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Witherow v. Firestone Tire & Rubber Co.

filed: January 26, 1976.

JOHN T. WITHEROW
v.
THE FIRESTONE TIRE & RUBBER COMPANY, A CORPORATION, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-369).

Aldisert, Hunter and Garth, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

The issue in this diversity case is whether defective service of process which resulted in failure to obtain jurisdiction over defendant in the state court within the period of the statute of limitations may be cured on removal to federal court by the application of F.R. Civ. P. 4(h)*fn1 or 28 U.S.C. § 1448.*fn2 The district court ruled in favor of the plaintiff and certified the question for appeal pursuant to 28 U.S.C. § 1292(b). We vacate the order appealed from and remand to the district court with instructions to dismiss both the original and the amended complaint.

I.

Plaintiff Witherow was injured in Blandburg, Pennsylvania, on April 17, 1970, when a Firestone tire he was installing exploded.

Pennsylvania has a two-year statute of limitations for "injury wrongfully done to the person," 12 P.S. § 34, which begins to run from the time the injury was done. On April 10, 1972 -- seven days prior to the running of the statute -- plaintiff filed a praecipe for a writ of summons in trespass in the Court of Common Pleas of Clearfield County, Pennsylvania. The filing of the praecipe was an authorized mode of commencing the action, Rule 1007, Pa. R. Civ. P., and it tolled the statute of limitations, but only for a period of two years from the date of the issuance of the writ. Marucci v. Lippman, 406 Pa. 283, 177 A.2d 616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Rule 1009(a) Pa. R. Civ. P. requires that the writ be served within 30 days of issuance, but the writ may be reissued pursuant to Rule 1010 any number of times.

The Sheriff's return, filed 18 months later, showed that he had served the writ on April 17, 1972, on the Assistant Manager of Thompson & Buck, a Firestone dealer store in Clearfield, Pennsylvania. Because Thompson & Buck, although a Firestone dealer, was an independent business the service was legally ineffective. Rule 2180 Pa. R. Civ. P. In addition, Firestone never received the summons. Almost two years later, on March 28, 1974, plaintiff filed a complaint in trespass which again was promptly served on Thompson & Buck, this time upon the owner of the dealership who immediately forwarded the complaint to Firestone's legal department.

Firestone had been aware of the claim, though not the lawsuit, since March, 1972 when plaintiff's attorney had notified the company at its Akron headquarters. On April 18, 1974, shortly after receipt of the forwarded complaint, Firestone filed a petition for removal based upon diversity of citizenship to the United States District Court for the Western District of Pennsylvania.

In the district court, Firestone moved to dismiss raising, inter alia, insufficiency of service of process and the bar of the statute of limitations. Plaintiff moved to perfect or amend service of process pursuant to Rule 4(h) of the F.R. Civ. P. and 28 U.S.C. § 1448. Plaintiff also moved to file an amended complaint adding a claim of breach of warranty.

The district court denied Firestone's motion and granted the plaintiff's motion to perfect or amend service of process:

Therefore, we believe that under these particular facts, when the Defendant actually received the proper pleading within the statutory period, albeit improperly, and the Plaintiff, when first notified of the defects of its service, immediately moved to perfect under Fed. R. Civ. P. 4(h), fairness dictates that the motion to Perfect or Amend Service of Process must be granted under the provisions of 28 U.S.C. § 1448 and Rule 4(h) and 4(d)(3), Fed. R. Civ. P.

App. at 98a. The district court also granted plaintiff's motion to file an amended complaint, reasoning that Rule 15(c) F.R. Civ. P.*fn3 applied and allowed the amendment to relate back to the filing of the complaint on March 28, 1974, thereby satisfying Pennsylvania's four-year breach of warranty statute of limitations, 12A P.S. § 2-725.

The district court certified its opinion and order for appeal pursuant to 28 U.S.C. § 1292(b). ...


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