Case opens door for the Court of Common Pleas to address the statute of limitations arguments raised in preliminary objections.

This medical malpractice case against health care providers and pharmacies arose out of the plaintiff’s wife’s death as a result of combined drug poisoning.

The decedent wife died on April 19, 2015. The plaintiff filed a praecipe for writ of summons on April 18, 2017. No attempt at service of the writ appeared in the record. On August 10, 2017, the plaintiff filed a praecipe to reissue the writ of summons and subsequently filed another one on April 3, 2019. The defendants filed preliminary objections on the basis that the writ of summons did not preserve the statute of limitations.

The defendants’ preliminary objections were sustained, and the plaintiff appealed on the basis that sustaining the objections based on the statute of limitations argument was not appropriate. The Superior Court of Pennsylvania held that the trial court could address the merits of health care providers’ and pharmacies’ preliminary objections asserting that the plaintiff’s writ of summons failed to toll the applicable statute of limitations for the decedent’s cause of action, despite the health care providers’ and pharmacies’ improperly raising their statute of limitations defense by way of preliminary objections and not via new matter.

Generally, a statute of limitations defense is properly raised in a new matter and not in preliminary objections. The court explained that in order to toll the statute of limitations upon filing of praecipe for writ of summons, a plaintiff must make a good-faith effort to effectuate notice of commencement of action. The efforts by the plaintiff’s counsel to serve the writ on the health care providers and pharmacies did not satisfy this standard so as to toll the limitations.

The case is significant in that it establishes that the Court of Common Pleas could address the statute of limitations arguments raised in preliminary objections, and it could allow for early and efficient disposition of cases before the pleadings are even closed.

^{Case Law Alerts, 3rd Quarter, July 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}