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Freemer v. Co Mac T

argued: May 12, 1992.

JAMES R. STINSON, CARMELINE STINSON, H/W
v.
KAISER GYPSUM COMPANY, INC., APPELLANT



On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 91-1548)

Before: Stapleton, Alito, and Aldisert, Circuit Judges

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

This is an appeal by Kaiser Gypsum Company, Inc. ("Kaiser") from an order denying its motion to dismiss on limitations grounds. James and Carmeline Stinson, the plaintiffs in the district court, filed this suit three years after James Stinson was diagnosed as having pleural thickening resulting from asbestos exposure. The applicable statute of limitations is two years. The Stinsons filed an earlier suit against Kaiser, and 54 other defendants, in the same court, one year after the diagnosis, but the suit was dismissed against Kaiser, pursuant to Rule 4(j) of the Federal Rules of Civil Procedure, because the only service of Kaiser, within the 120 day service period, was ineffective.

The district court, in the present suit, determined that under Rule 401 of the Pennsylvania Rules of Civil Procedure, the Stinsons could treat this suit as a continuation of their original suit against Kaiser so that the commencement of that original suit within the limitations period satisfied the applicable statute of limitations. We conclude, however, that Rule 401 is inapplicable in this situation. Accordingly, since the complaint in this suit was not filed until after the limitations period had run, it is barred by the statute of limitations. We will therefore reverse and remand with instructions to dismiss the Stinsons' complaint.

I.

On April 5, 1988, James Stinson was diagnosed as having pleural thickening resulting from asbestos exposure. On March 6, 1990, one month before the expiration of Pennsylvania's two-year statute of limitations, the Stinsons filed a personal injury diversity action in the United States District Court for the Eastern District of Pennsylvania, naming Kaiser and 54 other companies as defendants.

On March 7, 1990, the Stinsons mailed Kaiser a copy of the complaint and summons, and two copies of a notice and acknowledgment of receipt of the summons and complaint. These items were sent by certified mail, return receipt requested. In a letter dated April 3, 1990, Kaiser wrote the Stinsons stating that it had received the complaint, but that it refused to return the notice, and that the Stinsons were thus required to serve Kaiser personally. The Stinsons did not take further steps to serve Kaiser within the 120 day service period of Federal Rule of Civil Procedure 4(j).*fn1 On September 17, 1990, the Stinsons personally served Kaiser at its California headquarters. However, because the Stinsons had not served Kaiser within the 120-day period, and had not established good cause for such failure, the district court dismissed the complaint as to Kaiser under Rule 4(j). The Stinsons did not appeal this dismissal. Thereafter, the Stinsons "re-served" Kaiser with the complaint in the same action. This led to a second order by the district court, entered February 25, 1991, again dismissing the complaint as to Kaiser pursuant to Rule 4(j). The Stinsons did not appeal this dismissal either.*fn2

On March 11, 1991, the Stinsons filed a new complaint in the same district court, naming Kaiser as the only defendant. On March 27, 1991, the Stinsons served the complaint on Kaiser by hand. Kaiser then filed a motion to dismiss based in part on the statute of limitations. The district court denied Kaiser's motion to dismiss, reasoning that the Stinsons' filing of their complaint and their giving factual notice to Kaiser in the first suit satisfied the statute of limitations. Subsequently, the district court certified its ruling for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), and this Court granted Kaiser's petition for leave to appeal. Our review is plenary. Marshall-Silver Construction Co., Inc. v. Mendel, 894 F.2d 593, 595 (3d Cir. 1990).

II.

We must first identify the applicable limitations period and determine when an action is commenced for limitations purposes. It is clear that a federal court sitting in diversity must look to state law to determine these issues. Walker v. Armco Steel Corp., 446 U.S. 740, 752-53, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980). According to 42 Pa.C.S.A. § 5524, "an action to recover damages for injuries to the person . . . caused by the wrongful act or neglect or unlawful violence or negligence of another," must be commenced within two years. Pa.R.Civ.P. 1007(1) provides that an action may be commenced by filing with the prothonotary a complaint or a praecipe for a writ of summons. Accordingly, under Pennsylvania law, an action for personal injury is commenced within the statute of limitations if a complaint or praecipe for a writ of summons is filed within two years.

The Stinsons' argument that this second action is not barred by limitations is based on Pa.R.Civ.P. 401.*fn3 According to Rule 401(a), "original process shall be served within the Commonwealth within thirty days after issuance of the writ or the filing of the complaint." Rule 401(b), however, provides that:

(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule . . . the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon ...


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