Opinion
C.A. No. 04C-07-006-RFS.
Decided: December 7, 2004.
ORDER
Upon careful review of the filings in the above captioned matter, Defendant, Robinson L. Helm's Motion to Dismiss must be DENIED. It appears to the Court that:
1) On July 20, 2004, Holly and David Wilson ("the Wilsons"), as Next Friends for their daughter, Lauren Wilson ("Lauren"), and Melody H. Gaidrich ("Gaidrich"), as Next Friend for her daughter, Sarah Gaidrich ("Sarah") brought a civil suit for personal injuries against Robinson L. Helm ("Helm"). The event in question, nonconsentual sexual conduct with the two girls, Lauren and Sarah, occurred sometime between June 1999 and July 30, 2002.
2) The Complaint, Praecipe and Summons were all electronically filed on July 7, 2004. The Praecipe directed the Sheriff of Kent County to issue summons and to serve process on the Defendant. The address provided for Helms was "the Delaware Department of Corrections, Smyrna, Delaware." Service was returned non Est. (non est inventus?) on August 9, 2004. Thereafter, the Plaintiffs filed an Alias Praecipe and Summons on August 17, 2004, directing the Sheriff of New Castle County to serve the Defendant at the Department of Corrections in Smyrna. Defendant was successfully served with a copy of the Complaint and Summons there on September 2, 2004.
3) Defendant is asking that the present action be dismissed because the Statute of Limitations ran on July 30, 2004, pursuant to 10 Del. C. § 8107. He alleges that no praecipe was filed directing the Prothonotary to issue the writ. Thus, the statute of limitations was not tolled and the time for commencing the action expired before the Prothonotary was directed to issue the writ.
4) 10 Del. C. § 8107 provides for a two year statute of limitations on personal injury cases. Superior Court Civil Rule 3(a) states that "an action is commenced by filing with the Prothonotary a complaint or, if required by statute, a petition or statement of claim, all hereafter to be referred to as a "complaint" and a praecipe directing the Prothonotary to issue the writ specified therein." Generally, the filing of a praecipe tolls the statute of limitations. Biby v. Smith, 272 A.2d 116, 117 (Del.Super.Ct. 1970). If however, there is an unreasonable delay caused by the Plaintiff in the service of summons, the statute will continue to run, despite the filing. Id.
5) Defendant cites the cases of Biby, 272 A.2d 116 and Russell v. Olmedo, 275 A.2d 249 (Del. 1971) for the proposition that the judicial process has not been commenced, and therefore the Court lacks subject matter jurisdiction and the statute of limitations has run. In Russell, 275 A.2d at 249, the Plaintiff had written on the praecipe, "[p]lease do not release to Sheriff's office until I advise." That Court noted, "[i]t is required that the praecipe contain a positive order or the issuance of the necessary process to put the judicial machinery in motion." Id. at 250. There, the Court found that the Plaintiff had purposefully delayed service of a summons when he waited seven months after the filing of the first praecipe and after the statute of limitations had run to file a praecipe that actually ordered service. The Court affirmed the Superior Court's motion to dismiss the action.
Similarly, in Biby, 272 A.2d at 117, the praecipe stated: "To sheriff — Please serve Donald Smith at 234 S. DuPont Highway. Will advise later as to service on corporation." An alias summons was not drawn up for the corporation until after the date signifying the end of the two year period for the statute of limitations. In that case, the Court found the statute of limitations was not tolled because there was an unreasonable delay in the service of summons. The Biby Court stated, "[e]xtended delays between filing and service, if reasonable, do not nullify the effect of filing, but `even a short delay may be too much if it was caused by plaintiff's deliberate action in withholding service.' Id. at 118 (discussing federal practice) (citation omitted). For a more recent case in which a result similar to those in Biby and Russell was reached, see Tease v. London, 2001 WL 112058 (Del.Super.Ct.) (finding Plaintiff's action was barred when the praecipe filed on the day the statute of limitations period ended directed the Prothonotary not to issue summons until the Plaintiff so requested).
6) Both Biby and Russell can be distinguished from the case at bar. In those cases, the Plaintiff directed the sheriff not to serve the Defendant until further notice. Here, the Sheriff was directed to issue summons, but because of a mistake in the County in which the Corrections facility was located, it was returned "non est inventus." An alias praecipe was filed without undue delay on August 17, 2004. In addition, the Plaintiffs mailed the Defendant a copy of the Amended Complaint on or around July 27, 2004. Cf. Russell, 275 A.2d at 250 (noting that the first time the Defendant received notice of the possible pendency of an action was after the statute of limitations had passed when he appeared before a Delaware Medical and Legal Bar Association medical malpractice screening panel).
7) The Court finds there has been no unreasonable delay in the service of summons by the Plaintiffs. The judicial action commenced on July 7, 2004, when the original praecipe was filed. Therefore, the statute of limitations was tolled from that date and the Plaintiffs action is not barred.
IT IS SO ORDERED.