KATZ v. Greig

*137Concurring and Dissenting Opinion by

Price, J.:

This appeal is taken from an Order granting appel-lee’s motion for judgment on the pleadings entered by the Common Pleas Court of Erie County on July 5, 1974.

The facts as framed by the pleadings reveal that this action in trespass arose from an accident and resulting personal injuries to the 13 year old appellant, which occurred on January 8, 1970.

On November 6, 1970 appellants filed a praecipe in the office of the Prothonotary of Erie County directing the issuance of a summons in trespass. The summons was issued, but appellants never directed service nor were the costs paid to secure service.

On January 5, 1973 more than two years after the issuance of the original summons and just three days short of three years after the occurrence of the accident, the appellants directed reissuance of the summons.

On January 6, 1973 a complaint was filed and on January 16, 1973 the reissued summons and the complaint were given to the Sheriff of Erie County for service. The Sheriff’s return, filed January 22, 1973 establishes that on January 18, 1973 the summons and complaint were served on appellee.

By proper subsequent pleadings the issue was framed raising the bar of the statute of limitations,1 and on May 9, 1973 appellee filed his motion for judgment on the pleadings. On July 5,1974 judgment was entered in favor of appellee by President Judge Carney supported by a very full and able opinion in which we agree. We will, therefore, affirm the entry of judgment in favor of ap-pellee.

It is well settled that a writ of summons may be reissued only for a period of time which, when measured *138from the date of the original issuance of the writ (or the date of a subsequent valid reissuance thereof) is not longer than the period of time required by the applicable statute of limitations for the bringing of the action. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) ; Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961); Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970).

In the present case, the appellants’ writ could have been reissued at any time prior to November 6, 1972, but unless the two year period is inapplicable or was extended for some reason, the reissuance of the writ on January 5, 1973 was of no effect.

The appellants’ arguments seeking to make the statute of limitations inapplicable or to extend the period simply contain no merit, and are really directed to a request that this court re-examine the philosophy of the application of the two year statute of limitations and the body of the law applicable thereto. This we will not do.

Having elected to initiate this action by the filing of a praecipe for a writ of summons, and having thereafter failed either to secure timely service of the writ or to reissue the writ within the required two year period, appellants are barred by the statute of limitations from proceeding with this cause of action. Cf. Anderson v. Bernhard Realty Sales Company, 230 Pa. Superior Ct. 21, 329 A.2d 852 (1974) ; Yefko v. Ochs, supra. To this extent I concur with the result reached by the majority.

Since appellee, by reason of this bar, has never been served with valid process, I believe this is dispositive of appellants’ remaining argument concerning the applicability of a Federal three year statute of limitations on that portion of the claim against appellee involving money paid appellants for the value of medical and hospital care by the United States Government.

This question concerning a Federal three year statute of limitations arises by reason of allegations in appellants’ complaint which were set forth as follows:

*139“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.”

And in Count 2 of the Complaint:

“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.”2

These benefits were paid by reason of the father-appellant's status as á retired member of the Navy.

Further, the recovery of these funds is provided for in the Medical Care Recovery Act, 42 U.S.C.A. §2651 (a) (1973) as follows:

“(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 (including prosthesis and medical appliances) 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 (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from, said third person the reasonable value of the caré and treatment *140so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable-value of the care and treatment so furnished or to be furnished. The head of the department or agency of the United States furnishing such care or treatment may also require the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim.” (Emphasis added)

The manner of enforcing that right is set forth in Subsection (b) of the same act:

“(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 le'gal 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 the 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.” (Emphasis added)

It is clear from a reading of the language of the complaint that the claim is asserted by the appellants, and it matters not that it is made with the express consent of the United States Government, Such a claim as here as*141serted is not within the clearly defined method granted the United States in enforcing the recovery of these funds. And even assuming the consideration of this issue is not resolved by the lack of any valid process served on appellee, the claim is vulnerable to the two year statute of limitations since this is an action brought by individuals. I believe the majority errs in treating this as a claim asserted on behalf of the United States. In my view it clearly is not.

I would affirm the judgment entered by the court below.

. No assignment or subrogation executed by the United States Government to appellants appears of record. Without this, appellants had no power or right to sue on behalf of the United States, and any attempt to do so was not properly perfected.