IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DONNA HEATER, :

Plaintiff, : CIVIL ACTION

 :

v. :

 :

KIDSPEACE, : No. 05-4545 

Defendant. :

MEMORANDUM AND ORDER

Schiller, J. October 5, 2005

This case arises out of the alleged discrimination by Defendant, Kidspeace, against Plaintiff,

Donna Heater. Plaintiff brings claims against Defendant alleging violations of the Age

Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), and

the Pennsylvania Human Relations Act (“PHRA”). Presently before the Court is Defendant’s

Motion to Dismiss Plaintiff’s Complaint. For the reasons that follow, Defendant’s motion is denied.

I. BACKGROUND

Plaintiff worked in Kidspeace’s Utilization Review Department for over ten years. (Compl.

¶¶ 3, 6, 43.) Plaintiff alleges that Defendant discriminated against her based upon her age and

disability, refused to accommodate her disability, and wrongfully terminated her employment,

replacing her with a younger person with no physical ailments. (Compl. ¶¶ 7-9, 13-18, 29-41.)

Plaintiff seeks to be rehired into the same or a similar position in Defendant’s company, with

appropriate backpay and benefits, as well as compensatory and punitive damages. (Compl. ¶¶ 54-

75.) Plaintiff timely filed an administrative claim with the Equal Employment Opportunity

Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”), and was

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2

issued a notice of dismissal and right to sue letter from the EEOC on August 27, 2004. (Compl. ¶¶

42, 46.) Plaintiff filed a praecipe for writ of summons in the Lehigh County Court of Common Pleas

on November 29, 2004. (Pl.’s Memo. of Law in Opp’n to Def.’s Mot. to Dismiss Compl. at 3

[hereinafter “Pl.’s Resp.”].) The writ of summons was reissued on February 2, 2005, and again on

March 22, 2005. (Id. at 3-4.) The Lehigh County Sheriff served the writ on March 24, 2005. (Id.

at 4.) A complaint was filed in Lehigh County on July 13, 2005. (Pl.’s Resp. Ex. A.) Pursuant to

28 U.S.C. § 1441(a) and (b), the case was removed to this Court on August 26, 2005.

II. STANDARD OF REVIEW

In considering a motion to dismiss for failure to state a claim upon which relief may be

granted, courts must accept as true all factual allegations pleaded in the complaint and must draw

all reasonable inferences in favor of the non-moving party. Bd. of Trs. of Bricklayers & Allied

Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001).

A motion to dismiss will only be granted if it is clear that relief cannot be granted to the plaintiff

under any set of facts that could be proven consistent with the complaint’s allegations. Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As

it appears on the face of Plaintiff’s complaint that her ADA and ADEA claims may be barred by the

applicable statute of limitations, the limitations defense is properly raised at this stage of the

proceedings. See Arizmendi v. Lawson, 914 F. Supp. 1157, 1160 (E.D. Pa. 1996). 

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 2 of 11
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III. DISCUSSION

A. Timely Service and the Statute of Limitations

Defendant seeks to dismiss the Complaint for failure to serve the writ of summons before it

expired, or in the alternative, to dismiss the ADA and ADEA claims for failure to file the complaint

before the statute of limitations had run. (Def.’s Mot. to Dismiss at 2-3.)

1. Proper Filing, Reissuance and Service of the Writ of Summons

The ADA and ADEA require that a plaintiff bring a civil action within 90 days of receiving

a notice of dismissal and right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (2005)

(“[W]ithin 90 days after the giving of such notice a civil action [under the ADA] may be brought

against the respondent named in the charge”); 29 U.S.C. § 626(e) (2005) (“[A] civil action may be

brought under [the ADEA] . . . against the respondent named in the charge within 90 days after the

date of the receipt of such notice.”); see also Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108

(3d Cir. 2003) (holding that dismissal by EEOC followed by notice to complainant triggers statute

of limitations period). In accordance with the Federal Rules of Civil Procedure, a plaintiff is

presumed to receive the notice of dismissal letter three days after such letter is issued by the EEOC.

See FED. R. CIV. P. 6(e). 

While the 90-day statute of limitations for ADA and ADEA claims establishes the time

period when such actions “may be brought,” the statutes do “not specify the manner of commencing

the ‘civil action.’” Krouse v. Am. Sterilizer Co., 872 F. Supp. 203, 205 (W.D. Pa. 1994) (noting that

the ADA statute of limitations provision “contains no reference at all to a ‘complaint’”). Under the

Pennsylvania Rules of Civil Procedure, “[a]n action may be commenced by filing with the

prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.” PA. R. CIV. P. 1007. Thus,

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 3 of 11
4

in Pennsylvania, the filing of a praecipe for a writ of summons is sufficient to commence a civil

action and toll the statute of limitations. See Vail v. Harleysville Group, Inc., Civ. A. No. 02-2933,

2002 WL 32172799, at *2 (E.D. Pa. Sept. 30, 2003). This state rule applies to cases removed to

federal court. See id. (“[C]ompliance with the Pennsylvania procedural rule satisfies the tolling

requirement in cases removed to [the Eastern District of Pennsylvania].” (quoting Perry v. City of

Phila., Civ. A. No. 99-2989, 1999 U.S. Dist. LEXIS 12915, at *4 (E.D. Pa. Aug. 17, 1999))). 

Although filing a praecipe for a writ of summons is sufficient to commence an ADA and/or

ADEA action in Pennsylvania state court, plaintiffs must make a “good-faith effort to notify a

defendant” of the action, via timely service of such writ. Lamp v. Heyman, 366 A.2d 882, 889 (Pa.

1976). Pursuant to the Pennsylvania Rules of Civil Procedure, a writ must be served within thirty

days after issuance or filing; however, the writ may be reissued at any time, and any number of times,

after the original issuance during a period equal to the applicable statute of limitations, and each

reissuance gives rise to another tolling period equal to the statutory limitations time period. See PA.

R.CIV.P. 401(a) & (b); Lamp, 366 A.2d at 885. However, the Pennsylvania Supreme Court has held

that, “a writ of summons shall remain effective to commence an action only if the plaintiff then

refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just

set in motion.” Lamp, 366 A.2d at 889. The court sought to prevent plaintiffs from deliberately

delaying service of the writ to toll the statute of limitations indefinitely by frequently reissuing the

writ under Pennsylvania’s liberal rules. See id. at 887. 

However, a plaintiff who follows the requisite local procedures for serving process has made

the necessary good-faith effort to notify a defendant of an action. See id. at 889 (“If under local

practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 4 of 11
5

shall have done all that is required of him when he files the praecipe for the writ; the commencement

of the action shall not be affected by the failure of the writ to reach the sheriff’s office where the

plaintiff is not responsible for that failure.”). See also Gould v. Nazareth Hosp., 511 A.2d 855, 857-

58 (Pa. Super. Ct. 1986) (commencement of action not affected by failure to serve writ when such

failure was not plaintiff’s fault); Beck v. Minestrella, 401 A.2d 762, 764 (Pa. Super. Ct. 1978)

(same). 

Here, the EEOC issued Plaintiff’s notice of dismissal and right to sue letter on August 27,

2004. (Compl. ¶ 46.) Thus, Plaintiff’s 90-day statute of limitations for her ADA and ADEA claims

began to run on August 30, 2004, the date when Plaintiff received the letter. See FED.R.CIV. P. 6(e)

(plaintiff deemed to have received notice letter three days after issuance). Thirty days later, Plaintiff

filed a praecipe for a writ of summons, and a writ was issued on November 29, 2004. (Pl.’s Resp.

at 3.) In addition to filing the writ, Plaintiff provided an additional check along with appropriate

documentation such that the prothonotary could prepare and deliver the writ to the sheriff’s office

for service upon Defendant. (Pl.’s Resp. Ex. B.) Plaintiff’s actions not only tolled the statute of

limitations for an additional 90 days, but also fulfilled her obligation to notify Defendant pursuant

to local practice rules. 

On February 2, 2005, sixty-five days after issuance of the original writ, the writ was reissued,

when Plaintiff became aware that the prothonotary had failed to forward Plaintiff’s paperwork to the

sheriff’s office for service of the writ. (Pl.’s Resp. at 3; Ex. C of Pl.’s Resp. Ex. B.) This reissuance

tolled the statute of limitations for an additional 90 days. See PA. R. CIV. P. 401(b)(2); Lamp, 366

A.2d at 885. On March 22, 2005, forty-eight days after the first reissuance of the writ, the writ was

reissued again, because the prothonotary still had not delivered the paperwork and writ to the

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 5 of 11
1

 The Court has reviewed the Pennsylvania Superior Court cases relied upon by

Defendant in light of the Pennsylvania Supreme Court’s decision in Galbraith. Beck v.

Minestrella, 401 A.2d 762 (Pa. Super. Ct. 1979), Shackelford v. Chester County Hospital, 690

A.2d 732 (Pa. Super. 1997), and Devine v. Hutt, 863 A.2d 1160 (Pa. Super. Ct. 2004) all address

the extension of the statute of limitations for an additional statutory period when a writ of

6

sheriff’s office and thus service of the writ remained uncompleted. (Pl.’s Resp. at 3-4; Ex. C of Pl.’s

Resp. Ex. B.) This second reissuance tolled the statute of limitations for an additional 90 days. See

PA. R. CIV. P. 401(b)(2); Lamp, 366 A.2d at 885. Two days after the second reissuance of the writ,

on March 24, 2005, the sheriff’s office finally served the writ of summons upon Defendant. (Pl.’s

Resp. at 4.) This service was within the 30-day window for perfecting service of a reissued writ, see

PA. R. C. P. 401(a), and within the 90-day time period for perfecting service to satisfy the statute of

limitations, see Lamp, 366 A.2d at 885-86. Therefore, service was timely and proper. 

Accordingly, Defendant’s motion to dismiss the complaint for failure to serve the writ of

summons before it expired is denied. 

2. Timely Filing of the Complaint

For those actions initiated by filing a praecipe for a writ of summons and timely served

within the statute of limitations, the Pennsylvania Supreme Court has held that there is no time limit

within which the plaintiff must file the complaint. See Galbraith v. Gahagen, 204 A.2d 251, 252

(Pa. 1964) (case in which complaint was filed more than two years [the applicable statute of

limitations period] after praecipe for writ of summons was filed and served) (“[W]here the plaintiff

has had the summons served upon the defendant, and the defendant . . . is thus made aware of the

lawsuit pending against him, he cannot complain if plaintiff takes his time and files the Complaint

more than two years after service.”). Filing a praecipe for a writ of summons merely extends the

statute of limitations for an equivalent statutory period until the writ is served.

1

 See id.; Salay v.

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 6 of 11
summons has been issued and delivered to the sheriff for service. See Beck, 401 A.2d at 764;

Shackelford, 690 A.2d at 735; Devine, 863 A.2d at 1167. The extension applies to the time

period for serving the writ upon the defendant, not to any time period for filing a complaint. See

Galbraith, 204 A.2d at 252. Defendant seems to have incorrectly interpreted the phrase “delivery

to the sheriff” as synonymous with delivery of the writ to the defendant.

2

 In support of its motion, Defendant points to a recent decision issued by the Honorable

James Knoll Gardner of this District. See Frable v. Christmas City Hotel, LLC, Civ. A. No. 05-

0402, 2005 U.S. Dist. LEXIS 22081, at *16 (E.D. Pa. September 28, 2005) (dismissing

plaintiff’s ADEA and Title VII claims on statute of limitations grounds for failure to file a

complaint within 90 days of filing the praecipe for a writ of summons). The Court respectfully

disagrees with Judge Gardner’s holding and interpretation of Pennsylvania state law precedent. 

 

7

Braun, 235 A.2d 368, 371 (Pa. 1967) (“The Rule in Pennsylvania has always permitted a plaintiff

. . . to commence an action and keep it alive until he suddenly serves the defendant.”). In contrast,

timely service of the writ satisfies the statute of limitations.2 See Galbraith, 204 A.2d at 252; GAF

Corp. v. Cathcart, 574 A.2d 604, 608 n.5 (Pa. Super. Ct. 1990) (case in which five years [more than

the applicable statute of limitations period] passed between filing and service of the writ and filing

of the complaint) (noting that after defendant accepted service of the writ and was aware of the

pending action, plaintiffs could formulate and file complaint “at some point in the future”); Sheets

v. Liberty Homes, Inc., 823 A.2d 1016, 1018-19 (Pa. Super. Ct. 2003) (filing and timely service of

writ satisfied statute of limitations); Sardo v. Smith, 851 A.2d 168, 169 n.1 (Pa. Super. Ct. 2003)

(same). 

To prevent potential inequity and prejudice to defendants not yet served with a complaint,

Pennsylvania law allows a defendant to request the prothonotary to order the plaintiff to file a

complaint. See PA. R. C. P. 1037(a) (“[T]the prothonotary, upon praecipe of the defendant, shall

enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty days after

service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 7 of 11
8

pros.”). A defendant who has been timely served with a writ of summons, but who alleges prejudice

from plaintiff’s delay in filing a complaint, must resort to this rule rather than seek dismissal of the

lawsuit as time-barred. See Galbraith, 204 A.2d at 252 (“If any harm is incurred by defendant as a

result of [the delay in filing the complaint], it results from [defendant’s] own failure to employ the

weapon given him under Rule 1037 to force the plaintiff to file the Complaint. . . [T]he defendant

having been served with the Summons should have required plaintiffs to file their Complaint earlier.

Having failed to do so [defendant] cannot now complain that the statute of limitations has barred

further action.”); GAF Corp., 574 A.2d at 609 n.6 (noting that defendant who was effectively served

“had the option to invoke the remedies available to a defendant who believes that too much time has

gone by without the filing of a complaint”); Sheets, 823 A.2d at 1019 (noting that “defendants could

have filed a rule on the plaintiffs to file a complaint. If they failed to respond, the case could be

dismissed, but for failing to respond to the rule, not because of a statute of limitations violation.”).

Federal courts interpreting Pennsylvania procedures and case law have also concluded that

a prejudiced defendant must seek dismissal pursuant to Rule 1037, not under the statute of

limitations. See Groh v. Brooks, 421 F.2d 589, 594 n.14 (3d Cir. 1970) (noting that if “the original

summons [had] been served on the [defendants], and they had not ruled plaintiff to file a complaint,

the statute of limitations would not have been available as a defense”) (citing Galbraith, 204 A.2d

at 251); Vail, 2002 WL 32172799, at *3-*4 (“Because it is clear that defendant had a mechanism to

require plaintiff to file a complaint in Pennsylvania state court and did not avail itself of the

opportunity to do so, we reject defendant’s contention that plaintiff’s claims should be barred

because defendant did not receive a complaint earlier.”); Krouse, 872 F. Supp. 203, 209 (W.D. Pa.

1994) (noting defendant’s failure to avail itself of procedural device available to determine nature

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 8 of 11
9

of pending action). 

Plaintiff filed the Complaint on July 13, 2005, one hundred and thirteen days after the second

reissuance of the writ. (Pl.’s Resp. Ex. A.) Although this was clearly beyond the 90-day toll

established by the March 22, 2005 reissuance of the writ, that reissuance of the writ only needed to

keep the action alive until service of the writ could be made, not until the complaint was filed. See

Galbraith, 204 A.2d at 251-52. The filing of the original writ on November 29, 2004 commenced

this action, and the service of the writ was the only action necessary within the 90-day time period

(as counted from the second reissuance) to satisfy the statute of limitations. See id. Furthermore,

Defendant did not utilize the procedural mechanism available under the Pennsylvania Rules of Civil

Procedure to direct Plaintiff to file the complaint within 20 days or face dismissal for nonprosecution. 

Thus, Defendant’s motion to dismiss the ADA and ADEA claims because Plaintiff’s

complaint was filed outside the 90-day statute of limitations is also denied. 

B. Plaintiff is Entitled to a Jury Trial on the PHRA Claim

Defendant seeks to strike Plaintiff’s jury demand on her PHRA claim, alleging that the

PHRA contains no provision granting the right to a jury trial. (Def.’s Mot. to Dismiss at 3.) While

Defendant is correct that there is no right to a jury trial under the PHRA in Pennsylvania state court,

see Wertz v. Chapman Twp., 741 A.2d 1272, 1273 (Pa. 1999), Defendant’s removal of this case to

this court renders that fact irrelevant. See Cortes v. R.I. Enters., Inc., 95 F. Supp. 2d 255, 262 (M.D.

Pa. 2000) (holding that plaintiff is entitled to jury trial for legal claims brought under PHRA);

Grabosky v. Tamac Corp., 127 F. Supp. 2d 610, 624 (M.D. Pa. 2000) (same). It is federal law, not

state law, that determines the right to a jury trial when pursuing a state-created right in federal court.

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 9 of 11
3Defendant also seeks dismissal of Plaintiff’s ADA/PHRA claims because Plaintiff is not

disabled as a matter of law, and dismissal of Plaintiff’s PHRA claim for failure to adequately

plead a claim upon which relief may be granted. (Def.’s Mot. to Dismiss at 3.) At this stage of

the litigation, it is premature for the Court to assess whether Plaintiff can prove she is “disabled”

under the ADA. Likewise, general factual averments in support of a PHRA claim are sufficient

to survive a 12(b)(6) motion to dismiss. Thus, Defendant’s motion to dismiss on these grounds

is also denied. 

10

See Simler v. Conner, 372 U.S. 221, 221 (1963); see also 9 CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FED. PRAC. & PROC. CIV. § 2303 (2d ed. 1987). Pursuant to the Seventh Amendment’s

guarantee of the right to a trial by jury for legal claims in actions analogous to suits at common law,

federal law recognizes the right to a jury trial for compensatory damages claims under the PHRA.

See Cortes, 95 F. Supp. 2d at 261-62; Grabosky, 127 F. Supp. 2d at 624. 

Accordingly, Plaintiff is entitled to a jury trial on her PHRA claim for compensatory

damages. 

IV. CONCLUSION

For the reasons discussed above, Defendant’s motion is denied.3 An appropriate Order

follows.

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 10 of 11
 IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DONNA HEATER, :

Plaintiff, : CIVIL ACTION

 :

v. :

 :

KIDSPEACE, : No. 05-4545 

Defendant. :

ORDER

AND NOW, this 5

th day of October, 2005, upon consideration of Defendant Kidspeace’s

Motion toDismissPlaintiff’s Complaint (Document No. 2), Plaintiff’s response thereto, Defendant’s

reply thereon, and for the foregoing reasons, it is hereby ORDERED that Defendant’s motion is

DENIED. 

BY THE COURT:

Berle M. Schiller, J.

Case 2:05-cv-04545-BMS Document 9 Filed 10/05/05 Page 11 of 11