Published: October 2005
Federal Court Applies State Rules to Toll ADA Limitations Period
The Legal Intelligencer
Ever since the Pennsylvania Supreme Court found that the Pennsylvania Human Relations
Act did not allow for the recovery of punitive damages or for a jury trial, employment law
practitioners in the state have had little use for Pennsylvania state courts or state civil
The Pennsylvania rules should not be ignored completely, however. In a case decided earlier
this month that was removed from state court to the U.S. District Court for the Eastern
District of Pennsylvania, the federal court applied Pennsylvania civil procedure to toll the
time for filing a federal discrimination claim.
In Heater v. KidsPeace, Donna Heater thought that she was discriminated against on the
basis of her age and disability when she was terminated from her job in KidsPeace's
Utilization Review Department. She timely filed an administrative claim with the EEOC and
PHRC and was issued a notice of dismissal and right-to-sue letter from the EEOC on Aug.
Apparently not wanting any margin for error, Heater's counsel filed a praecipe for writ of
summons in the local court of common pleas on Nov. 29, 2004. The writ was reissued on
Feb. 2, and again on March 22, and was ultimately served by the local sheriff on March 24.
The complaint was finally filed in the court of common pleas on July 13, and, after service,
was removed to the federal court in late August. KidsPeace moved to dismiss the complaint
for failure to serve the writ of summons before it expired or, alternatively, for failure to file
the complaint before the statute of limitations expired.
Federal discrimination claims must, of course, be brought within 90 days of receiving a
notice of dismissal and right-to-sue letter from the EEOC. The 90-day period is treated as a
statute of limitations by courts in the Eastern District. Because the applicable statutes are
based on receipt rather than service, three days is added to the date on which the right-to-
sue letter is issued.
In Heater, the court observed that "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.'" Under the Pennsylvania Rules
of Civil Procedure, an action may be commenced by filing either a praecipe for writ of
summons or a complaint.
As such, in Pennsylvania, the filing of a praecipe for writ is sufficient to commence a civil
action and toll the statute of limitations. As applied in Heater, therefore, counsel's filing of a
praecipe for writ of summons on the 90th day was initially sufficient to satisfy the
commencement requirement and toll the limitations period.
Pennsylvania rules require that a writ must be served within 30 days after issuance.
However, a 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. Moreover, each re-
issuance gives rise to another tolling period equal to the statutory limitations period.
Practically, under the anti-discrimination laws, each re-application for a writ in state court
extends the period to file a complaint by an additional 90 days.
As applied to Heater's actions, the EEOC issued the right-to-sue letter on Aug. 27, 2004,
and the 90-day limitations period began to run on Aug. 30. The first writ was issued on the
90th day. Importantly, the court observed that in addition to filing the praecipe for a writ,
counsel also prepared the appropriate documentation for the local sheriff to serve the writ
upon KidsPeace. Heater's counsel had, therefore, done all that was necessary to toll the
limitations period for an additional 90 days. The multiple reissuances tolled the statute of
limitations for an additional ninety days until the sheriff's office finally served it upon
KidsPeace in late March.
Based upon the extended tolling of the 90-day limitations period, the court found that the
writ of service was timely served.
The court then addressed whether the complaint, which was not filed until July 13, was
timely filed under Pennsylvania law.
Initially, the court noted that the Pennsylvania Supreme Court has held that where an action
is initiated by filing a praecipe for a writ of summons, "there is no time limit within which
the plaintiff must file the complaint." Timely service of the writ satisfies the statute of
In order to prevent cobwebs from gathering on a writ of summons, Pennsylvania law allows
a defendant to request the prothonotary to order the plaintiff to file a complaint. Under
Pennsylvania Rule 1037, "if a complaint is not filed within 20 days after service of the rule
[to file a complaint], the prothonotary, upon praecipe of the defendant, shall enter a
judgment of non pros."
In Heater, KidsPeace moved to dismiss the complaint as untimely, but had never sought a
"rule to file a complaint" under Pennsylvania Rule 1037. Federal courts interpreting
Pennsylvania procedures have held that a defendant seeking dismissal of a complaint
following a writ of summons must do so under Rule 1037, not under the statute of
limitations. As such, KidsPeace's motion to dismiss for filing an untimely complaint was
The question that remains unanswered is why Heater's counsel chose to file in the court of
common pleas in the first place, rather than simply filing directly in the federal court.
Nevertheless, the case highlights that employment law practitioners may need to dust off
their Pennsylvania Rules of Civil Procedure from time to time when federal claims are
brought in state court.
Sid Steinberg is a partner in Post & Schell's business law and litigation department. He
concentrates his national litigation and consulting practice in the field of employment and
employee relations law. Steinberg has lectured extensively on all aspects of employment
law, including Title VII, the FMLA and the ADA.