp. 976 (N.D. Ill. 1967), and under the historic doctrine of the immunity of the sovereign the exercise of that right is not subject to any state statute of limitations. United States v. Gera, 409 F.2d 117 (3d Cir. 1969) ; see Annot. 7 A.L.R. Fed. 289 (1971). The statute of limitations applicable to the claim asserted on behalf of the United States is three years;10 and because there was valid service of process of a claim asserted in a legally cognizable manner within that time period, the claim of the United States is not barred.

The order is affirmed insofar as it holds that the claim asserted by the Katzes in their own right is barred; the order is reversed insofar as it dismisses the claim asserted in behalf of the United States.

. Pa.R.C.P. 1034.

. Act of June 24, 1895, P.L. 236, §2, 12 P.S. §34 (1953).

. 42 U.S.C. §§2651-53 (1973)

. See Pa.R.C.P. 1007.

. This was the only method available during the time frame pertinent to this case. See Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970). The law as enunciated in Yefko was changed on June 28, 1974, by amendment to Pa.R.C.P. 1010, which now permits a plaintiff to treat a complaint as alternative original process and as the equivalent for all purposes of a reissued writ. Filing, reinstatement or substitution of a complaint which is used as alternative process must be accomplished within the same time period within which a writ must be reissued.

. 42 U.S.C. §§2651-53 (1973). The complaint sets forth the claim in paragraph 14 of count one and paragraph 18 in count two.

“14. As a result of said injuries, the Plaintiff has received and in the future will continue to receive medical and hospital care and treatment furnished by the United States of America under the provisions of 42 U.S.C. 2651-53 and with its expressed consent, asserts a claim for the reasonable value of said care and treatment.
“18. As a result of said injuries, the Plaintiff has received and in the future will continue to receive medical and hospital care and treatment furnished by the United States of America. The Plaintiff, for the sole use and benefit of the United States of America under the provisions of 42 U.S.C. 2651-53 and with its expressed consent, asserts a claim for the reasonable value of said care and treatment.”

. 42 U.S.C. §2651 (a) (1973) provides:

“ (a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care, and treatment ... to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person ... to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and *131shall, as to this right be subrogated to any right or claim that the injured or diseased person . . . has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished.” (Emphasis added).

. 42 U.S.C. §2651 (b) (1973) provides:

“(b). The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone (in its own name or in *132the name of the injured person, his guardian, personal representative, estate, dependents, or survivors) or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors.”

. See n.2, supra.

. 28 U.S.C. 2415(b) (Supp. 1975).