Thursday, June 8, 2017

Issues Pertaining to Propriety of Praecipe for Issuance of Writ Of Summons Addressed In Lackawanna County

In his recent decision in the case of Gesford v. Gerrity's Market, No. 2016 - Civil - 2204 (C.P. Lacka. Co. June 2, 2017 Nealon, J.), Judge Terrence R. Nealon addressed the rare issue of the propriety of a Praecipe for the Issuance of a Writ of Summons.

In this case, the Praecipe for the Issuance of a Writ of Summons was filed on the final day before the statute of limitations was set to expire.  At issue was the fact that the Praecipe was signed and filed by a daughter of an incapacitated Plaintiff.  According to the Opinion, the Plaintiff had not yet obtained any Plaintiff's counsel.

The case then proceeded through pleadings and discovery before the defense advanced the issue of the propriety of the Praecipe by way of a summary judgment motion.  The defense asserted that the statute of limitations had not been tolled by the allegedly improper Praecipe.

Relying in part on Pa.R.C.P. 126, which allows for a liberal construction of the Rules of Civil Procedure, Judge Nealon noted that although the Rules contemplate the Praecipe being signed by a plaintiff or plaintiff's counsel, the Plaintiff here made a good faith effort to commence her action and provided prompt service of the suit upon the Defendants.  The court also noted that there was no prejudice shown by the defense as a result of the "technical misstep" by the Plaintiff.

As such, the defense motion for summary judgment was denied.

Anyone wishing to review this decision may click this LINK.

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