Opinion
No. 79-477.
April 22, 1980.
Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.
ORDER
On consideration of appellant's petition for rehearing en banc, and it appearing that the Court has voted unanimously to grant the petition, it is
ORDERED that appellant's petition for rehearing en banc is granted and that the opinion and judgment of February 22, 1980, 412 A.2d 13, are hereby vacated. The Clerk of the Superior Court is directed to return the certified copy of the judgment and opinion heretofore transmitted in lieu of mandate on March 17, 1980.
The en banc Court will consider the question of whether or not it should overrule Criterion Insurance Company v. Lyles, D.C.App., 244 A.2d 913 (1968), and the later cases relying thereon in favor of adopting the construction given to Fed.R.Civ.P. 3 by the federal court decisions which provide that the filing of the complaint, by itself, is sufficient to toll the running of the statute of limitations. See Walko Corp. v. Burger Chef Systems Inc., D.C. Cir., 554 F.2d 1165, 1167 n. 19 (1977); International Controls Corp. v. Vesco, 2nd Cir., 556 F.2d 665, 669 (1977); Windbrooke Development Corp. v. Environmental Enterprises Inc. of Fla., 5th Cir., 524 F.2d 461 (1975); United States v. Wahl, 6th Cir., 583 F.2d 285 (1978); Dewey v. Farchone, 7th Cir., 460 F.2d 1338 (1972); Moore Co. v. Sid Richardson, 8th Cir., 347 F.2d 921 (1965); Hoffman v. Halden, 9th Cir., 268 F.2d 280 (1959); Isaacks v. Jeffers, 10th Cir., 144 F.2d 26 (1944).
Counsel on or before Monday, May 5, 1980, shall notify the Clerk of this Court whether they desire to submit supplemental memoranda and whether they desire oral argument or are willing to have the case submitted without argument before the en banc Court.